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 / 10:55 a.m.
See context

NDP

David Christopherson Hamilton Centre, ON

Mr. Speaker, I want to thank the member for St. John's East for his comments and I certainly agree with all the compliments going his way in terms of the work he does. We are very proud of the member.

I want to clarify again with the member two things. Number one, ordinarily the public has the right to expect that the official opposition will hold the government's feet to the fire in terms of being accountable, yet here we see the opposition just lying down and letting things happen.

Second, the government members are forever saying that the official opposition, the NDP, does not support the military and does not support our troops. They say that all the time. We hear a couple of them howling now.

Would the hon. member take an opportunity to concisely explain why the official opposition is doing what it is doing today, and how the official opposition feels about our citizens in uniform?

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

Looking at the clock, Mr. Speaker, I do not think it gives me enough time to deal with the important questions raised by my colleague, the new defence critic, who so far, and it has only been a week or so, is doing a great job in his new role.

As the official opposition, NDP members have two roles. One is to hold the government to account, but we are also Her Majesty's Loyal Opposition, so it is about our taking a responsible position when we have legislation like this, legislation that is concise and to the point about ensuring that our soldiers have the same fundamental rights as everybody else.

We are ready to co-operate. We are ready to give voice to that. We are ready to see this put into law as quickly as possible.

The people opposite like to propagandize every chance they get by, uttering rhetorical flourishes such as “The NDP hates the military” or “The NDP does not support our troops”. All of the things they say all the time are hogwash, as I think even the hon. members who say it know, but we sometimes need to remind Canadians of that; there are more of them than there are of us for the time being, so we need to speak louder.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 12:30 p.m.
See context

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, in keeping with my own injunction to try to be brief, I will offer a few brief remarks with respect to this bill. It is, after all, a two-page bill. It is not earth-shattering.

First, since I will not be on my feet here at any other time before November 11, I want to take this opportunity to recognize the brave men and women who serve us so well. We are very fortunate in this country that we have people who are prepared to put their lives, bodies and minds on the line for us.

I want to make the point that some parties in particular take every opportunity to enthusiastically embrace the military; however, there seems to be a somewhat less enthusiastic embrace for our veterans. On November 11, I hope that our embrace is far more enthusiastic and that they get a level of support similar to what our military gets.

I offer my condolences to the Greff family and to the Gilbert family. This must be a particularly poignant time for them. Both families are hurting and are classic examples of people who give their lives so that we can operate in this chamber as we do.

Bill C-16 has had a tortured path getting here. It went through a number of reiterations, prorogations and dissolutions and was derailed in various other ways as well. We saw another example this morning, when some members of House, rightly upset that they could not offer their observations with respect to Remembrance Day, denied unanimous consent to proceed in an expedited fashion. As a consequence, we have taken far longer than we ever should have in order to deal with the bill.

The bill has three components and revolves around a core concept: the tension between the independence of the judiciary and the hierarchy of the military command structure. Indeed, pretty well all of the justice issues in the military, the conflicts over those two points of principle, are the subject matter of both Bill C-16 and Bill C-15. Sometimes it is with respect to the independence of the police, but in the case of Bill C-16, it is with respect to the independence of the judiciary.

We are here because the courts have told us that the system has to be repaired. We cannot have a system in which the independence of the judiciary is subject to the whims of the CDS or anyone else in the chain of command. The bill does respond to the Regina v. Leblanc case and it requires a retirement age of 60.

I appreciate that in order to be a military judge, one also has to be a military officer, but it is an interesting conflict. Frankly, for lawyers and judges the age of 60 is frequently prime time in their careers. Ironically, by requiring that age of retirement and by requiring that the judge be an officer, in effect we are limiting the pool of people who would, in all other circumstances, be excellently qualified for the judiciary.

As a classic example, last week we had a hearing with respect to two judges for the Supreme Court of Canada. One was 63 and the other was 56 years old. Ironically, one would not be qualified to be a military judge and the other would only be entitled to one appointment.

There is an interesting debate as to whether one has to be an officer in order to be a military judge. I am not sure that we should not actually be debating that a little more extensively; possibly a retired officer could be a military judge beyond age 60. There is another argument as to why one has to achieve the fitness levels required of officers up to age 60 in order to sit as a judicial officer.

Those issues aside, this bill does warrant our support. I think the regime that the government has put forward in the bill is an appropriate regime. A military officer who is a military judge will be automatically required to retire at age 60, as opposed to the requirement in the civilian system for retirement at age 75. The person can be removed for cause, and there is an inquiry process, again independent of the chain of command. That is an appropriate form of removal, given our requirements for the independence of the judiciary. Of course, there is also resignation.

There is this ongoing tension between chain of command and the independence of the judiciary. Bill C-16 does achieve some balance between those two tensions, and I and my party will support this bill; indeed, we would have supported it at all stages had the government handled the desires of other people in this chamber a little more sensitively. In fact, possibly by this time we would have gone to committee of the whole and had this bill passed and on the way to the Senate. There is a time deadline of December 2, and I am rather hoping that we still achieve that time deadline; otherwise, a decision will be imposed upon us.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 12:40 p.m.
See context

Bloc

André Bellavance Richmond—Arthabaska, QC

Mr. Speaker, I have a question for the hon. member who just spoke. I would like to tell him that we also support this bill.

However, when I returned to my office, I heard criticism from a Conservative member. First, you clearly established the rules here in this House by saying that he did not have the right to mention the absence or presence of a member. One thing is for certain: while I was away, I was still watching the House of Commons debates on television and I heard this same member criticizing the Bloc Québécois for taking steps to delay the bill—a bill that we support—which is completely false. I would like to ask the hon. member whether he shares my opinion in this regard.

This bill was introduced on October 7. The House resumed on September 19. It is the Conservative government that is in charge of the legislative agenda here in the House. Subsequent to the court's decision, the Conservatives could very well have introduced this bill earlier and made sure, of course, that the whole process was followed and that this bill was passed quickly. Everything could have been done but, instead, the Conservatives introduced a bill to abolish the Canadian Wheat Board and a bill to reduce the political weight of Quebec. They introduced all kinds of bills but not this one. So if anyone is to blame for the speed with which the bill must be passed, it is the Conservatives themselves.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 12:40 p.m.
See context

Liberal

John McKay Scarborough—Guildwood, ON

I am not sure that was a question Mr. Speaker, but it was a comment.

I largely agree with the sentiments of the hon. member. The bill was initially presented in a form that incorporated a number of other things, many of which were quite problematic. It could have actually been presented as a stand-alone bill in the last Parliament and could have been law by now.

The government chooses to proceed in whatever way it chooses. It prorogues at its whim, it formulates its bills at its whim, and it alienates members of the opposition, apparently, at will as well, the consequence being that things that should not be delayed do get delayed.

I say to my colleagues on the government side that what goes around comes around.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 12:40 p.m.
See context

Ajax—Pickering
Ontario

Conservative

Chris Alexander Parliamentary Secretary to the Minister of National Defence

Mr. Speaker, I would like to point out that it is a bit rich for the hon. member for Richmond—Arthabaska to say he supports this bill when he and his colleagues were the ones who refused to give unanimous consent this morning.

The hon. member for Scarborough—Guildwood made the point that what goes around comes around. Earlier, the member for St. John's East suggested that the measures in these bills could have been brought forward in the previous Parliament.

The statement made by the member for Scarborough—Guildwood is true. The statement by the member for St. John's East is not true, given that the bill containing these measures in the last Parliament was reported from committee on March 24 of this year and this country was plunged into an unnecessary and costly election on March 25.

Would the member not agree that what goes around does come around, but in this case his party and the other parties opposite prevented us from moving forward with the subsequent stages of these measures?

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 12:45 p.m.
See context

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, that is the kind of debate I would actually wish to avoid by limiting my remarks simply to the substance of the bill, but since the Conservatives insist on getting into it, we are going to get into it, are we not? The clock is going to run, and again we are going to achieve absolutely nothing.

This legislation has had at least three or four iterations. It is almost what one might call a fifth generation bill. During that period of time we have had prorogations and all kinds of delays. The government can move its legislation as it desires, so to say that it did not quite get it done in the bill's last iteration before an election is also pretty rich.

This is, frankly and candidly, an unnecessary debate; we agree on the substance of the bill, so let us just move it forward. As the parliamentary secretary said earlier, only four judges are involved. That is all we are talking about here. If the government cannot move its legislation and continues to alienate the opposition, we are not going to make the December 2 deadline, in which case the whole system will go up the flue.

Security of Tenure of Military Judges Act
Government Orders

November 4th, 2011 / 12:45 p.m.
See context

Bloc

André Bellavance Richmond—Arthabaska, QC

Mr. Speaker, it is a pleasure for me to participate in the debate on Bill C-16. The Parliamentary Secretary to the Minister of National Defence is well aware that the Bloc Québécois supports this bill.

What we take issue with is that the parliamentary secretary has said in the House that we have failed to provide unanimous consent, which is completely false. I will give an example. Today, I gave unanimous consent, on behalf of the Bloc Québécois which I represent, to the agreement between the Cree and the federal government. We had already given our word and consent with respect to this bill.

With regard to Bill C-16, we were asked for our support yesterday at the same time that we were asking for unanimous consent to pay tribute to veterans. Remembrance Day is at hand. We are all wearing poppies—I see, Mr. Speaker, that you are wearing one also—to commemorate the battles fought by our veterans, the people who went overseas to fight in two world wars and other conflicts, which unfortunately should not have occurred but did, and who fought for our freedom.

The dean of the House of Commons, the member for Bas-Richelieu—Nicolet—Bécancour, wanted to rise, like members of other parties, and pay tribute for a few minutes to the people who fought to protect our freedom and to prevent dictators from taking control of the world and suppressing freedoms, as was recently the case in Libya. The leader of the Green Party also wanted a few minutes to address the people and pay tribute to our veterans. This was refused by lack of unanimous consent. We were simply told that the Conservative government had the right to do so and that it was within the rules.

I know that the government was probably afraid that the Green Party and the Bloc Québécois would use this precedent to intervene and rise often in the House, saying that they want to be recognized as parties. We have known from the beginning that we do not have 12 members, just 4, and that the leader of the Green Party is the only member of Parliament for her party. For that reason, the interim leader of the Bloc Québécois specifically stated yesterday, when making the request, that he did not want to set a precedent and that he simply wanted to make a statement.

That was one of the lowest moments I have experienced since being elected in 2004. I have rarely seen a government rebuff the opposition parties in a such a way and on such an occasion.

We did not give our unanimous consent to Bill C-16 then and we are opposing it today because the fault lies with the government for not being alert enough to introduce it sooner. The government could have introduced this bill as early as September 19, when Parliament resumed, but it waited until October 7. The government has also introduced a series of bills and has prevented the opposition from debating them and discussing them properly by moving closure and time allocation motions five or six times. I do not even know how many there have been, but closure has been moved on at least five or six bills. We cannot follow the normal legislative process because the government is in a very big hurry. It made legislative choices, but Bill 16, which we are discussing today, was not part of them.

The Conservatives chose to introduce Bill C-10 on justice. They decided to abolish the firearms registry and destroy the data. They also introduced a bill that will diminish Quebec's political weight in the House. There was also the bill on the Canadian Wheat Board. They chose to introduce all those bills instead of Bill C-16. I want to come back to Bill C-16 to which we could have given our unanimous consent. We only did what the government said it would do, in other words, follow the rules. I have been in federal politics long enough to know there are rules to be followed in the House. There is a legislative process to be followed: first reading, second reading, third reading and work in committee.

I understand perfectly well that there was a court order, but if the government was in such a hurry, it could have made sure that this bill went through all the stages as quickly as possible. After all, it is the government that sets the agenda.

Yesterday, by refusing to allow us to pay tribute to veterans, if the government was trying to send a message that we do not exist, that we are not an official party and that we do not deserve to speak in this House, it failed. Today we are sending our own message that we are still here. Just like the Conservative members, and in fact like all members of the House, we were democratically elected. Even the Prime Minister himself must acknowledge that he was democratically elected in his riding and that he is an MP first and foremost, and Prime Minister second. I think it is our duty to do things correctly here.

Thus, there are no second-class MPs in this House. I never thought that when there were 50 Bloc Québécois MPs, nor do I think that today, just because we are fewer in number. My message to the government is that it should think carefully before acting as heinously as it did yesterday. Nevertheless, once again, it is the government's fault that it did not introduce the bill earlier. And we support Bill C-16, especially since a court decision will strengthen the independence of military judges. That is very important. The Minister of National Defence introduced Bill C-16, An Act to amend the National Defence Act (military judges), in the House of Commons at first reading.

The Court Martial Appeal Court of Canada delivered its judgment in the Regina v. Leblanc case. In its decision, the appeal court determined that the provisions in the National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces regarding the appointment and retirement of military judges do not sufficiently respect judicial independence as required by section 11(d) of the Canadian Charter of Rights and Freedoms.

In declaring certain National Defence Act provisions constitutionally invalid and inoperative, the Court Martial Appeal Court in Regina v. Leblanc suspended the declaration of invalidity for a period of six months to allow remedial legislation to be enacted. The declaration will be effective December 2, 2011.

Bill C-16 amends the provisions of the National Defence Act that deal with the tenure of military judges, providing that they serve until the retirement age of 60 years, unless removed for cause on the recommendation of an inquiry committee or upon the resignation of the military judge.

To give a bit of background and explain the situation in full, I should mention that judges used to be appointed for a predetermined period of time. I believe it was for five years, but when a judge's term was up for renewal, it seemed that he or she did not have complete independence at that time. Now the process will simply be the same as it is for other judges. The tenure for military judges will allow them to sit as such until the retirement age of 60 years. That creates a balance. It sends a message that we will improve the situation around judicial independence, which is something we in the House could in no way be opposed to.

Justice Lamer made a number of recommendations, and this is one that we have agreed with from the outset. The Bloc Québécois believes in keeping military justice separate from civilian justice. It makes sense for the Canadian armed forces to have its own justice system, in light of the particularities of military life and military requirements. This bill corrects a situation that created a fairly significant difference between the civilian justice system and the military justice system, in order to improve the military system.

It is absolutely necessary to have discipline within an army. Without that discipline, we would lose any sense of structure and effectiveness. Since the primary goal of our armed forces is to protect the safety of Canadians, this issue is vitally important. The Supreme Court of Canada recognized this principle in 1992:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. 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, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.

A number of changes were called for. I think that Bill C-16 is a step that, I repeat, addresses only one of Justice Lamer's recommendations. We can go step by step. That is no problem.

There are also offences in the Code of Service Discipline that do not have equivalents in civilian justice. For example, the offences of disobedience of lawful command or disobedience to a superior officer do not exist in civilian justice. Military justice applies to three categories of people: military personnel in the regular forces, reservists and civilians who work with military personnel on missions.

But although military justice is necessary, people who join the Canadian Forces do not lose their rights, including their charter rights.

For 12 years, a great deal of thought has been given to modernizing military justice to bring it more in line with civilian justice. In its May 2009 report, the Standing Senate Committee on Legal and Constitutional Affairs wrote the following, “...the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general.”

We therefore feel it is important that the government consider not only the issue of the independence of military judges but also the entire military justice reform. In my opinion, even the Parliamentary Secretary to the Minister of National Defence can understand that, when we talk about such a bill, it goes without saying that we should expand our discussion and thought process a bit to include the whole military justice policy, particularly since more than one recommendation was given by Justice Lamer and the Senate committee.

Military justice reform dates back to 1997 and stems from two reviews. First, a special advisory group received a mandate to study the Code of Service Discipline set out in the National Defence Act. Then, the commission of inquiry into the deployment of Canadian forces to Somalia was asked to review how to handle the actions of certain soldiers sent to that country.

The two resulting reports led the government to introduce Bill C-25, which came into effect on September 1, 1999. This bill amended the National Defence Act by abolishing the death penalty in the military justice system, a very important change; incorporating civilian parole ineligibility provisions; creating the Canadian Forces Grievance Board; creating the Military Police Complaints Commission; strengthening the independence of military judges by making changes to the terms of their appointment, their qualifications and their tenure; and creating new positions within the military justice system in order to separate the investigative function from the prosecution and defence functions.

Clause 96 of Bill C-25 provided for an independent review every five years in order to examine the amendments to the National Defence Act. Many of the amendments I just listed are still pending. I am counting on the current government and its Minister of National Defence to take into account the majority of the recommendations that I mentioned just a few moments ago.

With this in mind, the federal government appointed a former Supreme Court justice, Antonio Lamer, to conduct the first review. He presented his report to Parliament in March 2003. Military justice has been on the radar for some time now, and here today we have this bill—barely two pages long—regarding the independence of judges. There will undoubtedly be other, more significant, changes that will improve the National Defence Act and that will also implement Justice Lamer's recommendations, which, as I have said before, are already 10 years old.

In his report, Justice Lamer observed that “Canada's military justice system generally works very well, subject to a few changes.” Consequently, he made 88 recommendations to improve military justice. I will not list the 88 recommendations, although some here might like me to do so.

I will briefly refer to some of Justice Lamer's 2003 recommendations: arrest procedures and pre-trial detention; procedures for proceeding by indictment; the structure of the court; sentencing; aligning the rights of the accused with those in a civil court such that the accused could choose the type of court martial and such that the finding of court martial panels would be arrived at by unanimous vote; strengthening the independence of the principal intervenors in the military justice system; and improving the grievance and military police complaints processes.

In order to implement Justice Lamer's recommendations and amend the National Defence Act, the government introduced Bill C-45 in August 2006. It died on the order paper. In March 2008, the government introduced another bill, Bill C-7, which was identical to Bill C-45 and also died on the order paper when an election was called in the fall of 2008.

In April 2008, the Court Martial Appeal Court of Canada handed down a decision in the case of Regina v. Trépanier. At issue was the possibility of choosing the type of court martial. The Court Martial Appeal Court of Canada ruled that a provision of the National Defence Act that gave the court martial administrator exclusive authority to select the type of court martial was unconstitutional. The Court Martial Appeal Court of Canada found that it was unacceptable that the accused could not chose the kind of court martial that would judge him or her.

Following that ruling—which brings us to where we are today—the federal government introduced Bill C-60 to accomplish the following: to more closely align the manner in which the mode of trial by courts martial is determined with the approach in the civilian criminal justice system, while still satisfying the unique needs of the military justice system; to reduce the types of courts martial from four to two; to allow military judges to deal with certain pre-trial matters at any time after a charge has been preferred; and to require court martial panels to make key decisions on the basis of a unanimous vote. Bill C-60 passed in the House on June 18, 2008.

One of Justice Lamer's recommendations has been incorporated into Bill C-16 before us today.

I repeat—and I will conclude on this in just a moment—the Bloc Québécois is not opposed to Bill C-16. The Bloc did not break any agreements to speed things up. The government alone is responsible for its own legislative agenda. It could have introduced the bill to get it through all the various steps in the usual way, knowing very well that a court order meant that a certain timeline had to be respected.

I cannot believe that, with the army of people and public servants available to the Minister of National Defence, it did not occur to him to look at a calendar and ensure that all the steps could be completed regarding Bill C-16. It is because of the government's own negligence that it is so keen to have the bill fast-tracked, because it did not do its homework.

I cannot believe that the government behaved in this manner. However, as I explained at the beginning of my speech, it is simply because the government made other choices. It had other priorities. It wanted to reduce Quebec's political weight with Bill C-20, for instance. It wanted to put the Canadian Wheat Board out of commission. It also decided to rule out all potential debate on Bill C-10 regarding justice. I can assure this House, not everyone is pleased about that. It is no longer only Quebec that opposes that bill. We will soon be up to 10 provinces that oppose the bill. But the government decided to make it a priority anyway.

In closing, it should have found a way to move a little faster on this matter and introduce Bill C-16 earlier. Had it done so, we might not still be talking about it today.