Mr. Speaker, I am please to join today in this debate at second reading on Bill C-41. It is important that we understand how military justice fits in with our justice system and the importance of military justice to the operation of the armed forces.
First, we are supporting the bill at second reading, although we see major deficiencies in the two areas that the bill talks about, and that is reformation to the operation of the criminal side of military justice and also the changes to the grievance board.
Military justice is a very important part of making our forces work. It is related to discipline within the military forces. I will quote retired Colonel Michel Drapeau who is very knowledgeable in military matters and military law. In fact, he has written the only significant Canadian work on military law, the annotated volume of the National Defence Act and related statutes. He had this to say about the importance of discipline:
Few professions are as dependent on discipline as is the military. Discipline is fundamental to military efficiency, cohesion, esprit-de-corps 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 at all times of great danger and risk, the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise. Likewise, group and individual discipline ensures adherence to laws, standards, customs and values of civilian society, even during combat operations.
Therefore, discipline is integral not only to the maintaining of an efficient armed forces but also to ensuring that the rule of law predominates within the military, particularly when engaged in great peril and danger in combat.
The late Chief Justice Antonio Lamer, in an important case in 1992, also talked about the importance of military discipline in maintaining the armed forces in a state of readiness. He said:
—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.
That might seem to be a bit unfair. In fact, that is really the subject of my remarks today.
Another comments on military discipline was made by my predecessor as defence critic for the NDP, Dawn Black, in speaking in the House on June 16, 2008, talking about military justice. She said:
The military justice system does not only exist to punish wrongdoers, it is a central part of command, discipline and morale. Ours is a voluntary military and if the military justice system is not seen as equitable and fair, we will not only have a justice problem, but we could also have an operational problem.
I refer back not to the Lamer study, but to an inquiry into the circumstances of Somalia when Canada was there initially as part of a UN peacekeeping mission but ended up in the midst of a war. The resulting inquiry by Mr. Justice Letourneau and the public outrage that resulted from the knowledge of what had happened in Somalia with our troops, and I will not go into the detail, was in fact the beginning of the dark days of the military in the nineties, as the Conservatives have said today. Mr. Justice Letourneau discovered, through his inquiry, that terrible things had happened that shocked Canadians, but the fault was all throughout the chain of command and the failure of leadership that prevented the system of discipline from operating.
When we talk about military justice, there has to be an emphasis on the justice side as well. We expect, want and need to have a high level of morale among our troops and we demand loyalty. However, it is a two-way street. The system must also be seen as fair.
In two areas of our military justice system that I want to focus on today that fairness is somewhat lacking. Those areas are the military justice system on the one hand, and I will go into details, particularly of a summary trial, and the issue of grievances on the other hand.
In our military system, grievances are written into the National Defence Act. We do not have a unionized military as some other countries do. Many thousands of individuals are subject to military discipline and are in a rigid, chain-of-command, top-down type of structure. Their only recourse when it comes to dealing with issues affecting their pay and benefits, their release, which is often very problematic, medical issues, getting adequate medical treatment and issues of that nature is through a grievance system. That grievance system is in disarray and the proposed changes in the legislation do not really deal with that.
Let me talk a bit about the summary trial issue. I think the public and members of the House of Commons have heard of court martials. I guess there is an assumption that most military justice goes through that procedure.
However, that is not the case. In dealing with discipline within the military forces, there is a less formal tribunal presided over by officers. These officers are not legally trained. It could be the commanding officer, or someone delegated by him or her, presiding over a summary trial. These officers are given a seminar on how to do this, but they do not have the ability to follow the rules of evidence and carry out a trial in accordance with the nature of criminal trials that would occur in our civilian courts. When I say “civilian”, I do not mean civil versus criminal.
The forum is the court martial itself, which is more analogous to a civilian court of criminal jurisdiction. That is provided for, and there is a whole series of rules and evidence that apply to that. In fact, it is a rather comprehensive code of evidence that applies to court martials.
However, in looking at the actual use of summary trials and court martials in Canada, it is pretty clear that it is very much the exception rather than the rule. In fact, in 2008-09, there were 1,963 trials in the military justice system. Of those, only 65, or 3%, were in fact conducted through a court martial. The other 1,898 were dealt with by the summary trial procedure.
There is nothing particularly wrong with that, except that under a summary trial procedure in the military, as opposed to in the criminal courts where our civilian population is tried for offences, there is a rather strict set of rules that involve the rules of evidence. It is guided by the provisions of the Charter of Rights and Freedoms. There is a very significant prohibition against any kind of prejudice or foreknowledge of the individuals or the cases.
The results are subject to appeal. There is a transcript, so if people do not like what happens to them because they think there was a legal error, they can appeal to a higher court. Also, they have the right to legal counsel in a criminal trial.
We are proposing that we take a significant look at this whole issue and say that there must be a trade off if we are to have summary trials in the military without rules. We need to know how these summary trials can end up for the individual involved. If our sons or daughters were in the military and they were tried under a summary trial and convicted, which y about 89% of those who have summary trials are convicted, they end up with a criminal record and that criminal record is treated the same as a criminal record for a trial before a civil court with all the rules and procedures in place.
The trials can take place before a commanding officer or someone delegated by him or her. They can result in fines, in imprisonment or in detention for up to 30 days in the case of a commanding officer and 15 days in the case of a delegated person. These are serious matters that result in the loss of freedom for an individual, a fine equal to 30 days' pay or a loss of rank for example. Those are the punishments for summary trials and yet the lack of procedural fairness in the Charter of Rights and Freedoms sense is not there.
If we need to have that system to maintain order, discipline and morale, which we do not have a problem with, then we should ensure that members of our forces do not end up with criminal records that they must try to get expunged through the Parole Board after they leave the military. We have seen the attitude of the government on the Parole Board. It does not seem to want the Parole Board to have too much power because everybody who is convicted of something is obviously a menace to society. It is even building jails now to house unreported crimes.
We have the concern that in the military system we need to have, as former Chief Justice Lamer said, speedy justice. Sometimes we need more punishment than others would encounter for the same offence, but if we do that, the trade off should be that individuals do not get a criminal record unless they are tried by a court that has that kind of support.
What are we talking about in terms of offences that could end up with criminal records? Of the number of charges in 2007-08, 29% of the offences were for absence without leave, AWOL; 6%, or 156 cases, were for drunkenness, which is section 97 of the Defence Acts; 19 out of 2,600 cases were charged against good order and conduct, prejudiced to good order and discipline of a sexual nature; and 138 cases for drugs and alcohol. A person who is charged under the National Defence for possession of drugs or alcohol could end up with an offence that results in a penalty of imprisonment, fine or a reprimand. There is a range of sentences.
The concern is that, at the end of the day, the individual ends up with a criminal record even though the procedural fairness is not there. It is not subject to a lawyer. It is not an independent tribunal. The person in the case, the commanding officer, can accept any kind of evidence that the person deems to be relevant to the charge and relevant to proof. That is not the case in a criminal court. In assessing whether a person is credible, the commanding officer quite often knows the individual or the delegated person may know the individuals or may know the witnesses. That is not something we would allow in a criminal court in civil jurisdiction.
The rules of procedure are not there. It is true that there are some procedural guidelines but there is no transcript. Individuals cannot go to an appeal court and say that their procedural rights were violated and therefore the case should be set aside. There is a review and sometimes the reviews are successful. They may result in a different charge or a different sentence but they are not appeals in the same kind of legal framework that we have in civilian courts.
While we think summary trials and the notion of a different system for military tribunals and military justice is reasonable, there must be a quid pro quo, there must be a balance so that if the rules are tougher, perhaps the sentences are tougher, they maintain discipline and order.
On the other hand, if people are not given all the same procedural rights as those in the Charter of Rights and Freedoms such as a civilian would have, they should not have a criminal record for the rest of their life unless they are able to go through the procedure of going to the Parole Board and getting a pardon. People leaving the service may have enough trouble trying to adjust to civilian life outside of the forces without having the additional burden of a criminal record for something that may have happened during their military service that was not serious.
Most of the offences we are talking about are very minor. If they were not minor they would be subject to courts martial with more severe penalties and most of these are relatively minor offences that do not often require serious discipline. They could be areas of military discipline that are extremely important, for example, insubordination, quarrels, disturbances and disobeying a lawful command are important to discipline but they are not something for which someone should have a criminal record.
The other area I want to talk about is the grievance procedure, which is extremely important to those in the military because they do not have any way of solving these problems without going through a grievance procedure. If they had a collective agreement they would have a grievance procedure. There would be time limits where the employer would have to respond. One of the previous speakers mentioned the Lamer report that had 88 recommendations. There are a whole series of recommendations in the Lamer report that have yet to be implemented, some of them may have even been accepted but their implementation is pending the completion of further study, we are considering the implementation under study, et cetera.
For example, that the Chief of the Defence Staff be given the necessary financial authority to settle financial claims and grievances, and that the Chief of the Defence Staff be entitled to delegate this authority. What is the importance of that? The importance is that if somebody has a pay and benefits problem that can be resolved by saying that the man should be paid his two months wages, the Chief of the Defence Staff should be able to solve that problem. He should have the authority and the budget to do that. The responsibility rests with the Chief of the Defence Staff and yet he is not given the financial authority to deal with it. That was recommended and accepted and yet the implementation is pending further study. Why is that? Seven years later after the Lamer report, we still have a series of recommendations like that.
We are also concerned about the grievance board itself. The change in the name to the external board when it is not external at all. It is still comprised of military or ex-military people. It does not require any military knowledge to do that. It requires people who are judicious and able to resolve disputes and can recommend they be done quickly and not take two years or longer to get grievances resolved.
