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 military.

Topics

Security of Tenure of Military Judges Act
Government Orders

10:30 a.m.

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

10:50 a.m.

Conservative

Ted Opitz Etobicoke Centre, ON

Mr. Speaker, first, I have to direct a comment to the independent member who blocked unanimous consent this morning. I note he did not remain in the House and that speaks to the ethics, integrity and values—

Security of Tenure of Military Judges Act
Government Orders

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

Conservative

The Acting Speaker Barry Devolin

Order, please. I remind all hon. members that it is not the practice of the House to make direct reference to who is or is not in the chamber. With that, I will go back to the hon. member for Etobicoke Centre, if he has a question.

Security of Tenure of Military Judges Act
Government Orders

10:50 a.m.

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

10:50 a.m.

Conservative

The Acting Speaker Barry Devolin

Order, please. The Chair has tried to signal to the member that his time to question is over. If he could quickly come to his question, that would be appreciated.

Security of Tenure of Military Judges Act
Government Orders

10:50 a.m.

Conservative

Ted Opitz Etobicoke Centre, ON

Mr. Speaker, does the hon. member and his party agree that there is a need and a place for a separate military justice system?

Security of Tenure of Military Judges Act
Government Orders

10:50 a.m.

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

10:55 a.m.

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

10:55 a.m.

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.

Security of Tenure of Military Judges Act
Government Orders

10:55 a.m.

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

10:55 a.m.

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

11 a.m.

Conservative

The Acting Speaker Barry Devolin

The time for questions and comments has expired, just in time for statements by members.

Veterans
Statements by Members

11 a.m.

Conservative

Royal Galipeau Ottawa—Orléans, ON

Mr. Speaker, in memory of my father and my uncles, Raymond, Laurent and Rodolphe, who all served this country,

in honour of the volunteers of the Royal Canadian Legion, Don Johns, Bud Dion, Jeannine and Raymond St-Louis, Frank Stacey, and all the volunteers who offer poppies this week, this is In Flanders Fields, by John McCrae:

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below...

We are the Dead.
Short days ago
We lived, felt dawn, saw sunset glow,
Loved, and were loved, and now we lie
In Flanders Fields.

Take up our quarrel with the foe:
To you from failing hands, we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields...

Remembrance
Statements by Members

11 a.m.

Conservative

Mark Adler York Centre, ON

Mr. Speaker, tonight I will be celebrating Russian Unity Day with the Canadian-speaking Russian community and thanking them for their dedication to Canada.

In celebrating our cultural diversity, we are all reminded of the countless blessings we enjoy in this country, and this is a time to remember those who are protecting our freedoms.

With Remembrance Day on the horizon and Veterans' Week starting tomorrow, Canadians are remembering our past and honouring those who have served and are currently serving in uniform.

We also cannot forget the sacrifices made or the lives lost in war, which is why I stand in support of our government to create a National Holocaust Memorial. As the Minister of State (Democratic Reform) recently said:

The National Holocaust Monument will serve as a symbol of Canadian value and diversity as much as it will be a memorial for the millions of victims and families destroyed.

As the first child of a Holocaust survivor to be elected as a member of this Parliament, this monument is very meaningful to me personally and to my family. Furthermore, from November 1 to November 11, the annual Holocaust Education Week is an effort to educate all Canadians about the Holocaust.

I call on all members of this House to support these important events and initiatives.

Monsignor Percy Johnson Catholic High School
Statements by Members

11 a.m.

Liberal

Kirsty Duncan Etobicoke North, ON

Mr. Speaker, I rise today to celebrate Monsignor Percy Johnson Catholic High School in Etobicoke North, its principal Susan Souter, teachers Joe Paczuski and Marcella Porretta, and their students.

Ms. Porretta is described as an exemplary leader and an inspiration to the students, tireless in her dedication to fostering community and compassion among youth, and a saint of education and community.

Ms. Porretta formed a Me to We chapter of 130 students who give up weekends to volunteer in the community and who have fundraised over $20,000 for schools in Sierra Leone and Ecuador.

I had the honour of attending their community harvest brunch, and was humbled, overwhelmed and forever touched by the generosity and kindness of the Me to We club and their teachers.

I celebrate them all and look forward to attending their next event.