Order Fixing June 20, 2022 as the Day on Which Certain Sections of that Act Come into Force: SI/2022-19

Canada Gazette, Part II, Volume 156, Number 8

Registration
SI/2022-19 April 13, 2022

NOT CRIMINALLY RESPONSIBLE REFORM ACT

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

P.C. 2022-271 March 25, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence, pursuant to subsection 33(2) of the Not Criminally Responsible Reform Act, chapter 6 of the Statutes of Canada, 2014, fixes June 20, 2022 as the day on which sections 21 to 31 of that Act come into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to section 33(2) of the Not Criminally Responsible Reform Act (the Act), chapter 6 of the Statutes of Canada, 2014, this Order in Council (OIC) fixes June 20, 2022, as the day on which sections 21 to 31 of the Act come into force.

Objective

To amend the National Defence Act (NDA) to align with the Criminal Code in striking an improved balance between the need to protect society against those who pose a significant threat to the public and the need to treat mentally disordered accused persons appropriately. Specifically, the Act addresses concerns raised by victims and their families where an accused is found not responsible on account of mental disorder in the military justice system or found not criminally responsible in the civilian criminal justice system by

• (1) specifying that a court martial, that has found that a person is unfit to stand trial or not responsible on account of mental disorder, must take into consideration the safety of the public as the “paramount consideration” in its disposition;
• (2) providing a process to identify these persons as “high-risk accused”; and
• (3) enhancing the involvement of victims in the military justice process.

Background

The Act, which received royal assent on April 11, 2014, brought into force certain sections of the Act amending the Criminal Code. This Order in Council will bring into force sections of the Act relevant to the NDA pertaining to mental disorder.

The NDA sections being brought into force will be found in the Code of Service Discipline (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 applicable procedures and considerations in adjudicating courts martial where an accused is found unfit to stand trial or not responsible on account of mental disorder. Where a verdict of not criminally responsible on account of mental disorder has been rendered, a court must take into account the safety of the public as its paramount consideration in its disposition of directing the accused be discharged absolutely, or with conditions, or detained in custody or hospital subject to conditions. At the hearing where such a verdict has been rendered, or thereafter through application by the Director of Military Prosecutions, a court may also find an accused a “high-risk accused” in an effort to better protect the life and safety of another person.

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 a compilation of the regulations authorized under section 12 of the NDA and orders issued by the Chief of Defence Staff (CDS). Along with the NDA, the QR&O comprise the source of law for the CAF. The required QR&O amendments are almost exclusively to update instances where the Act is quoted within the QR&O. Quotation updates within the QR&O are effected under the authority of the CDS. These amendments to the QR&O will ensure an alignment between the new NDA provisions and the supporting QR&O provisions.

Generally speaking, 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, the majority of the remaining provisions not yet in force under An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (Bill C-77), formerly Bill C-77, will come into force on the same day via a separate order in council. Bill C-77 strengthens the military justice system by aligning it with the civilian criminal justice system yet respecting the unique requirements of the military justice system. Bill C-77 will introduce the Declaration of Victims Rights to the CSD, enshrining rights for victims of service offences within the military justice system. It will also 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.

As Bill C-77 received royal assent more recently than the Act, it contains a number of coordinating amendments affecting the Act since it and Bill C-77 amend some of the same NDA provisions. Coordinating the coming into force of the Act with Bill C-77 and their respective QR&O amendments supports the evolution of the military justice system by aligning it with relevant developments in the civilian criminal justice system. This alignment helps establish similar processes within the military justice system to that of the civilian criminal justice system such that those implicated in either system have similar options and receive similar treatment. It allows for an evolution of the military justice system that is consistent with Canadian law.

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-77 and supporting regulations into force at the same time best supports this evolution.

Implications

This OIC amends the NDA to require a court martial that has found an accused not responsible on account of mental disorder to consider the safety of the public as its paramount consideration in its disposition discharging the accused. Further, the amendments also provide a process for identifying such an accused as “high-risk” and require a court martial to take into consideration the victim impact statement as part of its disposition.

The amendments to the NDA brought into force by the OIC include the following:

• Definitions of “disposition” and “significant threat to the safety of the public”: “disposition” and “significant threat to the safety of the public” will now be defined in the NDA. These definitions align the CSD with the changes made to the Criminal Code definitions by this Act.
• Safety of the public is the paramount consideration at disposition hearing: A court martial will have to take into account the safety of the public as the paramount consideration when making a disposition at the hearing when the person has been found unfit to stand trial or not responsible on account of mental disorder.
• High-risk accused: After a court martial has found an accused person not responsible on account of mental disorder, the Director of Military Prosecutions will have an opportunity to apply for a finding that the accused person is a high-risk accused. The court martial will have the power to designate an accused who was 18 years of age or more at the time of the commission of the offence as a “high-risk accused”. To be so designated, the accused person must have been found not criminally responsible on account of mental disorder for a serious personal injury offence. The court martial must consider all relevant evidence including evidence related to the nature and the circumstances of the offence, any pattern of repetitive behaviour, as well as the accused person’s current mental condition.
• Additional grounds to appeal: Additional grounds to base an appeal to the court martial appeal court will be prescribed, which will allow the Minister of National Defence or the accused person to appeal a finding that the accused person is or is not a high-risk accused or a revocation by a court martial of a high-risk accused designation.
• Discretionary authority to suspend release from custody without conditions: If an accused is released from custody without conditions, the court may suspend this disposition pending determination of an appeal of the disposition. This discretionary power is similar to the change brought to the Criminal Code by this Act.
• Victim’s involvement: The Act will enhance the safety of victims and promote greater victim involvement by requiring a court martial to provide notice of a disposition hearing or information about the accused person’s release from custody to the victim. The changes will also enable a victim to file a victim impact statement and require the court martial to consider it in its disposition.
• Other amendments: Other amendments addressing general “housekeeping” issues and minor technical amendments are also included to align the English and the French versions of the NDA.
• Review to be undertaken by a committee of the Senate, the House of Commons or both Houses of Parliament: Establish the body that will conduct a comprehensive review of the operations of sections 197 to 233 of the NDA and to have the report from that review submitted to the Senate, the House of Commons or both Houses of Parliament, as may be appropriate, including a statement of any changes recommended by the Committee.

Consultation

In support of the Act, the Department of Justice conducted consultations with victims’ groups across the country as well as federal and provincial stakeholders and counterparts, including the Coordinating Committee of Senior Officials comprised of attorney general officials from the various jurisdictions, and prosecutors who appear before review boards.

The Act addresses concerns raised by victims and their families where an accused is found not responsible on account of mental disorder in the military justice system or found not criminally responsible in the civilian criminal justice system. Specifically, the Act addresses concerns over victim notification and protection by ensuring the protection of the public is a paramount consideration when an accused is found not responsible on account of mental disorder or unfit to stand trial. Stakeholders such as the provincial attorneys general have been supportive of coming forward with these legislative amendments, in particular to ensure that safety is given the paramount consideration, as this is an issue of importance not just to the federal government but also to provincial governments and communities.

The Department of Justice as well as the CAF led the legislative initiatives surrounding these legislative amendments.

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