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

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, that is an excellent question. The problem lies in trying to answer it for the Conservative government. That is impossible for me. I absolutely fail to understand the logic behind three-quarters, if not all, of its decisions.

On the one hand, the Conservatives tell us they are tough on crime, and they make bad decisions that are overturned by the courts. On the other hand, they tell us they stand behind the members of our forces. We constantly hear that from the Minister of National Defence. Listening to him, you would think he is the only person concerned about the members of the Canadian Forces. However, when it comes to protecting them by means of a major amendment in a major bill such as Bill C-15, the minister abandons the members of the Canadian Forces, sacrificing them on the altar of false promises.

And yet he should be protecting them. After all the service these people have rendered to their country, it seems to me the least we can do is to be fair with them.

[Corneliu Chisu, Conservative, Pickering—Scarborough East, ON]

Mr. Speaker, the last time the House debated the matter, much was said about the fairness and administration of summary trials in the military justice system.

I served in the military, including in Afghanistan, and I would point out that Justice LeSage's review concluded that:

The summary trial system is vital to the maintenance of discipline at the unit level and therefore essential to the life and death work the military performs on a daily basis.

He also concluded that:

—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”.

Given the strong endorsement for the place of summary trials in the military justice system by Justice LeSage, will the opposition support the government in passing this key piece of legislation at second reading so that it can be studied in greater detail at committee?

In view of the urgency of this matter, I think we should go forward.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, it is so urgent that we have been waiting to see major changes to the National Defence Act since 2003.

It has become urgent because the government in power has allowed the situation to continue. As my colleague from Davenport said, the problem is that the government prorogued Parliament when the time came to pass the bill with proper amendments. In one stroke, prorogation erased all the work that had been done in committee, everything that had been adopted, and everything that had been agreed upon between the parties in a minority government context, in which political parties should work together, something the government does not do.

In his report, Chief Justice Patrick LeSage does not give the government a blank check. He agrees with many of our positions, that a lot of things should be changed to make Bill C-15 palatable.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, I would like to thank the hon. member for Gatineau; among other things, she made an important point about the terms used in the two previous bills.

Most importantly, there is the term “external” as, for instance, in the Military Grievances External Review Committee. In fact, if there are too many non-external members on such a committee, its external nature may be questioned.

The last time such a bill was studied, the MPs on the Standing Committee on National Defence concluded that a committee with 60% of its members from outside the military would be a good compromise. The Conservative members, however, thought it would be a serious mistake to limit the military presence to 40%.

I would like my colleague to give us her interpretation of the reason the Conservatives were opposed to making this committee more external.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I shall try to steer clear of impressions.

What I have noticed, in actual fact, is that the Conservative government likes to do things in a very contained and isolated way.

When we are discussing an external committee but no one from the outside is accepted, and everything is being done by people from the inside, alarm bells start to ring, and I am extremely concerned.

The value of having a committee composed of external people is that it makes it possible, as in a jury trial, that a group of peers, not experts, studies the situation and make sure that the system is working well.

Why did the Conservative government not retain this amendment, which had been negotiated and discussed, and which was a generous compromise? There is no logical explanation except that the government does not like transparency.

As in the popular film, A Few Good Men, “They just can't handle the truth.”

[Lynne Yelich, Conservative, Minister of State (Western Economic Diversification)]

Mr. Speaker, there have been repeated assertions by the hon. members opposite that none of the amendments made at committee to the predecessor Bill C-41 were retained in Bill C-15.

Is the hon. member aware that in fact two of the amendments made at committee are present in Bill C-15? They are found in clauses 101 and 135 of the bill. Could the member please clarify?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am not aware if my esteemed colleague was present throughout my speech, but I never once referred to “all our amendments”, but to very essential and important amendments. The member is correct that there were some amendments incorporated.

However, the point is not the fact that no amendments were accepted or reproduced in the bill, but that some very fundamental points have been tossed away by the Conservative government. It does not seem to like anything that asks for transparency and fairness for the people who are at the top of the line and who will be affected by the end result of the work toward Bill C-15.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I am pleased to rise and participate in the debate. I thank my colleague, the member for Gatineau, for a very interesting presentation that I enjoyed very much.

I will be sharing my time with the capable and hon. member for Sherbrooke, who will likewise participate in this debate and enlighten all members as to just how this affects him and his constituents and what we think needs to be done to this bill as it relates to the Canadian Forces.

There is a large population of Canadian Forces members in Dartmouth—Cole Harbour, which I hear from on a fairly regular basis on a number of different matters relating, for instance, to community volunteer activities; to what is going on at the market; to our support, as the official opposition, for a proper procurement process to make sure that our Canadian Forces women and men who are asked to serve on behalf of this country are provided with the best equipment to do their job in a safe and effective manner.

We also are standing with our Canadian Forces women, men and their families as it relates to the government's support for the members when they return from active duty from various spots around the world. It is certainly my commitment and that of my party that if we ask our women and men, our brothers and sisters, our fathers and mothers, our uncles and cousins and community colleagues to risk their life and limb, the least we can do is to ensure, whether or not they return to this country, that they or their families are properly cared for. That is certainly my commitment to the people of Dartmouth—Cole Harbour. I know that feeling is shared by my colleagues in the official opposition.

It would be fair to say that most Canadians only have a glimpse of the nature of justice in the Canadian Forces. Frankly, I think that 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. We know there is an incredible need and requirement within the armed forces for a strong disciplinary system. However, we also need to recognize that the women and men who work for and serve this country should, at the very least, be subject to the same rights and benefits under the Charter of Rights and Freedoms as civilians. That is simply not the case as it relates to issues like summary convictions and the grievance procedure. I will talk a bit about the concerns we have with respect to those systems.

As has been described, Bill C-15 is the latest iteration of the bill as a result of a recommendation from an internal review of the National Defence Act in 2003 by a former chief justice of the Supreme Court, the Right Hon. Antonio Lamer. Contained within the report were 88 recommendations relating to military justice and the Military Police Complaints Commission, the grievance process and the provost marshal.

It is important to recognize that Bill C-15 is the latest response to these recommendations and that only 28 recommendations thus far have been implemented in legislation, regulations, or via a change in practice. As the NDP critic and deputy critic have said so well, it needs to be underlined that it is important that we do this better and that we do more. Even in previous Parliaments more was done.

All parties on the defence committee worked very hard on the recommendations by the Lamer inquiry and a number of changes were passed in previous parliaments. Unfortunately, those amendments to the National Defence Act did not find their way into Bill C-15. Frankly, not moving forward with those amendments is almost a sign of disrespect to the hard work of the members of the defence committee.

If immediate passage of this bill were as important as some government members have suggested, why did they not bring this bill in forthwith when the new Parliament began? Why did they not bring in the bill that was accepted by all members of the House but that died on the order paper when the government decided to hold an election last year? If it were so important, and we believe it is, why did they not bring forward the bill that we had all agreed on? Undoubtedly, that bill would have found its way through committee and been passed into law by now. That is an indication of how big a hurry the government is in. It tabled Bill C-15 in October of last year. It does not seem to be a priority because the bill has not received the attention it deserves.

Other important amendments passed at committee include the following. One dealt with the authority of the Chief of Defence Staff in the grievance process, responding specifically to Justice Lamer's recommendation. It related to the ability of the Chief of Defence Staff to levy a financial award in one shape or another. That does not exist now but it was recommended that it be done.

A second dealt with changes to the composition of the grievance committee to include 60% civilian membership. Right now the grievance committee generally consists of Canadian Forces members, often at the officer level or, at the very least, recently retired Canadian Forces members. That needs to be changed to bring in some greater external oversight.

Third, there was a provision ensuring that a person who was convicted for an offence during a summary trial would not be unfairly subject to receiving a criminal record as a result. That is a serious problem. The summary trial system needs to include some of the provisions of the Charter of Rights and Freedoms so it will not as onerous and potentially damaging a system as it is now to the future of many of these women and men in the Canadian Forces.

This is a important issue for New Democrats and the people of Dartmouth—Cole Harbour. We want to make sure that the right thing is done and the proper changes are made.

[The Acting Speaker, Conservative, Barry Devolin]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Gaspésie—Îles-de-la-Madeleine, Search and Rescue; the hon. member for Random—Burin—St. George's, Employment Insurance.

Questions and comments, the hon. member for Québec.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, I am quite certain you have once again made the right choice.

I would first like to thank my distinguished colleague for his very interesting speech. He was able to highlight our concerns regarding Bill C-15, on military justice.

One of our greatest concerns, in fact, is the chance of someone ending up with a criminal record following a process that is not entirely fair and equitable, without the benefit of legal assistance, before a tribunal that is not totally independent. This structure worries us.

My colleague surely knows that the United Kingdom, Australia, New Zealand and Ireland, whose military justice systems resemble Canada's, have seen fit to change their summary trial system in the interests of procedural fairness.

Why are we depriving the Canadian Forces of such positive changes to the summary trial system? That is my question.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I thank the member for Québec for her insight into a key part of our opposition to the bill, the summary trial process, which is completely closed. It is often presided over by a Canadian Forces member's commanding officer. There is no record of the process, no appeal process, and no opportunity for the person subject to the trial to have access to counsel. The penalty may very well be a criminal record, a Criminal Code violation for offences without there being due process. We believe that is wrong.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I too would like to thank my colleague, the member for Dartmouth—Cole Harbour. I also have a question for him.

In his opinion, how did our soldiers feel when parliamentarians once again dragged their feet on this issue and put off correcting this injustice, namely excessively harsh penalties enforced in military discipline?

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, the Canadian Forces members I talk to in Dartmouth—Cole Harbour get extraordinarily frustrated from time to time. They stop me in the market or on the street or come to my office and we have a conversation about the way they feel they are being treated by the government and previous governments regarding things like returning from the fields of battle. When it comes to issues like dealing with matters of justice, having the right of appeal, getting an answer from the Minister of National Defence, they get discouraged sometimes. I would not say everyone is, but I have heard this from Canadian Forces members in my constituency. They do get frustrated when the government talks with great relish about how it honours the women and men who fight for our country, yet it will not move with the necessary speed to provide them with the rights and benefits they are duly entitled to.

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

Mr. Speaker, I thank my hon. colleague from Dartmouth—Cole Harbour for sharing his time with me. I am very grateful.

It is a great pleasure to speak about this issue, as the city of Sherbrooke is proud to be home to two Canadian Forces reserve units, two institutions, the Fusiliers de Sherbrooke and the Sherbrooke Hussars. I have had the pleasure and privilege to meet with them many times over the last year or so. I have great respect for them and am eternally grateful for the work they do day after day. My respect for their work is why I feel a duty to rise today to speak to Bill C-15. Our men and women in uniform protect our lives, so I have a duty to protect their interests in the House of Commons.

I would like to give some background about the legislation we currently call Bill C-15, which has had many past iterations. On October 7, 2011, the Minister of National Defence introduced An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 will strengthen military justice. It is a direct response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, in May 2009, work done by the Standing Senate Committee on Legal and Constitutional Affairs.

The NDP believes the bill is a step in the right direction to harmonize military justice and civilian justice. It has gone off course, however, just like a defective submarine. There will be a few colourful expressions in my speech. I sometimes enjoy expressing myself that way. Our summary trial and grievance systems are in urgent need of an overhaul, and the Military Police Complaints Commission needs to be strengthened.

I would like to delve into the background a little to better illustrate the need for reform. In 2003, the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, submitted his report on the National Defence Act. It contained 88 recommendations aimed at demining various areas, including military justice, the Military Police Complaints Commission and the grievance process. Only some of the mines were cleared, however, as only 28 recommendations have been implemented. I think we would all agree that a partly demined field remains quite hazardous.

Bill C-15 has donned many types of camouflage. First off, Bills C-7 and C-45 both died honourably in combat because of prorogation in 2007 and the elections in 2008. It is our contention that we would not be here debating this bill right now if the government did not have a nasty habit of hitting the panic button and proroguing Parliament.

Later, Bill C-60 was sent to the front lines wearing slightly different camo. It simplified the court martial structure, bringing it more in line with the civilian justice system. In its report, the Standing Senate Committee on Legal and Constitutional Affairs made nine recommendations regarding potential amendments to the National Defence Act.

In 2010, Bill C-41—we have amassed a number of bills, making things somewhat complicated, and I hope everyone is able to keep track of the numbers—was sent out to the front lines in response to the Lamer report and the Senate committee. Bill C-41 proposed reforms to sentencing, military judges and commissions, and summary trials, among other things. We could say that Bill C-15 is the brother-in-arms of C-41. The amendments brought forward cover the composition of the court martial panel and the appointment of military judges with security of tenure to a fixed retirement age.

However, some basic amendments made at committee at the end of the last session of Parliament were not included in Bill C-15, and that poses a problem for us. Is it by chance that three amendments that were very important to the NDP are not included in today's version, Bill C-15?

The three amendments relate to: the chief of Defence Staff's authority in the grievance process, which was a direct response to one of the Lamer report recommendations; changes to the composition of the grievance committee to include a 60% civilian membership, as discussed earlier today; and the provision ensuring that a person convicted for an offence during a summary trial is not subjected to a criminal record, which we also discussed earlier. I will talk about these three amendments, which—we do not know why—are not included in Bill C-15, the bill we are debating today.

Bill C-15 does not deal effectively with the unfairness of summary trials.

Right now, a conviction during a summary trial in the Canadian Forces results in a criminal record. What is sad for our troops is that those who are accused are not able to consult with counsel. There is no right of appeal and no transcript of the trial. Everything is off the record. What is more, the judge is the accused's commanding officer. So much for an impartial hearing.

An expert in military law, retired Colonel Michel Drapeau, said the following in February 2011:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year....As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

A soldier slips up because of ongoing stress. We are not talking here about major offences but about misconduct, absence without leave or disobedience of a lawful command. We recognize that a soldier's code of ethics and code of conduct are the fundamental pillars that have become the pride of the Canadian army, but first and foremost, soldiers are human beings. They go through things that few people in our society experience. They live in a state of perpetual stress. We are not asking for military immunity but simply to put into perspective these acts of misconduct, which do not in any way warrant a criminal record and everything that goes along with that.

In committee in March, we proposed to expand the list of offences that could be considered minor and not worthy of a criminal record from 5 to 27 in order to give soldiers more latitude. This amendment was abandoned and we want it to be restored. We do not want this amendment to become the unknown soldier of the bill. We want it to be acknowledged. When soldiers who have a criminal record as a result of a minor misconduct finish their military service, they will find it difficult to find a new job or even to rent an apartment.

While our soldiers ought to be held to the very highest standard of behaviour, the reality is that soldiers are human and thus imperfect. Soldiers are also entitled to a fair and equitable justice system, just like all other Canadians. It is a constitutional right to be represented and to have access to a fair trial.

The second amendment concerns the reform of the grievance system. The current grievance board does not allow for external review. Are we still living in the fearful cold war era when everything must be hidden? Retired Canadian Forces personnel serve on that board. In fact, almost everyone on that board is from some kind of military background. We think that is not at all reasonable. The Canadian Forces Grievance Board should be seen as a civilian, external, independent body. That is why we proposed that 60% of the board or committee’s members should be neither officers nor enlisted personnel in the Canadian Forces. That amendment was approved for Bill C-41, but it is not included in Bill C-15 before us today. We wonder why not.

The third amendment that had been included in the previous bill, C-41, and that we would have liked to see in this bill is the strengthening of the Military Police Complaints Commission. The idea of giving this commission more powers so that it could act as a watchdog has been almost ignored. Its scope of action must be broadened so that it can legitimately investigate and report to Parliament.

The question must be asked: why have the Conservatives not kept the amendments proposed by the NDP and adopted by the committee in 2010 when Bill C-41 was studied? These amendments were good soldiers that could have protected the interests of our military personnel. The Conservatives are continuing to undermine the progress made by all members of the Standing Committee on National Defence and the recommendations made by the representatives of the Canadian Forces.

Such good soldiers as those amendments must not be abandoned. Even our allies—the United Kingdom, Australia, New Zealand and Ireland—have decided to modernize the summary trial process. Why has Canada—having dithered so long on the issue—not got down to the task of finding the necessary tools to ensure that our military personnel are properly represented and judged?

As we have said many times, we are opposed to Bill C-15, because we see it as a tank without any firepower and without armour, one that makes it impossible for our soldiers to get a fair and impartial trial.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I thank the hon. member for his speech on this critical matter and for trying to keep us awake and alert in the House because it is an important matter to be paying attention to.

There is a lot of material that has come forward here and in committee. Many experts have testified, including Colonel Michel Drapeau who is a renowned Canadian lawyer, professor and author on military justice. His commentary on the way that the government has proceeded with this legislation is along these lines. He has said that what the government is bringing forward is still deficient in major areas and “requires more than tweaks and tinkering to bring it into the 21st century”.

It has been made clear today that in the last iteration of the bill, of which there have been many since 2003, there were substantive changes brought forward to the bill tabled by the government, which were agreed to by all members of the committee. The concern is that the majority of those amendments have disappeared.

Is the member concerned that it becomes a pointless exercise in the House when the government is simply going pro forma through the process of going to committee? What is the likelihood that the Conservatives will actually accept the amendments this time around and make it a proper bill?