Bill C-35 (Historical)
An Act to amend the National Defence Act (remuneration of military judges)
This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.
John McCallum Liberal
(This bill did not become law.)
September 15th, 2003 / 6:15 p.m.
Joe Peschisolido Parliamentary Secretary to the President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs
Mr. Speaker, let me begin by saying that Bill C-45 should be supported as it will make a great contribution to promoting safety in the workplace. As was stated earlier on, the hearings of the standing committee had their origins ultimately in the Westray tragedy, and I believe all members wish to do what they can as legislators at the federal level to eliminate as much as we possibly can, deaths and injuries on the job.
The Criminal Code is not the primary way of promoting safety. Strong laws governing the workplace, like those which this government introduced into the Canada Labour Code, vigorous inspection of farm factories, mines and other high risk work sites and training workers and supervisors in the best safety practices are the first line of defence. However the Criminal Code does represent the judgment of Parliament as to what conduct is so harmful that it must be treated with the utmost severity.
Within the code there are distinctions in the severity of the sentence possible, ranging from the most minor offences punishable only on summary conviction to the most serious punishable by life imprisonment. Causing death by criminal negligence is among those offences that are punishable by life and causing bodily harm is punishable by 10 years of imprisonment. Despite the fact that these provisions have been in the code for many years, prosecutions of corporations for death and injury in the workplace have been rare. These changes in Bill C-45 should lead to more accountability for the most serious cases of endangering workers.
Members of the House may be interested to know that outside experts in the field have come to the same conclusion. Cheryl A. Edwards, a lawyer in private practice in Toronto, wrote an article in the August 22 edition of the Lawyers Weekly . The opening paragraph of the article states:
On June 12, 2003, the prospect of both regulatory and Criminal Code prosecutions emanating from a serious workplace accident became much more real. The federal government introduced anticipated amendments to the Criminal Code in Bill C-45, which, if passed, will create positive occupational health and safety-related duties for corporations, individuals, and other parties defined as “organizations”. Bill C-45 will make it easier to convict those parties of criminal negligence for workplace safety violations.
Let us then deal with Bill C-45 as others have, but I would like to also elaborate on this point. What are the elements of Bill C-45 that will enhance the effectiveness of the Criminal Code in holding corporations accountable for safety?
First, there will be the positive duty imposed on those who undertake or have the authority to direct how another person does work to take reasonable steps to prevent bodily harm to any person arising from that work. Application of existing criminal negligence provisions would mean that those parties that fail in this duty and show wanton and reckless disregard for safety in doing so could be found criminally negligent.
Similar duties already exist in statutes and regulations governing the conduct of various businesses and even in the common law. Placing the duty, however, in the Criminal Code is an important signal that Parliament intends that everyone take their responsibility for worker safety very seriously.
The criminal negligence sections of the code already impose a legal duty on parents and spouses to provide the necessities of life and on anyone who undertakes to administer surgical or medical treatment to another to use reasonable knowledge, skill and care. It is right that the duty to protect workers and the public from foreseeable harm be placed in the Criminal Code and so treated in the same way as these other duties.
The mere fact that the legal duty is in the code may also serve to simplify some prosecutions. It can also serve as a wake-up call to those who direct work. Reckless disregard of the duty of care can lead to imprisonment for a very long time.
With respect to corporations that are charged with criminal negligence, the rules for attribution of liability set out in the proposed new section 22.2 of the Criminal Code will make it somewhat easier to establish liability of the corporation than is the case under existing common law rules.
Those rules establish a two step procedure. First, the crown would have to show that the actions of a single corporate representative or group of representatives demonstrated a lack of care that constituted a breach of the new legal duty to take reasonable steps to prevent bodily harm. Then the crown would have to show that a senior officer either acted or failed to act in a way which was in a marked departure from that which could be expected of a senior officer in the circumstances.
Both representative and senior officer are defined. Corporations will be liable for the physical acts and the omissions of the director, partner, employee, member, agent or contractor of the corporation. An important innovation of the proposed reform is that the courts will not have to seek a single person who both committed the negligent act or omission and was a directing mind of the corporation. Bill C-45 provides that conduct by two or more representatives can be added together to constitute the negligent conduct.
For instance, if we consider a death or injury in a mine, there may have been a series of errors by employees and supervisors that all contributed to the accident. If a single employee turned off three separate safety systems and miners were killed as a result of an accident that the safety systems would have prevented, the employee would probably be prosecuted for causing death by criminal negligence but the mine operator might not depending on the particular facts. Did the employee act in defiance of direct orders or did the employee act in accordance with company policy and practices?
On the other hand, if three employees each turned off one of the safety systems, none of the employees would likely be subject to criminal prosecution because each one thought there would still be two systems in place to protect the workers. Under existing rules for attributing liability, the mine operator could very well also escape prosecution because no single person was negligent. However under the proposed rules, the fact that the individual employees might escape prosecution would not be a bar to the prosecution of the corporation. After all, the corporation through its three employees turned off the three systems.
Not only is proving the act of negligence going to be easier under the reforms but finding the wanton and reckless disregard for safety that is necessary for a conviction of the corporation is also going to be easier. The fault of the corporation is found through the actions and omissions of a senior officer, which is defined to include persons who play an important role in establishing the organization's policies, and persons responsible for important aspects of an organization's activities, and in the case of a corporation includes directors, the CEO and CFO.
The existing test developed by the courts is, as people have alluded to, quite restrictive. In the leading case, the Supreme Court referred to the person having so much authority in the corporation that the person could be considered the directing mind, alter ego or soul of the corporation. While the Supreme Court recognized that a corporation could delegate enough authority to managers that the corporation would have more than one directing mind, it is clear that the court is looking for persons on the very highest rungs of the corporate ladder.
Again, in the words of Ms. Edwards in the Lawyers Weekly :
The proposals do not eliminate the “directing mind” doctrine, as it would still be necessary to prove culpability of a senior official. However, the doctrine would be altered to eliminate the requirement to show [their] direct involvement, and it would be altered to allow the actions of lesser corporate representatives to make the organization party to the offence of criminal negligence.
This clearly signals an expectation that senior management take a proactive role in health and safety matters. The conduct of senior management could very well come under unprecedented scrutiny from investigators.
It is not only Ms. Edwards who expects Bill C-45 to have a major impact. In an article in Worksite News, Norman Keith, another lawyer from Toronto specializing in occupational health and safety issues wrote:
Bill C-45 extends legal duties to a new level that will likely include foremen, lead hands, and even co-workers. The requirement “to prevent bodily harm to that person, or any other person, arising from that work or task” goes farther than any current OHS legislation in Canada. Nova Scotia requires employers to be responsible for members of the public at or near the workplace, however, Bill C-45 casts the net farther to include all persons that may be affected by the work or task.
It is certainly my hope and expectation that Ms. Edwards' prediction of “unprecedented scrutiny” and Mr. Keith's prediction of “a higher level of accountability” will come true.
In passing Bill C-35, Parliament will be responding positively to the Westray tragedy. The new rules and the positive duty combined should ensure that the Criminal Code serves to attribute liability in a way that is fair to workers and their employers when there has been death or injury at work.
National Defence Act
June 13th, 2003 / 10:50 a.m.
Don Boudria Glengarry—Prescott—Russell, ON
Mr. Speaker, I rise on a point of order. We are very close to 11 o'clock and I know that on Bill C-35, one member was to have spoken and the bill did carry. I want to take the opportunity to thank members for doing that.
Perhaps if some members are ready, and I know many members wanted to make statements under Standing Order 31, the House could consider moving to statements by members for those members who are already in the Chamber and ready with their statements.
I know that at this time of year members want to make statements before they go home for the summer. Perhaps Mr. Speaker, you may want to check that out.
Business of the House
Oral Question Period
June 12th, 2003 / 3 p.m.
Don Boudria Minister of State and Leader of the Government in the House of Commons
Mr. Speaker, I usually answer about the legislative program in the House and that is what I will do now.
This afternoon we will continue with the business of supply, with votes scheduled for 8 p.m., pursuant to the arrangement made earlier.
The business that the government will put forward before the House tomorrow, pursuant to another agreement which I will be submitting to the House a little later this afternoon, will be Bill C-42, the Antarctic agreement, Bill C-44, respecting compensation for certain military personnel, and then Bill C-35, the military judges bill. If there is any time left, we will then consider Bill C-34.
The program for next week would be Bill C-7, first nations governance, Bill C-17, public safety, and Bill C-13 respecting reproductive technologies, as well as other legislation which has returned from committee, for instance, legislation such as the sex offender registry and bills like that.
Business of the House
Oral Question Period
June 5th, 2003 / 3 p.m.
Don Boudria Minister of State and Leader of the Government in the House of Commons
Mr. Speaker, that is a very powerful question. Yes, I have checked my agenda as to what work remains to be done. We all know that there is lots of work to do.
That is why, this afternoon, the House will return to its consideration of Bill C-15, the lobbyist legislation, followed by Bill S-13, respecting census records. We will then return to Bill C-17, the public safety bill.
I am sorry that this morning we were unable to complete our consideration of Bill C-7. Tomorrow, we will begin considering the Senate's amendments to Bill C-10B, the cruelty to animals legislation, and Bill C-35, the military judges bill. If we have any time remaining, I still hope we can finish with Bill C-7, of course.
Next week, starting on Monday, the House will consider Bill C-24, the elections finance bill, at the report stage, and any items from this week that have not been completed.
I wish to confirm to the House that Thursday, June 12 shall be an allotted day.
Committees of the House
June 4th, 2003 / 3:40 p.m.
David Pratt Nepean—Carleton, ON
Mr. Speaker, I have the honour to present, in both official languages, the second report of the Standing Committee on National Defence and Veterans Affairs.
In accordance with its order of reference of Monday, May 5, 2003, your committee has considered and held hearings on Bill C-35, an act to amend the National Defence Act (Remuneration of Military Judges) and agreed on Monday, June 2, 2003, to report it without amendment.
Public Safety Act, 2002
May 9th, 2003 / 12:45 p.m.
Pierre Paquette Joliette, QC
Madam Speaker, unlike some previous speakers, it is with a lot a frustration that I rise on Bill C-17.
This is the third time that the government has introduced a public safety bill. We first had Bill C-42, which contained a whole series of safety measures that were clearly excessive in terms of rights and freedoms. Then, marginal corrections were made with Bill C-55. And now, the government has introduced Bill C-17, which is essentially identical to Bill C-42 and Bill C-55.
Clearly, the government did not learn from its mistakes. As with Bill C-35—which was passed—as with the airport security tax, the government has adopted or is proposing a whole series of measures, in the aftermath of the tragic events of September 11, 2001, which ultimately do not seem to be of any use in the fight against terrorism. I remind the House that Bill C-35, which was passed despite the Bloc Quebecois' opposition, contains all kinds of threats and injuries to rights and freedoms and has not been of any use whatsoever in the fight against terrorism in Canada since it was passed.
I would now like to talk about the air security charge; the government has been unable to demonstrate that this tax contributes in any way to paying for the equipment and technologies necessary to ensure airport security. While the airline industry, both in Canada and in the United States, is going through a catastrophic crisis, an additional tax does not help matters. There was so much government improvisation on this issue that, in the last budget in February, the Finance Minister had to reduce the tax significantly; yet, he kept it, which akes no sense whatsoever.
As I said, the government has been unable to demonstrate that this tax was needed.
On several occasions I have wanted to make this point in the House. Bill C-17 now gives me that opportunity. We have been led to believe, in Canada and in the United States, that a person taking a taxi, a bus or a train is considered as a customer, but the Canadian and U.S. governments consider airport or airline customers as potential criminals or terrorists. No wonder people are staying away from the airlines and airports: they are being treated as potential terrorists and criminals.
Bill C-17 is very much a part of all this. I think this act is of no use whatsoever in the fight against terrorism. Members will recall that this was the purpose. The government should have realized, since the tragic events of September 11, that it should have found another way to fight terrorism. As months passed by, one would have expected the government to understand that such measures dare of no use in the fight against terrorism, and it should have dropped the idea after Bill C-55 died on the Order Paper. Yet, the government introduced a new bill, Bill C-17, which, except for one element as I said, goes along the exact same lines as Bills C-42 and C-55.
This was raised by the hon. member for Rosemont—Petite-Patrie, and I think that it must be stressed. Bill C-17 dropped the excessive idea of controlled access military zones, or military security zones as they were called in Bill C-42. In large part, this is a Bloc Quebecois victory. We will recall that these zones could be of unlimited size, without any control being exercised, that the RCMP could declare them without providing any justification, without having to check with or be accountable to anyone, and that this could be done without the consent of the affected provinces.
Think, for example, of the Quebec City summit. The federal government could have unilaterally decided to declare a controlled access military zone for the whole of Quebec City, the national capital of Quebeckers. The purpose would have been to prevent the potential arrival of terrorists, and particularly to prevent citizens concerned with the current negotiations on the free trade zone of the Americas from coming to express their concern to the leaders and heads of state of the 34 countries that are parties to these negotiations.
As I said, this idea of this kind of controlled access military zone was dropped. Still, the new proposal to establish zones through orders is cause for concern to us. Nowhere does it say that the consent of the affected provinces will be required for these military security zones to be created.
The Bloc Quebecois would have liked for all of this to just disappear, but we will remain extremely vigilant, even though, as I said earlier, the fact that the initial idea of controlled access military zones was dropped must be regarded as a Bloc Quebecois victory.
There were two other elements that worried us and that still worry us: everything related to the interim orders as well as everything related to sharing information on airline passengers, who are now viewed by the Canadian government as potential terrorists, as I was saying earlier, regardless of whom they may be. These are concerns that also have to do with the protection of privacy.
I would like to say more about both of these matters, the interim orders and the exchange of information, particularly between the RCMP and CSIS. I know what I am talking about with regard to CSIS because when I was the president of the Conseil central de Montréal of the CSN, we realized that we had been infiltrated by CSIS. This occurred even though everyone knows that the CSN and all unions in Quebec are institutions that are not only recognized, but extremely democratic and transparent. So, I may have more apprehensions than others when it comes to giving special powers to the RCMP and the Canadian Security Intelligence Service.
With regard to interim orders, the new bill stipulates—or it will if, unfortunately, it is passed—that, “The Minister may make an interimorder that contains any provision that may becontained in a regulation made under this Actif the Minister believes that immediate actionis required to deal with a significant risk,direct or indirect, to health, safety or theenvironment”.
In subsection 4, we read the following, “An interim order is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act and published in the Canada Gazette within twenty-three days after it is made.
So, under the new section 30.1 and subsection 4, proposed interim orders will not be required to comply with the Charter of Rights and Freedoms and the Canadian Bill of Rights. It is quite significant and worrisome that a minister could decide to issue an interim order without first having to ensure it complies with instruments that are supposed to protect the rights and freedoms of Canadians and Quebeckers.
These provisions are extremely dangerous. Unfortunately, I have just one minute left, and I have addressed only the matter of interim orders. We believe that these interim orders must be required to pass the test of the Charter of Rights and Freedoms.
In conclusion, I want to say that the privacy commissioner is extremely concerned by the possibility that the RCMP and CSIS could exchange information on airline passengers, and we believe that the legislation should be much more restrictive than this.
For all these reasons, I am not only somewhat frustrated, but I will be voting against Bill C-17.
National Defence Act
May 5th, 2003 / 4:30 p.m.
Keith Martin Esquimalt—Juan de Fuca, BC
But there is no political will, as my colleague mentions. Despite umpteen numbers of studies, specific solutions are required for our fine men and women who work very hard to do a job but we do not see the political response.
It is really at the level of the Prime Minister's Office where we are not seeing that response. What a tragedy for our country when the Prime Minister's Office does not see that its lack of support for our military is eroding our ability to negotiate from a foreign policy standpoint. We suffer economically, not only in our north-south relations but also our east-west relations. This is not a fait accompli.
The other issue I want to talk about, and the government could have done this through Bill C-35, deals with a very important issue of quality of life of our men and women in uniform and their families. On one hand, the government gives our soldiers a wage. However it does not announce as colourfully to the public that it takes that money away with more in cuts to their PLD, which is their cost of living allowance, and it also raises their private married quarters rents. That, coupled with other cuts, makes our men and women in uniform worse off today than they were last year in terms of economics.
What kind of government sends troops abroad to fight for our country, to lay their lives on the line and then, while they set off abroad in their ships or planes, it guts the economic ability of soldiers to provide for themselves and their families at home? I have received many letters from families living in my constituency who wonder why the government is sending their husbands, fathers, wives and mothers abroad while it is taking money away from them. What kind of disingenuous government would on one hand give money to our soldiers, then take money away with both hands, leaving them all the poorer for it? The public does not understand that. What is more, what does that do to the morale of our armed forces? That cannot continue.
Many of us have said that the government must stop cutting the economics of our men and women in uniform. We should give more to them than they give to us. Our soldiers have given more to us over the years than we have given to them. It is not only a matter of economics; it is a matter of plain respect. We cannot disrespect our soldiers in this way.
Some have wondered why we do not become merely a peacekeeping nation. At the end of the day our military is there, at its most sharpest edge, to wage war. Our military must have the capability of waging war. Everything else falls from that. Peacekeeping and peacemaking is war by another name. We have to give our troops the capabilities to do that.
I ask the government, where do we go from here? First, right now our troop strength is about 56,000. Two decades ago it was 125,000. We were able to put people in the theatre. We need to increase our manpower to at least 80,000 to 85,000.
Second, we need the heavy lift capabilities to move our troops into the theatre. Without that we will see in the future what we have seen in the past, where we have to wait in line for our allies to give us the transportation mechanisms to get our troops in the field. What kind of nonsense is that?
Third, we have some critical issues. Everyone knows about the helicopters, but we also have problems with our CF-18s and indeed some of our ships, along with many of the basic tools and equipment for our army which are completely burnt out not only in combat materials but also in terms of personnel.
Those and a whole list of solutions that have been put forth by learned people in the military must be adhered to for the sake of our military and allies, and our place in the world. Some would argue that we should not have a military that kills people. At the end of the day we must always have that capability because that is what an army is all about.
The other thing we need to do is to consider having a nimble and lethal armed forces that can rapidly move around, like a rapid reaction force. That is what will be required in the future. Most wars now are not wars between countries. They are intra-country wars. They are not inter-country wars that took place early in the last century, like World War I and World War II.
Today we are seeing that most of the conflicts are within a nation state, whether it is Afghanistan, or indeed what we saw in Iraq, Somalia, et cetera. We must have the capabilities that will enable us to put our troops into that theatre to engage and integrate with our allies.
One of the other deficits we have is our ability to communicate with our allies. We are losing that capability rapidly and in fact we are behind the eight ball. Unless we meet those commitments to engage and communicate with our allies then we will not be part of the team. We will not be able to function in the multilateral objectives that we will have in the future.
Our other objective is to be relevant sitting next to the world's hegemony. There are things that the Americans do well military, but there are things that we do well military that they cannot do. Our objective will not only be to meet our domestic requirements, but to determine some niche areas where we can play an important role in having a multipurpose combat capable force which would engage and play roles with our allies in dealing with the many threats that we will see.
The terrorist threat that we have today will not be dealt with at the end of a gun. Part of it has to be that way but by and large terrorist threats that we see today would only be dealt with ultimately through issues that deal with the political and economic emancipation of countries that are ruled by despots and individuals that milk their countries dry at the expense of the people.
We have seen that happen in Saudi Arabia, Iraq, Syria and North Korea. Despots rule these countries and the resources of those countries go into the hands of the people at the top at the expense of the people at the bottom. That creates a toxic syndrome where the people see no hope and are subject to the prey of manipulative individuals who will use religion, for example, as a tool to manipulate the group to do their bidding.
That is how al-Qaeda works. It preys on the disaffected, dispossessed, and hopeless in an effort to sway them to do its violent bidding. It uses that to encourage people to be suicide bombers, to create instability, and to wage war against the west.
However, the war between al-Qaeda and western targets is not primarily a war against the west. It is a war against moderate Islam. Al-Qaeda's objective is not to fight the United States. Al-Qaeda's objective is to remove moderate influences in countries which are primarily Islamic and to move those moderates out of the way, get rid of western influence in those countries, and turn those countries into fundamentalist Islamic states. Osama bin Laden wants to turn Saudi Arabia into a fundamentalist state.
The danger that we are seeing now is that Iraq could swing that way unless there is the active engagement of a multilateral approach to ensure that democracy and the people of Iraq have the choice to decide who their leaders will be. Those choices will not come from outside. The United States and the west will not decide who will lead the people of Iraq. The people of Iraq will choose who will lead them.
Only by doing that and ensuring that the new leadership in Iraq will share the resources of that country with the people of Iraq will we see the political emancipation of the people of Iraq, and that in and of itself will act as a bulwark against fundamentalism.
The biggest challenge right now in the Middle East, though, is not Iraq at all. It is Saudi Arabia. Saudi Arabia is ruled by a kingdom that was created as a result of political machinations that occurred between the origins of the Wahabi sect and the House of Al-Saud. Those two groups came together and developed a blood pact. That pact created a very unstable situation in a country that actually could be very rich. The creation of that pact has ultimately led to a group of 5,000 or so princelings and their hangers-on who are milking the country of the oil resources that it has. Where has the wealth gone? It has gone into the pockets of those 5,000 and their hangers-on. Have the people seen the results of that wealth? No, they have not.
What we see is the creation and the turmoil that is bubbling over from within. The lack of political and economic power by the people of Saudi Arabia will boil over into a cataclysmic event that will see the removal of the house of Al-Saud. What we will see is the potential introduction of a very fundamentalist leadership that could well pose a threat to the west.
Egypt is also another country that is boiling underneath the surface. We do not normally see that because we assume that wonderful Egypt, with its pyramids, is an island of stability in a very unstable area. The reality is not so pretty. Underneath that surface are a large number of people who are disaffected and without hope. Educated people who had hope but who are now without hope. What that creates in Egypt is a people who are ripe for the predations of groups like al-Qaeda that will stimulate them to engage in unstable actions that will affect us.
We have a role that the United States perhaps does not. We can work with other countries and deal with them politically and economically. The political and economic emancipation of countries like Saudi Arabia and Egypt are critical to our own security as a country. As I said before, the threat of terrorism will not go away purely by the use of force. That threat will go underground and it will manifest itself in various ways, not the least of which is what we saw in 9/11.
We have seen something else that is very dangerous. I hope our government will deal with it because it is something that we fear. We fear weapons of mass destruction. But where is the greatest threat of weapons of mass destruction right now that has not been dealt with? Is it in North Korea? Iraq was a potential problem. Syria is a problem because it has weapons of mass destruction. But the biggest threat is actually in the loss of control of fissile materials in the former Soviet Union. That country had some 30,000 nukes. We know from the former Russian general Alexander Lebed that there were small suitcase nukes made. No one knows where they are. We know that there is an uncontrolled axis of evil that has been created due to the fissile materials. The ruthless Russian mafia and terrorist organizations want to get that fissile material.
Some believe that al-Qaeda already has them. The Russian mafia wants to get those fissile materials and sell them for huge profits. To their credit, the Russian police have blocked some of these efforts. More must be done. We must work with the United States, the Russian authorities, and with countries in the former USSR, including the CIS states, to deal with this problem and to actively hunt down, engage, and destroy the Russian mafia that is poisoning not only the former USSR but also countries in eastern European, including Bosnia where the Russian mafia is integrating itself and causing a huge problem.
I hope the government will listen to the constructive solutions that have come from members from all political parties and, for the sake of our military and country, employ them now.
National Defence Act
May 5th, 2003 / 4:25 p.m.
Keith Martin Esquimalt—Juan de Fuca, BC
Mr. Speaker, it is a pleasure to speak to this important issue, particularly because the west coast Pacific command is situated in my riding of Esquimalt--Juan de Fuca.
Over the last 30-odd years we have seen a continual lack of support for our military. Bill C-35 bespeaks to a reform process that has to take place. The fact that the government put forth a bill to amend the National Defence Act, remuneration of military judges, which deals with that and another couple of minor issues, demonstrates the complete lack of support the government has for our military.
Why would the government spend its resources and its time and the public sector's time bringing a bill like this forward when we have massive problems in our military? We do not have the troops to do the job. The military does not have the equipment nor the support. We have a disconnected foreign policy and a defence policy. Having a congruent defence and foreign policy, having enough troops to do the job both domestically and internationally and giving them the support and tools to do the job are issues that the House should be debating. The fact that the government put forth this bill bespeaks to its complete neglect of our military over the 10 years it has been in power.
This is important on a broad range of issues because our ability to engage internationally, to fight for what we need as Canadians and to be the best that we can be economically is intimately entwined with our ability to engage with our partners in this globalized era. Our ability to engage with NATO and the United States and to do what we are supposed to do under the United Nations are all exceedingly important for the health, welfare and economic stability of Canada.
Time after time and time and after umpteen studies we have heard that Canada has been living off the coattails of our partners, be it the U.S. or our other partners in NATO. The Canadian public does not necessarily know this because our government has given it the flawed methodology that we are a great peacekeeping country and that we are contributing to our international commitments.
The reality is we are 19th in the world in peacekeeping if we look at the 22 most developed countries. We used to be number one. Back in the era of Prime Minister Pearson, our troops could be put in the theatre. They could be moved in short order to where they were required by the teams of which we were a part. We can no longer do that. We saw that in Afghanistan. We cannot even maintain 800 troops in the theatre for a period of six months. That is below our requirements.
The government has admitted that not only can we not meet our international requirements, but more sadly, we cannot meet our domestic requirements. If we had a domestic catastrophe, if we had a large terrorist attack, if we had an act of God as we have had in the past with floods and the ice storm, could we engage enough troops to meet those domestic problems? The answer is a tragic no.
Professor Andrew Cohen of the School of Journalism at Carleton University has just written a very eloquent book on what has happened to our relationship with the U.S. and the international community. He puts at the heart of this one major issue. He says that our underfunding and lack of response to our military needs has greatly undermined our ability to be a player at the international table. Our government continues to tell Canadians that we are a great middle power, that we have strong moral authority. At one time that was true, but since 1969 we have seen a gradual and inexorable decline in our ability to influence and a decline in our ability to advocate for Canada at the international table.
About two or three years ago, the head of NATO admonished Canada in Toronto for a lack of response. He said at that time that as Canadians we had to support our military here at home and play our role internationally. If we would not pay the piper, then we would be sitting around at the table as a second rate country and we would have to pick up the pieces after all was said and done.
Indeed, the Deputy Prime Minister acknowledged that in previous speeches. He himself has acknowledged the need, as has our current defence minister. Why the lack of response? Documents have been put together by the Canadian Alliance. My colleague has put together a superb document on the deficits and needs in our defence forces, an eloquent specific plan of action, a call to arms, on exactly how we can fix the problems in our defence forces.
National Defence Act
May 5th, 2003 / 4:15 p.m.
Rex Barnes Gander—Grand Falls, NL
Mr. Speaker, it is indeed an honour and a privilege to rise today on an issue of such importance to the men and women of our armed forces.
The legislation we debate here today has as its pith and substance the modernization of military justice. It is an attempt to better harmonize the rules of legal procedure that guide the administration of justice for the Canadian armed forces with the laws of Canada in their civilian application.
Perhaps the House will permit me this opportunity to pay tribute to the men and women of the office of the Judge Advocate General, the guardians of justice in uniform. The JAG officers are a vital component of our armed forces and an important part of our military community. They are soldiers on the front lines of the law and in a field of practice that is often as hazardous as any endured by the infantry, the artillery and the armoured corps.
The men and women of the JAG office frequently are deployed to the most dangerous places on the globe, tasked with the mission of ensuring that justice is done. Bill C-35, hopefully, would help the JAG and military judges in all their important work.
The legislation has two distinct components, both of equal importance. On the one hand, the legislation seeks to better regulate the rate of pay for military judges. On the other hand, it clarifies the procedural and evidentiary rules regarding the taking of bodily samples. While these might seem to be areas of limited administrative importance, they are in fact issues of great constitutional importance.
Speaking to the first area of the legislation, that of regulating the rate of pay for military judges, the Supreme Court of Canada has indicated repeatedly that the remuneration of judges is a key component in preserving judicial independence.
The guiding principles of our Constitution require that we establish impartial courts for the proper administration of justice. This historic requirement has been given new life under the Charter of Rights and Freedoms. Indeed, it is section 11(d) of the charter that guarantees that any person charged with any offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.
In light of this important constitutional principle, the courts have indicated repeatedly that to be truly independent of the executive and legislative branches of government, the judiciary should not appear to be dependent on them for proper pay and remuneration. To be certain, there must not even be the appearance that their decisions could be affected by changes to their rate of pay.
Given this explicit and important link between the remuneration of judges and the constitutional right to an independent judiciary, we in the House have a very serious and clear obligation to monitor any legislation that would seek to affect the rate of pay of judges. Given that this protection has been extended to all citizens, let it be especially so for the most courageous citizens in our country, the men and women of the Canadian armed forces.
That Bill C-35 seeks to ensure that changes to the Treasury Board guidelines have retroactive effect is therefore an important amendment. That the pay of judges, in this case military judges, is a matter of a formula and not the product of negotiations between branches of government is of clear and undeniable importance.
The bulk of the legislation, however, relates to an area of equal importance, and that is the proper legal authority for a peace officer to take samples of bodily substances
I know that I do not need to convince my colleagues here today of the importance of forensic science in the administration of justice in the 21st century. The vast potential of science has been an invaluable partner in the area of criminal investigation for more than a century but it is the constant advancements in the area of DNA analysis that has been the biggest boon to criminal investigation since the discovery of the fingerprint.
As in all areas, the evolution of science must walk side by side with the continued stability of our rights and freedoms. Given the tremendous weight given to DNA evidence in criminal procedures, it is vital that there is administrative fairness in both its collection and analysis.
Both sections 7 and 8 of the charter offer protections relevant to this discussion.
Clause 7 protects life, liberty and the security of the person. It ensures that any intrusion into the right of the person with respect to their body, a fact that includes bodily samples, is minimal and only in accordance with a proper legal authority.
Clause 8 protects against unreasonable search and seizure requiring that only a properly executed and lawful warrant can compel an accused to submit to a search or have his or her property seized.
Bill C-35 seeks to give greater clarity to the issue surrounding the taking of body samples. I believe that given the greater constitutional importance attached to it, we have an increased burden to put the bill under a legislative microscope. I have great confidence that the Standing Committee on National Defence and Veterans Affairs will do so clause by clause, analyzing all the legislation.
I have spoken at length this afternoon about the important considerations that have been outlined by the courts of the country with respect to the proper application of the Charter. I know I do so at a time when some in our country, indeed many in the chamber, are concerned about the role of the judiciary in the development of the law. The debate is one of great importance and significance to all of Canada.
I believe that both sides and all parties in the House will agree that we have a special duty as lawmakers to ensure that the legislation we pass is not only lawful but also good law. We have here an important obligation to not only improve laws but to improve lives.
When we debate an amendment to existing legislation, we have a duty to ensure that we consider whether the lives of those affected will be improved as a result of our action. To that end, I hope we would all agree that our duty extends to ensure that we consider the potential legal ramifications of our actions in relation to decisions we have seen passed by the courts of this country.
I am the first to recognize that the administration of military justice is different than that of the administration of civilian justice. Those differences speak to the unparalleled importance of our military and its function in the world. They are a reflection of the commitment of our men and women in uniform who have made Canada.
If it can be said that they have a sworn duty to protect us, surely then we must say to them that we have a sworn duty to protect them.
Although the bill in the consideration of the House speaks to military justice, not military funding, it would be remiss of me today in my duties if I did not mention and declare a continuing need for better funding of our military.
Between the 1993-94 fiscal year and the 1998-99 fiscal year our military budget fell 22%, from $12 billion to $9.4 billion. In the same period the operational tempo of our armed forces, this is to say that the ratio of time spent on deployed missions, rose from 6% to 23%, an increase of almost 400%.
The funding gap has hurt our military. Members of the military are required to use equipment that is 30 to 40 years old. They are restricted in the amount of training they can received. They are limited in their potential, not by their courage, not by their compassion or not by the commitment of the personnel, but by the scarce resources at their disposal. We have let them down. The government has let them down.
We speak today about improving military justice but we should be talking about doing our military justice by ensuring that the members of the military have the tools and equipment necessary to do their jobs.
Some of the Liberals on the government benches, perhaps most noticeably those either currently or formerly part of the cabinet, have recently begun to call for better treatment of our military. The former finance minister has even called for an increase in military funding, notwithstanding that he was the one with the hand on the knife when the government made vicious cuts to the DND budget. Better treatment of our military should be a firm commitment, not a campaign promise.
In closing, if I had my way, we would spend a portion of each day debating how we can improve the conditions of our military and its personnel.
While Bill C-35 addresses important issues, it does not address all the important issues facing the Canadian armed forces. We have much work to do here before we rise and I hope that the rumours about leaving early are false, especially at a time when we are prepared to send so many of our men and women to serve in a dangerous and unstable part of the world. That of course is the height of hypocrisy.