Mr. Speaker, I am pleased to speak, on behalf of the NDP, to Bill C-60, An Act to amend the National Defence Act. We will support the bill at second reading and its reference to the Standing Committee on National Defence later today.
The National Defence Act has not been reviewed often by the House of Commons. The last time it was amended was in 1998, and before that it went unchanged for 50 years.
On April 24 of this year, the Court Martial Appeal Court of Canada made a decision to strike down a section of the National Defence Act. I want to remind members of the House what the decision of the court said.
The panel of three judges said that the military justice system “is in dire need of a change and modernization to improve its fairness and meet the constitutional standards”. We should keep that warning in mind.
We should also keep in mind that many of the reforms promised could have been dealt with years ago. Military justice is separate from the civilian justice system because militaries must maintain discipline and morale. Breaches of discipline are dealt with speedily and sometimes more severely than they would be in the civilian world. This difference with the civilian system is crucial.
The military justice system does not only exist to punish wrongdoers, it is a central part of command, discipline and morale. Ours is a voluntary military and if the military justice system is not seen as equitable and fair, we will not only have a justice problem, but we could also have an operational problem.
In 1992 the Supreme Court recognized that military justice needed to be different from the civilian justice system. However, there was nothing in that decision that said the military justice system should be antiquated or behind the times.
In 1998 Bill C-25 was introduced to modernize the National Defence Act. The changes brought about are too numerous to mention here today, but for instance, it removed capital punishment from the books. The bill included an undertaking to review the act every five years so we have not faced another situation where Canada would go for 50 years without updates or revisions.
Former Supreme Court of Canada Chief Justice Antonio Lamer, undertook a study of military justice, His report was tabled in Parliament in November 2003. The report contained 88 recommendations, some of with which the government has not agreed. It was not until three years later, however, that legislation was introduced by the government to implement the recommendations of Lamer, and that was under the previous minister in the form of Bill C-7. That bill had many of the changes recommended by Lamer, however, it had a poison pill, which was to virtually eliminate the power of the Military Police Complaints Commission. This would have seriously undermined civilian oversight of the military police, so that bill was dropped.
The department has been faced with the problems brought up by the Trépanier decision for several years, but it did not reform the act. In the Trépanier decision, Justice Létourneau wrote:
The unanimous concern of this Court in Nystrom about the fairness of section 165.14 was expressed more than two years ago, i.e. on December 20, 2005. Since then, there have been five new constitutional challenges to that provision and appeals before this Court are pending. Retired Chief Justice Lamer made a recommendation as early as September 3, 2003 that section 165.14 be amended to give the accused the option to choose his or her trier of facts. As previously mentioned, he also made a recommendation that a working group reviewed the reorganization of the courts martial with a view to improving the fairness of the trial, at the center of which, as an important element of that reorganization, is the right for an accused to choose the trier of facts. Yet, Bill C-45 has been tabled before Parliament and it contains no remedial provision. The authorities have been given more than four and a half (4½) years to address the problem
As a result of the decision made by the Court Martial Appeal Court on April 24 of this year, the department suspended convening all courts martial. This is not a situation that can continue. Serious offences in the military must be prosecuted.
As it stood in the National Defence Act, the director of military prosecutions had the power to choose what type of court martial a member of the Canadian Forces would face. The idea of a prosecutor having this much power is completely contrary to accepted practice in the civilian justice system. As I said at the outset, we have to accept the military justice system will never be the same as the civilian system, but what justifiable military reason was there for this power being given to a prosecutor?
The three justices who made the determination in the Trépanier case, on April 24, said that the military justice system “is in dire need of a change and modernization to improve its fairness and meet the constitutional standards”. If an appeal court made that kind of ruling about the civilian justice system, the entire country would be outraged.
At the end of the day, it is up to Parliament to rewrite the act; it is not up to the courts. It is our responsibility to ensure that these urgent reforms are carried out. Such a delay of justice is a denial of justice.
Finally, I want to speak briefly about the lack of balance in staffing the military justice system. The JAG has 14 staff officers, who work on prosecutions, and four military judges, but how many military defence lawyers are there? There are only four military defence lawyers.
A system with an equal number of defence lawyers and judges would not be tolerated for one moment in the civilian justice system. Military defence lawyers are overworked and under-recognized, just like many members of the Canadian Forces.
I believe everyone in the House will come together to support changes to the act, and I hope we can do so quickly.
