Order Fixing June 20, 2022 as the Day on Which Certain Sections of that Act Come into Force: SI/2022-20

Canada Gazette, Part II, Volume 156, Number 8

Registration
SI/2022-20 April 13, 2022

AN ACT TO AMEND THE NATIONAL DEFENCE ACT AND TO MAKE RELATED AND CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

Order Fixing June 20, 2022 as the Day on Which Certain Sections of that Act Come into Force

P.C. 2022-272 March 25, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence, pursuant to section 68 of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, chapter 15 of the Statutes of Canada, 2019, fixes June 20, 2022 as the day on which sections 1 to 62 of that Act come into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to section 68 of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (the Act), chapter 15 of the Statutes of Canada, 2019, this Order in Council (OIC) fixes June 20, 2022, as the day on which sections 1 to 62 of the Act come into force.

Objective

To amend the National Defence Act (NDA) to strengthen the military justice system by aligning it with the civilian criminal justice system while respecting the unique requirements of the military justice system. The Act will introduce the Declaration of Victims Rights (DVR) to the Code of Service Discipline (CSD), enshrining rights for victims of service offences within the military justice system. In addition, it will effect complementary changes to many court martial processes and reform the summary trial process into a non-penal, non-criminal summary hearing process intended to address minor breaches of discipline at the unit level.

Background

The Act, which received royal assent on June 21, 2019, brought into force certain sections of the Act pertaining to sentencing principles related to gender identity and expression, Indigenous offender considerations, and criminal records. However, many sections of the Act were not brought into force upon royal assent as further development was required to support associated regulatory amendments necessary to give proper force and effect to the new legislative provisions.

This OIC will bring into force the majority of the remaining sections of the Act pertaining to the DVR, changes to many court martial processes, and the reform of unit-level disciplinary processes.

The vast majority of the NDA sections being brought into force through this OIC will be found in the CSD located in Part III of the NDA. The CSD is the foundation of the military justice system. It sets out disciplinary jurisdiction over Canadian Armed Forces (CAF) members and other persons and currently provides for service offences that are essential to the maintenance of discipline and the operational effectiveness of the CAF. It also sets out the procedures and organization of court martial and summary trials, the jurisdiction of various actors in the military justice system, punishments, powers of arrest, post-trial review and appeal mechanisms.

An example of changes brought to the NDA by the Act pertains to the Government’s promise to promote reconciliation and renew its relationship with Indigenous peoples. For example, as a principle of sentencing, court martial judges must consider the particular circumstances of Indigenous offenders. Further, as a principle of sanctioning, officers conducting a summary hearing must consider whether the service infraction was motivated by such things as bias, prejudice or hate based on race, national or ethnic origin, language, and colour. The Act demonstrates the Government’s determination to ensure that military justice is efficient. The amendments that will be made by the Act are in line with what the Government is doing to eliminate harmful and inappropriate behaviour within the CAF, and the changes made by the Act will help create a positive, respectful environment within the CAF.^{footnote 1}

In order to support the coming into force of the Act, The Queen’s Regulations and Orders for the Canadian Forces (QR&O) will be amended. The QR&O are the subordinate regulations governing the CAF and aside from the NDA, are the primary source of law for the CAF. The required regulatory amendments to the QR&O are made under the authority of the Governor in Council (GIC), the Treasury Board (TB), and the Minister of National Defence. Changes to the QR&O are also made by orders issued by the Chief of the Defence Staff.

The regulatory amendments will ensure an alignment between the new NDA provisions and the supporting QR&O provisions. A misalignment would create confusion and could negatively impact the confidence that CAF members and the Canadian population must have in the military justice system. All the proposed regulatory amendments will come into force on the same day as the amendments brought to the NDA by the Act.

In addition to the coming into force of the provisions of the Act contained within this OIC, sections 21 to 31 of the Not Criminally Responsible Reform Act, formerly Bill C-14, will come into force on the same day via a separate order in council. Bill C-14 amends provisions of the NDA dealing with mental disorder; further aligning it with the Criminal Code. This will allow a coordinated coming into force of the various provisions of each statute.

As stated by the Supreme Court of Canada in the decision of R. v. Moriarity, the purpose of Canada’s military justice system is “to maintain discipline, efficiency and morale in the military.” To achieve this purpose, it must operate expeditiously and fairly while remaining consistent with Canadian law, including the Canadian Charter of Rights and Freedoms. To remain both relevant and legitimate, the military justice system must evolve with the law while remaining responsive to its core mandate. Bringing the Act and Bill C-14 and supporting regulations into force at the same time best supports this evolution.

Implications

The OIC brings into force amendments to the NDA aimed at strengthening and streamlining the military justice system and will include the following:

• Statutory rights for victims of service offences: The DVR will give victims of service offences rights to information, protection, participation and restitution. These rights mirror those found in the Canadian Victims Bill of Rights and their introduction will align the victims’ rights available in the military justice system with those available in the civilian criminal justice system. Specifically, the Act will introduce the following statutory rights for victims of service offences:
  • Right to information: Victims will have the right to general information about the military justice system and the role of the victim in it, the available victims services and programs, the right to file a complaint for an infringement or denial of any of their rights under the DVR, as well as information about the status and outcome of the investigation and proceedings.
  • Right to protection: Victims will have the right to have their security and privacy considered and to have reasonable and necessary measures taken to protect them from intimidation and retaliation.
  • Right to participation: Victims will have a right to convey their views about decisions to be made by military justice system authorities and to have those views considered.
  • Right to restitution: Victims will have the right to have the court martial consider making a restitution order against the offender.
• Victim’s liaison officer: Due to the unique nature of the military justice system, some aspects of the Act, such as the Victim’s liaison officer (VLO) provision, extend beyond what is contained in the Canadian Victims Bill of Rights. Victims of service offences can be members of the CAF and their families as well as members of the broader public, some of whom may be unfamiliar with the military justice system. To help ensure that victims of service offences are properly informed and positioned to access their rights, a VLO will be appointed on the request of the victim to provide assistance by explaining how service offences are charged, dealt with, and tried under the CSD and by obtaining and transmitting to the victim any requested information to which the victim has a right.
• Complaints mechanism: Victims of service offences will be afforded the right to file a complaint where they are of the opinion that their rights under the DVR have been infringed or denied.
• Complementary changes to court martial proceedings: A number of complementary changes are going to be made to court martial proceedings. The court martial will be required to consider community impact statements describing the harm or loss suffered by the community as a result of the commission of a service offence and the impact of the offence on the community. The court martial will also be required to consider military impact statements describing the harm done to discipline, efficiency, or morale within the CAF as a result of the commission of a service offence and the impact of the offence on the CAF.
• Victims’ rights at court martial: To ensure that victims of service offences are able to exercise their rights under the DVR, complementary changes to many court martial processes will be made. Specifically, to protect vulnerable witnesses, a court martial will be authorized to make certain orders such as ordering the non-disclosure of witness’s identity, permitting a support person to be present, allowing testimony outside the courtroom and preventing an accused person from personally cross-examining a witness.
• New offences punishable on summary conviction: To help ensure certain court martial orders are not breached, new offences will be added to the NDA. They include prohibiting the broadcast or transmission of certain information or, in certain cases, failing to comply with an order restricting publication about information that could identify the victim or a witness.
• New summary hearing process: Military discipline at the unit level will be simplified and enhanced by replacing the summary trial process with a non-penal, non-criminal summary hearing process that is limited in jurisdiction to service infractions. The court martial will retain sole jurisdiction over service offences. The summary hearing process will address minor breaches of discipline at the unit level.
• Service infractions: Summary hearings will be limited in jurisdiction to service infractions (to be created in regulations). Service infractions will not be considered an offence under the NDA and will not result in a criminal record.
• Sanctions: Sanctions imposed for service infractions will include one or more of the following: reduction in rank, severe reprimand, reprimand, deprivation of pay and allowance, and minor sanctions prescribed in regulations.
• Gender identity and expression — service infraction: An aggravating circumstance to be taken into consideration when a sanction is imposed is whether the service infraction was motivated by bias, prejudice or hate based on gender identity or expression.

It is anticipated that the implementation of the DVR will benefit victims and will increase trust in the military justice system. It is expected that these legislative and regulatory changes implementing the DVR will encourage more victims to report service offences, knowing that they will have a voice in the process and that they will have similar rights to the ones accorded by the civilian criminal justice system.

In addition, the legislative and regulatory changes to implement the summary trial reform will improve the chain of command’s ability to address minor breaches fairly and more rapidly. This will generally enhance the responsiveness and efficiency of the military justice system, thereby contributing to the operational effectiveness of the CAF.

Consultation

Officials from the CAF led the legislative initiatives surrounding these amendments. These initiatives have been undertaken in consultation with the Department of Justice and the Office of the Judge Advocate General. The Office of the Judge Advocate General benefited from the overall consultation of the civilian criminal justice system when it enshrined the Canadian Victims Bill of Rights in Canadian legislation.

Contact

Colonel J.D. Wry
Deputy Judge Advocate General — Military Justice
Office of the Judge Advocate General
National Defence Headquarters
101 Colonel By Drive, 7th Floor
Ottawa, Ontario
K1A 0K2
Telephone: 613‑943‑3415
Email: jill.wry@forces.gc.ca