House of Commons Hansard #44 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was judges.

Topics

Strengthening Military Justice in the Defence of Canada Act
Government Orders

1:10 p.m.

Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, as I was saying, we have had great collaboration from all three parties represented in this House.

I want to pay particular tribute to the three members I mentioned earlier. The member for St. John's East made a couple of remarks about the LeBlanc case which probably, if they were heard by members of the Canadian Forces, would have them regretting that he chose to pursue his legal career not in the Judge Advocate General's office but in civilian life. He clearly understands the importance of the system, the importance of a strong defence, the importance of independent judges and professionals at every level of the military justice system.

I thank the member for his clarity on the issues. I also thank his party and the Liberal Party for their constructive contribution to advancing these bills.

I rise now in support of Bill C-15 , the strengthening military justice in the defence of Canada bill, which concerns an important aspect of national defence, that of military justice in the broad sense.

Maintaining the integrity of the military justice system is the responsibility of government and should concern all Canadians. The military justice system is an essential tool to maintain the discipline, morale and operational effectiveness of the Canadian Forces.

Without such a system, our men and women in uniform would not be able to focus on their number one priority which is to protect the interests of Canada and Canadians.

For that reason, the government, the Supreme Court of Canada and even the Constitution recognized the importance of maintaining a robust military justice system.

This government also recognizes, as did Chief Justice Lamer in his 2003 report, that there is room for improvement. The principles and procedures of military courts martial and summary trials must remain consistent with Canadian values and the evolution of Canadian criminal law. After all, a legal system can only remain strong if it evolves alongside the society it serves. Otherwise, an outdated system could risk undermining not only the legitimacy of military law, but also the health and vitality of the forces themselves.

This government has tried three times since 2006 to introduce the necessary legislation to do so, but each bill has failed to progress as a result of the unpredictable nature of a minority Parliament. I do not think it is worth going into the details again of those stories from previous Parliaments.

In 1998, when the National Defence Act was last updated, an independent review of the act every five years was made mandatory. In the first review, in 2003—the member for Richmond—Arthabaska was right to mention that it was some time ago—Chief Justice Lamer made several important recommendations about how to improve the act.

These recommendations focused on the administration of military justice, the role of the Canadian Forces provost marshal, the head of the military police, and the system by which grievances of Canadian Forces members were addressed. All of these recommendations were studied in detail, both inside and outside the Canadian Forces and Department of National Defence. A wide range of stakeholders--civilian, military, government, non-government--were consulted and, as a result, this government brought forward legislation on two separate occasions to update the National Defence Act. Members know them well. They were Bill C-7 in 2006 and Bill C-45 in 2008, both of which, as we are aware, died on the order paper.

Then in 2008, the ruling of the Court Martial Appeal Court of Canada in the case of Regina v. Trépanier forced the government to introduce legislation on an urgent basis. In response, the government rapidly introduced a targeted bill, Bill C-60, to rectify this problem. Thanks to many hon. members still present, this legislation was passed by Parliament.

In 2010, the government once again tried to update the National Defence Act, this time by following up on recommendations from the Standing Senate Committee on Legal and Constitutional Affairs as well as the latest recommendations from Chief Justice Lamer.

That bill, Bill C-41, was introduced during the final session of the 40th Parliament and was both studied and reported on by the Senate committee.

Some of the amendments that were submitted by the Bloc and discussed in committee were included in Bill C-41.

However, that bill died with the dissolution of Parliament in March. Since that time, we have had the Court Martial Appeal Court ruling, already discussed today, which assessed the process by which military judges were appointed, currently on a five-year basis, and we started to deal with that issue with Bill C-16. However, that bill does not address other important amendments included in Bill C-15, a bill that aims to reinforce military justice by bringing the National Defence Act up to date. This is an act that is evergreen, that requires constant updating, as many pieces of legislation do, on which the institutions of our country depend.

We have given careful consideration to the recommendations and proposed amendments put forward by members of the House, when Bill C-41 was studied in committee.

Bill C-15 would address various problems regarding military justice through a series of important amendments to the National Defence Act.

First, it would strengthen the administration of military justice by allowing for the appointment of part-time military judges to serve in times of large-scale operations and other search periods, thereby providing flexibility in the courts martial system. We hope this is not a provision that will be needed soon or often, but it needs to be there and it is a former chief justice of our country's Supreme Court who endorses that view.

In addition, it would lower the minimum rank requirement for the senior member of a court martial panel from colonel to lieutenant colonel in most cases and reduce the minimum rank of serving panel members on courts martial of non-commissioned members from warrant officer to sergeant. This fight simply widens the pool of those eligible to serve on these panels.

It would also allow for one more non-commissioned officer to serve on the panel when the accused is a non-commissioned member, as well as allow for increased participation of non-commissioned officers, without undermining the requirement for leadership and experience in the maintenance of discipline. It is the experience of non-commissioned members, as well as officers, on which this system depends.

This bill would clearly define the objectives, intent and principles of sentencing in the military justice system.

By articulating the purposes of military justice, we would be giving increased clarity and transparency to all those engaged in its delivery. This is perhaps the most exciting and compelling aspect of this bill. The National Defence Act had not previously articulated the purposes of military justice. They are implicit and known but now they would be explicit and this would provide Parliament's guidance to the military judges, officers and Court Martial Appeal Court justices presiding over courts martial, summary trials and appeals, just as Parliament has already done for the civilian criminal justice system in the Criminal Code. Of course, this guidance would expressly recognize the crucial elements unique to the military system necessary for it to fulfill its vital function.

The bill would also introduce a broader range of sentencing options to help ensure that the punishments handed down by courts martial or summary trials are appropriate, both in terms of being appropriate to the offence committed as well as being broadly comparable to the range and type of sentences available within the civilian criminal justice system. Criminal justice evolves. Military justice must reflect the best of the evolution of the civilian criminal system.

Bill C-15 would also improve how victims are treated by the military justice system. The bill includes the option of presenting victim impact statements before courts martial and would give military judges the authority to order restitution.

Victim impact statements are very important to the whole justice system, something that is recognized on the civilian side but which now needs to be enacted on the military side for us to continue to be as proud of and confident in that system as we have been to date.

The bill would set an additional limitation period for holding summary trials, requiring that charges be laid within six months of an alleged offence being committed, to accompany the existing requirement that the summary trial be held within one year of the alleged offence. And, Bill C-15 would legally empower the Court Martial Appeal Court of Canada to suspend sentences handed down by courts martial where deemed appropriate.

In addition to resolving issues related to the administration of military justice, Bill C-15 would strengthen the military police system by officially establishing the position, duties and responsibilities of the Canadian Forces Provost Marshal, who is the military police chief, and by speeding up the military police complaint process and making it more fair.

The provost marshal, just to be clear, is not yet recognized officially in the National Defence Act. Mr. Justice Lamer recommended that he or she be so, and the position would be so under Bill C-15 when it is enacted.

With respect to addressing grievances in the Canadian Forces, Bill C-15 would permit the Chief of the Defence Staff to better delegate his power as the system's final grievance authority, thereby helping to resolve grievances more swiftly and efficiently in the interests of better administration and morale.

The bill would also formally change the name of the Canadian Forces Grievance Board, at its own request, to the military grievances external review committee to reflect the actual status of that committee. This would better reflect its independence and increase the confidence of Canadian Forces members in its impartiality.

Finally, this bill would improve the existing statutory requirement for a periodic independent review of selected provisions of the National Defence Act. It would clearly establish that requirement in the act itself, setting out both the scope of review and the mandate of review period which would be adjusted from five to seven years to ensure the quality and effectiveness of each independent review.

In conclusion, the government recognizes that the changes proposed in this bill are extensive and, in some cases, complex. However, it should be noted that, in most cases, the need for these changes has been recognized for years and most of the proposed changes have already been addressed and analyzed in committee.

Our men and women in uniform are counting on us. This government acknowledges that regular attention and review is necessary to ensure the continued relevance and effectiveness of any legal system, military or civilian, and through Bill C-15, we will ensure that this is the case for military justice in the years to come.

Canadians depend on their government to build and maintain a justice system that reflects our national values and respects the rule of law. This government has been given a strong mandate from Canadians to do that. The House has a mandate to act in this area as well. I therefore call on the House to support this important effort by moving this bill forward as quickly as possible.

It may seem to some of us in the House that the measures in the bill are distant or obscure. Not all of us have had direct contact with the military justice system, but we all understand that the roughly 100,000 Canadian men and women in uniform, regular force, reserve force, depend on these measures for their morale, for their discipline, for the framework of justice, action and order in which they operate in Canada, and which they take with them abroad when they are deployed as they have been so often in the history of this country.

We have a responsibility to them, eight years after the Lamer report, to move forward with these important measures. The measures in Bill C-15 go well beyond those provided for in Bill C-16, and will indeed supersede that of the bill we dealt with earlier today if that bill passes into law earlier.

We hope that we have the support of all members of the House in moving through an expeditious debate on the bill, efficient consideration at committee, and early implementation and enactment of the bill into law.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

1:20 p.m.

NDP

Randall Garrison Esquimalt—Juan de Fuca, BC

Mr. Speaker, I appreciate the remarks from the hon. parliamentary secretary. My question involves the review that was done by the hon. Mr. Justice Lamer submitted in 2003. That review contained some 88 recommendations, a few of which are covered in Bill C-16 and some in Bill C-15, but it seems the government has substituted its judgment for Mr. Justice Lamer in omitting some of those.

As well, in his report there were many things in the recommendations the government could do without legislation, including increasing resources to the military justice system which apparently the government has failed to do in that intervening time period.

Why have there been these omissions of recommendations from the bill and why has the government not acted on those recommendations which do not require legislation?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

1:25 p.m.

Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, the government has acted on many of the recommendations that do not require legislation and we would be happy to review those in detail with the hon. member and his party at committee or outside of the House. Within the confines of an answer to this question, I cannot provide that level of detail.

The vast majority of the recommendations contained in the Lamer report of 2003 have been translated into legislation in the bill. I think the member will agree, as many members in his party did in consideration at committee, that these are the right ones and that not all were appropriate for translation for inclusion in the bill at this time.

There are larger issues related to the Military Police Complaints Commission and the grievance process which are still subject to policy review, still subject to decisions pending outside of the House, which we hope to translate into legislation at a subsequent date. But keep in mind that Justice LeSage is leading another review of the military justice system, which is due very soon, which will have recommendations. The House will have a chance to return to these issues relatively soon because of our delay in implementing the recommendations from the Lamer report over eight long years.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

1:25 p.m.

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, as the hon. member would know, in the many reiterations of this bill, one of the debates was around the independence of the police to conduct investigations. The independence of the police is as important to the rule of law as the independence of the judiciary.

As I said earlier, the tension between the independence of the police and the command structure of the military is what creates something of a hybrid system for military justice in this country, and for that matter, in all other countries.

There exists a tension in the military system of justice that does not exist in the civilian system. Where police would be assumed to be, both factually and in appearance, independent of supervision from, say, an authority like a mayor or other political authority in a military justice system, that is not entirely a warranted assumption.

Hence, my question is with respect to subsection 18.5(3), which states: “The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation”.

I would be interested in the government's view with respect to the ability of the vice chief of the defence staff to actually issue instructions on a unique and discreet investigation. That does not auger well for the independence of the police to pursue an investigation, where it might take the police.

Does the hon. member have some concern that this particular section could be both used, but more ominously abused, by senior brass, for want of a better term, in order to shut down an investigation?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

1:25 p.m.

Conservative

Chris Alexander Ajax—Pickering, ON

Mr. Speaker, the government, after long consideration within the Department of National Defence, and on the basis of consultations with many, inside and outside of government, has come to the conclusion that it can be confident that those measures, mentioned by the member for Scarborough--Guildwood, are required. Abuse can come in many forms. We rely on the professionalism of the senior leadership of the Department of National Defence, and all our public servants, to prevent it. By and large they do.

I would remind the hon. member, there are also safeguards in the bill. The number of times that the vice chief of the defence staff has recourse to this provision is subject to review. This provision itself is subject to review, as are all the measures governing military justice. It is currently every five years. We are now proposing every seven years.

Let us be clear, there are institutions within the Department of National Defence. The superintendence of military justice is in the hands of the judge advocate general's office. Investigations and police work are in the hands of the provost marshal. They have their own logic and their own autonomy. That is enhanced by the bill, given that the provost marshals will for the first time be recognized, and the purposes of those officials' work recognized in the National Defence Act, thereby strengthening their ability to do their job without interference.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

1:30 p.m.

Conservative

The Acting Speaker Barry Devolin

Given that the time for government orders for today is about to expire, the hon. parliamentary secretary will have four minutes remaining in questions and comments when the House returns to this bill.

In view of the ruling made earlier today, there will be no private members' business hour today.

Accordingly the House stands adjourned until Monday, November 14, 2011 at 11 a.m. pursuant to Standing Orders 28(2) and 24(1).

(The House adjourned at 1:31 p.m.)