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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the NDP members have made it clear that they oppose the bill and do not want to see it go to committee. They made that point amply and clearly. We appreciate that and would encourage them to continue to debate the bill despite their opposition.

Having said that, I would point out that some of her colleagues talked to the principle of the bill, with one in particular saying it was a step in the right direction.

The government has been negligent in bringing forward and passing legislation to address the whole issue of military justice. Members of the forces have been waiting a long time. We have been waiting a long time. Given the amount of time we have been waiting to see the bill pass, why would the NDP oppose the bill even going to committee? We in the Liberal Party would like to see amendments to the bill, but—

[The Acting Speaker, Conservative, Bruce Stanton]

Order, please. We have limited time, with just five minutes for questions and comments. I appreciate that all hon. members wish to participate, but try to keep your questions and responses to about a minute, if you can, and then more of your colleagues will have the opportunity to do so.

The hon. member for Saint-Bruno—Saint-Hubert.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I thank my colleague for the question.

The NDP would like to take the necessary time to study the bill at each stage of the process. We need more time to discuss it.

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I want to thank my hon. colleague for her excellent speech. I would also like to address the bill's shortcomings.

It is essential for the people who serve us, who serve our country and protect us and serve in the military to be respected and entitled to acceptable conditions. This bill does not do that.

I would like the hon. member to explain why we are still here today discussing the holes in Bill C-15.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I want to thank my brilliant colleague for the question.

The NDP cares a great deal about the post-military life of those who have served in the Canadian Forces. We would not want certain offences to result in a criminal record. Everyone knows that having a criminal record does not really help soldiers in their return to civilian life.

[Nycole Turmel, NDP, Hull—Aylmer, QC]

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

In 2012, and it will soon be 2013, modernizing the military justice system has become an urgent matter. While the military justice system should not be a carbon copy of the civilian justice system, the two systems must be harmonized more.

In that light one could say, reluctantly, that Bill C-15 is a step in the right direction. The NDP has long been in favour of updating the military justice system. Yes, Bill C-15, in its present form, brings us a little closer to where we want to go. But the problem is that it sets its sights so low that we must oppose it at second reading.

It is like a marathon where someone just runs the first kilometre and then says they have run the entire marathon. But a marathon is 42 kilometres, not one kilometre. The Conservatives are doing something like this with Bill C-15. They are telling everyone, “mission accomplished”, rather like a certain American president a while ago, although it is not the case.

No, Bill C-15 is not a finished product, far from it. It ignores too many of the recommendations in the 2003 report by former chief justice of the Supreme Court Antonio Lamer. In his report, Justice Lamer made 88 recommendations to improve military justice. Bill C-15, which is one of the legislative responses to the Lamer report, only retains 28 of the 88 recommendations. That is certainly not enough for something as important as reforming the summary trial system and the grievance system, and strengthening the Military Police Complaints Commission. This bill does not measure up.

In the previous Parliament, we worked in good faith with the party in power in order to improve the previous version of this bill, Bill C-41, as much as possible. In committee we proposed a number of amendments that were mostly adopted. The government could live with the amendments we had proposed at that time. We arrived at a compromise on several elements of the bill, but Bill C-41 died on the order paper.

When the current session began, we got a surprise. The main amendments that the NDP had proposed and the government had accepted had disappeared from the new version of Bill C-41, now known as Bill C-15. The amendments we had worked on together, most of them based directly on the recommendations in the Lamer report, had disappeared, as if by magic.

Among them were the amendments concerning the authority of the Chief of Defence Staff in the grievance process and that of the grievance board. At present, the Chief of Defence Staff lacks the authority to resolve the financial aspects arising from a grievance. That flaw was pointed out by Justice Lamer in his report.

As for the grievance board, we had suggested that at least 60% of the members should be civilians who had never served in the Canadian Forces, which would have helped a great deal. It was logical. If the objective was to have the Canadian Forces Grievance Board perceived as an external, independent body, then it would have to include a good proportion of civilians. As we know, one plus one makes two, or at least I think it still does.

However, the government decided not to include this suggestion in Bill C-15. One other element of this bill, which we studied carefully before deciding whether or not to support it, is the whole issue of reforming the summary trial system.

In our opinion, Bill C-15 does not respond adequately to the injustice of summary trials. Canadians should be aware that, at present, a member of the military who is found guilty of a minor offence such as insubordination, drunkenness or misconduct will be given a criminal record. That criminal record, of course, follows the member into civilian life after the Canadian Forces. We understand the need for the army to enforce strict discipline but this kind of sanction for minor infractions is really too severe.

We must also remember that the way guilt is determined in the military is very special. In the summary trial system the judge is the accused person's commanding officer. The accused has no right to appeal and no access to a transcript of the trial. In short, the system is very harsh and particularly so for those accused of minor offences.

As I said in the beginning, Bill C-15 is not completely bad. Among other things, it offers some relief for the problem I have just outlined, the injustice of military members getting a criminal record for minor offences. But, once again, Bill C-15 does not go far enough.

During consideration of Bill C-41 in committee, we proposed extending the list of minor offences to 27. In Bill C-15, the number of minor offences is just five, which is not nearly enough. Let us be clear: we realize that the military justice system has to be different than the civilian justice system. But that does not mean we should turn a blind eye to its flaws. A criminal record is a serious stain on a person's file. It is an impediment to getting a job, renting an apartment, travelling and so forth.

For people who proudly served their country to end up with a criminal record because of flaws in the military justice system is outrageous. I am sure that Canadians agree with us on that. Let us not forget that these people serve our country and are entitled to a fair justice system that will allow them to return to civilian life without completely destroying their future.

I am ready to take questions.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Speaker, this is the third time I have listened to members from the NDP bring forward what I would characterize as misinformation. That is the only way I can characterize it.

We do, indeed, have the facts. The only fact we seem to agree on in this particular case is that former Chief Justice Lamer made 88 recommendations in his 2003 report. That should lend a lot of credence to this. It is independent from political purview, from a person who has a great legal track record and actually made recommendations. Eighty-one of those recommendations were accepted by this government. That is clear from all the information, if we look at it. Twenty-nine have been implemented already through legislation, regulation or policy changes; 36 are contained in Bill C-15; and the remainder that have been accepted by the government are pending implementation through regulation or are under study to find out the best way to implement them.

That is very clear. We know that. Why do the opposition NDP members continuously suggest that is not the case? They are misrepresenting the facts on how many have been accepted by the government and how many have actually been implemented.

[Nycole Turmel, NDP, Hull—Aylmer, QC]

Mr. Speaker, I thank my colleague for his question and comments.

If my colleague would agree to make changes to the bill in order to ensure that the amendments that we proposed and that were adopted during the previous Parliament are automatically incorporated into this bill, then our party might be willing to support these recommendations.

As things stand now, they are not in the bill, and that is why we cannot support it. We want to ensure, among other things, that a person filing a grievance or making representations has access to his or her file and the transcripts, which is currently not the case.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I thank my colleague for her speech, and I want to read directly from the Lamer report for my question to her.

The Lamer report says, to end unacceptable delays:

The Chief of Defence Staff must be given the power to delegate to someone under his [or her] command and control decision-making in respect of all grievances...

It also recommends:

A task force composed of senior members of the Canadian Forces should be created with the sole responsibility of resolving the backlog of grievances at the Chief of Defence Staff Level within a year of the tabling of this report....

This report was tabled in 2003 and we are now in 2012, and these recommendations are not in Bill C-15.

Earlier, I spoke about the fact that we cannot support bills that are incomplete, and if this bill is incomplete, why would the Conservatives not put in these sections of recommendations that were made by former Chief Justice Lamer?

My question to my colleague is: Does she agree that these are fundamental aspects of the report's recommendations that should be in this bill?

[Nycole Turmel, NDP, Hull—Aylmer, QC]

Mr. Speaker, yes, I agree that Mr. Lamer's strong, and long, investigation looked at the problems with military justice, and he was thoughtful in his recommendations.

It is important to listen and look at the money that was spent at the time, as well as the time of the people who were tasked with this, and make sure that the amendments proposed reflect what was presented at the time.

I believe that if the Conservative government wants to listen to our recommendations and amend the bill, then we could achieve something that is good for our military. It is important to recognize the value of these people who represent Canada.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, it is an honour and a great pleasure for me to try to put in my two cents' worth today in this debate on Bill C-15.

I have studied labour relations. I have also worked as an employee representative in grievance procedures. In my field of studies, I also did human resources management. I have been on the employer side and the union side. So I have been on both sides.

I am going to try to show why it is extremely important that we have a fair and equitable system for our soldiers for handling grievances relating to all the various disputes that arise between them and their superior officers and their institution, the Canadian Forces.

We have a bill that amends eight acts: the Access to Information Act, the Criminal Code, the Financial Administration Act, the Privacy Act, and others.

This bill is in fact 60 pages long. That is almost modest, compared to what we have been used to getting from the government for some time now.

To begin, let us do a review of part of the history of this bill.

In 2003, the Right Hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, submitted a report on the independent review of the National Defence Act. He is not just anybody. He had much to say about judgments concerning grievances that had gone to the labour court, the Court of Appeal, and ultimately the Supreme Court. The Lamer report contained 88 recommendations concerning the military justice system, the Military Police Complaints Commission, the grievance procedure, which I will address at greater length today, and the Canadian Forces Provost Marshal.

Bill C-15 is the legislative response to those recommendations. However, only 28 recommendations have been incorporated into this new version.

Bill C-15 has appeared in several forms over the course of its history.

First, we had Bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007—I think we know it is the practice of the Conservatives to cut off debate—and the 2008 election was called.

However, in July 2008, Bill C-60 made a comeback, simplifying the structure of courts martial and establishing a method for choosing the type of court martial that would be most consistent with the civilian justice system. That was precisely the objective that should have guided the sponsors of this reform and Bill C-15. That should be our goal: harmonization with the civilian justice system.

In 2009, the Standing Senate Committee on Legal and Constitutional Affairs considered Bill C-60 and made nine more recommendations to amend the National Defence Act.

In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and the 2009 Senate committee report. Provisions relating to the military justice system were included, such as provisions relating to sentencing reform, judges and military boards and committees, summary trials, the court martial panel and the Canadian Forces Provost Marshal and certain provisions relating to the Military Police Complaints Commission.

Essentially, Bill C-15 is similar to the version that came out of the Senate committee in the last Parliament. The amendments carried forward include the composition of the court martial panel and the appointment of military judges during good behaviour until the age of retirement.

Since I was elected, in May 2011, I have spent time on many occasions with soldiers of all ages, whether at Remembrance Day ceremonies with our courageous Canadian Legion members or at various meetings with soldiers and cadets in my region. I have met courageous, dynamic people who are very proud of their military profession.

However, when the time comes for them to return to peacetime life, these soldiers’ lives can be full of surprises and sometimes twists. All of them, the generations who lived through the major wars—the world wars, the Korean War or the Vietnam War—and other generations who have worked hard on numerous peacekeeping missions in the Middle East, in Africa, in Europe, or more recently in Iraq, Darfur and Afghanistan, deserve not only our admiration, but also our respect, for doing their duty.

That is why they deserve justice, a justice system in which they will be able to see themselves as individuals who are part of today’s modern society.

All these brave men and women have proudly carried the colours of our Canadian flag and staunchly defended the democratic principles we hold dear. Sometimes, however, and it must be said, the aftermath has left its marks, and sometimes they are heavy marks. When they come home, their life in our industrialized society begins, where the economy is what matters above all else. In this modern civilization, social status, acceptance by others, often comes from a person’s job and of course the pay associated with it, but also, everything depends on an academic background or wide-ranging experience here and there in the real world. Soldiers do in fact have an extraordinary background when it comes to understanding giving and duty. They are capable of great effort and courage.

And then, soldiers return to work in civilian life. This is why I focus on this when I talk about grievances in the military system and the consequences of those grievances. Whether or not it is appropriate, a candidate for a position that is available in a business is judged, most of the time, against objective criteria, I hope, but sometimes the candidate is assessed in a way, and let us not be afraid of the words, that may be more subjective. And so a little notation here or there about a minor problem during the person’s military service or in the performance of their duties during missions can sometimes become a major wrongdoing in the eyes of an employer who decides to make use of this workforce, which is so important to manufacturing and industry, but also to the service sector. That is why the NDP is truly disappointed that some of the amendments it proposed to Bill C-15 have not been incorporated.

I would like to mention the amendments concerning the authority of the Chief of Defence Staff in the grievance process. These amendments were a direct response to a recommendation by the Right Hon. Justice Antonio Lamer, the former chief justice of the Supreme Court of Canada. There are also the changes to the composition of the grievance committee so that 60% of its members would be civilians to make it more objective and to ensure that the grievance process is not conducted strictly by the military. Finally, there is the provision to ensure that a person convicted of an offence during a summary trial is not unfairly subjected to a criminal record. All too often, this criminal record will scare employers who need this labour force. As I mentioned, this workforce is important not only to the future of that business, but also to Canada's future.

As I already said in my speeches here, do not ask what this country can do for you, ask what you can do for your country. Those words are from John F. Kennedy, but they still apply. It is often said that Canada is a land that needs workers. The doors are open. We welcome them. However, we must not create problems for these applicants, for this workforce that is essential to our country's future. Believe me, Mr. Speaker, this kind of situation can seriously undermine a soldier's return to civilian life and his career after the military.

We need this workforce. Yet in this world, they will be subjected to a grievance system essential to justice and to fairness in the handling of disputes. Why not have harmonized the military and civilian justice systems in this respect? It would have been easy to do. This grievance adjudication system is even recognized by the Supreme Court in several decisions.

Bill C-15 on the reform of the military justice system should be based on the fundamental principles of law and justice on which our country was built. It is essential to put things back in place within National Defence and to give that department the means to adapt to the modern workplace, to the 21st century.

Still, the NDP believes this legislation is a step in the right direction—really—to bring the military justice system more in line with the civilian justice system. Other steps will have to be taken, and we hope the government will listen to our amendments.

May justice be done.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Speaker, I have listened, but again and again I hear the same misrepresentation of the facts. Indeed, I think all members here would agree that 81 out of the 88 recommendations made by Chief Justice Lamer have been accepted by the government, and have been implemented or are on their way to being implemented.

The member and others from the NDP have stood up consistently and said, “They do not deserve criminal record” or “They should not have a criminal record” or “The criminal record follows them”. It is not about “them”. If they have committed a crime, they should be identified with a criminal record. Canadians should have the ability to have someone supervise them for a period of time. Criminals should pay a price as a consequence of their actions.

Is the member suggesting that these people, if they commit a crime, should not have a criminal record and that Canadians should not be protected through some form of supervision on an ongoing basis? That is what he seems to be saying.

The member continuously brings forward the disappointment that the NDP members have in relation to their amendments not being adopted by the government, so the NDP members are going to take their baseball and bat and go home. I know the member is disappointed, but he is not in government.

Is the member suggesting that people should not receive a criminal record if they do a crime? That is what he seems to be saying.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, if we were in government, we would do things differently, certainly in a more human way.

I do not agree with the member's assertion. It is obvious that what we are trying to do is to change the system so that when military members come back to society they can adjust.

They can adjust to civilian life. We certainly do not question the military justice system in the case of serious offences. Today, we are not dealing with serious offences but with minor offences that could have a very unfortunate impact on the future civilian life of military personnel.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I congratulate the member for Compton—Stanstead, a very compassionate man. Since his riding neighbours mine, I have worked with him on a number of occasions. I have a very simple question for him.

As he pointed out, having a criminal record can create a lot of problems for job seekers. We are talking about military justice. People who served in the Canadian army end up with a criminal record, even though their justice system is not as fair as that of other Canadians. Having access to a fair and equitable court of law is a constitutional right, and members of the Canadian Forces do not even have that fundamental right.

In light of his previous job experience, could my colleague comment on the repercussions this could have? Does he think that soldiers should have the right to a fair court of law, like other Canadians?

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, I thank my colleague very much for his question.

It is obvious that for grievances and disputes, it is important to be represented fairly. Our charter states that we must be represented by counsel or a representative who can help us through the court system, whether it is a court that handles grievances or a labour tribunal.

However, the military system does not respect this element of justice, this fundamental right. That makes no sense. If we want to modernize the military justice system, one of the first things we should ensure is that soldiers are fairly represented in the case of a judgment or a grievance. That is essential.

As we have said, minor offences are sometimes put in their file and they will end up with a criminal record for perjury or for offending an immediate superior. I have seen cases in which a young man, on the ground, yelled at his boss. There was a grievance, but it did not become a criminal record.

There is a double standard and it makes no sense.