House of Commons Hansard #143 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was agreements.

Topics

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9 p.m.

Conservative

Laurie Hawn Edmonton Centre, AB

Mr. Speaker, I listened to my colleague's speech with interest, and I do believe they are trying to make the system better. I do not dispute that. However, I will point out a couple of things that may have been glossed over or misrepresented a bit.

When the member talks about the number of charges during a period of very active conflict, versus a period of peacetime, it is natural that the number of charges would increase in that period. Chief Justice Lamer, whom he puts great stock in and I agree, said:

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. 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.

And, I would add, threats to themselves, while they are in a conflict.

The member brought up the fact that only 28 of 88 recommendations by Lamer had been enacted. That is true. However, what is also true is that 72 were accepted by government, 11 partially accepted and only 3 rejected. The reason that the others have not been carried is because we have been trying since 2006 to get this legislation through and, as happens with minority Parliaments, governments fall and we are back to square one.

I believe this to be the case. I hope it is the opposition's intention to simply pass this and get it on to committee where the issues that my colleague brought up, and other issues that people may want to discuss, can be dealt with quickly and efficiently, and let us get on with it.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:05 p.m.

NDP

Matthew Kellway Beaches—East York, ON

Mr. Speaker, I am gratified that my colleague listened with interest and not amusement, as he commented previously with one of my colleagues.

With respect to the numbers, I raise the issue of the numbers to show how much of the military justice system is processed through summary trials as opposed to courts martial. Over 95% of the issues are dealt with by way of summary trial. Therefore, the issue of the summary trial looms large in this discussion. Obviously, many amendments need to be made to that process.

With respect to the fact that these charges are being laid in the context of battle, literally in the heat of battle, I think that it is understandable and agreeable that there be limited exception to the kind of justice system that is imposed in the context of battle. However, the real challenge here is that so much of the military justice system lays these charges and processes discipline through the summary trial process outside of battle where there is no excuse in fact for the kind of exceptionalism that prevails in the summary trial system.

On trying to get the legislation through, what puzzles me is that we have already been down this path a number of times. We went to committee and at committee we agreed to a number of amendments. As a matter of good faith, if the government were really interested in moving this legislation, why would it take out what we had already agreed to in the committee process in the last Parliament?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:05 p.m.

NDP

Jean-François Larose Repentigny, QC

Mr. Speaker, being an ex-member myself, I have seen trials that colleagues and friends have gone through and the impact they can have to ruin careers and leave people looking at the military in a certain way but not necessarily understanding the system. I have seen summary trials put onto military personnel in such a way that they were used as a training tool. I think there is a serious problem with this.

The question that goes through my mind when I see the attitude of the government is where its desire is to actually get something more constructive into play.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:05 p.m.

NDP

Matthew Kellway Beaches—East York, ON

Mr. Speaker, frankly, I cannot explain the absence of desire to move this through.

The Lamer report goes back to 2003. A subsequent statutory review was completed by Justice LeSage recently. I cited the substantial historical context leading up to Bill C-15. If the government were truly interested in moving this through in an expeditious fashion, one would have thought it would have picked up Bill C-41 in its post-committee state, with agreement from all parties on some amendments, and put that back in front of the House so that we could move forward on something that we had all agreed to already.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

June 19th, 2012 / 9:10 p.m.

Conservative

Laurie Hawn Edmonton Centre, AB

Mr. Speaker, I just want to point out one quick thing that I pointed out to the previous speaker. Yes, the majority of cases are settled by summary trial because in the majority of cases that is the option chosen by the soldier, sailor, airman or airwoman.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:10 p.m.

NDP

Matthew Kellway Beaches—East York, ON

Mr. Speaker, that is very interesting. If these things are done by choice, which may be the case, I would question whether it is an informed choice.

One of the challenges with the military justice system is that soldiers who are going through discipline do not even have a right to representation. I think they are provided access to another officer to assist them but that officer is not legally trained and would seem to be in no better position to provide advice on what are obviously complex legal matters with very lasting effects on the men and women of the armed forces going through this process.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:10 p.m.

NDP

Jack Harris St. John's East, NL

Mr. Speaker, the member mentioned Justice LeSage's report. In it he says that he went around the country and was shocked to find that many of the Canadian Forces members and lawyers he talked to were not even aware that service offences could attract criminal offences. He noted that, even for minor service offences, there was the requirement of a three year wait before someone can apply for a pardon because it is under the Criminal Records Act. The government says that pardons can no longer be granted, that it can only be a suspension of record.

Does the member find it surprising that in this day and age, with the expectations about disciplinary matters, that is still the case, as Justice LeSage pointed out?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:10 p.m.

NDP

Matthew Kellway Beaches—East York, ON

Mr. Speaker, I am surprised. I was surprised, when I wrapped my head around this issue and this bill, to discover that criminal convictions can come out of summary trial proceedings. That is a very serious consequence for the careers of people within the Canadian Forces and, obviously, after a career in the Canadian Forces as well.

In the context of the absence of representation and absence of informed choice, those have very serious consequences in our country where we adhere to the principles of natural justice, one of which suggests that when people go into legal proceedings there is a legitimate expectation of what will transpire and what the potential outcome will be. Frankly, I do not think in this century in Canada there can be a legitimate expectation that people go into summary trials with so very few protections, no guarantee of a fair hearing and come out with such a serious consequence.

To answer my colleague, yes, I in fact do find it extremely surprising that this state of justice actually exists in our military system today.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:10 p.m.

NDP

Tarik Brahmi Saint-Jean, QC

Mr. Speaker, first I would like to say that I am very honoured to participate in the debate today on Bill C-15, which would strengthen the military justice system, for a number of reasons.

I had the honour of being elected as the member of Parliament for the riding of Saint-Jean in Quebec. I realize that I have never had the opportunity to talk about this riding, which has many ties to national defence.

First, I will say that it is because of the military installation at the base, for example, with which all Canadian soldiers are familiar due to an important part of their basic training that takes place and also the Royal Military College in Saint-Jean, from which most of our senior military personnel graduated. Second, Saint-Jean is also an important centre for the defence industry, including Rheinmetall, Cadex and Mil-Quip, which contribute significantly to the regional economy.

Finally, for historical reasons, this year we will commemorate the bicentennial of the War of 1812, part of which took place in Lacolle, in the riding. In November 1812, a very small group of 200 Canadian regulars were able to hold off more than 1,200 American soldiers and were eventually able to chase them back into the United States. We are fortunate that the wooden blockhouse, which is called the Lacolle Mill, which protected the Canadian soldiers is still standing and is one of the most significant and interesting historical buildings in Canada. If members or people listening are in the region this summer, this building is absolutely a must see.

On a more personal note, I worked in the military exactly 20 years ago, from 1992 to 1993. I did mandatory military service in the French army. As a signaller in the signals company of the 4e Régiment d'hélicoptères de commandement et de manoeuvre of the French army's Force d'action rapide, I was directly confronted with the reality of military discipline and with the consequences that arise if anyone disobeys the kind of rules we are debating today regarding Bill C-15.

I can say that I feel privileged, compared to the majority of members who have had a chance to examine this bill, either to debate it in the House or to study it more carefully in committee. I and my colleague from Abitibi—Témiscamingue, who is also a member of the Standing Committee on National Defence, have worked in the military.

Let us get back to Bill C-15. This bill is substantive in terms of both quantity and quality. It has 90 pages and addresses complex legal notions.

This is actually the fourth time this bill has been introduced. The third time it was introduced, as Bill C-41, it was referred to the Standing Committee on National Defence, which studied the bill during eight sessions lasting over two hours each, the last of which took place not long ago on March 23, 2011.

It is important to point out that, in addition to the 16-plus hours of formal meetings during which witnesses were called and questioned by members of the Standing Committee on National Defence, hundreds of hours of work were devoted to finding reasonable solutions to real problems. Now that is all being thrown in the trash.

During the 40th Parliament, Bill C-41 included specific clauses about the independence of military judges. This is now the 41st Parliament, and given the urgency of the matter, the government decided to remove those provisions to create a new bill, Bill C-16, which the members of the Standing Committee on National Defence studied last fall and the NDP supported at all stages.

Clearly, Bill C-15 is not an omnibus bill, like the ones introduced in 2011 and 2012, but it nevertheless amends several parts of the National Defence Act. First of all, it amends part III of the act, which serves as the Code of Service Discipline. There is also part IV, which has to do with complaints concerning the military police, and finally, there is an addition regarding the position of the Canadian Forces provost marshal.

I would like to begin by addressing one very important aspect of this bill, that is, the question of discipline. In an excellent speech delivered on March 29, 2012, the hon. member for St. John's East did a fine job addressing the issue of discipline, reminding us how important it is to any military organization, because soldiers' lives depend on it. He quoted retired Colonel Michel Drapeau, and I quote:

Discipline is fundamental to military efficiency...permitting commanders to control the use of violence so that the right amount and type of force can be applied in exactly the right circumstances, the right time and the right place. At the personal level, discipline ensures that...the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise.

As a non-commissioned soldier myself once, I was trained to understand that military justice is inexorably different from civilian justice because it must fulfill two additional requirements: discipline and swiftness.

I can say that people who wear a uniform are subjected to pressure that does not exist in the civilian world, if only because of the existence of a chain of command that must be obeyed—obviously, as long as those commands are lawful. During my military training, in fact, I remember learning about the particular problem posed by illegal commands. Even so, experience shows that when an individual is subjected to this particular pressure, he can be motivated to commit acts that he would never commit in civilian life.

Next, I would like to speak a little about the procedural aspect of the question we are addressing today. Our role as parliamentarians is to study bills in detail, however complex they may be. Our responsibility as elected representatives, however, is also to summarize our work and explain to Canadians how their government is conducting itself in a specific case. When we provide Canadians with those explanations, they do not understand why their government, the same government that sets itself up artificially as a good manager of the money that Canadians have earned with the sweat of their brow, could be trashing the hours of work that have been put into improving this same bill on three occasions. Instead of starting from the last version of this bill, the government is using its position of power and starting over from zero. That is what Canadians do not understand.

The saddest thing is that the last version of Bill C-41 was the product of discussion, dialogue and consensus. Unfortunately, we get the feeling that this government does not understand the word “consensus”, and that is what is sad.

I would like to start by talking about points that the NDP believes are a step in the right direction. I will then address the points where we disagree, or rather where we think improvements should be made.

In general, we support all the measures that are designed to create greater uniformity between the military and civilian justice systems.

A typical example is the question of the jurisdiction of the court. Sometimes, offences, or crimes, are committed in a military precinct. In that case, the military court will have jurisdiction, although the crime is in no way connected with the operational side of the job performed by a member of the military. Instead, the case should go before a civilian court, so the accused has the benefit of all the civilian protections guaranteed by the Charter of Rights and Freedoms.

What are the points on which we think the government can do a better job in its reforms? There are three main points. There are the summary trial system, the Canadian Forces Grievance Board and the MPCC, which is the Military Police Complaints Commission.

Let us first talk about the summary trial aspect. This is a very important one, because, as we have heard in various speeches, 80% of military offences are dealt with by summary trial. The concern raised by my colleague from St. John's East in his work in committee is that, contrary to what happens in the civilian justice system, the proceedings in summary trials do not protect the rights of the accused adequately. He also introduced amendments to address this point.

As he pointed out, one of the general principles of natural justice lies in procedural fairness, and one of the things this means is the right to be tried by an impartial person. It will be agreed that in a summary trial, when a person is tried by their superiors, that is not the case.

Another interesting case and one which we should take as an example is the case of countries whose legal system comes from the common law, but that have had to change their legislation to achieve that well-known procedural fairness. The reason for it is that the European Court of Justice has ruled that military summary trials violated the European Convention on Human Rights. This is the case in the United Kingdom, a country that had to amend its legislation.

As was mentioned earlier, if Commonwealth countries, such as Ireland, Australia and New Zealand, have been able to make these legislative amendments, why should Canada still not be able to do so?

To end on this point, I would say that we cannot discuss summary trials without looking into the issue of criminal records. I will take a few minutes to speak about this particular issue.

One of our main concerns is that military personnel should not be treated less fairly than civilians are and that the treatment a soldier receives should not have unfair repercussions in his civilian life. Why? Because after a certain period, our military return to civilian life once again.

What we are concerned about is the direct link that currently exists between a summary trial in the military environment and the risk of a criminal record under the Criminal Records Act in the civilian world. It was mentioned earlier that a criminal record is becoming even more important in everyday life, not only in crossing a border, the case that first comes to mind, but also in looking for work. It is a good thing in itself, on condition that the process that led to the criminal record has been as rigorous and as fair in the military context as the equivalent in the civilian context.

One of the solutions to this issue could have been to provide that anyone found guilty in a military context during a summary trial may not have a criminal record in the civilian environment. Unfortunately, the solution was not accepted.

Let us take the example of being under the influence of a drug and behaving in a manner that is likely to discredit Her Majesty's service. This is a punishable offence in the military, while in civilian life, it is not even an offence.

We could look at the example of someone claiming to have an illness that they do not actually have. This can be punishable by life imprisonment in exceptional operational circumstances, for example, if it put the lives of other soldiers at risk. However, in the civilian world, this is not even punishable as a criminal offence.

These are practical examples that would result in a criminal record for a criminal act committed in the military world, but that would not have a consequence in the civilian world.

The second item that should be improved in this bill is the Canadian Forces Grievance Board.

At present, this board consists exclusively of retired members of the Canadian Forces. We would like to have more civilians on this board.

Initially, we even supported having only civilians on the board. My colleague from St. John's East introduced an amendment in that regard. During discussions in the previous Parliament, members of the committee had found a compromise solution whereby at least 60% of the members of the Canadian Forces Grievance Board would be civilians. That amendment was adopted by the committee. We wonder why the Conservatives deleted this particular provision from Bill C-15.

Another issue that was debated in detail during the meetings of the Standing Committee on National Defence was the Chief of the Defence Staff's authority to make financial decisions.

This has been a problem for many years and Justice Lamer asked that it be rectified in 2003. That was almost 10 years ago. This issue has been raised on a regular basis not only by the Canadian Forces ombudsman, but also by the chair of the Canadian Forces Grievance Board.

For the sake of clarity, I will try to explain what is meant by that. What we find unfair is that National Defence's Chief of Defence Staff does not have the authority to render a decision. He only has the authority to issue a notice that the applicant must use to try to get paid by National Defence. That is what we want to correct because we find it to be unfair.

Next, we would like the Military Police Complaints Commission, the MPCC, to become a real oversight body. I noticed that we have not talked very much about the MPCC during the various debates because we were focused on the summary trials, which are the most important aspect. However, I would like to provide a bit of historical background. The MPCC was established by the Parliament of Canada in the wake of the Somalia inquiry because MPs felt the need to strengthen civilian control over how the army operates.

We think that this reform is not ambitious enough and does not go far enough.

I would like to come back to the question that the hon. member for Edmonton Centre asked the hon. member for Abitibi—Témiscamingue as to why summary trials are not constitutional at this time.

I will simply read a ruling by the Supreme Court of Canada, which confirmed in Wigglesworth:

If an individual is to be subject to penal consequences such as imprisonment...then he or she should be entitled to the highest procedural protection known to our law.

That was the ruling made by the Supreme Court. I do not know whether the hon. member for Edmonton Centre will have the opportunity to say more about this, but that is indeed why we are against summary trials.

In closing, I would like to say that, for all the reasons I have mentioned, the NDP will not be supporting Bill C-15 at second reading, not because we are opposed to most of the provisions in the bill, but because we cannot condone the government's strategy of deliberately ignoring the recommendations that had been made by parliamentarians during the previous sessions.

We are asking the government to amend its bill, in order to take into account the hundreds of hours of work done in the Standing Committee on National Defence during previous parliaments.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:30 p.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Speaker, having served in the Canadian Forces for a number of years, I understand and appreciate the differences between civilian life and military life. Many members of the forces see that. There is a great dependency on discipline within the military and a need to follow orders. People in the military have an obligation unlike people outside the military.

People outside the military if they do not feel like working, they can leave, but they might not have a job at the end of the day. They can call in sick without any real consequences. If they do not like what the boss is saying, they can quit or in some instances talk back.

People in the military do not have these options. There needs to be a consequence in order to have an effective force. The discipline factor and the need to follow orders is absolutely critical for the Canadian Forces sheer existence.

There is a need for changes to the legislation. It needs to be modified to the degree where it would probably be more effective.

In principle, why would the NDP prevent the legislation from passing? There is a need to make some changes to it and amendments would most likely be welcome, but why would that party oppose the bill in principle and its passage?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:35 p.m.

NDP

Tarik Brahmi Saint-Jean, QC

Mr. Speaker, I want to thank the hon. member for his interesting question. He mentioned the example of malingering, and the fact that there must be consequences.

As I said at the beginning of my speech, discipline is one of the pillars of the entire military organization because the lives of the other soldiers depend on discipline and its enforcement. We do not deny that. No one is denying the importance of discipline nor the fact that, as he said, anyone found guilty of malingering or faking must suffer the consequences.

We are not saying that there should be no consequences to lying. What we are saying is that when a soldier is charged for faking an illness, for example, the military justice process that applies must not be less fair than the same process that would operate in the civilian world, under the Criminal Records Act.

It is not a question of removing the guilt associated with the act or playing down the seriousness of it, since as I said earlier, the act of malingering can result in the loss of other soldiers' lives, because one soldier did not honour his commitment to stand guard, for instance. The best example is standing guard. If a soldier falls asleep or pretends to be sick in order to leave his guard post, his fellow soldiers could be killed as a result. We are not denying that. What we are saying is that it is a question of processes.

Once the act is committed, regardless of the consequences, and the soldier has been arrested, the process must be as fair as the corresponding process in the civilian world.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:35 p.m.

NDP

Rosane Doré Lefebvre Alfred-Pellan, QC

Mr. Speaker, I thank my colleague for his excellent speech. He is a very eloquent speaker. This is very interesting, especially coming from someone who represents a riding that has many military institutions and who knows military institutions, having served in the military himself in Europe. It was very interesting for a neophyte like myself to learn a little more about how things work internally.

My question will be very simple. I found my colleague's comments very interesting and I would like to know a little more about the whole issue. Knowing that amendments could be proposed, how does he think this bill could be improved?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:35 p.m.

NDP

Tarik Brahmi Saint-Jean, QC

Mr. Speaker, I thank my colleague from Alfred-Pellan for her question.

As I mentioned, this is the fourth time this bill has come before the House. We have therefore had plenty of time to discuss it. There have been negotiations and discussions. However, I should note that during the previous Parliament, the Conservatives who were members of the Standing Committee on National Defence did not have a majority, so they were forced to agree to a certain number of compromises. Now they are in a position of power and they have a majority on the Standing Committee on National Defence, so it seems to me—I am speculating here—that they want to use their position of power to thumb their noses at all of the negotiations that took place in committee during previous Parliaments.

To answer the question about what can be done, I would say that we should pick up where we left off with Bill C-41 during the 40th Parliament and not remove the amendments that were negotiated and agreed to by members of the Liberal Party, the Bloc Québécois and the Conservative Party.

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:40 p.m.

NDP

Andrew Cash Davenport, ON

Mr. Speaker, we hear so much rhetoric and blather from the other side about law and order and lock them down, punish them and pick them up by their bootstraps and all the other baloney. It is nice to hear from a member who actually knows what he is talking about, who has served in the military, who understands that an institution is not just some hollow vessel but it is filled with people, in many senses, young people who are in a context, and it is a bit of a rarefied context. We are asking them to do things and to give of themselves in a way that is really extraordinary. When they occasionally run afoul with the law, they are not given the kind of due process that anyone would expect. I think many Canadians would be surprised that in this context, and for certain infractions, those in the military are not given due process.

Would my hon. colleague comment on the general context in which the government is tabling the bill, stripping out some of the more reasonable amendments that had already been negotiated and leaving just the ones that follow its lock them down law and order baloney?

Strengthening Military Justice in the Defence of Canada Act
Government Orders

9:40 p.m.

NDP

Tarik Brahmi Saint-Jean, QC

Mr. Speaker, I really feel the government, the Conservative Party, is using the position it holds right now to take a completely different approach from what it had taken under the previous legislation just because it has that majority. The Conservatives are claiming that they have a strong majority, but this is not true. Forty per cent of the votes is not a strong majority. Therefore, if we take the perspective of the voters, this is not a strong majority. It is not a majority at all. It is just here in this place that the members of the Conservative Party are using and abusing this position.

I am very sad. The Conservatives could have taken the previous amendments that had been negotiated under the previous legislation. Now they are scrapping all that and starting anew. Frankly, Canadian taxpayers do not understand why we have to pay so many people and spend so many hours doing things and redoing them.