Bill C-66: An Act to amend the National Defence Act and other Acts (Military Justice System Modernization Act)

Tabled in the House of Commons, May 30, 2024

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms (Charter). By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-66, the Military Justice System Modernization Act, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-66 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Overview

The National Defence Act provides for a system of military justice designed to maintain discipline, efficiency and morale in the Canadian Armed Forces (CAF). Canada’s military justice system operates in parallel to, and in many respects mirrors, the civilian justice system. Bill C-66 would introduce changes to the National Defence Act aimed at modernizing the military justice system and responding to recommendations made by two former justices of the Supreme Court of Canada. In addition, the bill would amend the National Defence Act and the Criminal Code to harmonize the military justice system with recent changes to the civilian system. These amendments would make changes affecting the registration of sex offender information and the availability of publication bans.

Enhancing the independence of military justice actors (section 7 of the Charter)

First, the bill would implement certain recommendations made by the Honourable Morris J. Fish in the Report of the Third Independent Review Authority to the Minister of National Defence. In particular, the bill would introduce changes aimed at enhancing the independence of three military justice actors – the Director of Military Prosecutions, the Director of Defence Counsel Services, and the Canadian Forces Provost Marshal, whose title would be changed to Provost Marshal General. These key military justice actors would be appointed by the Governor in Council.
The National Defence Act would further specify that the Director of Military Prosecutions and the Director of Defence Counsel Services hold office during good behaviour. These two officeholders could be removed from office or subject to other disciplinary or remedial measures following an inquiry conducted by a superior court judge – as described in greater detail below. Moreover, the National Defence Act would allow the Minister of National Defence to give the Director of Military Prosecutions written instructions or guidelines regarding a particular prosecution. Currently, it is the Judge Advocate General who has the power to issue such instructions or guidelines.

Section 7 of the Charter protects against the deprivation of an individual’s life, liberty or security of the person unless done in accordance with the principles of fundamental justice. Because CAF members tried by court martial may be sentenced to imprisonment and deprived of their liberty, section 7 is engaged, and military prosecutions must occur in accordance with the principles of fundamental justice.

The Supreme Court of Canada has recognized prosecutorial independence as a principle of fundamental justice under section 7 of the Charter. Consequently, the changes related to the appointment and tenure of the Director of Military Prosecutions, as well as the Minister’s power to issue written instructions or guidelines regarding a particular prosecution, might be perceived as engaging section 7. However, the principle of prosecutorial independence has not been found to require particular institutional arrangements related to the appointment or role of heads of prosecution. Rather, the principle requires prosecutors to exercise their discretion in an independent manner, without any improper motives. Nothing in the bill would negatively impact the Director of Military Prosecutions’ duty or ability to make prosecutorial decisions without being influenced by partisan concerns or other improper considerations.

Inquiry regarding disciplinary or remedial measures (section 2(b) of the Charter)

The bill proposes that the Director of Military Prosecutions and the Director of Defence Counsel Services could be subject to disciplinary or remedial measures following an inquiry conducted by a superior court judge. The National Defence Act would specify that any such inquiry must be conducted in public. However, the judge holding the inquiry would have the ability to take measures to ensure the confidentiality of the proceedings. Confidentiality measures would be available to address three concerns: to avoid the disclosure of matters involving international relations, national defence or national security; to address a real and substantial risk to the fairness of the inquiry, such that the need to prevent disclosure outweighs the societal interest in holding the inquiry in public; and, to address a serious possibility that the life, liberty or security of a person will be endangered.

Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It includes the “open court principle” whereby members of the public have a right to receive information related to judicial proceedings. Because publication bans limit access to information related to judicial proceedings, such as the names of victims and witnesses, they engage the open court principle. The following considerations support the consistency of the publication ban provisions with the Charter.

Under the proposed amendments, a judge would only be able to adopt confidentiality measures after considering all available alternatives, ensuring that any limits on access to information are truly necessary. Moreover, measures would only be available to address three serious, narrowly defined concerns: the disclosure of matters involving international relations, national defence or national security; a real and substantial risk to the fairness of the inquiry; and, a serious possibility that the life, liberty or security of a person will be endangered. Where there are concerns about the fairness of the inquiry, a judge could only make a confidentiality order after weighing the need to prevent disclosure against society’s interest in holding the inquiry in public. The proposed amendments thereby strike a balance between legitimate concerns that could justify confidentiality and the importance of open proceedings and access to information.

Jurisdiction over sexual offences (section 11(d) of the Charter)

In the Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (Arbour Report), the Honourable Louise Arbour made recommendations aimed at addressing the seriousness of sexual harassment and abuse in the military and better responding to the needs of victims and survivors of sexual violence. In particular, she recommended that all sexual offences alleged to have been committed by CAF members should be investigated and prosecuted within the civilian justice system. Currently, the military and civilian justice systems have concurrent jurisdiction over Criminal Code sexual offences alleged to have been committed in Canada.

In response to the Arbour Report, the bill would remove CAF jurisdiction to investigate Criminal Code offences that are of a sexual nature or that are committed for a sexual purpose, where the offences are alleged to have been committed in Canada. Likewise, the bill would remove the jurisdiction of the military justice system to try people charged with such offences. As a result, the investigation and prosecution of people accused of committing sexual offences in Canada would fall to civilian law enforcement authorities and the civilian justice system.
Military authorities would continue to exercise their powers, duties and functions while waiting for the appropriate civilian authorities to arrive – including making arrests, conducting searches incident to arrest, and securing or preserving evidence. The bill would require military authorities to transfer any evidence and any individuals who have been arrested to the appropriate civilian authorities as soon as feasible.

Section 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Because the prosecution and trial of sexual offences would be assumed by competent Canadian civilian authorities, anyone subject to the Code of Service Discipline facing criminal charges would continue to receive a fair and public hearing by an independent and impartial tribunal.

Aligning the military justice system with recent changes to the civilian system

In October 2023, former Bill S-12 received Royal Assent, making changes to the Criminal Code and the Sex Offender Information Registration Act. Former Bill S-12 included amendments aimed at responding to the Supreme Court of Canada decision in R. v. Ndhlovu and strengthening the operation and enforcement of the sex offender registration regime. In addition, it introduced changes to the legal framework governing publication bans, in order to make the criminal justice system more responsive to the diverse needs of victims and survivors of sexual assault. Bill C-66 would bring the National Defence Act in line with the changes made to the civilian justice system when former Bill S-12 was enacted.

Sex offender registration (section 7 of the Charter)

Orders and obligations to comply with the Sex Offender Information Registration Act (SOIRA)

Bill C-66 would amend the National Defence Act definition of “designated offence,” in respect of which a SOIRA order may be made. The bill would amend the definition to distinguish between “primary offences,” which are inherently sexual in nature, and “secondary offences,” which are non-sexual offences but may be committed for a sexual purpose. The bill would incorporate the definitions of primary and secondary offences that were added to the Criminal Code through former Bill S-12.

To align the military justice system with the civilian system, the bill would modify the approach to mandatory registration and mandatory lifetime SOIRA orders. The bill would limit mandatory SOIRA orders to two circumstances involving particularly serious or repeat sexual offences. First, registration under SOIRA would be required in relation to sexual offences against a child where a prison sentence of two years or more is imposed. Second, registration would be required for repeat sexual offenders who have been previously convicted of a primary offence or who were previously subject to a SOIRA order.

In all other circumstances, there would be a presumption of registration, but the judge would retain discretion not to make a SOIRA order if the individual can establish that the order would have grossly disproportionate effects on them, or that making the order would have no connection to the purpose of helping police prevent or investigate sexual offences. The bill sets out factors to be considered by the court in exercising its discretion. These factors would include: the nature and seriousness of the offence; the age and personal characteristics of the victim; the relationship between the person and the victim; the personal characteristics and circumstances of the person along with their criminal history; and, the opinions of any experts who have examined the person.

The bill would modify the approach to lifetime SOIRA registration. For individuals convicted or found not criminally responsible in relation to a designated offence, a SOIRA order would apply for life if the individual had been previously convicted of a primary offence or was previously subject to a SOIRA obligation. In cases where a person is convicted or found not criminally responsible in relation to more than one designated offence in the same proceeding, a lifetime order would be required if the court is satisfied that the offences demonstrate a pattern of behaviour showing that the person presents an increased risk of committing a crime of a sexual nature in the future. Where the court is not satisfied that the person presents an increased risk of reoffending, the duration of the SOIRA order would be based on the designated offence with the longest maximum term of imprisonment.

Termination orders

The bill would further ensure consistency with the civilian justice system by amending the National Defence Act provisions that allow offenders to apply to have their SOIRA orders terminated. First, the bill would allow individuals found not criminally responsible on account of mental disorder to apply for a termination order if they receive an absolute discharge from a Criminal Code Review Board. An absolute discharge is only available where the Review Board concludes that the person does not pose a significant threat to the safety of the public. Such individuals would be eligible to apply for a termination order, in the same way that convicted offenders can apply for a termination order upon receiving a pardon or record suspension.
In addition, the bill would align the test that applies to SOIRA termination orders with the test that applies at the time of registration. A court martial would be authorized to grant the termination order if continued registration would be grossly disproportionate in its impact on the person or would not be connected to the objective of helping police investigate or prevent sexual crimes.

Exemptions for individuals currently subject to mandatory orders

Former Bill S-12 created a framework for individuals who were subject to SOIRA orders as a result of the provisions found unconstitutional by the Supreme Court of Canada to apply to a civilian court for relief. Bill C-66 would provide a parallel mechanism under the National Defence Act for such applications.

Individuals who were placed on the registry between the date that the mandatory registration provision came into force and the date when Bill C-66 comes into force would be eligible to apply for an exemption from the registry. Likewise, individuals who were subject to mandatory lifetime registration because they were convicted of multiple offences in the same proceeding could apply to have the length of their order varied. The application for a SOIRA exemption or variation would be considered by a court martial or by a civilian court under the corresponding provisions of the Criminal Code. The test for granting an exemption would mirror the test and the criteria that apply at the time of registration, as described above.

Charter considerations

Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

A SOIRA order involves a range of obligations that affect liberty interests under section 7. These obligations include the requirement to attend annually at a particular place and time, as well as the requirement to provide specified information to registry authorities on an ongoing basis. Failure to comply with these obligations can result in imprisonment. Accordingly, the amendments outlined above, which create the authority to make SOIRA orders and set out the availability of termination and exemption orders, must comply with the principles of fundamental justice. The following considerations support the consistency of these amendments with section 7.

The additions and clarifications to the definition of “designated offence” under the National Defence Act all involve conduct that is related to the objectives of SOIRA. A SOIRA order can only be made in respect of secondary offences – which are not inherently sexual in nature – where the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit a primary offence. Adding the proposed offences to the definition of designated offence is connected to the objective of helping police prevent or investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.

Mandatory registration would be limited to two circumstances involving particularly serious conduct that is associated with a heightened risk of reoffending – serious sexual offending against children and repeat sexual offending. In all other cases, the court martial would have the discretion not to make the SOIRA order where a person establishes that the order would not be connected to the objectives of SOIRA or would be grossly disproportionate in its effects.
The imposition of mandatory lifetime orders on individuals who have previously been convicted of a primary offence or who have previously been subject to SOIRA obligations is connected to the legislative objectives. A person who has committed designated offences on separate occasions has, through their conduct, demonstrated a heightened risk of reoffending. For offenders convicted of multiple designated offences in the same proceedings, the court martial would be required to impose a lifetime order if it is satisfied that the offences demonstrate a pattern of behaviour that is consistent with a heightened risk of reoffending. This would preserve the court martial’s discretion not to make a lifetime order where the individual’s conduct does not demonstrate a heightened risk.

The bill would provide a framework under the National Defence Act for individuals who are currently subject to SOIRA orders as a result of unconstitutional provisions to apply for a personal remedy. Offenders could not receive exemptions if the conduct that gave rise to their SOIRA orders involved serious sexual offending against children or repeat offending. In other circumstances, offenders could seek an exemption order – and the removal of their information from the registry – on the basis that the order was unconnected to the objectives of SOIRA or grossly disproportionate in its effects. Similarly, offenders subject to mandatory lifetime registration could apply to have their SOIRA order shortened in appropriate cases.

Publication bans (section 2(b) of the Charter)

Publication bans prevent the dissemination of identifying information about victims, witnesses, or, in certain circumstances, the accused. They aim to allow victims and witnesses to participate in the justice system without suffering negative consequences associated with their identities being made public, and to encourage the reporting of offences that are under-reported, such as sexual offences. Publication bans are discretionary in many circumstances, but mandatory in certain cases – for instance, in proceedings where the victim is under 18 and where the prosecutor or the victim applies for an order prohibiting the publication of their identity.

The bill would make a number of amendments to the National Defence Act provisions governing publication bans, in line with the changes to the Criminal Code made by former Bill S-12. If adopted, the amendments would apply to court martial proceedings under the National Defence Act. Matters tried within the civilian justice system would proceed in accordance with the parallel provisions in the Criminal Code, even where the accused is a CAF member.

First, the bill would add the offence of publishing an intimate image without consent to subsection 183.5(1) of the National Defence Act, which lists offences in respect of which a publication ban is mandatory upon application by the prosecutor, victim, or any witness under age 18. Second, if a prosecutor applies for a publication ban, the bill would impose duties on the military judge and the prosecutor to ensure that any victims or witnesses who would be affected by the publication ban are informed and that the court is aware of their wishes. Further, it would clarify that individuals who are affected by publication bans are entitled to speak about themselves and their own experiences, as long as they do not reveal the identity of other people protected by a publication ban. It would also clarify that victims and witnesses who are affected by publication bans are entitled to disclose information in private, including when speaking with legal professionals, health care professionals, and other people they trust. Finally, the bill would strengthen the process by which individuals can apply to have a publication ban revoked or modified.

As explained above, section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It includes the “open court principle” whereby members of the public have a right to receive information pertaining to judicial proceedings. Because publication bans limit access to information pertaining to judicial proceedings, such as the names of victims and witnesses, they engage the open court principle under section 2(b). The following considerations support the consistency of the publication ban provisions with the Charter.

The publication ban provisions in the National Defence Act are intended to strike a balance between the privacy of victims and witnesses on one hand and the open court principle on the other. They aim to allow victims and witnesses to participate in the justice system without suffering negative consequences associated with their identities being made public and to encourage the reporting of offences that are under-reported, such as sexual offences. Except in certain specific circumstances – including cases involving sexual offences, child pornography, or victims under 18 – judges retain discretion as to whether the order should be made and what its scope should be.

The proposed amendments would enhance respect for the autonomy of victims and witnesses and minimize any interference with the open court principle. The proposed publication ban provisions would create mechanisms to permit access to information about court martial proceedings in circumstances where the individuals a publication ban is intended to protect do not wish it to apply. By clarifying the circumstances in which people affected by publication bans may speak about their own experiences, the bill would help victims and witnesses avoid unnecessary self-censorship. Further, by creating structures to ascertain the wishes of victims and witnesses and to vary and revoke publication bans, the bill would minimize unnecessary restrictions on expression and access to information.