Strengthening Military Justice in the Defence of Canada Act

An Act to amend the National Defence Act and to make consequential amendments to other Acts

This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.

Sponsor

Peter MacKay  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,

(a) provide for security of tenure for military judges until their retirement;

(b) permit the appointment of part-time military judges;

(c) specify the purposes, objectives and principles of the sentencing process;

(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;

(e) modify the composition of a court martial panel according to the rank of the accused person; and

(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.

The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.

Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

  • May 1, 2013 Passed That the Bill be now read a third time and do pass.
  • Dec. 12, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on National Defence.
  • Dec. 12, 2012 Passed That this question be now put.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 10:10 a.m.
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Central Nova
Nova Scotia

Conservative

Peter MacKay Minister of National Defence

moved that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the third time and passed.

Mr. Speaker, I am very pleased to rise in support of Bill C-15, which aims to amend the National Defence Act to strengthen Canada’s military justice and grievance systems.

This legislation is a comprehensive package of amendments that will enhance the military justice system, clarify the roles and responsibilities of the Canadian Forces Provost Marshal and improve the military police complaints process and military grievance system.

As a former practitioner of the law, Mr. Speaker, you could vouch for the fact that the modernization of law, including the justice system for the Canadian Forces, is an extremely important undertaking and is a long time overdue.

As the House has heard throughout its considerable consideration of the bill, the military justice system is essential to maintaining the discipline, efficiency and morale of the Canadian Armed Forces.

The requirement for a separate, unique system of military justice has long been endorsed by Parliament and the Supreme Court, and is further recognized in the Charter of Rights and Freedoms.

The framework of Canada's military justice system has also been validated in two independent reviews. The first was conducted by Chief Justice Lamer and was tabled in the House in 2003. A second review, by Chief Justice LeSage, was tabled last year following the introduction of the bill.

The amendments proposed in Bill C-15 were developed to address those recommendations that are still outstanding from the Lamer report.

Bill C-15 encapsulates the government's previous legislative efforts to address these recommendations, namely through Bill C-7, Bill C-45 and Bill C-41, so the bill is essentially in its fourth iteration.

The content of the bill has been thoroughly debated and reviewed. It has been before the House, where some 100 speakers from all parties participated in the debate. Most recently, the Standing Committee on National Defence met eight times in February in examining the bill. Three sessions were devoted to clause-by-clause review of the proposed legislation, and the committee heard from 16 expert witnesses from the Department of National Defence, the Canadian Armed Forces and non-governmental organizations.

I want to take this opportunity to thank my House colleagues and the witnesses for their diligence and dedication in the study of the bill.

I would also be remiss if I did not note the leadership of the Parliamentary Secretary to the Minister of National Defence, the member for Ajax—Pickering and members of the committee, as well as Colonel Mike Gibson, who has dedicated tremendous time and effort in bringing the bill forward to this point.

The bill before the House today will make several important changes to the National Defence Act and enhance the military justice system and grievance framework. These amendments include setting out a wider and more flexible range of sentencing options, enhancing the treatment of victims by introducing victim impact statements at courts martial, and clarifying the process and timelines for future independent reviews of the military justice system.

I am pleased to say that members from both sides of the House are generally in support of enhancing the military justice system and grievance process. However, during second reading and in committee, it became apparent that misconceptions regarding certain provisions have persisted, specifically, those provisions related to criminal record exemptions and the Vice Chief of Defence Staff’s authority to provide instructions to the Canadian Forces Provost Marshall during investigations.

I would like to take this opportunity to make the government's position clear on these issues and to put to rest any misunderstandings that could further delay the implementation of this important legislation.

Let me begin by quickly addressing concerns related to the criminal records aspect in clause 75 of the bill, because it seemed to be the focal point of many of the comments here in the House and in committee.

While summary trials are necessary to maintain discipline within the Canadian Armed Forces, clause 75 specifically recognizes that most summary trial conviction offences are not sufficiently severe to justify a criminal record for the disciplined military members within the meaning of the Criminal Records Act.

Specifically, this clause ensures that service members would no longer be required to apply for a record suspension, also known as a pardon, for convictions that would not constitute an offence for the purposes of the Criminal Records Act. That is to say, it simply would not show on a person's record upon leaving the Canadian Forces if he or she has been convicted under one of the offences specified in the act.

In response to concerns under the scope of exempted convictions, the committee accepted the government's proposal to amend the bill to expand the list of exemptions. National Defence estimates that this provision would exempt approximately 95% of summary trial convictions from resulting in a record within the meaning of the Criminal Records Act and eliminate any undue hardship to members transitioning to civilian life. Therefore, most would leave the Canadian Forces with an unblemished record if convicted under one of the mentioned offences.

In committee, members also expressed concerns over a provision to give the Vice Chief of the Defence Staff the statutory authority to provide case-specific direction to the Canadian Forces Provost Marshal during investigations. The intent of this provision is to statutorily define the relationship between the Provost Marshal and the chain of command and to enhance the transparency and accountability of military police investigations.

Unlike civilian police forces, Canada's military police may be asked to operate and conduct investigations in operational theatres, as we have seen in places like Afghanistan, where active combat is taking place. Taking this into account, there may be the need in exceptional circumstances for the Vice Chief of the Defence Staff to issue special instructions to the Canadian Forces Provost Marshal. I say this because surely an operational combat zone would qualify as an exceptional circumstance. Special instructions would balance the investigative independence of the Provost Marshal with the safety and security of those involved in the investigation and the operational imperatives of the Canadian Armed Forces.

This bill would establish in statute a mechanism for issuing such instructions, thereby achieving three objectives. Firstly, maximizing accountability by identifying a single authority for such instructions, namely, the Vice Chief of the Defence Staff. Secondly, establishing a statutory requirement for such instructions to be issued in writing, therefore improving transparency. Finally, further increasing transparency by requiring such instructions to be made public, unless the Provost Marshal considers that it would not be in the best interests of the administration of justice to do so.

There are also provisions here where one can envision that information, particularly intelligence that was passed to the Canadian Forces by allies, would be protected in such circumstances.

In closing, our troops perform extraordinary tasks each day—often at great risk to themselves—in service of our country. They need—and deserve—to know that they can have confidence in the fairness and strength of the military justice system that governs and protects them.

This legislation before the House today has been years in the making. In fact, if we trace its history, it goes back to a period before this government came to office. The amendments have now had the benefit of a full second reading debate in the House of Commons and committee study. I strongly urge the House to support implementing these important provisions without delay.

It will benefit the men and women in uniform of the Canadian Forces and their families. It will benefit these extraordinary Canadians who do so much on behalf of our country at home and abroad.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 10:20 a.m.
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Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, I thank the minister for his speech. It is not often that I find myself mostly in agreement with him. I guess the issue here is that it is more mostly than fully.

Regrettably, this was an opportunity to amend and clarify the military justice system in this country. Frankly, it does not come up all that often and so when it does come up it really is an opportunity to get things right. I congratulate the minister and the government on getting most things right, but there are two sticking points that he did mention in his speech. On those two sticking points there has been no movement from the government.

The first point has to do with the issue of a soldier's constitutional rights.

These summary conviction trials run the entire gamut from what we would consider to be trivial offences right through to the possibility of imprisonment, in other words, confinement to barracks. In the process of confining to barracks, or taking away the liberty of a citizen, in the case of a person in the military, who is also a citizen, we run into the concern about the issue of section 7 of the charter. Frankly, we in the opposition, particularly the Liberal Party, are not satisfied that this provision had been addressed. There were no provisions available to make sure that the accused had access to counsel, that there was a transcript, an appeal process, et cetera. Therefore, the first question is: why did the minister not take the opportunity to address that issue fully and make that provision in summary trials fully constitutionally compliant?

The second point, of course, is with respect to the ability of the Vice Chief of the Defence Staff to intervene in a police investigation.

It appears that we have learned nothing from Somalia, which was an accident in terms of its exposure to the light of the public. It was an egregious set of facts that never would have come to light unless, by accident, the media was there. However, after having a protocol, from Somalia to now, which basically precluded the chain of command from intervening, we have now, by legislation, created a right for the Vice Chief of the Defence Staff to intervene, and there are no restrictions on that.

Therefore, there are two questions. Why did the minister not take the opportunity to fix both of these issues?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 10:20 a.m.
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Conservative

Peter MacKay Central Nova, NS

Mr. Speaker, I thank my colleague for his comments. I find myself in agreement with his opening salvo and, quite frankly, I would be worried if he did agree with everything I said.

With respect to the changes found in the bill, there was a government amendment, as he would know, that was aimed specifically at ensuring that there was not unfair treatment of members of the Canadian Armed Forces or civilian members, which would include reservists. The amendment was based on the advice, testimony and input from members of the committee on the concern that he has alluded to, that in some way a member of the Canadian Armed Forces or a civilian would find themselves receiving treatment that would not be consistent with the treatment they would receive in the civilian criminal law system, for lack of a better description. We were mindful of that and I think that we made reasonable efforts to address those concerns.

The member also referenced the harshness or unfairness that could ensue. However, I would reference the Supreme Court decision in Généreux. The Supreme Court considered this fact and basically affirmed what we had heard from previous decisions and examinations of the military justice system, which reaffirmed the necessity, constitutionality and importance of a separate, unique military justice system. It went on to say that because of the unique service provided by the Canadian Forces and the need for discipline first and foremost, this separate justice system should in fact be delineated.

My colleague also referenced the Somalia inquiry, which was a dark period of Canadian Forces history, let alone its justice system. However, I would remind him, as the record will show, that it was the Liberal government that shut down that inquiry before it had the opportunity to properly deliberate and come forth with recommendations. Therefore, there is a little bit of hypocrisy behind that question.

However, in this bill there are significant improvements. There were 88 recommendations, the majority of which will now be included in this legislation. Therefore, it is time to move forward with this bill. It is time to give the members of the Canadian Armed Forces this modern system that includes such things as victim impact statements and adopts many of the improvements that we have seen in the criminal justice system in recent years.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 10:25 a.m.
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NDP

Nathan Cullen Skeena—Bulkley Valley, BC

Mr. Speaker, much debate has been had by New Democrats on the substance of the bill. We had a number of concerns about how this legislation would change the military justice system. We brought up a number of those concerns through amendments at committee stage to try to improve aspects of the bill based on the testimony that we heard from various experts. We worked quite diligently on this and in good faith to improve aspects of the bill that we thought were flawed.

This is more of a process question that I have for the minister. Did the government see other amendments moved by the Liberal Party in the process that was afforded to it? There is suddenly new-found concern with respect to this legislation.

With respect to the way that legislation works in this place, we hear from experts on a piece of legislation and those experts can provide us with differing opinions. In those differing opinions, amendments are brought forward in an attempt to improve or change aspects of the legislation. We brought quite a few forward and we think we altered the bill in some significant ways to improve it.

I wonder if the minister could comment on the new-found concerns that have been raised. Could he also comment on how this place is meant to work and how it can work to improve legislation, especially on such an important topic as military justice? It is essential that the men and women in the services know that there is a good and sound system in place that will serve the aspirations of justice in all its forms.

Strengthening Military Justice in the Defence of Canada Act
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April 30th, 2013 / 10:25 a.m.
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Conservative

Peter MacKay Central Nova, NS

Mr. Speaker, my friend across the way is correct. There has been a rather rigorous examination of the bill both in the House and in committee. As a House leader, he is intimately familiar with the process of examination wherein members of a committee have the opportunity to come forward with substantive amendments or otherwise. Members have had ample opportunity in this case, given the number of times this legislation has faced examination. The NDP did avail itself of those opportunities while the other party did not. While there is certainly occasion to raise questions now, the time for the substantive work of amendments took place at committee in the case of the New Democratic Party.

I would say again for emphasis that we should not let perfection get in the way of progress here. Let us not let process get in the way of progress here. We have a chance to move forward with a bill that would bring substantive change, I would suggest improvement, to the administration of the military justice system. The bill would bring into the 21st century many of the amendments that have already occurred within the criminal justice system, most notably, being more inclusive of victims, being mindful of changes and precedent that have occurred over time in our criminal justice system to see a better functioning of the way in which we administer justice for members of the Canadian Forces and their families, and the effect that it would have on their lives going forward.

The substantive amendment that is meant to expand the types of offences that simply would not exist in the criminal justice system such as dereliction of duty, insubordination and being absent without permission are the types of offences wherein soldiers can find themselves charged. We are making sure that these types of offences, necessary for discipline within the military, would not follow individuals upon their leaving the Canadian Forces.

I thank members for their input and their ideas and hopefully for their support in moving the bill forward.

Strengthening Military Justice in the Defence of Canada Act
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April 30th, 2013 / 10:30 a.m.
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NDP

Jasbir Sandhu Surrey North, BC

Mr. Speaker, it is an honour to speak on behalf of my constituents in Surrey North.

I want to start by talking about what the Minister of National Defence pointed out in his speech. He pointed out that this bill is long overdue and should have been addressed before the Conservatives became government. That is due to the slow pace of the government in addressing the criminal justice system and the military. It is the government that has been dragging its feet over a number of years.

Having said that, I know the minister has had a rough run over the last couple of years, whether it was the military procurement or the pay difference in Afghanistan recently. I point out that this bill is a small step in the right direction, and I have to give the minister kudos for the small step in the right direction, but more could have been done with regard to the criminal justice system.

As the minister pointed out, this bill was introduced in the House back in October of 2011 and was an act to amend the National Defence Act and to make consequential amendments to other acts, basically strengthening military justice in the defence of Canada act. Bill C-15 would amend the National Defence Act to strengthen military justice following the 2003 report of the former chief justice of the Supreme Court, the Right Hon. Antonio Lamer, and the May 2009 report of the Standing Committee on Legal and Constitutional Affairs. Again, Justice Lamer made recommendations back in 2003, and it is only now that the government is getting around to addressing our broken military justice system.

Among other things, this bill would provide greater flexibility in the sentencing process. The bill would provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution, and it would modify the composition of court martial panels according to the ranks of accused persons and would modify the limitations, among many other things.

Bill C-15 is a step in the right direction. However, the government should have done more. Bill C-15 suffers from the Conservatives' slow-footed response to the LeSage report, which was not incorporated in the bill, along with the lack of wall-to-wall review of the sections of the National Defence Act pertaining to military justice.

Bill C-15 falls far short of key issues when it comes to reforming the summary trial system and the grievance system and strengthening the Military Police Complaints Commission. We are letting our soldiers down with this unnecessary slow pace of change. The NDP will continue to lay the groundwork for a larger review of the need for the modernization and civilization of the military legal system and the implementation of greater civilian oversight.

I am proud of my colleagues on the defence committee, who forced the government to make some amendments to the bill. As members may recall, I spoke on second reading of this bill about some of the shortcomings of the bill that New Democrats would like to strengthen. One thing was with regard to military personnel having criminal records. We were not comfortable with that particular clause in the bill. My NDP colleagues on the defence committee forced the Conservatives to accept an amendment, which would force changes so that over 90% of disciplinary offences would not result in criminal records. We will support Bill C-15 at this point. The NDP is proud to vote for the significant, tangible result that we have been vocally and legislatively in support of for the members of our Canadian military forces.

Our efforts have established one more important reform in building fairer military justice. It is important that the amendments that were offered by the New Democrats were accepted by the Conservatives. It is a small step, one aspect of the bill, not the entire bill. We would like to see more changes to the military justice system, so we can have a robust justice system in the military. This would be a small step in the right direction. One of the key elements was regarding the criminal records for military personnel, so 90% of those military personnel would not have a criminal record after going through this. That was an important first step.

Members of the Canadian Forces are held to an extremely high standard of discipline, and they in turn deserve a judicial system that is held to a comparable standard. The New Democrats will support Bill C-15's proposed improvements because it is a step in the right direction. However, the government should have done more. The Conservatives voted against several prudent NDP amendments at committee that asked to fully incorporate Justice Lamer's 2003 recommendations and some of Justice LeSage's 2011 amendments. They even voted against a clarification to the letter of the law in clause 35, as proposed by Justice LeSage. This has resulted in a failure to strengthen the proper safeguards for independence in the grievance system, military police or judicial elements of the military justice system.

The New Democrats are calling on the Conservatives to approach the military justice system in a holistic way. What the Conservatives have been doing is taking a piecemeal approach, a little bit at a time. The National Defence Act is a relic. We need to look at it in detail to reform it wall to wall and bring our criminal justice system in the military to the 21st century. The Conservatives had a chance to do this for the last six or seven years. However, they have not done it. They have taken a very piecemeal approach to the military justice system, and we are doing an injustice to the men and women who serve this country proudly. We can do much better. We can support our men and women by ensuring they receive justice when they need it.

Going back to Justice Lamer's recommendations, in 2003, the Rt. Hon. Antonio Lamer, former Chief Justice of the Supreme Court, presented his report on the independent review of the National Defence Act. The Lamer report contained 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the Provost Marshal. Bill C-15 would be the legislative response to these recommendations.

Former chief justice of the Superior Court the Hon. Patrick LeSage provided an additional review of certain sections of the National Defence Act, which was handed to the government in December 2011. The Minister of National Defence tabled the report in June 2012.

The Conservatives took over a year to table that report. They had it sitting on the minister's desk and he did not act at all. They have had a number of years to bring forward legislation so we can reform the military justice system, yet, as I have mentioned before, the Conservatives are foot-dragging on the issue of reforming our justice system. Even though we are supporting this particular bill, one of our major concerns is that, while it would be one little step in the right direction, there are numerous recommendations from the LeSage report and the Rt. Hon. Antonio Lamer recommendations that are not part of Bill C-15.

That is what the government needs to work on. It needs to take on a wall-to-wall review of the National Defence Act. The Conservatives have voted against amendments attempting to incorporate several of LeSage's recommendations.

Bill C-15 has appeared in earlier forms. Just going back through the history of it, first Bill C-7 and Bill C-45 died on the order paper due to the prorogation in 2007 and an election in 2008. In July 2008, Bill C-60 came into force, simplifying the structure of the courts martial and establishing a method for choosing the type of court martial more closely aligned with the civilian system.

In 2009, the Senate Standing Committee on Legal and Constitutional Affairs considered Bill C-60 and provided nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2000 Lamer report and the LeSage report. It outlined provisions related to military justice, such as sentencing reform, military justice committees, summary trials, court martial panels, the Provost Marshal and limited provisions related to grievance and the military complaints process.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament. The amendments carried over included those on court martial and military judges and security of tenure, appointment and age. There are other important amendments to Bill C-41 proposed at the amendment stage and incorporated at the end of the last parliamentary session. However, those amendments that were introduced to the previous bill were not taken into consideration in Bill C-15.

That is unfortunate, because we had a bill that went through the process. We heard from witnesses in the committee. Experts, judges and many people associated with the military justice system testified. We had reached a compromise. We reached across different parties. The Conservatives, Liberals and NDP worked together to bring about amendments that would serve our military justice system in a way that is fair. In committees, input is heard from key witnesses and amendments are reached. When that process takes place, all sides can be heard from. The committee recommended a number of amendments that would have helped make the system better.

However, as we have seen in the past from the Conservatives, they have failed to incorporate those very amendments that were agreed upon in the last session of Parliament. That is very unfortunate. The amendments that came out of the last session were a consensus from all three parties.

However, the Conservatives are not listening, and they do not want to incorporate those very amendments that would have formed more consensus towards how we could take a larger leap forward in forming our military justice system. They have backtracked a little from that. This is a smaller step in the right direction.

There was one amendment, a compromise that the NDP fought for in Bill C-41, clause 75. At the prompting from the NDP and in recognition of amendments absent, the Conservatives introduced this amendment into clause 75 of Bill C-15.

While this compromise that the NDP fought hard for in Bill C-41 and Bill C-15 is an improvement on the current legislation, it does not go far enough to improve the summary trial process for our Canadian Forces. It does not guarantee that a person who is convicted of an offence during a summary trial is not unfairly subject to a criminal record.

Furthermore, the Conservatives voted against prudent NDP amendments that would have ensured that the proper legislative mechanisms were in place to apply clause 75 retroactively.

We brought forward a number of other improvements at committee. I believe that is what committees are for. That is where we improve bills to make the laws we make in this place better to serve Canadians in a better way. Yet the Conservatives voted down every single one of those amendments.

This is a small step in the right direction. I think we could have taken a bigger step. In fact, I believe we need a wall-to-wall review of the National Defence Act to bring the act into the 21st century. Yet the Conservatives did not want to take even a slightly bigger step.

Here are some of the amendments we proposed at committee. One of the amendments voted down by the Conservatives would have given the Chief of the Defence Staff the financial authority to compensate CAF members in the grievance process. It amended clause 6 in Bill C-41, responding directly to Justice Lamer's recommendations. An amendment to clause 11 in Bill C-41 would have changed the composition of the grievance committee such that it would include 60% civilian membership and would exclude active-duty Canadian Forces members, thus enhancing the independence of the board.

These are common sense amendments that would improve the military justice system. These amendments in the previous Parliament were approved by the committee. Yet the Conservatives failed to bring them into Bill C-15.

Again, this is a small step in the right direction. They could have done more. They could have taken some of the testimony we heard at this committee for Bill C-15 and also at the committee in the previous Parliament. That committee had agreed to these amendments. Yet the Conservatives took those amendments out. That is puzzling. One year they agreed to them, and the next year, in a new parliamentary session, they are going back on their word. That is failing the very people who serve this country.

Another amendment we introduced was a provision to ensure that a person convicted of an offence during a summary trial would not be unfairly subjected to a criminal record. It amended clause 75 in Bill C-41.

These were very common sense amendments. I could go on about some of the changes we proposed and some of the things we would like to see in our approach to reforming the military justice system. The least this House could do is provide the Canadian Armed Forces with a modern National Defence Act so that they can carry on their jobs.

I want to go back to what I started with. The Minister of National Defence has had bad news over the last two years. He has bungled the F-35 procurement. It is a mess. It is a fiasco. I could use a number of other adjectives to describe it. We have seen a number of other scandals in the ministry of defence. We have seen recently a differential in pay in Afghanistan.

The Minister of National Defence could use a little bit of good news, and I would say that this is very little good news, which is going to reform the military justice system. We are calling for a wall-to-wall review of the National Defence Act so that we can reform the criminal justice system in the military and provide the support, encouragement and resources to our military personnel who serve us proudly.

I have a free voice to speak up in the House, to speak on behalf of my constituents from Surrey North, because of the very sacrifices the men and women in the military have made. The least the House could do is provide them with a modern National Defence Act so that they can carry on their jobs.

Strengthening Military Justice in the Defence of Canada Act
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April 30th, 2013 / 10:50 a.m.
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Ajax—Pickering
Ontario

Conservative

Chris Alexander Parliamentary Secretary to the Minister of National Defence

Mr. Speaker, it would certainly help matters if in the debate on military justice the member opposite was not, again, misinforming Canadians about the status of an important procurement project, the replacement of the CF-18s, which is going ahead under a seven-point plan. The options analysis will come forward for everyone's consideration in due course.

However, we are talking here about military justice. I beg to differ with the member opposite, who claims that the system may be unconstitutional and that the National Defence Act is a relic. This reflects upon the lack of respect the New Democratic Party has for our military system. Our National Defence Act is one of the best such framework documents of any military in the world, and international experts recognize it as such. About two-thirds of it relates to the military justice system.

Does the member know what former Chief Justice Lamer said about that system? He said:

Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.

On the question of summary trials, former Chief Justice Brian Dickson said:

The requirement for military efficiency and discipline entails the need for summary procedures. This suggests that investigation of offences and their disposition should be done quickly and at the unit level.

The constitutionality of this system, the requirement for it to maintain morale and operational efficiency, is recognized by the Charter of Rights and Freedoms. We did not hear these doubts about the constitutionality of the military justice system from the NDP in committee. We certainly did not hear it at second reading. Why are we hearing it now?

Second, if I can add one more question on the amendments the NDP proposed, with regard to compensation being authorized by the Chief of the Defence Staff, that would have involved amendments to other pieces of legislation. We are dealing here with the National Defence Act.

Limiting the grievance board to having civilians in 60% of the positions is not something we, as a government, want to do, because it would excluded former military members. We want former military members to have access to jobs across the country, to apply their talents and to not to be excluded.

Why this late concern about the constitutionality of a system that has been recognized as absolutely legal, and indeed admired, around the world?

Second, why is the member, with this speech and with the continuation of debate, delaying the enactment of those important measures that we know would improve the military justice system for our men and women in uniform?

Strengthening Military Justice in the Defence of Canada Act
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April 30th, 2013 / 10:50 a.m.
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NDP

Jasbir Sandhu Surrey North, BC

Mr. Speaker, the only one misleading this House and Canadians is that side of the House, the Conservative government.

I would point to the ongoing F-35 fiasco. When it started out, the cost of the planes was supposed to be $11 billion. Then it moved up to $13 billion. Then it moved up to $17 billion. Then the PBO, Kevin Page, came out with his report, which said that it would actually be $29 billion. Now we hear that it is even higher than that. That is the credibility of the government.

With respect to military justice and the National Defence Act, if we as Canadians are going to press, we always need to improve the systems we have in place. We have been encouraging the government to have a wall-to-wall review of the National Defence Act so that we can improve upon what we have already.

I will quote the retired judge of the Federal Court of Appeal and the Court Martial Appeal Court of Canada. He stated at committee:

While I acknowledge some of the improvements the bill contains and proposals that have been made for changes to the bill, I have to deplore the lack of a wall-to-wall review of the National Defence Act, which, in my considered opinion, leads to a short-sighted, if not distorted, view of Canadian penal military justice system.

This would be a small step in the right direction. Expert after expert—military personnel, retired judges—are calling for the government, along with the NDP, to look at a wall-to-wall review of the National Defence Act so that we can improve the National Defence Act and provide military justice tools and investments for our military.

Strengthening Military Justice in the Defence of Canada Act
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April 30th, 2013 / 10:55 a.m.
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Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, I listened carefully to my colleague's speech, and I have to commend the NDP members. They worked hard at committee, both in the testimony part and in the amendments part. However, there seems to be a case of severe revisionism going on here.

The NDP submitted 22 amendments. How many succeeded? None. Many of the amendments were actually quite good. They were quite thoughtful and useful. They would have improved the bill and would have helped the issues the hon. member is concerned with.

The NDP, at the end of the bill process, filibustered for, I believe, something in the order of four hours. If members are filibustering a bill at the end, after amendments have been submitted and have gotten nowhere, it shows a certain unhappiness with the bill as it is going forward to the House. As my hon. colleague points out, the bill strips out of the previous parliamentary bill some of the provisions that were quite good, which his party and my party, and probably even the Conservatives at the time, agreed upon.

They had zero out of 22 on their amendments. They filibustered. Previously agreed upon good provisions were stripped out, yet the NDP is going to support the bill at this point. It does not seem to me to be a logical or consistent position.

I would be interested in knowing why, under those circumstances, the NDP chooses to support what is, in the member's words, flawed legislation.

Strengthening Military Justice in the Defence of Canada Act
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April 30th, 2013 / 10:55 a.m.
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NDP

Jasbir Sandhu Surrey North, BC

Mr. Speaker, it always puzzles me. The NDP has never been in government, yet the Liberals like to blame it for some of the changes they could have made themselves. They had an opportunity for many years to act on the report that was tabled in 2003, yet they ignored the report. The Conservatives took six or seven years. The Liberals could have dealt with it a long time ago, yet the member is asking me what we have achieved.

The NDP members on the committee forced the government to act on one of the key aspects of the amendments we proposed. Whether it was our amendment or whether the government acted on our amendment and introduced it, at least we have a bill that is a little better. It is a step in the right direction. This is a small step. We still need to see a robust, wall-to-wall review of the National Defence Act.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 11 a.m.
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NDP

Matthew Kellway Beaches—East York, ON

Mr. Speaker, if there is anything inconsistent, it is actually the Liberals taking any interest in the bill in light of their complete disinterest in amending the military justice system while they had a majority government here in Ottawa. Therefore, it is perfectly consistent to embrace the bit of progress that has been made in the bill.

There are meaningful changes here for the men and women of the Canadian military. I also think it is consistent with that to lament the missed opportunity we have before us to go further and truly demonstrate some respect for the men and women in our military.

We had some experts on these matters make some very serious statements in front of the committee about how far the bill falls short, in their view. We heard about the unconstitutionality. Peter Tinsley, former chair of the Military Police Complaints Commission, said, in February this year, before the committee, that the bill would be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada as late as 1999. I wonder if my friend would like to comment on that.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 11 a.m.
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NDP

Jasbir Sandhu Surrey North, BC

Mr. Speaker, I will be very brief. I want to thank my hon. colleague, the member for Beaches—East York, for his question and for doing a wonderful job holding the government to account for the fiasco, the debacle, the boondoggle of the military procurement that we have seen over the last number of years under the Conservative government.

I will sum it up very nicely here. This is a small step in the right direction. We need to do more for the men and women in our military, and the way we do that is a wall-to-wall review of the National Defence Act so that we can bring in some of the changes that are needed to reform and bring the military justice system up to date.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 11 a.m.
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Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, I am grateful for the opportunity to participate in this debate about Bill C-15. As other speakers have said before me, it is an improvement and there is no question about that.

It is probably less of a bill than the previous parliament had proposed and it appears that my colleagues in the NDP are prepared to go for less rather than more, which is quite regrettable. However, I do commend the work of my NDP colleagues on the committee. They made every procedural effort to amend the bill and improve it, all of which I supported. Regrettably, they failed at each and every turn, so it surprises me at this point that my colleagues in the NDP are prepared to accept what is arguably a much lesser bill than the previous parliament had proposed.

I will comment on three areas. They are areas that have been somewhat canvassed before, but are in effect the poison pills of the bill and make it much less than what it could have been. We could have, at this stage, come together and said we have reformed the military justice system and it would probably have been good to go for the rest of this decade, although this is a continuous review process.

When we study military justice, there are distinctions between what we would consider to be civilian justice and military justice. Let me say at the outset that I do understand and I do support the concept that the military is a unique culture and does need a justice system that is unique and designed for it. However, as one witness, Clayton Ruby, pointed out, “It has been said that when you enlist in the military, you waive your constitutional rights. This is nonsense.”

When a person puts on the uniform, as many thousands of our fellow citizens do, they do not waive their constitutional rights. We cannot have a blanket exemption from the Constitution for the military. That is one point where we get into trouble with the way in which this bill has been proposed.

There are roughly 2,500 service offences committed by members of the military over the course of a year. In our language, they would be known as summary conviction offences. The offences can range from trivial right through to pretty serious offences. For some of the serious offences, confinement to barracks or even to jail is the punishment. Of the 2,500, about 30 actually result in confinement to either barracks or an actual jail system on an annual basis.

Because of that, we cannot be trivial about the process. We are in effect offending one of the core provisions of our Constitution, section 7. We are taking away the liberty of a citizen. This is a citizen who is in a uniform, but he or she is still first and foremost a citizen. Therefore, this citizen is entitled to the basics of a trial.

There is a saying in the military that I cannot actually repeat without expanding the English language beyond the proper decorum of this place, but it says “march the guilty in”. That is kind of an understood language that the military uses with respect to these summary trials. These summary trials have a conviction rate in excess of 98%. They really put the “summary” in summary trials. However, in most instances, that is actually not a problem.

There does need to be a disciplinary process for the military.

However, in the instance where there is a potential sentence of confinement to barracks or even to a jail, that is a problem. Why? Because the individual does not have the right to access to counsel, there is no transcript and the “accused” is made to stand through the entire trial. We had an opportunity to address this, but the Conservative government did not do that.

For instance, a British soldier is guaranteed access to counsel and the right to appeal. A civilian judge sits with a military judgment and no detention can be imposed when the accused is not represented by counsel.

These are not trivial matters. When we members of the opposition pressed the government on this, the Conservatives said the bill is constitutionally compliant, that it is charter-proof. We beg to differ. One of Canada's foremost criminal trial lawyers who has gone all the way to the Supreme Court on quite a number of occasions took serious exception to this. He said, “This charter justification matter is not a small issue”, so when the liberty of a citizen is at issue—even a citizen who is a soldier—the charter procedures need to be followed; not only do they need to be followed in law, but they need to be followed in spirit as well.

When people put on the uniform and defend us and allow us to in effect carry on a debate in a chamber such as this, it is no small issue. If I as a civilian get more constitutional protections at the Ottawa summary conviction court than a soldier accused of exactly the same offence, then it is not balanced and not right. We in the Liberal Party think we could have done a better job, but we did not. That is unfortunate, and I dare say will open up this legislation to charter challenge at some point in the near future.

It is not good enough for the government to waltz into committee or waltz into this chamber and say the bill is charter-proof. We heard the Minister of Justice and the Minister of Public Safety talk about that a few weeks ago. Anybody who believes that the Conservative government is serious about the charter is, in my judgment, excessively naive. It is an inconvenience. It would have given us some comfort at committee had independent people outside of the military, outside of the government, told us that these provisions are actually charter-compliant. It is not good enough to have government lawyers say it is charter-compliant. That is like investigating oneself. That is point one.

The second point has to do with the ability of the Vice Chief of the Defence Staff to intervene in a police investigation. We have heard a lot of debate about this. The origin of this debate came out of Somalia, as the minister rightly said, a dark chapter in the history of the military, and I dare say a dark chapter that never would have seen the light except for the fact that the press was present at the time of the incident. The natural reaction of the chain of command is to minimize incidents such as this, and that was in full bloom. I do not think anybody covered themselves with a great deal of glory over this incident. A protocol was developed post-Somalia between the police service and the chain of command, and that protocol was no interference. There would be no interference from the chain of command in any police investigation. That, frankly, served us fairly well between Somalia and now.

However, now the government wishes to reassert itself by inserting the chain of command into a potential police investigation.

I have listened to several of the arguments with respect to the chain of command introducing itself. As we all know, “may” is a small word that has big implications. For those of us who have practised law for a number of years know that the word “may” can be expanded. Certainly when a dark incident occurs in military operations, the pressure on the chain of command to contain the incident will be powerful and, in some respects, the temptation to intervene with a police investigation is almost overwhelming. It has happened, and will happen. There is no doubt about that.

I will quote from Mr. Tinsley, the former ombudsman, who stated:

My very brief summary submission is that if Bill C-15 is passed into law in its present form, inclusive of the new subsection... authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada [as[ late as 1999 as underpinning the rule of law, as well as run counter to the norms of police-government relations, certainly in Canada, and I can tell you internationally in developed countries, which recognize the importance of police independence and prohibit police service boards or similar executive bodies from giving directions regarding specific police operations.

Mr. Tinsley's testimony was reinforced by the current ombudsman, a former chief of police from Windsor, who said that in his experience as a civilian police officer he would have been horrified, shocked and probably hung up the phone on any police service board, and that is any mayor, who phoned him up to tell him what to investigate and what not to investigate.

If one wants to derail a civilian investigation, a good way to do it is to have political interference. Therefore, in some respects the government has retained the ability to insert itself legitimately and legislatively into a police investigation.

On this point, I would conclude with Mr. Tinsley's final observations. He stated:

It would also effectively contradict, even repudiate, the notion of improper interference by the chain of command as established in the oversight jurisdiction of the Military Police Complaints Commission and thereby effectively eliminate oversight by statutory authorization of such interference by the VCDS, a person not subject to the jurisdiction of the complaints commission.

He ends his comments by asking, why?

My final point has to do with the grievance process. Over many months, we in the House have raised the issue of grievances that soldiers, sailors, airmen and airwomen have with their employer, which is the military and therefore us. When an employer employs 100,000 people, it is quite logical that some of them will not be happy with their terms and conditions of employment, which can potentially result in a grievance process. The grievance process is well defined and is a good process. By and large, it resolves many of the grievance issues that they would have with their employer.

However, there are instances, and, unfortunately too many instances, where the grievance process works its way up through the process to the desk of the Chief of the Defence Staff. The Chief of the Defence Staff largely, and almost without exception, agrees with the findings of the people who are delegated to do this work, makes an authorization for compensation, and says, “This particular soldier is legitimately upset and should be entitled to x number of dollars”, whether it is a differential in pay, or the cost of a move or whatever. Out of that, the Chief of the Defence Staff makes the “order”, but cannot write a cheque out of the military budget or any other budget. All of these complaints, particularly the real estate complaints, land on the desk of the Treasury Board Secretariat and thus far none has been authorized.

It ends up as a unique anomaly in which the Chief of the Defence Staff has said that a soldier has a legitimate grievance and thinks it is worth $15,000, $20,000 or $25,000. It does not matter what the number is. He then sends a note to Treasury Board and Treasury Board, without exception, turns it down.

Pierre Daigle, the current ombudsman, wrote the following:

Moreover, when claims are rejected—which is often the case—Canadian Forces members are informed that they must initiate legal action against the Government of Canada—

In other words, he or she must sue the employer. He goes on to say:

—in order to obtain compensation. However, unbeknownst to most men and women in uniform, legal action will rarely be heard by a court because previous courts have ruled that there is no legally enforceable employment contract between the Crown and Canadian Forces members.

I imagine this goes back to the unique position of anyone in the military, which is unlimited liability. When people sign up, they sign up entirely, and, in effect, waive their right to sue their employer. It is not a good way to treat people. We tell them they have to put themselves in harm's way and they cannot sue if their pay or compensation for moving is not what they think it should be, even if the military agrees with them. It is not right. One would have thought that on an infrequent review of military justice, we would have taken this opportunity to do what the ombudsman said, which is to, in effect, give the CDS the authority to write a cheque.

Pierre Daigle further stated:

—I would reiterate what I said when I testified before this committee in 2011. The Canadian Forces redress of grievance process will remain flawed and unfair as long as the final decisionmaker in the Canadian Forces grievance process, the chief of the defence staff, lacks the authority to provide financial compensation to resolve unfairnesses.

That regrettably is the end of it. We had an opportunity to do the right thing by our men and women in uniform and, in the judgment of the Liberal Party, we failed. My colleagues have moved good amendments, but they failed. It is a stripped-down version of the previous bill. We now have at least these three instances such as the potential of a charter challenge, an interference in police process and men and women who cannot get satisfaction from their employer.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 11:20 a.m.
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Ajax—Pickering
Ontario

Conservative

Chris Alexander Parliamentary Secretary to the Minister of National Defence

First, Mr. Speaker, to clarify a point of principle, because it was not made by the member opposite at several points during his speech, when Canadians join the Canadian Forces, they do not waive their rights; they join to defend our rights, and they absolutely enjoy the same rights of other Canadians under the civilian justice system and under the military justice system. That has been confirmed by eminent Canadian jurists time and time again.

Second, on a point of fact, in the summary trials system the accused does have access to defence counsel services from anywhere in the world—from any location, any foxhole, however obscure, in any part of the world, 24 hours a day, 7 days a week. That is one of the benefits of the summary trial system.

When did the Liberal Party lose its faith in the summary trial system? It existed throughout many decades of Liberal governments and which existed while the Liberals were in government for 20 years, since the enactment of the Charter of Rights and Freedoms and its entrenchment, and whose constitutionality was recognized even by Chief Justice LeSage in his most recent report on the military justice system? He said:

—regarding the constitutionality of the summary trial process, I am satisfied, as was former Chief Justice Dickson, that “the summary trial process is likely to survive a court challenge as to its constitutional validity”.

Why is the member opposite taking a position he did not take during previous consideration of the bill? I do not think it was taken in previous Parliaments by the Liberal Party.

He is suddenly elevating the rather eccentric views of a single defence counsel from Toronto, who, by his own admission, has almost no experience of the military justice system, as gospel about the constitutionality of a military justice system that has survived challenges. That constitutionality has been upheld by some of the best legal minds we have had. Why is the Liberal Party suddenly in an entirely different and quite eccentric place on this issue?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

April 30th, 2013 / 11:25 a.m.
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Liberal

John McKay Scarborough—Guildwood, ON

I have been described as a lot of things, Mr. Speaker, but an eccentric is not generally one of them.

First, with respect to the issue of unlimited liability, the hon. member is a touch confused. When individuals sign on as members of the military, it is an issue of unlimited liability. If they are killed, they cannot sue the government. If they are injured, they cannot sue the government. The quid pro quo, the expectation is that the government will take care of them, either by way of pension, or compensation or lump sum, but they cannot sue.

That, unfortunately, seems to be extended into the realm of complaints about pay, complaints about the cost of moves and things of that nature. In some respects, the unlimited liability has been stretched from just simply the injury and death point of view right through to other considerations as well.

I think that was the point the ombudsman made. Frankly, if it is the parliamentary secretary's interpretation of law versus the ombudsman's, I know who I prefer.

With respect to the secondary point as to the concern about its constitutionality, we have a number of eminent constitutional experts in our country. Why did the government not bring them before the committee to say they had looked at the constitutionality of this or that, and deal with it?

As to the right to counsel, that is the point. There is no guarantee of counsel. That is a problem, and it exposes the bill, which we all know will ultimately become law, to constitutional challenges, and that is what Mr. Ruby confirmed.