Photo by: Michel Rathwell

POLICY PERSPECTIVE

by Afton David 

June 2026

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Table of Contents

• Introduction
• Background: Military Justice and Independent Reviews
• Legislative Content and Scope of Bill C 11
• Parliamentary Review and Committee Amendments
• Trust, Culture, and the Role of Jurisdiction
• Access to Justice and Systemic Trade Offs
• Conclusion
• About the Author
• Canadian Global Affairs Institute

Introduction

Bill C‑11, An Act to amend the National Defence Act and other Acts (“Bill”), also titled the Military Justice System Modernization Act, was introduced in the House of Commons on 26 September 2025, following the lapse of Bill C‑66 in January 2025 with the dissolution of Parliament. The Bill forms part of the Government of Canada’s efforts to reform the military justice system (MJS) in response to sustained concerns regarding sexual misconduct within the Canadian Armed Forces (CAF), as well as broader issues related to institutional trust, accountability, and judicial independence.[1]

At the time of writing, Bill C‑11 has just received Royal Assent. The Standing Committee on National Defence (“NDDN”) completed its clause‑by‑clause review and submitted its report to Parliament on 9 February 2026. [2]

This article situates Bill C‑11 within the longer trajectory of military justice reform and examines the extent to which jurisdictional removal is likely to advance the Bill’s stated objectives, particularly with respect to trust and legitimacy.

Endnotes

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Background: Military Justice and Independent Reviews

Canada’s military justice system operates under the National Defence Act[1] (NDA) and the Code of Service Discipline,[2] providing a parallel system of justice intended to maintain discipline, efficiency, and morale[3] within the armed forces. Historically, jurisdiction over many Criminal Code[4] offences including sexual offences, has been concurrent, allowing military or civilian authorities to proceed depending on context.

The most consequential element of Bill C‑11 is the removal of military jurisdiction over certain Criminal Code sexual offences committed in Canada, leaving exclusive jurisdiction over certain Criminal Code offences of a sexual nature with civilian authorities. The Bill also addresses several other matters, taking  steps to implement many recommendations made by various former justices of the Supreme Court of Canada, including those in the Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act,[5] by the Honourable Morris J. Fish, published on 30 April 2021, and the most recent Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces,[6] by Louise Arbour, published 20 May 2022.

The Fish Report, published in 2021, emphasized deficiencies in victim protections within the MJS and recommended civilian prosecution of sexual assault cases only as an interim measure, pending the extension of equivalent safeguards to military proceedings.[7]

By contrast, the Arbour Report, published in 2022, recommended the permanent removal of military jurisdiction over all Criminal Code sexual offences. Arbour’s recommendation was grounded less in procedural capacity and more in concerns relating to institutional culture, perception of independence, and public confidence.[8]

Bill C‑11 adopts Arbour’s approach and does not expressly revisit the conditional reasoning advanced by Justice Fish, despite significant reforms to the MJS enacted in 2022, including the incorporation of a Declaration of Victims’ Rights.[9]

Given the publicly available data on this matter and as discussed at Committee, it is not clear whether the civilian system would be better positioned to handle these offences. That said, and as discussed by Madame Arbour in her report, perception versus reality is a complex topic, and the very fact that the perception is that the civilian justice system can better handle sexual offences (or the MJS is not fit to do so) must be considered.[10]

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Legislative Content and Scope of Bill C 11

Bill C‑11 amends the NDA to remove both the investigative authority of the CAF and the jurisdiction of courts martial with respect to Criminal Code offences of a sexual nature alleged to have been committed in Canada.[1] In addition, the Bill introduces a series of structural reforms, including:

• modifications to the appointment processes for key military justice actors;
• expansion of eligibility criteria for appointment as a military judge;
• removal of military judges from the summary hearing system; and
• expanded access to victim liaison officers.[2]

 It is notable that Bill C‑11 does not eliminate military jurisdiction over sexual offences entirely. The MJS retains jurisdiction over such offences when committed outside Canada, reflecting operational requirements associated with deployed forces. This partial retention has attracted attention during parliamentary study, raising questions of coherence and consistency within the overall reform framework. [3]

From a legal standpoint, the Bill does not transfer jurisdiction to civilian authorities, as such jurisdiction already exists. Rather, it removes one branch of concurrent jurisdiction, thereby removing the choice in favour of a single domestic forum. This raises several concerns.

The fact that the MJS will continue to function outside of Canada for these matters begs the question: Will MJS actors have the skills required to handle such cases if they are not handling them domestically? A similar question was asked after the Second World War following multiple incidents of miscarriage of justice in US Courts martial due to unskilled and untrained MJS actors. The 1946 Vanderbilt Report confirmed that miscarriages of military justice arose when Courts martial were administered by insufficiently trained personnel lacking the legal expertise to properly investigate, prosecute, and adjudicate such complex cases.[4]

The UK’s Lewis Committee[5] echoed the Vanderbilt Report by recognizing that Courts martial administered by inadequately trained personnel risk systemic unfairness and miscarriages of justice.[6] This would certainly be the case in the context of criminal code offences of a sexual nature committed outside of Canada, where MJS actors get little to no exposure to how such cases should be handled at home.

Bill C‑11 may also create unintended incentives that risk undermining operational effectiveness. The removal of military jurisdiction over certain offences committed in Canada—while retaining it abroad—could encourage service personnel to invoke civilian justice processes strategically to curtail their deployments.

In a contemporary peacetime force where the immediacy of combat imperatives is perhaps less visible to most, there is also a concern that the foundational purpose of military justice has become blurred. Historically, it was designed not primarily as a parallel criminal system, but as a mechanism to maintain discipline, cohesion, and continuity in the field, ensuring service personnel remained at their posts and that operations could continue without disruption. Guaranteeing service personnel a ticket home in order to adjudicate their offence by Canada’s civilian criminal system risks introducing a dynamic of absence from duty rather than reinforcing the operational objective of keeping personnel engaged in mission-critical roles.

In this light, it may be worth approaching the management of the MJS with an eye to the demands of potential large-scale conflict, ensuring its structure remains resilient under less forgiving conditions.

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Parliamentary Review and Committee Amendments

During hearings before the Standing Committee on National Defence, witnesses broadly agreed on the seriousness of sexual misconduct within the CAF and the need for reform. However, testimony revealed less consensus on whether jurisdictional removal would meaningfully improve trust in military justice or address underlying cultural challenges.[1]

For example, it has been suggested that the higher conviction rates observed in the civilian justice system are indicative of its greater effectiveness in addressing these matters.[2] However, an alternative conclusion may be drawn from the same data: In the civilian system, numerous accused fail to qualify for free defence counsel through legal aid programs and are unable to afford private representation, which may impede their ability to present a full answer and defence. Without controlling for such variables, conviction rates alone are not a reliable indicator for systemic effectiveness.

Following clause‑by‑clause review, the Committee reported Bill C‑11 to the House with amendments. Public reporting indicates that several amendments made at Committee were left out, with little to no information to substantiate why.[3] However, one of the amendments which was proposed at Committee and the Senate is a “sunset clause” applicable to the jurisdiction‑removal provisions. This mechanism would require Parliament to revisit the effectiveness of the reform after a defined period, and in the absence of a review or positive action by the legislature, the jurisdiction removal clauses would expire, thus returning the system back to concurrent jurisdiction.[4]

As at the time of writing, it is unclear whether the legislature amended the Bill to include a sunset clause. However, according to DND’s website, the Bill does include an independent review of the jurisdiction provisions three years after they come into force.

The inclusion of such a provision suggests an acknowledgement that the impact of jurisdictional reform is, at present, empirically uncertain and warrants future assessment.

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Trust, Culture, and the Role of Jurisdiction

Successive governments have framed Bill C‑11 as a trust‑building measure. Yet trust in justice institutions is shaped by a range of factors beyond forum selection, including procedural fairness, access to counsel, transparency, and timeliness.[1] Both the Deschamps and Arbour reports characterize sexual misconduct in the CAF as a manifestation of deep‑seated cultural and leadership failures, rather than as a problem located primarily at the level of Courts martial.[2]

The removal of Canadian jurisdiction while retaining international jurisdiction also begs the following question: If the MJS cannot be trusted to deal with certain sexual offences on Canadian soil, what causes it to be trustworthy abroad?

It is also significant that Courts martial, the main target of jurisdiction removal, constitute a relatively small portion of the overall disciplinary landscape. The Judge Advocate General’s Annual Report indicates that approximately 90 percent of disciplinary matters are resolved through summary processes rather than courts martial.[3] Legislative reforms focused principally on tribunals may therefore have limited reach in terms of broader institutional culture.

Jurisdictional reform may nevertheless play an important symbolic role. As Justice Arbour noted, perception itself can shape legitimacy in justice systems.[4] The challenge for policymakers is determining whether symbolic clarity is sufficient, or whether it risks obscuring unresolved structural issues within both military and civilian justice systems.

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Access to Justice and Systemic Trade Offs

Jurisdictional removal also raises access‑to‑justice considerations. Within the MJS, accused CAF members are entitled to representation by Defence Counsel Services[1] at public expense, regardless of income. In the civilian system, access to counsel depends on the accused’s financial ability to retain defence counsel, or provincial legal aid regimes, which vary significantly and are dependent on mixed and sometimes unstable funding sources.[2]

Civilian courts also face persistent delay issues. According to the Office of the Federal Ombudsperson for Victims of Crime, 1 in 7 sexual assault cases in 2022-2023 were stayed or withdrawn due to unreasonable delay under the Jordan framework;[3] this includes the 2023 case of LGen (ret’d) Trevor Cadieux.[4] The Cadieux case arose during the mass transfer of sexual misconduct cases from military to civilian courts following the Arbour interim recommendation, and illustrates how the interaction between military and civilian systems during the 2021–22 transfer created delay attributable, in part, to the military investigative processes. Expanding or reallocating jurisdiction without ensuring sufficient expertise and capacity to coordinate risks producing not accountability, but impunity.

Bill C‑11 does not directly address how the reassignment of cases may interact with these systemic pressures, nor does it establish equivalent defence‑counsel guarantees for CAF members tried in civilian courts.

These considerations do not undermine the legitimacy of reform but highlight the trade‑offs inherent in jurisdictional redesign. It also reminds us that victims, as well as accused, are both important stakeholders to consider in the context of a free and democratic society built on fundamental rights and freedoms.

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Conclusion

While Bill C‑11 represents a significant moment in the ongoing evolution of Canada’s military justice system, it must be viewed as part of a much wider framework of policy and regulatory steps needed to modernize the Canadian Armed Forces and strengthen discipline, efficiency and morale.

While the removal of domestic military jurisdiction over certain sexual offences committed in Canada removes any uncertainty regarding forum selection, it rests on assumptions about trust and effectiveness that remain largely untested. Jurisdictional reform alone cannot resolve the deeper cultural, institutional and operational challenges that have shaped the current debate, nor can it ensure fair, timely and credible outcomes without sustained attention to implementation.

Following Bill C‑11 receiving Royal Assent , its long-term success will depend less on the jurisdiction than on meaningful progress in areas such as adequate and consistent data collection and retention, [1] access to justice, and evidence‑based evaluation of outcomes. It also raises fundamental questions that will require careful reflection in the years ahead: Whether the removal of jurisdiction meaningfully addresses the needs of victims in light of recent safeguards introduced within the military justice system, and whether it will in fact enhance trust and legitimacy as intended.

Unfortunately, the amendments proposed at Committee and the Senate were not incorporated into the Bill. Hopefully, those witnesses who voiced concerns will be proven wrong. If they are not, attention should be paid to those amendments at the three-year review, in an effort to meaningfully address concerns and ensure that legislation amending the military justice system is not only responsive in intent but robust and sustainable in practice.

Parliament should also pay special attention to whether the proposed framework is supported by a sufficiently coordinated and well‑resourced system capable of avoiding the kinds of delay and fragmentation that have already led to stayed proceedings in recent cases, and whether the reform resolves longstanding uncertainty surrounding concurrent jurisdiction or risks reproducing it in a new form under evolving operational pressures. In this respect, the inclusion of a review clause as a bare minimum is both prudent and necessary, recognizing that the ultimate success of Bill C‑11 lies not in its design alone, but in its real‑world effects.

Only time and careful, sustained data collection, will tell.

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About the Author

Afton David is currently Senior Legal Advisor at Davie, as well as a reservist in the infantry with the Cameron Highlanders of Ottawa. Previously, she works as legal counsel of Thales Defence & Security. She is a retired Rugby player (uOttawa Gee-Gees, Ottawa Irish Rugby Club, Québec provincial team), and a graduate of the University of Ottawa’s National Program, with a degree in Civil Law (LL.L) and Common Law (J.D). She also has a bachelor’s degree in International Development and Globalization from the University of Ottawa. She was called to the Ontario Bar in 2018. She is currently taking a Master’s in Public Administration from the Royal Military College, with a keen focus on expanding her knowledge on the strategy surrounding Canada’s defence procurement system. Her main areas of interest are constitutional law, commercial law, and military justice.
Afton is the winner of the 2017 Canadian Bar Association’s Sword & Scale essay contest with her paper titled Neither Charity nor Special Treatment: Amendments to Sustainably Modernize the Canadian Forces Members and Veterans Re-establishment and Compensation Act, which she wrote during her articles. She is also published in the area of medical assistance in dying and is mentioned in the Oxford Handbook of the Canadian Constitution for her work on Amending the Constitution of Canada. In 2021, Afton co-authored a book chapter entitled “The Fork in the Road and the Path Not Taken”, in March to Justice: Global Military Law Landmarks, about the legal repercussions of R v. Généreux over the past three decades. Afton continues to look for opportunities to contribute to military justice improvement, and in 2023 she was invited to participate in the Commonwealth’s development of military justice principles in Stellenbosch, South Africa.
Afton is also an amateur boxer, having participated in Ottawa’s Fight for the Cure in 2019 (benefitting the Ottawa Regional Cancer Foundation), and Clash of Cartier in 2023 (benefitting the CHofO Foundation). She continues to box in her free time.
Afton spends her free time playing sports, cooking, reading, spending time with her family & friends, and volunteering. Afton recognizes her incredible support system, family, mentors and champions, and she maintains that she would not have been able to achieve any of the above had it not been for those people. Afton also has a son, who is by far her greatest achievement.

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Canadian Global Affairs Institute

The Canadian Global Affairs Institute focuses on the entire range of Canada’s international relations in all its forms including trade investment and international capacity building. Successor to the Canadian Defence and Foreign Affairs Institute (CDFAI, which was established in 2001), the Institute works to inform Canadians about the importance of having a respected and influential voice in those parts of the globe where Canada has significant interests due to trade and investment, origins of Canada’s population, geographic security (and especially security of North America in conjunction with the United States), social development, or the peace and freedom of allied nations. The Institute aims to demonstrate to Canadians the importance of comprehensive foreign, defence and trade policies which both express our values and represent our interests. 

The Institute was created to bridge the gap between what Canadians need to know about Canadian international activities and what they do know. Historically Canadians have tended to look abroad out of a search for markets because Canada depends heavily on foreign trade. In the modern post-Cold War world, however, global security and stability have become the bedrocks of global commerce and the free movement of people, goods and ideas across international boundaries. Canada has striven to open the world since the 1930s and was a driving factor behind the adoption of the main structures which underpin globalization such as the International Monetary Fund, the World Bank, the World Trade Organization and emerging free trade networks connecting dozens of international economies. The Canadian Global Affairs Institute recognizes Canada’s contribution to a globalized world and aims to inform Canadians about Canada’s role in that process and the connection between globalization and security. 

In all its activities the Institute is a charitable, non-partisan, non-advocacy organization that provides a platform for a variety of viewpoints. It is supported financially by the contributions of individuals, foundations, and corporations. Conclusions or opinions expressed in Institute publications and programs are those of the author(s) and do not necessarily reflect the views of Institute staff, fellows, directors, advisors or any individuals or organizations that provide financial support to, or collaborate with, the Institute.

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