Bill C-16

Chris Alexander Parliamentary Secretary to the Minister of National Defence

Mr. Speaker, obviously we have never taken the position that there were not improvements required to ensure the constitutionality of this legislation.

That is why, in addition to the four failed attempts we have had to amend this legislation, there have also been Bill C-60 and Bill C-16. That means six pieces of legislation for this House, over four parliaments, without a full, thorough-going modernization, update, taking place yet.

Could I ask the hon. member to return to the issue at hand today? Why is it that he is speaking, after all our consideration in committee of this issue, in favour of a reprised amendment, essentially, that goes against the testimony of the Provost Marshal of the Canadian Forces on March 2, when he said that the safeguards in place are robust, and goes against the testimony of the Vice Chief of the Defence Staff, who says that this provision is required to potentially save lives on the battlefield, using the example of a live fire exercise?

Chris Alexander Parliamentary Secretary to the Minister of National Defence

Mr. Speaker, it is a pleasure to rise in this place again at report stage debate on Bill C-15, a bill that is absolutely fundamental to the well-being of the Canadian Forces and to the modernization of the military justice system, which is at the absolute core of its mandate.

I would invite all hon. members, if they are ever asking themselves about the relevance of this debate and the relevance of this bill, to have a look at the National Defence Act. It is a weighty document in both languages, which is mostly devoted to the military justice system.

Roughly 180 pages out of 230 pages of this document are devoted to the military justice system because of the special need of our Canadian armed forces at home and abroad to maintain discipline and to maintain operational effectiveness while ensuring that justice is done both when they are training on their bases at home in peacetime and also amid the uncertainties and exigencies of the combat they have been involved from time to time throughout their history.

This is an important bill. I find it surprising that the member for Saanich—Gulf Islands would raise amendments at this stage on a very specific part of the bill regarding the role of the Provost Marshal, which is going to be enshrined under this legislation much more clearly in law than ever before, but without mentioning the requirement for operational effectiveness, mission success. That is why we have a military justice system that is separate from the civilian system.

We make a special request of the Canadian armed forces soldiers, sailors and aircrew when they go on missions and when they are at home preparing for such missions. We ask them to live under a justice system that will meet the special requirements of those dangerous situations in which they find themselves from time to time.

The failure to refer to these urgent operational requirements is very revealing in the presentation from the member for Saanich—Gulf Islands. It shows that she has not understood why we have a military justice system and she has not understood the balance that has been struck throughout this legislation, not just in Bill C-15 but in all bills that have established our excellent military justice system over decades.

She has not followed the testimony of witnesses, across the board, in committee and outside of committee, indeed, because most of those best qualified to pronounce on this issue agree with the balance that has been struck in this legislation. The two witnesses the member mentions are in fact the only two I can remember having commented at all positively on the kind of proposal she is making.

It is also extraordinary that the member would introduce these amendments at this very late stage in debate of this bill. We have had dozens of speeches. We have had days and weeks of testimony in committee. This is the fourth Parliament to be considering these amendments.

We are here in the 41st Parliament. There was a similar bill before the 40th Parliament, the 39th Parliament and the 38th Parliament. The recommendations we are trying to enact, at long last, are more than a decade old. They actually came forward in the 36th Parliament.

How many people were here during the 36th Parliament? Was anyone here? There were a very few. Certainly the member for Saanich—Gulf Islands was not here, and neither was I.

I also have a sense of déja vu in that I think some of us were standing in this House a full year ago, on budget day, discussing military justice. It was Bill C-16, an urgent portion of this bill that was taken out of the bill because we were not moving quickly enough on the bill. Here we are again today, going around in circles.

Bill C-15 proposes to put into legislation the appointment, duties and functions of the Provost Marshal as recommended by the Lamer report. He suggested the National Defence Act be amended to define the role of the Canadian Forces Provost Marshal and to set out a framework concerning the relationship between the CFPM, the military police and the chain of command.

The motions before the House today call upon the Vice Chief of the Defence Staff to issue instructions or guidelines in writing in respect of a particular investigation, provide the rationale for issuing the instructions and make sure they are made public.

The proposed section of the bill, as unamended, clearly would provide for written instructions already. The bill reads:

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

I hear the member for St. John's East telling us that we should simply buy into a mention of an accountability framework with a specific date, 1998, in the legislation. We do not mention administrative documents in legislation passed by this House. We do not do that. That is not good legislative practice, in this place or in the other place. What we are trying to do is take the content of that accountability framework, which I agree is important, and turn it into legislative terms, which is what this bill would do.

The intent of proposed subsection 18.5(3) is to recognize the unique circumstances of the military police, who often operate in zones of armed conflict. I will mention that again: zones of armed conflict. I would like to hear the member for Saanich—Gulf Islands, in her subsequent interventions, if there are any, inform this House as to how she proposes to deal with those circumstances.

Military police may be going to investigate a situation, here or there on the battlefield, but they do not have knowledge of the operational next steps of the mission. They do not know if there is going to be direct fire called in at that location. They do not know if there is going to be a live fire training exercise at that location. They do not know if there is going to be an air strike at that location. That is what this provision in the bill, as unamended, seeks to allow the VCDS to inform the Provost Marshal of, and absolutely the Provost Marshal could make public the rationale. That is the default position. That is what is expected of the Provost Marshal. That is what the Provost Marshal would be empowered to do under the bill as unamended.

However, in those rare cases when, for reasons of operational secrecy, the protection of Canadian lives or, if there is personal information involved in the investigation, privacy, the Provost Marshal may not make the instructions fully public or may not make them public at all.

In other words, the intent of proposed section 18.5 is to strengthen the independence of the military police, as the default position is that the instructions must be made public, and it is unnecessary to refer to an administrative document. The VCDS would be responsible and accountable for the instructions he or she gives. While the fact of the issuance of the direction and its contents should be public, the rationale may be classified or engage issues of operational security.

Members of the Standing Committee on National Defence heard that some misgivings about section 18.5(3) were actually alleviated by subsequent clauses, which would provide for the transparency of any directions issued. Let us listen to Colonel Gibson, a senior member of the Judge Advocate General's Office, from his testimony on February 13. He said:

...there's the very important transparency provision set out at proposed sections 18.4 and 18.5, which says that the default position is that the instruction must be made public. It gives the discretion ultimately to whether or not to release that, having regard to the impact on a particular investigation, to the provost marshal.

Therefore the Provost Marshal has the hammer if he or she is concerned about this, and it is transparent.

We heard the Provost Marshal and the Vice Chief of the Defence Staff in committee expressing the view that this would be the right way to strike a balance. They were comfortable with this, that their independent ability to conduct investigations on the military police side would be protected.

On our side, there really is not more information or more insight provided on this issue, either by the amendments presented today or by what we have heard in this House so far. I remind the members of the House that there have been three attempts previous to Bill C-15, four if we count this bill, to amend this legislation to bring our military justice system up to date.

We in committee considered a wide range of amendments. We are grateful to all members of the committee for the full discussion we had. There are two amendments coming forward to this place, one of which is urgently required because it would reduce the likelihood that members of the Canadian Forces would be carrying into civilian life a criminal record for offences committed under the military justice system that do not justify a criminal record. We need to enact that change quickly. It has been close to a decade that we have been trying to do this, and we have failed so far. We are not serving the Canadian Forces well as long as we fail to pass this legislation, and we would like to move through report stage and third reading as quickly as possible.

Jack Harris St. John's East, NL

I might remind my colleague that, led by Mr. Harris, the legislation with respect to military judges went through all three stages of legislation in the House of Commons, with respect to Bill C-16, in a matter of three weeks. It was introduced on maybe October 10 or 11 and was passed into law before the end of that month, because it was regarded as a necessity, given the circumstances that presented themselves.

I don't think we need to play politics with this. We can have legitimate arguments here. A similar thing happened with the passage of Bill C-60 in about a month. That was before I was here, in 2006 or 2007.

We are here as politicians for the good of the country. We may have differences about what we're doing now, but in a time of emergency or special circumstance, as we saw with the concerns about the legitimacy of the military justice system because of the rulings under the Charter of Rights and Freedoms, actions are taken. My view is that is exactly what would happen in the circumstance we're talking about, if this country were at war.

Jack Harris St. John's East, NL

Thank you, Chair, and good afternoon, Mr. Minister. Thank you for being with us today.

I'll get right to the point because I only have a short period of time. We support many things in the bill, but we have some concerns. You mentioned the Charter of Rights and Freedoms a number of times during your presentation, and the necessity for public confidence in the administration of military justice and indeed legislation. We've had a number of occasions, of course, where changes had to be made to the military justice system because of the Charter of Rights and Freedoms. Indeed, we agreed on swift passage of one of those, a companion bill to this, Bill C-16, in a matter of three weeks back in the fall of 2011 for that very reason.

But public confidence was somewhat shaken recently when it was revealed by a senior justice department lawyer that the vetting of bills by the justice department, which is required by law for charter compliance, is in fact being done with a degree of confidence of I think 5%. In other words, the statement made by the senior Justice lawyer was that if there was a 5% chance that it could comply with the charter or if there was any argument that could be made, it didn't matter, the justice department would not flag this to Parliament for consideration.

Can you tell me, Mr. Minister, in regard to this particular iteration of the bill and the confidence level that you have, as you've expressed here today, is it the 5% confidence level that the justice department seems to be using as a standard, or is there some other level?

Alexandrine Latendresse Louis-Saint-Laurent, QC

Mr. Speaker, for almost a year and a half, I have had the opportunity to debate in the House a number of issues that are dear to me. At times, we must also debate issues with which we are not as familiar. You will agree that we cannot be interested in everything all the time. However, that does not mean that the issues are not very interesting, and I do not doubt their importance. For many Canadians, everything to do with the military is somewhat of a mystery. The public definitely knows that Canada has an army and many people are very proud of it. However, the internal workings of the armed forces are a mystery to mere mortals.

A year and a half ago, that was the case for me. Since arriving here, I have had the opportunity to meet many members of the armed forces and I have become aware of the issues that are important to them. I have also asked the veterans in my riding many questions, and they have kindly and patiently answered them.

Bill C-15 is about military justice and it is a truly interesting subject. I will summarize the bill in order to provide some context. Bill C-15 is the Act to amend the National Defence Act and to make consequential amendments to other Acts. True to form, the Conservative government gave it an optimistic short title—Strengthening Military Justice in the Defence of Canada Act. Coming up with such upbeat titles is a new trend. I would not put it past the Conservatives to introduce a bill to diminish the rights of aboriginal peoples and name it “encouraging the legal and economic autonomy of first nations”. The cheerful words are a bit much.

Bill C-15 addresses some very clear problems and, in a way, proposes some clear solutions. This bill originated in 1998 when the Liberals were in power. During the 1990s, it was determined that the National Defence Act absolutely had to be modernized and achieve a better balance. It was significantly amended in 1998, after the release of three different reports that questioned its effectiveness. The Liberals introduced Bill C-25, which contained clause 96 stating that, every five years after the bill is assented to, there would be an independent review of the amendments made to the National Defence Act to see whether they were effective and whether any adjustments were needed.

This brings us to 2003, when the Lamer report came out with its 88 recommendations. Everyone agreed that the Lamer report was an effective tool and that it clearly indicated the steps to follow to improve and modernize our National Defence Act.

When the Conservatives came to power in 2006, they inherited the Lamer report and its recommendations. The Conservative government was aware that it had to continue reforming the National Defence Act. Under the Conservatives there were all kinds of disappointing twists and turns. In the first two minority, and rather unstable, Conservative governments, the two attempts to pass legislation to comply with the Lamer report recommendations died on the order paper.

In 2008, there was a turn of events. On April 24, the Court Martial Appeal Court of Canada, in R. v. Trépanier, declared unconstitutional the provisions in the National Defence Act enabling the director of military prosecutions to choose the type of court martial for a given accused. This essentially meant that, from then on, in certain cases, accused persons had the right to choose the type of court martial to be convened.

The Conservatives had to react to this event as quickly as possible. Their legislative attempt failed in the wrangling of minority governments, and suddenly there was a court case that they needed to respond to. Their response was Bill C-60, which made minor changes to the military justice system. The Lamer report definitely remained the foundation for future legislation, but it also led to a report from the Senate Standing Committee on Legal and Constitutional Affairs entitled, “Equal Justice”. That report, commissioned by the Minister of National Defence, was agreed to in principle by the government when it tabled the report.

At this time, we have an abundance of studies and information to guide the whole legislative process of amending the National Defence Act. However, the tone has already been set. It will never be applied as a whole, but rather in bits and pieces. That is not necessarily a bad thing. We cannot change everything at once, unless the government decides to throw an omnibus bill at us concerning the National Defence Act, but I think the staff at the Prime Minister's Office, based on the two huge tomes that we have seen in recent months, are burned out. You see, the first victims of these paving stone expeditions are the legislative and political staff in the Prime Minister's Office.

Significant progress was made in 2010. Bill C-41, which was the direct forerunner of Bill C-15, was introduced in the House on June 16, 2010. It made it through the entire legislative process, was debated and discussed, and several of the NDP's proposed amendments were included. Unfortunately, Bill C-41 died on the order paper when Parliament was dissolved during the last federal election.

Not long after a new Parliament was formed, in June 2011, there was yet another twist. The Court Martial Appeal Court of Canada, in R. v. Leblanc, declared unconstitutional the provisions regarding the appointment of judges and the length of their terms.

The Conservatives wanted to fix the problem as quickly as possible, so in came Bill C-16, which was introduced and assented to in the fall of 2011. At the same time, at the very beginning of the 41st Parliament, the Minister of National Defence appointed the hon. Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice, to conduct the second independent review of Bill C-25, passed in 1998. His report was recently tabled on June 8, 2012. And that is where we are now.

This topic has been debated in Parliament for 13 years. We have the Lamer report and we have the report from the Standing Senate Committee on Legal and Constitutional Affairs, all of whose recommendations the Conservative government accepted. Now we have Bill C-15. So what is the problem?

As I said, Bill C-15 in itself is relatively well done and addresses specific urgent problems. Except there was a bit of a sleight of hand. All of the recommendations that the NDP had managed to get accepted for Bill C-41 magically disappeared.

We were not kidding around when we proposed amendments during the previous Parliament. We were being serious. They were discussed in detail and they were accepted. The NDP wants to see these amendments in Bill C-15 as well.

If I may, I would like to quickly describe the purpose of those amendments.

First, there is one very important thing: we believe that Bill C-15 fails to properly address the problem of reforming the summary trial system.

A summary trial takes place when a member of the Canadian Forces is guilty of a lack of discipline in a strictly military setting. That person will be judged by his or her commanding officer on site, without a transcript, in order to maintain military discipline. That is fine in and of itself. Members of the military are subject to rigorous discipline in the course of their duties, but since they are only human, they may make mistakes and commit minor offences. Unfortunately, right now, these minor offences lead to a civilian criminal record.

The NDP does not believe that this type of purely military insubordination should result in a criminal record. I am somewhat disturbed that soldiers who bravely put themselves in harm's way for my safety and who are under an unusual amount of pressure must, when they return to civilian life, carry a criminal record that could prevent them from travelling or getting a bank loan all because of a simple matter of insubordination.

In February 2011, the British Columbia Civil Liberties Association said that military officers who impose sentences during a summary trial often want to make a show of discipline for the unit and discourage future offences, not impose on the accused the consequences that go along with having a criminal record in the civilian world.

We are talking here about really minor offences, and in the last Parliament, the NDP sold the committee on expanding the list of so-called minor offences from 5 to 27. We want this amendment to be put back into Bill C-15. If it is not, we will not support the bill.

This is not a conspiracy. The countries with which we have everything in common have already done so. It is a fairly powerful list: Great Britain, Australia, New Zealand and Ireland.

If they have done this, I do not understand why Canada would not.

The second point pertains to the reform of the military grievances system. Right now, the grievance board does not allow external reviews. However, the grievance board should be an independent, external civilian body. Right now, only retired members of the Canadian Forces are on the board. I am not saying that they are not doing the job properly, but the system is not working. A change must be made.

Do we have to wait for another Court Martial Appeal Court ruling for things to be done right?

We suggest that at least 60% of the members of the grievance board be civilians. This amendment was agreed to in the last Parliament, but is not included in Bill C-15. We are right about this, and we want this amendment to be included.

Once again, for these reasons we will not be supporting this bill.

The third amendment that is missing from Bill C-15 concerns the Military Police Complaints Commission. It is a minor point, but the NDP believes that much more should be done to strengthen this commission.

It should be granted more powers by means of a legislative provision and it should be able to legitimately conduct investigations and report to Parliament. It is for the good of the military. We want this amendment included as well.

In the end, it is quite gratifying to be part of this long process that began in the late 1990s under the Chrétien government.

I am quite aware that such important statutes as the National Defence Act cannot be amended by only three or four pieces of legislation. Change will inevitably take many years. The work is well under way. The Conservative government has dealt with this matter rather appropriately, which is quite rare. However, as always, the NDP must be vigilant in order to put the finishing touches to the bill. The Conservatives want to act too quickly, and they have not got all the details right.

If the valuable and important amendments that we won acceptance for in the last Parliament are not restored, the NDP will unfortunately vote against the bill.

Linda Duncan Edmonton—Strathcona, AB

Mr. Speaker, I would like to thank all who have risen to speak to the bill, particularly my colleagues in the New Democratic Party who are making a valiant attempt trying to persuade the government that we should be respecting the hard work at committee and the consensus that was reached.

I have to say at the outset that I appreciate the optimism of the speaker before me, but frankly, my experience since the Conservative government gained majority control has been that the hard work done in committee seems to be for naught. I hope the government will take heed. However, I would think it is an indication that, since the government chose not to include the consensus amendments, it is going to be an uphill battle to get them back in. However, we look forward to being surprised.

Canadians would be shocked to discover that under the current law, and even with the passage of Bill C-15, many who have bravely served our country, supporting the democratic processes, due process and rule of law for this nation and others, may obtain a criminal record through a system that lacks the due process that is available in civilian criminal courts to other Canadians.

Bill C-15 is the most recent of more than half a dozen tabled iterations, which the government let die. From that standpoint, what is the rush? We should spend time in committee, and if the amendments were previously valid, then let us discuss if they are still valid.

The changes that were previously brought forward and that we continue to call for were put forward not just by opposition members but by Justice LeSage; a former justice of the Supreme Court of Canada; Professor Michel Drapeau, from the University of Ottawa; a noted author and military lawyer; members of the armed forces; and many legal experts and defence counsel for military members.

While some of the needed reforms are included in Bill C-15—and we have been clear about that—regrettably, many of the most important ones are not.

In 2003, retired Supreme Court Justice Antonio Lamer provided a report outlining 88 recommendations to reform the system of military justice and bring it into the 21st century. He was retained to undertake a review of the court martial procedures under the National Defence Act and he did issue a report, again, with 88 recommendations relating to military justice, the Military Police Complaints Commission, the grievance procedures and the provost marshal.

As one of my colleagues has stated, Bill C-15 is a step in the right direction, yet no rationale has been provided by the government as to why, at this point in time with this iteration, it has now thrown out the majority of the agreed amendments.

Retired Colonel Michel Drapeau, noted legal expert and author on military justice, has commented that the National Defence Act “requires more than tweaks and tinkering to bring it into the 21st century”.

However, this is what we have before us today. Yes, there are some amendments and, yes, they are worthwhile, but it is still tweaking and tinkering rather than bringing forward a bill that is appropriate for this century.

In this century, is it not time that the military courts and grievance procedures were amended to instill independence of the decision makers, judicial independence, trial by peers and penalties on par with those in the civilian courts for other Canadians?

I wish to echo the sentiments of the member for Windsor—Tecumseh, who clearly presented his rationale for opposing Bill C-15. As he stated in the House: “...I am never going to vote for a bill that would treat our military personnel unfairly”.

That is the stance of all my colleagues in the official opposition.

The member stated that the second reason he was voting against the bill was that, despite the efforts of the committee members in the last Parliament to agree on amendments, the experience under this majority government has been continually, where we seek all-party consensus, that the PMO overrides and rejects that consensus.

Many in the House have noted the many iterations prior to this bill. We had the Lamer report in 2003, outlining significant, thoughtful changes to bring military tribunals into this century. In 2006, we had Bill C-7, which died on the order paper. In March 2008, we had Bill C-45, which died on the order paper. In 2008, we had Bill C-16 on court martials. That was given royal assent. We had a little tinkering and it was good that one change was made, but it did not do overall reforms as had been recommended by Justice Lamer. There was a Senate report on equal justice for court martials in May 2009. Again in 2010, we had Bill C-41. The government tabled one amendment, but it died on the order paper. Then we had Bill C-16 in 2011. It passed narrow provisions to improve the appointment and tenure of military judges, but again it was just a tinkering at the edges. In March 2011, the Minister of National Defence commissioned yet another review by Justice LeSage.

It is time for a full, all-encompassing reform of the military justice regime. It is not merely the opposition saying this; it has been senior judges, military law experts and representatives of the military. It has been said over and over again. It has been agreed to by all party members of the committee.

Despite the six iterations since 2003, including this one, little concrete action has been taken to expedite a more just and equitable trial process for military accused. As my colleagues have reiterated to questions from the other side of the House, we do agree that Bill C-15 does provide a number of measures, including greater flexibility in sentencing, more sentencing options including absolute discharge, restitution and intermittent sentences. These are good measures. It modifies the composition of court martial panels and changes the power of delegation of the Chief of the Defence Staff for grievance procedures. Good on the Conservatives for agreeing to make some of those changes.

Unfortunately, the bill falls short in key issues: in reforming summary trials, in reforming the grievance system and in strengthening the Military Complaints Commission. Only 28 of Mr. Justice Lamer's 88 recommendations to improve military justice, the Military Complaints Commission, the grievance procedures and the provost marshal have been addressed.

Many amendments tabled by the New Democrats and put forward by the armed forces and passed at committee have been excluded from Bill C-15—for example, the authority of the Chief of the Defence Staff in grievance processes; changes to the composition of grievance committees and, as my colleague previously mentioned, to include 60% civilians on panel reviews; or to ensure that the persons convicted at summary trial are not unfairly subjected to a criminal record, particularly when we are dealing with minor offences.

Some of the critical reforms we brought forward previously and that have not been included provide the reasons that we cannot support the bill, including the reforms to the summary trial system; reforms to the grievance system; and strengthening the Military Police Complaints Commission. Again, these are matters that were tabled at committee and agreed to, but they are not found in Bill C-15.

Reforms to the summary trial system would include removing the criminal record for an expanded list of minor offences. In other words, there are a good number of offences where a young member of the military could be given a criminal record, where it is deemed inappropriate and would not happen in the civil system. Again, there is no right of appeal, no transcript, no access to counsel and often the judge is the accused's commanding officer.

As I mentioned, major reforms to the grievance system include reconstituting the panels with civilian members and strengthening the Military Police Complaints Commission to provide oversight.

In closing, it is a question of justice and equity for our dedicated military.