On June 21, 2019, Her Excellency, the Governor General of Canada gave Royal Assent to Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (the Act), marking an historic moment in the evolution of the military justice system by aligning it with the civilian criminal justice system in several important ways while respecting the unique requirements of the military justice system, and simplifying and enhancing military discipline at the unit level.

The Act introduces the Declaration of Victims Rights into the Code of Service Discipline, enshrining rights for victims of service offences within the military justice system. The Act includes sentencing principles related to gender-identity and expression and Indigenous offenders considerations. Finally, the Act reforms the summary trial process into a non-penal, non-criminal summary hearing process.

“Our people are at the heart of these changes,” says Defence Minister Harjit S. Sajjan. “The women and men of our Canadian Armed Forces make great sacrifices every day in service to our country. They deserve a military justice system that is fair, efficient, and one that is aligned with Canada’s civilian criminal justice system — that takes a more victim-centred approach to justice and gives victims a voice. These changes will ensure that the military justice system remains an important tool in promoting discipline, efficiency and morale in the Canadian Armed Forces.”

The Declaration of Victims Rights gives victims of service offences rights to information, protection, participation and restitution. These rights mirror those found in the Canadian Victims Bill of Rights, which received Royal Assent on April 23, 2015, and their introduction aligns the victims’ rights available in the military justice system with those available in the civilian criminal justice system. In addition, because of the unique nature of the military justice system, some aspects of the Act, such as the Victim’s Liaison Officer provisions, extend beyond what is contained in the Canadian Victims Bill of Rights. The Victim’s Liaison Officer will assist the victim by explaining how service offences are charged, dealt with and tried under the Code of Service Discipline, and by obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under the Declaration.

The Act adds provisions that mirror the Criminal Code by setting out that evidence that a service offence or service infraction was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that must be taken into consideration when a sentence or sanction is imposed.

Additionally, the Act adds the Indigenous offender sentencing provision mirrors the Criminal Code provision known as the Gladue principle. The new provision requires service tribunals to pay particular attention to the circumstances of Indigenous offenders when considering the appropriate punishments. The punishment must be reasonable in the circumstances and consistent with the harm done to victims or to the community.

Finally, the Act reforms the summary trial process into a non-penal, non-criminal summary hearing process designed to address minor breaches of military discipline. This will allow minor breaches of military discipline to be addressed at the unit level, enhancing the military justice system’s ability to maintain fast, fair and effective discipline.

The new summary hearing process will enhance the responsiveness, efficiency, and effectiveness of military discipline at the unit level, contributing to the operational effectiveness of the Canadian Armed Forces.

“The military justice system is evolving, but continues to serve the interests of Canadians and their armed forces,” says General Jonathan Vance, Chief of the Defence Staff. “These changes ensure that the military justice system remains highly relevant in contributing to our operational effectiveness by empowering our people to maintain discipline, assuring that our profession is prepared for the challenges of the conflicts to come while taking care of our personnel and their professional interests.”

Modernization of the military justice system will enable the Canadian Armed Forces to accomplish its many vital objectives, both at home and abroad.

“This Act underscores our continued commitment to supporting victims of service offences, and to being a leader in the development of a fair and effective military justice system,” says Commodore Geneviève Bernatchez, Judge Advocate General of the Canadian Armed Forces. “It reinforces Canada’s position as a global leader in the continued growth of a military justice system — one that evolves in harmony with contemporary Canadian law while respecting the unique requirements of the military justice system.”

Upon receiving Royal Assent, certain sections of the Act came into force, such as those concerning sentencing principles related to gender-identity and expression and Indigenous offenders considerations, and criminal records.

More specifically, the following amendments, applicable to both summary trials and courts martial, came into force upon Royal Assent of the Act:

• evidence that a service offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes aggravating circumstances that must be taken into consideration when a sentence is imposed;
• particular attention is to be afforded to the circumstances of Indigenous offenders when considering the appropriate punishments. The punishment must be reasonable in the circumstances and consistent with the harm done to victims or to the community, including the Canadian Armed Forces; and
• a person convicted of certain service offences will not have a criminal record when the person is sentenced to one or more of the following punishments: severe reprimand, reprimand, fine not exceeding basic pay for one month or minor punishment.

The remaining provisions of the Act will come into force at a later date along with related provisions amending the Queen’s Regulations and Orders for the Canadian Forces.