Bill C-15 (Historical)

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 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.

Strengthening Military Justice in the Defence of Canada Act

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I ask the member to forgive me, but it is too early in the morning for me to respond in French this morning without having a coffee.

There is another issue, which is not just what happens in the summary trials but how we get to the summary trial. With summary trials, by and large a member of the forces is presented with this semi-nudge-nudge-wink-wink option in cases where he or she is supposed to be able to choose between an indictable and summary offence. It is understood that the member is expected to choose the summary offence and take it like a man, excuse me for saying, and then simply reintegrate into his unit.

There is a great scene in the second episode of the series Band of Brothers showing exactly that process, where a commanding officer expects a subordinate simply to cave in and accept summary conviction proceedings. The subordinate actually resists, signs off and says that he wants an appeal and to go to court martial.

The number of subordinates who have that kind of backbone to resist a commanding officer in those circumstances has to be minuscule. Therefore, it is not just the issue of what happens, the lack of counsel and everything else, but how the person gets there. There is no real choice in so many contexts, and they are expected to simply knock themselves over into the summary conviction process.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I am pleased to rise in this House today to oppose this bill. It is a particularly glaring example of how this government thinks it has a monopoly on good ideas and that no one else has any, especially not the opposition.

Our party has long been calling for changes to ensure greater justice for members of the Canadian Forces. There is no denying that this is the fundamental principle behind this bill and our discussion. Why should a soldier, who is a citizen like anyone else, not have access to a fair and balanced justice system where human dignity is a priority? Whether we are soldiers or not, a person's career choice should have no bearing on the level of justice he or she can expect to enjoy. It is that simple. Changes have to be made.

Unfortunately, this bill does not go far enough and contains measures that are sometimes inappropriate. I would like to point out that it provides for greater latitude in sentencing and introduces new sentences, such as absolute discharge, intermittent sentences and restitution. It makes changes to the membership of the court martial panel according to the rank of the accused, and to the summary trial limitation period and the option of waiving the limitation period at the request of the accused. The responsibilities of the Canadian Forces Provost Marshal and the delegation of the Chief of Defence Staff's powers as the final authority in the grievance process have also been changed.

In light of all these changes, there are questions that must be asked. How is this of benefit to the simple soldier, who needs recourse to a justice system that does not penalize him unduly and does not jeopardize his future after his military career? The proposed changes may even strengthen some of the powers of certain senior levels in relation to the ordinary soldier. We must be sure that our constituents can benefit from measures needed to defend themselves in these situations. The bill appears to be a step in the right direction toward greater standardization of the military justice system. However, it does not address the key issues in reforming the summary trial process and the grievance system and strengthening the Military Police Complaints Commission. These are three things that would give greater strength to ordinary soldiers in our Canadian Forces.

We have supported updating the military justice system for a long time now. Members of the Canadian Forces are subject to extremely high disciplinary standards, and they deserve a justice system that is subject to standards that are just as high.

Nevertheless, we will oppose Bill C-15 at second reading, as it contains a number of shortcomings, which, we hope, will be discussed in committee if the bill is passed at second reading, something that is very likely, given the majority held by the Conservative government. Here are the major amendments that we are proposing.

The amendments to Bill C-15, for instance, do not deal adequately with the injustice of the summary trial process. Currently, a conviction at a summary trial in the Canadian Forces leads to a criminal record. Summary trials are held even though the accused are unable to consult with counsel. There is no appeal, nor is there a transcript of the trial.

Furthermore, the trial judge is the accused person's commanding officer. This is too harsh for some members of the Canadian Forces who are convicted of minor offences. These minor offences include insubordination, quarrels, misconduct, absences without leave, drunkenness and disobeying a lawful command.

We must be very careful, because it is obvious that soldiers, like us, have good days and bad days. They are subject to a great deal of pressure and stress, particularly in combat situations and other difficult situations. It is also perfectly normal that soldiers, who are often very young, should commit minor offences. I am not saying that people are not very smart when they are young, but they may be a little more adventurous and resist authority a little more. It is normal for people to go through this stage of life. Penalizing a soldier who has committed a minor offence by saddling him with a criminal record seems completely unreasonable. We must be absolutely sure that measures are put in place to determine whether or not an offence is a serious one.

Bill C-15 also provides for an exemption so that certain offences will no longer be included in a criminal record, if there is a minor punishment under the act or a fine of $500 or less. That is not necessarily a bad thing. That is one of the positive aspects of this bill, but in our opinion it does not go far enough.

Last March, when Bill C-41 was considered in committee, the amendments proposed by the NDP called for the list of offences that could be considered to be minor to be extended to 27 from five. The question is therefore what is considered to be a minor offence or a major offence. In our opinion, too many offences are considered to be major. The list of offences considered to be minor should be extended to 27 from five, which is entirely reasonable.

In addition, the amendment proposed by the NDP called for the list of sentences that can be imposed by a tribunal without the offender having a criminal record to be extended as well, with the addition of a severe reprimand, a reprimand or a fine of up to one month of basic pay or other forms of minor punishments. I reiterate: one month’s pay.

In speaking with my military constituents, I have realized that they are not wealthy. There is no point in pretending otherwise: an average soldier who is not an officer does not get the highest pay in the world. Their pay cannot be compared in any way with a member of Parliament’s pay. Fining someone a month’s pay is a harsh punishment, particularly when they have a young family to feed. Soldiers often have young families. We have to acknowledge that this is a severe punishment.

As a final point, I will stay on the subject of that amendment, to complete my comments in that regard. That amendment was an important step forward for summary trials. However, since it was not incorporated into Bill C-15, we want it to be included again.

A criminal record can make life after a military career extremely difficult. Having a criminal record can make it very hard to get a job, rent an apartment or travel abroad.

We ask soldiers to make the transition between military life and civilian life, but if they commit a minor offence, they have a criminal record. That is completely illogical.

In conclusion, a bill about military justice has to take into account the fact that our soldiers are also citizens who deserve justice.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I had the privilege to serve in the Canadian Forces. I question the member in regard to his reference to minor offences. He talked about things such as not showing up for work. Having been in the military, not showing up for work is something that is taken quite seriously.

There is quite a difference between military life and civilian life. In civilian life, if one does not show up for work, one could get fired. However, if one is in the military and does not show up for work, there is much more of a consequence.

Is the member, on behalf of the New Democratic Party, trying to say that the punishments or dispositions for not showing up for work should be similar to civilian life?

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, clearly there are conditions that are specific to the military that need to be taken into consideration. However, the level of decision-making power, where it is and the recourse that soldiers have to ensure there is no exaggeration in the use of that power against them, needs to be rebalanced. This is the balance I was referring to and the balance that concerns me. For now, I think it is tipped in favour of excessive punishment and that needs to be considered.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, first, I would like to commend my colleague for his question.

The NDP is in favour of improving and modernizing the military justice system. However, as my colleague mentioned, we feel that Bill C-15 is flawed and does not go far enough. In his opinion and in that of many members who participated in the debate, it is important to correct the inequities in the summary trial system.

Could the hon. member comment a bit further on that?

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I would like to thank my colleague for her question.

Basically, the NDP wants to ensure that there will be changes to the summary trail system and the definitions of major and minor sentences. We think that the list of minor sentences could be lengthened, and we are wondering whether all the minor sentences have to result in a criminal record.

In my opinion, the suggestions that we made are completely reasonable. Unfortunately, the government is unable to accept that the opposition could have something reasonable to propose. The government is not humble enough to accept that the bill could be improved with the input of the legitimate representatives of the people.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, as we know, Bill C-15 was preceded by Bill C-41, in which numerous amendments were made and passed by the then parliamentary committee. However, these amendments are not seen in the current Bill C-15.

Why on earth would we, in a previous Parliament, make good changes to a bill and then overlook them in the current session?

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, it is hard to answer that question.

Bill C-45 had 420-odd pages of measures and hardly a single amendment was accepted. If someone writes a 425-page book and gives it to an editor, they are likely to have at least one change every 10 pages, if they are lucky. If that person is an author, they probably have even more.

There is some kind of blind confidence in the legislative, mystical power of the Conservative government that somehow it has the answer to absolutely everything. However, if I think about it, maybe it does not care about making good laws. Maybe the government just cares about the four years it is here, and damn the future. I think the onus—

[The Deputy Speaker, NDP, Joe Comartin]

The hon. member has exceeded his time, substantially.

Resuming debate. The hon. member for Halifax.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, we cannot really talk about Bill C-15 unless we talk about the Lamer report. Contrary to some of my colleagues across the floor it is not the “Lay-mer” report, it is actually the Lamer report.

In 2003, the Rt. Hon. Antonio Lamer, who is a former chief justice of the Supreme Court, presented a report that made recommendations on how we could improve our Military Police Complaints Commission. Looking at that report and then looking at Bill C-15, I can say with confidence, as many of my colleagues have, that the NDP will vote against Bill C-15.

Bill C-15 is a step in the right direction. The NDP absolutely acknowledges that. However, it does not go far enough. I can only imagine the bill will get through second reading and get to committee because the Conservatives will vote in favour of it. When it does get to committee, I am very hopeful that we can bring in some witnesses and talk about how to improve the bill and what kinds of amendments we should make to it to make it stronger and to actually implement the recommendations that were in the Lamer report.

What kinds of amendments would we want to see? When we are looking at Bill C-15, the NDP takes the same approach as former chief justice Lamer took in his report . I will read from the summary because there is a nice set-up in the summary of the report. It says:

While not entirely without room for improvement, it is my conclusion that the military justice system is generally working well. However, the grievance process, also a subject of Bill C-25, unfortunately is not. The large number of outstanding grievances—close to 800 at last count, some outstanding for ten or more years—is unacceptable. As a result, I have made many recommendations to ensure that grievances are dealt with much more quickly and in a fair and transparent manner.

This set-up for the report is the same kind of balanced approach that the NDP is trying to take to the bill. We do believe, very much so, that the military justice system is working well. However, there are flaws and when there are flaws, and perhaps more importantly when there are solutions or fixes for those flaws, we must act to implement those changes.

There are important reforms in Bill C-15 and the NDP does support the long overdue update to the military justice system. However, there are important measures that need to be included in the bill and without these measures being included, the bill is incomplete. If the bill is incomplete, it is something that we should not support.

I will start with the grievance process. I will refer directly to the Lamer report. Chief Justice Lamer wrote that although the grievance process that was created seems to be sound on its face, in theory, the way that it actually operates has not been sound. That is really important. We need to pay attention to the way things play out in real life, not just how they look on paper.

He pointed out that grievances still caught in the process after 10 or 12 years are not unheard of and those of two or more years at the level of Chief of Defence Staff seem to be the norm. He further pointed out that many grievers complained that they were not advised as to the reasons for their delays or where their grievances were in the grievance process. Therefore, the Lamer report recommended new measures to end these unacceptable delays, reduce bureaucracy and ultimately increase transparency.

His first recommendation in this section was that the Chief of Defence Staff must be given the power to delegate decision making in respect of all grievances to someone under his command and control, except those that may have significant implications for the Canadian Forces.

Members will remember that this recommendation came out in 2003 and here we are in 2012. This flaw still exists for some unimaginable reason. As I said earlier, when there is a flaw we have to act to correct that flaw, particularly when we have solutions. This is a very solid recommendation and I do not understand why Bill C-15 would not take into consideration something as basic and simple as this. This is not a recommendation that creates bureaucracy and red tape or requires money or even thinking outside the box too much. It is a pretty straightforward recommendation. Therefore, I do believe it is incumbent on us to act and to make sure that Bill C-15 would include a sound recommendation such as this, because the flaw still exists.

The Chief of Defence Staff presently lacks the authority to resolve any and all financial aspects arising from a grievance, in direct contradiction to the recommendation of the Lamer report. Despite the fact the Minister of National Defence at the time agreed to this recommendation, there have not been any concrete steps over the past eight years to implement this recommendation.

It is worth pointing out that the bill has appeared in different incarnations and at committee in other Parliaments. The NDP did propose an amendment to this effect at committee when the bill was called Bill C-41. The consensus at the table was that it was a sound recommendation and the NDP will fight to include a similar amendment in Bill C-15.

At committee I will watch with great interest the testimony and discussion around the reform of the summary trial system. Here, I will say that I am proud to represent the riding of Halifax, a military town, as I am sure members know. It is the home of Canada's east coast navy. Although I meet members of the Canadian Forces every day in their role as service members, I also meet them and their families in and about the community, because they are not separate from the community. They are not separate from us. Rather, they are like us and part of our community. They are our neighbours and hockey coaches. Their families are in our schools and they volunteer there. They are part of who we are as the community of Halifax. We therefore come to know them and their families quite well and understand the incredible sacrifices their families make because one or both parents are serving. It is not easy to be a military family.

I have visited the military family resource centre in Halifax a few times and have had great discussions there. I heard first-hand from spouses about the difficulties of having their partners away for so long and not having control over that process. They are constantly moving, so even doing some things that we might think simple, such as buying or selling a house, causes great stress and often it is just one parent who has to do that. The kids have to adjust to new schools, find new friends, and figure out their new community as they move around. They undergo a lot of stress and pressure and really do sacrifice a lot because one or both parents serve in the Canadian Forces.

Then imagine a forces member going through all of these sacrifices with their families and at the end being released with a criminal record. Can we imagine how difficult that would make post-service life, and how hard it would be to get approved for an apartment or find a job outside of the Canadian Forces? That is a distinct possibility because the way the system is set up now, quarrelling or making a disturbance or even being drunk are considered summary offences. The person could end up with a criminal record because of these charges. God forbid that people in the rest of Canada, or perhaps even people here in the chamber, should end up with a criminal record for drunkenness.

While the bill does change that fact, the NDP would like to expand the list of minor offences because a lot of them are not worthy of a criminal record. If one thinks about the impact these minor offences would have on families and the community if considered cause for a criminal record outside of the Canadian Forces, they are unfair and unjust. If we talk to other organizations in the community they would agree that this is something that needs to be reformed. Therefore, I will watch the discussion on this subject at committee with bated breath.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, I did listen to the hon. member's speech but am struggling to understand where she is coming from. She seems to have itemized some of the shortcomings of the past, many of which are addressed by this piece of legislation. Most of the recommendations of the former Chief Justice are being addressed in this legislation.

Why is the member's party opposing the amendments in the bill that would actually ensure that convictions for minor service offences would not constitute offences for purposes of the Criminal Records Act? I keep hearing the opposition raise this point. Further to that, the Minister of National Defence has indicated that he is willing to bring in the very amendment to clause 75 of the bill that the hon. member referenced to ensure that it mirrors the amendment passed by committee in the last Parliament.

Why are those members holding this important piece of legislation up?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I thought that was a fair question by my colleague until his last line, because the NDP is not holding up this legislation. We are trying to have an informed debate about the bill.

I will answer by going back to the start of my speech. If we know there are flaws in a system and know what the solutions are, then we must first act to fix those flaws because we have the solutions. Second, it follows that if all of those solutions are not being put forward, then we should not support a bill unless it is complete, and this legislation is not complete. If I am to do my job as a member of Parliament to try to present the best public policy I can, it has to be complete.

I do not know why the government would present an incomplete bill. There were 88 recommendations in the Lamer report and I do not know why we would not go through with them when the Minister of National Defence at the time said they were good recommendations. I do not know why the government comes forward with an incomplete bill. Therefore, we have to vote against it at this stage, but we will work to improve it at committee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, far from me trying to defend the Conservatives, who have made serious mistakes in not going far enough with this legislation, the NDP is sending a very confusing message. The member showed this in her opening comments, when she said this was a positive first step. That is also how we see it, a positive first step recognizing there is a problem. Since 2003 it has been known that there is a serious need for greater equity in military justice. The principle of the bill seems to move in that direction.

Where it is confusing from the New Democrats' point of view is that they do not support the bill going to committee when they have voted for other bills for which they have wanted more amendments brought to committee. All I would do here is to cite Bill C-43, the immigration bill.

There again seems to be inconsistency from the NDP but now on this issue, and it would be nice to get some clarification why those members will not support the bill's passage to committee.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, my colleague should know better. He should know that the Conservatives have said time and time again, “Trust us, trust us, once we get it to committee, because this legislation is only the first step....” The Liberals were successful in getting Bill C-45 split out to different committees and they think that was a big win, but not one single amendment was passed at those committees. The Liberals should know most of all that “Trust us” does not cut it. We need action.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I am pleased to rise today to participate in the debate on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

I do believe that bringing the military justice system more in line with the civilian justice system is a step in the right direction. However, there are some key issues where the bill falls so far short that it is impossible for me to support it at second reading.

I will quickly highlight the key issues. The bill falls short when it comes to reforming the summary trial system, reforming the grievance system and strengthening the Military Police Complaints Commission. Those three areas are critical when we go back to first principles with respect to military justice.

I would remind members of a speech made by my friend and colleague, the NDP defence critic, the member of Parliament for St. John's East. I think he articulated the challenge best in his opening remarks on this bill. He reminded us that it was important to have a good look at our whole military justice structure because there were a number of problems that needed to be resolved.

Military justice needs to fit in with our entire justice system. We need to ensure there is conformity between the kinds of laws we have in relation to military justice, as well as our general justice system, certainly in terms of the fundamental principles of law. We need to understand that there are differences between military law and our general legal system, and there are good reasons for that. The military justice system recognizes the relationship between the justice system and discipline within the military. There is a significant importance to discipline in the military.

This is what the author of the only significant legal text in Canada used in law schools, Michel Drapeau, has said about the importance of discipline in military law:

Few professions are as dependent on discipline as is the military. Discipline is fundamental to military efficiency, cohesion, esprit-de-corps permitting commanders to control the use of violence so that the right amount and type of force can be applied in exactly the right circumstances, the right time and the right place. At the personal level, discipline ensures also that in times of great danger and risk, the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise. Likewise, group and individual discipline ensures adherence to laws, standards, customs and values of civilian society, even during combat operations.

He went on to say that discipline was integral, not only to the maintaining of an efficient armed forces but also to ensuring that the rule of law predominates within the military, particularly when engaged in great peril and danger in combat.

Military discipline is important for two reasons, not only for maintaining discipline so that when someone violates the law there is quick action and a speedy response to breaches of disciplines, but also because there may well need to be procedural differences available in the military context. Nonetheless, it is also extremely important that when engaged in combat there always be an adherence to the rule of law.

Our country certainly wants a military force and troops who are capable of carrying out their use of force in a lawful manner, regardless of the circumstances of grave peril that others take. Therefore, we say that the military justice system does not only exist to punish wrongdoers but it is also a central part of command discipline and morale.

Here in Canada, we have a voluntary military and the military justice system must be seen as equitable and fair. Otherwise, we will not only have a justice problem but we may very well also have an operational and recruitment problem. We must recognize that people who volunteer for military service have a right to know that they will be treated fairly.

Therefore, we must emphasize the justice side as well as the military side. We want, expect and need a high level of morale in our system among our troops and we demand loyalty, but that is a two-way street and the system must be seen as being fair.

That is the crux of my concern with Bill C-15 as it is before us today. Yes, it finally takes steps to update the military justice system but it does not go far enough in recognizing that the members of the Canadian Forces who are held to an extremely high standard of discipline, in turn deserve a judicial system that is held to a comparable standard.

I will now speak to the three issues that I referenced at the beginning of my speech. I hope I will be able to address each one in some detail, although I am always dismayed by the fact that we only get 10 minutes in these debates to address issues as important as this one. Nonetheless, I will give it a whirl and I will try to be a concise as possible.

I will talk first about reform to the summary trial system. The amendments in Bill C-15 simply do not adequately address the unfairness of summary trials. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Summary trials are held without the ability of the accused to consult counsel, there are no appeals or transcripts of the trial and the judge is the accused person's commanding officer. This causes undue hardships on certain members of the Canadian Forces who are convicted for very minor service offences.

For example, some of the minor service offences include insubordination, quarrels, disturbances, absences without leave, drunkenness and disobeying a lawful command. These could be matters that are extremely important to military discipline but they are not worthy of a criminal record.

Bill C-15 makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine less than $500, to no longer result in a criminal record. This is one of the positive aspects of the bill but it does not go far enough.

At committee stage last March, NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not worthy of a criminal record if the offence in question received a minor punishment. The amendment also extended the list of punishments that may be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a fine equal up to one month basic pay or another minor punishment. This was a major step forward for summary trials. However, this amendment was not retained in Bill C-15 and we want to see it included.

A criminal record can make life after the military very difficult. Criminal records can make getting a job, renting an apartment and travelling very difficult indeed. A lot of Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a system that lacks the due process usually required in civilian criminal courts.

A similar unfairness persists with respect to the grievance system. The way the system currently works, the grievance committee does not provide a means of external review. Currently, it is staffed entirely of retired Canadian Forces officers, some only relatively recently retired. If the Canadian Forces Grievance Board is to be perceived as an external and independent oversight civilian body, as it was designed to be, then the appointment process needs to be amended to reflect that reality. In other words, some members of the board should be drawn from civil society.

Our NDP amendment provides that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. This amendment was passed in March 2011 in Bill C-41 but was not retained in Bill C-15. It is important that this amendment be included once again in this bill.

Finally, I will briefly touch on the third point related to the strengthening of the Military Police Complaints Commission. Bill C-15 would amend the National Defence Act to establish a timeline within which the Canadian Forces provost marshal will be required to resolve conduct complaints, as well as protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, we in the NDP believe that more needs to be done to empower the commission.

Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions empowering it to act as an oversight body. The Military Police Complaints Commission must be empowered by a legislative provision that will allow it to rightfully investigate and report to Parliament.

I will conclude by summarizing all of these issues in one sentence. Systems that impose significant penalties on individuals require increased procedural protections and surely we can all agree that the brave men and women who serve our country deserve nothing less.