MP Mathyssen Speaks on Bill C-66, An Act to amend the National Defence Act and other Acts

Madam Speaker, today is an important day for many survivors. I want to begin by recognizing the women and men who are watching this debate on the bill today. There are generations of survivors of military sexual trauma who will be closely following this legislation. I have heard from many of them. They told me about how they felt invisible. Some have felt invisible to the institution they committed their lives to in the Canadian Armed Forces. Some have felt invisible to the senior leadership of the military they served. Some have felt invisible to the greater public, who do not know all the complex layers of their experiences. Some have felt invisible to us, the few hundred Canadians with the rare privilege to serve in the House of Commons, who hold a sacred obligation as decision-makers to protect those who protect us.

Every day these survivors are working for change. They build resilience by supporting and holding each other up when the institutions will not. They empower each other and assist with making claims when institutions will not. They organize and demand reforms to politicians when our priorities do not meet them where they are at. They come together to support each other when they choose to make the impossible decision to share and reshare their trauma to the media or to parliamentary committees.

Today is another chapter in their fight. I want to highlight this to the women and men watching, to those brave survivors. This piece of legislation is not the last chapter, but one step in a large list of changes that are needed, and I am with them. We will not stop until there is justice for survivors and until everyone who steps up to serve their country can do so in a safe environment. I want them to know they are not invisible. They are remarkable and they are not alone.

Today, I am pleased to speak to Bill C-66, the military justice system modernization act which, among other things, is legislating Justice Arbour's fifth recommendation of the independent external review to remove criminal sexual offences from the military justice system. This will give exclusive jurisdiction to the civilian justice system.

This legislation also works to implement some of the recommendations by Justice Fish's third independent review of the National Defence Act, expanding the eligibility criteria to be appointed as a military judge to allow non-commissioned members to become judges, not just military officers. This legislation removes the minister's power of appointing and removing the director of military prosecutions

I do not have enough time to speak about all of the ideas that I heard, but some of the feelings and ideas need to make it to the committee study. I would like to provide a bit of context today during my speech.

First and foremost, we need to end the framing of this problem as a criminal justice issue alone. It is easy to say the sexual misconduct scandal was carried out by a few bad apples, that it was the old boys' club covering up for their buddies and, by swapping people around, we could end it or that this is about a handful of truly horrific random acts of violence. Criminal sexual offences do not happen out of nowhere. This is a result of a permissive environment, a culture where gendered and power dynamics are encouraged, a culture that allows powerful men to test and push boundaries over and over without anyone speaking up.

If we only focus on criminal justice reform and not the tough conversations around institutional culture change, we are not doing justice for survivors. It is not enough to just hold perpetrators accountable. We must get to the roots and prevent sexual violence. We cannot put all the resources and energy for change into a legal reform basket. We need a top-down review of the CAF, from recruitment, training, the health care system, promotions and so much more.

I also heard concerns that a Criminal Code focus of this bill is not addressing the escalatory nature of sexual misconduct and could create problems with drawing the line between acceptable and unacceptable behaviour. I heard that many survivors have lost faith in the justice system as a whole and the divide between faith in civilian versus military justice does not address that loss of faith. The problems of the civilian justice system must be addressed.

I heard concerns that this legislation could continue that rotten-apple theory, that the problem is a handful of powerful perpetrators that need to be stopped instead of a wider institutional and cultural driver. I heard that there needs to be more options for survivors to get justice, not less. There needs to be greater opportunities and supports toward pursuing human rights court cases and non-criminal cases, as well as opportunities for restorative justice. Survivors need more agency and more say in how their cases move forward.

I heard that survivors need greater supports and information, including legal services, prior to reporting to be fully informed on the process. I heard many conversations about whether the bill is protecting investigations from chain of command interference. There are concerns around civilian police gaining access to conduct new investigations, collect evidence and accessing necessary information for historical cases.

I heard concerns about the expertise and preparedness of the civilian system to handle military cases. This included concerns about local police units and connections with current or former military personnel within those institutions, about resources of civilian police, jurisdictions between and across provinces willing to open complex cases, the ability to understand and access military records and spaces and the need for a dedicated national team to handle these cases, instead of local police units.

I heard concerns about the creation of new senior positions, changes to military judge appointments and the need to ensure accountability, scrutiny of appointments and opening to voices outside of that old guard. I heard concerns about pursuing aspects of a criminal case that are illegal under the National Defence Act, but are not currently codified in the Criminal Code of Canada. I heard of the need to ensure that this reform is not set in stone forever and that research and legislative reviews are proactively scheduled to ensure this legislative change is having the intended impact.

I heard strong concerns about international misconduct cases, including the collection and preservation of evidence and the ability of the military justice system to handle these cases. I heard strong concerns that the members of the cadets, the reserves, the navy and civilian employees on base were not adequately considered in this legislation. I heard strong concerns that members who are not on base cannot access the same quality of services and supports and that new supports in this bill do not adequately address this gap.

I heard that the new rules on the victims' liaison officer positions need to be reconsidered and strengthened and that there is a need for a legal and policy advocate independent from the chain of command. I heard some talk about the importance of underlining that this is not only a women's issue and to increase outreach to all service members.

That is just a bit of what I heard, but there was one unified message from everyone that we spoke to: this bill is simply not enough. This cannot be the be-all and end-all. Survivors will not remain invisible. Culture change is not something that happens overnight, and I understand that, nor can it be fixed by one piece of legislation. This is an issue on which the government and all of us in this place must be committed.

We brought this study to the status of women committee, and I heard the stories of these brave survivors. I promised them and myself that I would fight for them and I am honoured that they trusted me with their experiences and asked me to help them make the change. I can never forget that promise. I now serve as the critic for national defence, and I have used every opportunity to push for that change. I have challenged every minister, every departmental official and every senior CAF official to move on the long list of recommendations that can create meaningful culture change.

The Canadian Armed Forces has been criticized for being slow to enact recommendations from these reports. Justice Arbour emphasized the need for greater civilian input and oversight within the military to cut through the systemic resistance to change. When the current President of the Treasury Board was the minister of national defence, she announced, on December 13, 2022, that she would accept all of Justice Arbour's recommendations and bring forward a plan to enact these changes, including this legislation. The government announced an immediate transfer of all active criminal sexual investigations to civilian courts. However, this did not happen entirely. Approximately half of cases remained in the military justice system without a clear explanation as to why.

Of the cases that were transferred, the existing concurrent jurisdiction between the military police and civilian authorities caused major problems. Retired Corporal Arianna Nolet was one of the first military sexual trauma victims to have her case transferred to civilian courts. Last September, her case was stayed due to time delays in the back-and-forth between military and civilian police. The cause of the delays was twofold. First, civilian authorities were wary of taking over the case and, due to concurrent jurisdiction, they were not mandated to accept the case. Second, the transfer of the case files by the military police was significantly delayed. Military police dragged their feet every step of the way, leaving what the judge called an “albatross of nine months of delay under the military justice system clasped suddenly around [the case's] neck, [which] was irretrievably locked up in the civilian system”. That albatross meant a survivor was denied her day in court. The case was thrown out of court under timely-trial rules. When that case was thrown out, the minister of defence said it was a unique circumstance, but we have seen several cases have the same fate.

One of Canada's most prominent military law experts, retired Colonel Michel Drapeau, said the law must be changed to end concurrent jurisdiction, and as long as we transfer cases between two jurisdictions, we will see more and more cases stayed. Drapeau, who wrote the main book on military law in Canada, said the government should have immediately brought forward a short bill, a page, to amend the National Defence Act and simply add criminal sexual offences to the list of crimes the military cannot handle. With that simple change, we could have prevented the cases that were transferred from being stayed.

That is why, last year, I brought forward my bill, Bill C-363, which would have done exactly that. Because of my place in the lottery for private members' business, the bill was not debated. However, I wanted to send a message to the minister that we need urgency. We needed action as soon as possible to end the tug-of-war over jurisdiction and ensure that all survivors who have their cases transferred would have their day in court.

There are still many, many cases moving forward in this confusing tug-of-war, and there is no indication that the transfer is getting smoother because this is not about procedure and it is not about making technocratic deals with provinces; this is about power. This is about a system designed to cover up problems, to revictimize survivors and to maintain the status quo. That is why there is so much urgency to fix this problem and why the NDP is supporting bringing this bill to committee quickly.

However, let me be clear: With just this legislation, the government is not fully delivering the changes needed and this cannot be the last chapter in our fight. When the Minister of National Defence announced the legislation, I heard from countless women and men, survivors of military sexual trauma, about their frustration with the current government. They told me that they were never consulted by the government on the legislation. Much like they saw in 1998, they were seeing another checking of a box exercise, so they once again felt invisible.

We cannot make legislation about survivors without survivors. We cannot treat survivors as a communications problem to be solved or a legal liability to be avoided. They are women and men who have stepped forward to protect our country, who are willing to put their lives on the line when the federal government deploys them. Parliamentarians have a moral, sacred obligation to do everything they can to protect them and not revictimize those who have faced institutional betrayal.

I have spent the summer in conversation with dozens of survivors with first-hand experience of reporting their cases in the military and civilian justice systems and they need to be consulted. That is why we need to get this legislation to committee quickly, where we can centre around the voices of survivors and, through amendment, can give them a voice in this change.

I will conclude with where I started. Generations of military sexual trauma survivors have felt invisible. They have fought every day to demand that we fulfill our responsibility to protect everyone who serves. When the bill gets to committee, we will hear from survivors. We will centre their voices and their proposals, because we cannot do this legislation about survivors without survivors.