Security of Tenure of Military Judges Act

An Act to amend the National Defence Act (military judges)

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

Sponsor

Peter MacKay  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

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

This enactment amends the provisions of the National Defence Act that deal with the tenure of military judges.

Elsewhere

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

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:05 a.m.
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Conservative

Tom Lukiwski Regina—Lumsden—Lake Centre, SK

Mr. Speaker, I rise on a point of order, and I do apologize to my hon. colleague. I should inform you that there have been consultations and I am hopeful that the House will give its consent to the following motion: That, notwithstanding any Standing Order or usual practices of the House, when the House begins debate on the second reading motion of Bill C-16, an Act to Amend the National Defence Act (military judges), one member from each recognized party and the member from Saanich—Gulf Islands, who shall divide her time with any of the following members, the member for Richmond—Arthabaska, the member for Haute-Gaspésie—La Mitis—Matane—Matapédia, the member for Ahuntsic, and the member for Bas-Richelieu—Nicolet—Bécancour, may speak to the second reading motion, after which the said bill shall be deemed to have been read a second time and referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read a third time and passed.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:05 a.m.
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Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, I rise again in support of the bill that addresses the urgent need to ensure the proper functioning of our military justice system.

The bill comes to us in the context of two facts that I think all hon. members will recognize. One, a legal circumstance that places additional pressure on all of us to ensure the smooth functioning of our military justice system, one that has served Canada well for decades. We just celebrated the centenary of the Office of the Judge Advocate General without a challenge to its constitutionality. I will come back to that issue and delve into the circumstances that have led to a danger of that happening.

This is a measure that has been considered in the House three times during three previous Parliament when bills were brought forward that provided for exactly the very limited measures that are provided for in this bill. They died on the order paper, despite two days of debate in the House in the last Parliament and five days of debate in committee in the last Parliament. These issues have been thoroughly ventilated among all of us.

They have received the benefit of the views of the members opposite in committee and in the House, and our consultations to date lead us to believe that, on this narrow but important issue of the independence of military judges, there is a consensus among the parties represented in the House to move forward with alacrity and to ensure that trial by court martial in this country's military justice institutions continues to take place in full conformity with the law and the continuing modernization of our civilian, civil and military justice practices.

Ensuring the safety of Canadians requires that members of the Canadian Forces remain in a constant state of operational readiness. In this regard, the military justice system is a critical tool in allowing the chain of command to deal with matters directly related to the discipline, efficiency and morale of the military. Many hon. members on all sides of the House will know first-hand from their experience, and we all know from our observation of the excellence of our Canadian armed forces the importance of morale, the fundamental importance of justice that is swift, justice that is fair, justice that brings together a team that reinforces the cohesion of that team to the smooth operational functioning of a military.

It is not just a question of the institution's effectiveness, it is also a question of our military's ability to reflect the values that we as Canadians hold dear. Any Canadian soldier, private, sergeant or officers, whether they are in Libya or on a peacekeeping mission on the Golan Heights or anywhere else, will tell us that they can only do their job to the extent that they are representing and projecting Canada's values. Those values are built upon a system of law, a system of justice and that system must be fully reflected in the system of military justice that serves our military.

In the absence of such a system, our military men and women would not be able to focus on their top priority—protecting the interests of Canada and its people.

For that reason, the government, the Supreme Court of Canada and even the Constitution have recognized the importance of maintaining a robust military justice system. The military justice system must meet the unique needs of the Canadian Forces and must also be subject to the Canadian Charter of Rights and Freedoms. The charter guarantees that a person who is charged with an offence has the right to be presumed innocent until proven guilty in accordance with the law in a fair and public hearing by an independent and impartial tribunal.

It is on the issue of independence that I speak to the House today. The independence of the judiciary is a fundamental right of all Canadians, and maintaining that independence is an important responsibility of government. This means ensuring that Canadian courts, including courts martial, are free from real and perceived undue influences and interference.

Judicial independence, or the freedom to deliver a ruling based solely on fact and law, requires that the judge presiding over a trial have a certain level of job security and that his appointment be permanent.

That is the system we have in our civil courts and it is the system we must now have in our military justice system.

On June 2 of this year, the Court Martial Appeal Court made an important decision regarding the security of tenure of military judges. I am referring to the case of Regina v. Leblanc. This ruling assessed that the process by which military judges are appointed, currently on a five year renewable basis, does not satisfy the constitutional requirement for an independent judiciary. Therefore, the court has given Parliament six months, or until December 2, to pass remedial legislation to update the National Defence Act, otherwise, its provisions related to the appointment and tenure of military judges will be declared constitutionally invalid. This is not a new issue.

Since it took office, the government has been actively seeking to make amendments, similar to those I just mentioned, to the National Defence Act.

The enhancement of judicial independence is one issue that the government first attempted to address in 2006 with Bill C-7, which died on the order paper, as I mentioned at the outset. Since then, the government has attempted to amend the National Defence Act on two separate occasions: Bill C-45 in 2008 and Bill C-41 in 2010, both of which died on the order paper as a result of prorogation or the dissolution of Parliament.

Therefore, we cannot be taken to task for not having tried to resolve this issue earlier as circumstances literally did not permit us to bring these efforts, which we all have endorsed in one way or another, to fruition. Ideally, Parliament would have passed legislation that would have dealt with the issue of security of tenure in 2006, unfortunately, circumstances were such that this was not the case. Today, with a renewed sense of urgency on this issue, we come before this House with Bill C-16

In order to address the concerns identified in the Leblanc decision, the proposed amendments to the National Defence Act contained in Bill C-16 would provide military judges with security of tenure to the fixed age of 60, subject only to removal for cause based on the recommendations of an inquiry committee established under regulations. This is a procedure that reflects, in the military justice system, the type of removal proceedings that we see in our civilian justice system in extreme cases when it is applied to judges.

The government recognizes that 60 is an earlier age for retirement than most judges in the civilian justice system. However, we must remember that military judges are commissioned officers in the Canadian Forces, colonels and lieutenant colonels at the moment, and that the military must balance the need for an experienced judiciary with the need for physical fitness and deployability in all of its members. It is the principle of universality of service. For this reason, 60 is the maximum prescribed retirement age for all Canadian Forces members, and this must include military judges who are, of course, members of the Canadian Forces.

I would like to close by emphasizing that the government recognizes that the amendments proposed in this bill are technical in nature, but they constitute amendments that are necessary to ensure that the National Defence Act is consistent with the charter and that the military justice system operates in accordance with Canadian legal standards.

We are really talking about the modernization of our military justice system, the obligation we have to ensure that our system reflects developments in the civil justice system. I am not only speaking about our own observation as parliamentarians, as government, that this must take place, but observations that have been endorsed by the Supreme Court of Canada and by a recent decision by the military appeals court that this now take place specifically with regard to the issue of the independence of military judges.

Should Bill C-16 not move forward quickly the ability of military judges to hear cases will be put into question, causing uncertainty within the military justice system. By ensuring security of tenure to the fixed age of 60, Bill C-16 would make a significant contribution toward ensuring the continued independence of military judges within the military justice system.

Let us keep in mind that our military justice system has a long-standing and proud tradition in Canada. The Court Martial Appeal Court was created in 1959 by Parliament. It is a military justice system that is subject to civilian control, civilian supervision and civilian oversight. It is also subject to that oversight in that the Court Martial Appeal Court is a superior court of record with a chief justice of its own. It is composed only of superior court judges appointed by governor in council. Appeals from this court go directly to the Supreme Court of Canada, so our military justice system fits under the charter, under our Constitution, into a system of justice that is overseen ultimately under appeal by the Supreme Court of Canada.

Let us also put the bill into perspective. The full-time military judges of whom we speak and to which this new measure would apply number four in this country at the moment, three of whom are lieutenant colonels and one a colonel. They do handle a large amount of work. The bill really would apply to a relatively restricted field of the military justice system and our military as a whole.

This government recognizes that while urgent, the issue of judicial independence is but one of many aspects of our military justice system that requires updating. Performing a regular review of any legal system is necessary to ensure its continued relevance and effectiveness, which is why the government has also introduced Bill C-15, which proposes implementing many of the recommendations found in the 2003 report by the late chief justice Antonio Lamer.

Together, Bill C-15 and Bill C-16 represent a comprehensive response to the recommendations found in the Lamer report and in Regina v. Leblanc to ensure that our military justice system remains consistent with Canadian values.

I therefore call upon the House to support both of these important bills as they move forward. I also call upon those independent members of the House, some of whom were active in committee in reviewing the provisions now contained both in Bill C-15 and Bill C-16, to join us in moving the bills forward expeditiously in recognizing that the values we all share, the military we all support, deserves to see these technical but important updated measures move forward as quickly as possible.

It is one of our duties to our military. It is our duty to Canadians to move quickly forward on this. We need to ensure that our Canadian Forces are served by the best, the most modern, the most effective military justice system that we can have in this country at this time.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:20 a.m.
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NDP

Jack Harris St. John's East, NL

Mr. Speaker, I will make my own speech in a few minutes, but I would just like to refer to the member's notion of the duty of the independent members of the House. I would like to ask the parliamentary secretary, why are we in this situation that he has to call upon them to do that? They just refused unanimous consent to a motion to move this through quickly, but they did so in an apparent retaliation for what the government refused yesterday.

I see the member is wearing a poppy. We made statements the other day on the occasion of Remembrance Day. It is traditional in the House. The Green Party has a representative here, even though it does not have party status. The Bloc Québécois has four members but no party status. These members wanted to have an opportunity to make a Remembrance Day statement, yet the government refused.

The House leader for the New Democrats, the official opposition, specifically asked for unanimous consent yesterday and it was refused by the parliamentary secretary and his party. That is why we are in a situation where there is not a free flow to see this go through. I think there is a general will that this be passed.

The government is the author of its own misfortune. Why would it refuse to allow the representatives of the Green Party and the Bloc to make a statement in observance of Remembrance Day?

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:20 a.m.
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Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, it is unfortunate that any member of the House would see fit, for any reason, to politicize an issue, to link an issue that really is, and I think the member for St. John's East would agree with me, technical in nature, that is urgent because of the judicial context now set for this issue.

Yes, there is give and take in the House. There is free flow of requests and agreements, sometimes request refusals. However, let us be clear, if this measure does not move forward expeditiously, and we had hoped it would do so today, and we still think expeditious progress for the bill is possible, those who will suffer are all of us in the House because our credibility in serving the military and the military justice system will be in doubt.

Every single member of the Canadian armed forces who is served by the court martial system, by the summary trial system, runs the risk of having the constitutionality of that system being called into question as early as December 2. Therefore, the urgency does transcend the give and take that we habitually engage in in the House. It should compel all members to reconsider their positions and to move toward expeditious passage of the bill.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:20 a.m.
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Green

Elizabeth May Saanich—Gulf Islands, BC

Mr. Speaker, I was not going to touch on this issue, but the hon. member for St. John's East has raised it. It grieves me enormously to block unanimous consent on this matter. The parliamentary secretary's presentation on the facts and the value of Bill C-16 is uncontested from the Green Party's point of view. He presented it admirably.

However, it has been a source of great grief. I have heard from Green Party members across the country. They are stunned that independent members were not allowed to speak. Others have spoken from other parties to reflect on the sacrifices of those in previous wars and those currently in military action.

Patriotism is not something that is the exclusive province of one party on one side of the House. If anyone has politicized any issue inappropriately it was government members who two days in a row have refused the Bloc Québécois members in Parliament and the duly elected Green Party member of Parliament in speaking to Remembrance Day.

I think the matter of unanimous consent is usually negotiated. It is negotiated with goodwill and that goodwill was absent in this case.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:20 a.m.
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Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, I would simply urge our hon. colleagues opposite, the member for Saanich—Gulf Islands, and those other independent members who made their views known at the start of today's debate, to find a different way of expressing their displeasure.

The decision rendered on June 2 by the Court Martial Appeal Court was one that declared our current military justice system invalid because of the lack of security of tenure for judges. The provisions of this ruling were suspended until December 2 to allow this House to act, to allow the Parliament to Canada to correct this situation. December 2 is coming quickly.

Those members have a position that they wanted to express. They are entitled to use the rules of this place for whatever ends they choose. However, I would appeal to them to choose a different context, to make a different piece of legislation, a different measure, the object of their disapproval or their disruption in this case. Military justice and the integrity of the justice system serving the Canada armed forces is too important.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:25 a.m.
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Conservative

John Weston West Vancouver—Sunshine Coast—Sea to Sky Country, BC

Mr. Speaker, I greatly appreciated the hon. member's speech. It was very detailed and interesting. He has represented Canada's foreign affairs department in Afghanistan and he supports human rights everywhere in the world. I have a question for him: why is it important for members of the military and all Canadians to have an independent judiciary? He spoke about the Constitution in his speech and I would like him to speak a little bit more about the importance of an independent judiciary here.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:25 a.m.
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Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, I thank my hon. colleague for his question. It is truly important for all members of this House to have a good understanding of what members of our Canadian Armed Forces experience. They are often deployed overseas, in such places as Afghanistan, where the justice system does not work well or even not at all. That was certainly the case in Kandahar in 2006 and it continues to be the case for several areas of justice in Afghanistan.

Therefore, it is vital that our armed forces take with them a reliable justice system that is consistent with our values. When they are deployed, they are governed by the military rather than the civilian justice system. Military justice in Afghanistan, Libya and other countries where our forces are deployed must be swift and fair and reflect the values of Canada's civilian justice system and its most recent developments.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:25 a.m.
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NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, as my colleagues said earlier, it is rather difficult to listen to our hon. Conservative colleague tell us that we are politicizing an issue, when all the Conservatives have been doing from the beginning is ramming their bills down our throats. I would like to read a quote and ask him to comment. Manon Cornellier, who is a very respected columnist in Quebec, had this to say:

The Conservatives have a majority. They know that they will get their bills through and that they have the time to honour the best parliamentary traditions, that is, by acting in a thoughtful and insightful way and giving members, organizations and the public an opportunity to be heard. Ideally, this should be accompanied by a willingness to listen.

The government wants its bills, for example bills C-10 and C-19, to be passed post-haste. It is telling us that we are politicizing the debate, but in fact it is the one doing so. That is rather rich.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:25 a.m.
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Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, I have not read Ms. Cornellier's article. However, I can assure the hon. member for Gatineau that, in this case, we listened to her party and had some real in-depth discussions on this issue in the House during previous Parliaments and in committee. We agree. We agree on the independence of military judges.

I think, then, that our idea to introduce this bill efficiently and quickly reflects the best traditions of the House in terms of consultation and willingness to reach a consensus, two very common things in the history of this House. I can assure my colleague that in issues related to military justice, we intend to continue this tradition—

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:30 a.m.
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NDP

Jack Harris St. John's East, NL

Mr. Speaker, I am pleased to have an opportunity to speak to this legislation because it provides an opportunity to talk about how important the Charter of Rights and Freedoms is in our country. It is the Canadian Charter of Rights and Freedoms that gives the reason for this piece of legislation to correct something which, in the current context, is contrary to the Charter of Rights and Freedoms.

This is something that was introduced into our law in 1983 and the effects of it, as we are seeing today, are still reverberating. The Charter of Rights and Freedoms is for all Canadian citizens, regardless of who they are, whether the person is a soldier, as in this case, or a criminal with a record as long as his arm, as they say in the vernacular, or an ordinary Canadian who happens to find himself or herself in front of the courts.

The charter has many provisions. This one is about section 11(d). Section 11(d) of the charter provides that any person who is charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. Each and every word of that provision is important. Each and every word of that provision of the Charter of Rights and Freedoms has been tested and given judicial interpretation over the last 28 years since the charter came into effect. It is an important fundamental underpinning of our system of justice.

How did this case come about and why are we here? We are talking about whether judges in the military courts should have security of tenure. This is not for the judges. Some people say that judges want to have longer tenure, they want to have longer careers and do not want to be subject to being removed, laid off or not reappointed. It is not about that at all. According to the existing legislation, the military judges are appointed for a term of five years. They hear courts martial. Of course, under military justice life imprisonment could be given as a sentence, so under military tribunals, courts martial, these judges have a tremendous amount of authority and power under the law. The military justice system is a parallel one and in many ways is very different.

We will be getting into an argument about what that means in regard to a lot of other provisions in military justice under Bill C-15 when we get to that. This one has been taken out, and probably for good reason, because it is less controversial. We think this legislation should be passed swiftly.

It was part of Bill C-41 in the last Parliament, which we thought was going to pass. It went through committee and got right to the end. We even reached a compromise on a number of things and made some good amendments, but lo and behold, instead of bringing it into the House for third reading and passage, the government forgot about it, laid it aside, or for some reason did not bring it through. This was after the Court Martial Appeal Court of Canada had made this ruling on June 2. Everybody knew this was coming because this was the court of appeal, not the regular court martial where a similar decision had also been made.

The government was well aware of this then, and I think it has been wise to take it out separately and see if it could get co-operation to have it passed. We are prepared to co-operate. We are a very reasonable opposition. When we see something that needs to be done, it can be expedited. We even provided unanimous consent. Our part of unanimous consent was provided this morning to have this bill brought into law at least in the House of Commons today and be sent to the other place for speedy passage. We offered that consent because we are very reasonable and co-operative when it is appropriate to be.

Let me tell members what this case was about.

Mr. LeBlanc and other soldiers were tasked with guarding a CF-18 at a Canadian air force base. The aircraft was on standby for the Francophonie summit being held in Quebec City in October 2008. Corporal LeBlanc and his companion were one of two teams guarding the aircraft. He and his companion were on lookout, sitting in a truck parked by the hangar. His companion went off to use the washroom, and left Corporal LeBlanc sitting in the truck by himself. Lo and behold, when his pal left the truck to go to the washroom, he was inside the hangar and was away for about five minutes, a sergeant drove up next to Corporal LeBlanc's side of the truck. The trial judge found that Corporal LeBlanc had been reclining and had his eyes closed for at least 10 seconds. His eyes were closed for 10 seconds and as a result he was charged with negligence and not being vigilant in his duty under section 124 of the National Defence Act, negligently performing a military duty imposed on him.

That is what gave rise to this. He was brought before a court martial and he was convicted because the trial judge ruled that even though they did not have proper security of tenure, the trial judge thought they did and made his ruling anyway. It went to the court of appeal in the military tribunal. It said the issue was raised as to whether or not military judges were impartial. Military judges are very well trained. They are lawyers. They usually come from the judge advocate general's office. They are steeped in the rules of law and they are appointed as a judge, but they are appointed for five years. That five years may or may not be renewed.

If a judge is trying to decide a case, it is not about the judge, it is about the accused. Does the accused have an understanding that there is a standard of judicial independence so that the judge is not impartial as between him and the military? The judge, in the minds of the accused and everyone else, is dependent upon the military brass for his reappointment. The judges of the court martial appeal court are very well qualified. For example, Justice Létourneau, is one of the authors, along with retired Colonel Michel Drapeau, of perhaps the only significant text on military law in Canada. A new edition came out a week or two ago. He sat on that court. The court said that five-year renewable terms for military judges did not provide the necessary constitutional protection, especially considering the fact that it was considered necessary to give such protection to civilian judges exercising the same functions.

That is a simple explanation of how this case got to where it is. This legislation is designed to fix that. It was in Bill C-41 which passed second reading, went through committee and was reported back to the House but did not get passed. We agreed with that provision. In fact, it was this provision that was used as an excuse to fast-track the legislation. The government said that it was very important and it must get done not a month ago, but a year ago, even before the case on June 2, but it did not get passed.

We are here, reasonable as we are, and we are prepared to do it anyway because we know it needs to be done. It is important that this piece of legislation be passed in the context of understanding the importance of our Charter of Rights and Freedoms for all Canadians, including those in the military.

There will be more debate about that because there are many provisions in the National Defence Act and the military justice system that do not give the same protections to soldiers in the military justice system as civilians would have in civilian court. We will, of course, have further debate about that, but with respect to this provision, we agree.

This is not new. As I said, this has been debated many times. In my province of Newfoundland and Labrador, for example, there was a provision for provincial court judges. They are the ones who hear 95% of 96% of the cases. It turns out that back in the late 1980s, early 1990s, the Newfoundland the minister of justice could transfer a provincial court judge. The minister could simply say that the judge would now be transferred to Maine, for example, or anywhere else. Maybe the judge lives in Maine, is transferred to St. John's, but does not want to live there.

The minister of justice, the attorney general, had the power to transfer judges to Cornerbrook or wherever. The mere fact that could be done was not considered to be impartial as between Her Majesty The Queen and the accused. Her Majesty The Queen's representative, the minister of justice or attorney general, could actually move judges if the minister, for whatever reason, did not like their judgments or was not satisfied they were doing the job the justice minister wanted them to do in that jurisdiction.

That power was deemed unconstitutional and it had to be changed for impartiality. It is a mundane example, but it is a reality of the importance of the Charter of Rights. At the end of the day, that provides for our protection.

This has a long and very interesting history, but it comes up again and again. It has come up here today. It came up yesterday with respect to Mr. Khadr who is in the United States. He is called a self-confessed terrorist. He is a Canadian citizen and his rights and freedoms are important, too. Yet the government took the position before the Supreme Court of Canada that we should not recognize those rights because our neighbour wanted to try him. It was the government's actions that infringed upon his rights and the Supreme Court of Canada refused to hear the case.

These are rights for all citizens. They are not designed to protect criminals. They are designed to ensure, as the charter has, that an accused person before a court, whether it be a military court, a civilian court or any other, has the right to be tried in a fair and public way according to law. The individual is presumed innocent and tried in a public hearing by an independent and impartial tribunal. Each and every one of these words is extremely important and part of the fundamental underpinnings of our judicial system, the freedoms we enjoy, the freedoms we talk about when we say that we support our veterans because they have fought for our ability to build a society that has these freedoms.

Canada has a society that has developed over the many years, through trial and error in some cases, not always making progress. It seems as if we are going to take some backward steps in the next few months with Bill C-10. We will go backward and there will be another government to go forward again. It is not always the steady march of progress, as I am sure members are aware. It depends in which direction we want to go, but in this case the Charter of Rights and Freedoms has brought a great measure of protection to our citizens and a standard by which the justice system is measured.

As to Corporal Leblanc, he was dealt with because the appeal was allowed in part. However, the part which found him guilty of neglect of duty was upheld, but only on a technicality. In that case the court martial judge thought there was security of tenure until retirement or maybe that he was ready to retire and it did not matter to him. However, the principle was a factor in the case and was enough of a factor to get it to the Court Martial Appeal Court of Canada. That is a separate court of appeal. From that court of appeal, a case can go directly to the Supreme Court of Canada, so it is a very high court.

We really did not need this case to prove it because representatives of the legal system, the military justice system and the Department of National Defence and anyone who was interested in the matter, as well as Michel Drapeau who appeared before our committee the last time, talked about this as a fundamental problem.

There are other issues we can talk about in terms of military justice. Is it necessary for those judges be officers? That is an interesting point. It has been argued before the defence committee that we should have a mix of civilian and military judges in the military justice system. It is important to understand how the military works, but it is also important to not get caught up in the culture of the military to the exclusion of the importance of having a standard justice that applies equally to citizens whether they are in the military or not. We can debate that at length.

However, in the context of this situation, we believe it is important that the military justice system not be hamstrung by a system which everyone clearly recognizes fails to meet the standard of appropriate impartiality and does not meet the constitutional test.

I have had some thoughts about the requirement of retirement at age 60. If we consider the notion that it is a military justice system, then from the day one joins the military, he or she knows there is a mandatory retirement at age 60. That is part of the system. It has nothing to do with whether one is a judge or a master corporal working on base or a general. The fact that one is appointed as a military judge, he or she still has to retire at age 60 as opposed to a Supreme Court judge who retires at age 75 or at age 70, depending on which jurisdiction. Those judges have been considered to have judicial independence. In the military, 60 is young for a judge. However, in the military context it is not considered to be a mandatory form of retirement.

There are some issues about supernumeraries, but that is a detail we do not need to get into now. If there is a mandatory retirement age of 60, at least in the context of the report on the court case itself, and I do not have the whole transcript in front of me and I do not know everything that was argued, there does not appear to be a lot of other discussion about other aspects of it. The focus was on the five-year renewable term being the issue, which is what we are dealing with now. Any possible nuances on that could perhaps be argued at another time and in another case. In this case, the provision of the five-year renewable term is clearly the one that needs to be changed.

We support that change. We support fast-tracking it. We support passing it today and sending it to the other place for consideration. However, without unanimous consent, we will have a second reading debate. It will then have to go to committee. The defence committee will have to look at it. Then it would be sent back for report stage in the House. There will be a potential debate at report stage, then at third reading. It would then go to the Senate to have it dealt with and then be passed into law. It may take some time, perhaps beyond December 2. I do not know what pace the other members in the House will take in dealing with this. We are satisfied to have it passed today and to go on to the other place. It is important that we deal with constitutional matters that are clearly agreed upon.

As the member for Saanich—Gulf Islands has said, she has no problem with the legislation, but it is a question of having other issues intertwined, which unfortunately the government has seen fit to do despite the fact that it is normal courtesy in the House to recognize an important national event like Remembrance Day. Courtesy should be extended to members to be allowed to say a few words.

Those are my remarks at second reading and I would be happy to respond to any questions or comments.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:50 a.m.
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Conservative

Ted Opitz Etobicoke Centre, ON

Mr. Speaker, I apologize. I did not realize that was a rule. However, no politician in the House should walk upon the backs of Canadian Forces members, because we already stand upon their shoulders, especially on a minor political irritant or argument that would hold up something that is so fundamental to fairness to all Canadian Forces soldiers.

I have a question for the hon. member for St. John's East, who I have had the pleasure of serving with on the defence committee. He is an accomplished and intelligent individual.

The backgrounder to the legislation states that:

The military justice system is designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale.

Former Justice Lamer of the Supreme Court states:

To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts—

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:50 a.m.
See context

NDP

Jack Harris St. John's East, NL

Mr. Speaker, first, I thank the member for Etobicoke Centre for his kind remarks and compliment of my work on the defence committee.

The statement the member read from the report of the late Mr. Justice Antonio Lamer is an important one. It is a fundamental tenet of military justice overview. There are a number of other matters as well that become evident if one reads more closely to what Justice Lamer said. There are differences between military justice and civilian justice and part of it has to do with the operational aspect.

For example, in a combat zone, we do not have the same leisure to deal with matters, particularly if they involve discipline. I think it is widely recognized around the world that military justice is different and the need for a prompt response to matters than can affect morale and operational security is extremely important.

I agree with the general principle that there needs to be a separate military justice system, but it also must be closely examined to ensure that we do not go beyond what is necessary for the sake of having an efficient military. Indeed, it has been enunciated here that the Charter of Rights and Freedoms must be considered applicable to the situation. Although, the Charter of Rights and Freedoms itself says that it can be modified if it is proven to be necessary for operational reasons. Section 1 of the charter is an exception system.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:55 a.m.
See context

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, I never cease to be amazed at the talent of this institution to turn what should be short and sweet into long and painful.

I listened to the hon. member's speech and I listened to the speech of the hon. member before him. There is not a word with which any of us disagree, yet we have now used virtually an hour's worth of time to talk about something on which we all agree.

My comment and question is that I have neither comment nor question. I urge hon. members to do the same.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 10:55 a.m.
See context

NDP

Jack Harris St. John's East, NL

Mr. Speaker, I would tend to agree with him. In fact, I believe we offered unanimous consent, along with the hon. member, so this could be put into law immediately, but since unanimous consent was refused, I thought it important on the eve of Remembrance Day week that we talk about that important principle for which our veterans fight, and fought, and for which some laid down their lives, and that is the freedoms we enjoy.

This is about those fundamental freedoms--not only the fundamental freedoms of all Canadians, but in this case the fundamental rights and freedoms as they apply to our soldiers themselves.

I beg the indulgence of my former colleague on the defence committee to allow us to have this discussion and to talk about how important it is that we recognize that this is one of the freedoms contained in the Charter of Rights and Freedoms that people are fighting for. As I was going to point out to my previous colleague, the Charter of Rights and Freedoms guarantees the rights and freedoms that it sets out, subject only to such reasonable limits prescribed by law as can demonstrably justified in a free and democratic society. That is what we are trying to achieve in this country.