An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.


Peter MacKay  Conservative


This bill has received Royal Assent and is now law.


This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends certain provisions of the National Defence Act that govern the military justice system. The amendments, among other things, reduce the number of types of courts martial from four to two and permit an accused person, in certain circumstances, to choose the type of court martial that will be convened. The enactment also provides that certain decisions of the panel of a General Court Martial must be unanimous and clarifies the provision that deals with the period of liability with respect to summary trials under the Code of Service Discipline. It also makes a consequential amendment to the Geneva Conventions Act.


All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

National Defence ActGovernment Orders

June 16th, 2008 / noon
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Central Nova Nova Scotia


Peter MacKay ConservativeMinister of National Defence and Minister of the Atlantic Canada Opportunities Agency

moved that Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

Mr. Speaker, I am pleased to be in the Chamber this morning to speak to this important bill that would amend the National Defence Act.

The bill would ensure that our military justice system remains one in which Canadians can have trust and confidence and find truly accurate administration of justice within the country.

I want to begin by thanking members of the opposition and the Parliamentary Secretary to the Minister of National Defence from Edmonton Centre for their cooperation and hard work in expediting the movement of the bill.

The bill is aimed specifically at enhancing fairness in the military justice system, both from the perspective of the accused person and the Canadian public. It would also ensure that members of the Canadian Forces enjoy a right to choose how they will be tried that parallels the rights that are currently found in the Canadian civilian criminal justice system and that it is charter compliant.

By remedying an impasse that was created by an appellant court judgment, the bill would ensure that justice can continue to be done for an accused person as well as for victims. It is meant to avoid onerous and perhaps deadly delay that might result. Members may be aware of an old legal maxim that says “justice delayed is justice denied”. The deadliest form of denial is apparent when a person is not able to have his or her case heard in a timely fashion.

The bill attempts to preserve the viability of the military justice system in fulfilling its key role of maintenance of discipline efficiency and morale upon which the Canadian Forces depend.

In particular, the bill would more closely align procedures for the selection of the type of trial for a court martial, as well as court martial decision making with the approach that is currently taken in the civilian criminal justice system. It would also preserve the attributes that are essential to satisfy the unique needs of the Canadian military justice system.

Before speaking to the particular amendments proposed in the bill, I would first like to briefly address the overarching issue of the necessity for a separate Canadian military justice system. It begins with defining what differentiates the current system in the civil sense as compared to our military justice system.

The system of Canadian military justice was instituted in order to deal with military offences in a prompt and fair manner, in Canada and abroad, while respecting the Canadian Charter of Rights and Freedoms and meeting Canadians' expectations.

As we know, the National Defence Act establishes the legal basis for the Canadian military justice system—the Code of Service Discipline. Among other things, the code determines who is subject to the military justice system as well as setting out military offences such as striking a superior, disobeying a lawful command and being absent without authority . The code also encompasses offences under the Criminal Code of Canada and other federal laws and establishes two types of military tribunals for military offences—trial by summary conviction and court martial.

The need for a separate system of military tribunals distinct from the civilian criminal justice system has deep historic roots in our country and was affirmed by the Supreme Court of Canada in 1992 in the case of the Queen v. Généreux.

The Canadian military justice system has been designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale. However, first and foremost, it must ensure that the members of the Canadian Forces are dealt with fairly.

Key to ensuring this over time is the supervisory justice jurisdiction of civilian appellate courts, such as the Court Martial Appeal Court and the Supreme Court of Canada.

As with any justice system, these appellate courts sometimes highlight the need for modernization adjustments in our military justice system. Clearly, as with all systems, there is an evolution and court decisions can create new precedent.

Such is the case today with the handing down of the Court Martial Appeal Court's decision on April 24, 2008 in the case of the Queen v. Trépanier.

The court found that the exclusive power of the director of military prosecutions to choose the type of court martial that will try an accused person and the duty of the court martial administrator to convene the type of court martial thus selected violates an accused person's constitutional right to make full answer and defence and to control the conduct of the defence.

The court held that these provisions of the National Defence Act violate the charter and are of no force and effect, specifically section 7 and 11(d) of the charter.

Importantly and, in large part, adding to the urgency of the passage of this legislation, the court refused to stay its decision, effectively removing the authority to convene courts martial, an essential step in the bringing of a matter to trial. The crux of the matter is that this could suspend trials and, in many cases, cause a backlog which already exists on the docket.

Leave to appeal the decision in Trépanier is being sought from the Supreme Court of Canada, along with a stay of execution for the decision. However, neither the appeal nor the stay which is being sought will provide a clear, timely or certain solution to the delays and dilemmas created by the Trépanier decision.

Left unaddressed, trials by court martial cannot be conducted. Simply put, serious offences may go unpunished and victims may not see justice done.

Bill C-60 now before this House is the government's legislative response to the court martial appeal's decision in Trépanier. It would bring clarity and stability to the court martial convening process and would allow the process to continue to function.

First, the bill would simplify the court martial structure by reducing the number of types of court martial from four to two. The remaining types of court martial would be the standing court martial, a military judge sitting alone, and the general court martial, a military judge sitting with a panel of five members.

Second, the bill would establish a comprehensive framework for the selection of the type of court martial. It sets out which serious offences must be tried and the general court martial and standing court martial respectively and in all other cases permits the accused person to choose one of the two processes.

Finally, the bill would strengthen court martial decision making by providing military judges with authority to deal with pre-trial matters at an earlier stage in the process and would enhance the reliability of verdicts by requiring key decisions of the panel at a general court martial to be made unanimously by a unanimous vote, rather than by a majority vote as is the present case. This mirrors exactly what we would find in the criminal trial process in Canada.

Mr. Speaker, the proposed amendments are a clear and decisive response to the concerns raised by the Court Martial Appeal Court. The amendments establish a legal framework for the choice of type of court martial in accordance with the provisions of the Criminal Code. In addition, they specify the circumstances in which it is appropriate to permit an accused person to choose the type of court martial that will be convened.

The bill will also clarify certain provisions of the National Defence Act that were interpreted in an unexpected way by the Court Martial Appeal Court in R. v. Grant.

Specifically, the bill will clearly establish that there can be no exception to the one-year limitation period for holding summary trial; that when the Court Martial Appeal Court allows an appeal, it shall direct a new trial by court martial; and that when charges are laid, the authorities are required to act expeditiously under the Code of Service Discipline.

The reform of the military justice system is ongoing. Simply put, the bill before us today would move closely to align the military justice system with the processes in the current criminal court system while preserving the system's capacity to meet essential military requirements.

It would respond to the concerns expressed by the court martial appeal decision and the recommendations that have been received. It also would promote charter values and enhance the fairness in our justice system in both the eyes of the accused and members of the Canadian public.

The amendments to the National Defence Act, in short, Canada's military justice system, continues to have the trust and confidence of Canadians. Again, I thank members opposite for supporting the expediting of this process.

National Defence ActGovernment Orders

June 16th, 2008 / 12:10 p.m.
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Bryon Wilfert Liberal Richmond Hill, ON

Mr. Speaker, I am pleased to participate in this debate and I want to indicate at the outset that the official opposition supports in principle the bill and realizes the gravity of the situation.

There is no question that these provisions of the National Defence Act are in line with the constitutional standards as outlined previously by the minister. Obviously, because of the decision of the court in April, this has led to a need to respond effectively and we on this side of the House are prepared to act reasonably with regard to the legislation.

There is no question that the legislation would reduce the number of types of court martial from four down to two. We are looking at the general court martial, which is for more serious offences, as well as the standing court martial.

We must ensure that the military justice system is in balance with the Charter of Rights and Freedoms. As the minister indicated, the decision in the Trépanier case of April 24 was a catalyst for the bill being brought to the House and being viewed with some urgency. It was indicated in that case that certain provisions under the NDA violated the Charter of Rights under section 7.

We want to ensure justice is served and that it is carried out responsibly. Therefore, when we look at that particular case, it was indicated that putting the power to choose the type of court martial in the hands of the prosecutor violated the right of the defence to a full answer and to control that defence. It certainly seemed like a reasonable decision but it leads us to this particular case on which we have to move forward.

Giving exclusive power to the prosecution to not only choose the court martial but to choose when a trial could take place was a concern. These provisions were deemed unconstitutional so the government has now brought forth specific legislation to deal with this.

We have had an opportunity to review the legislation and, as I have indicated, our caucus certainly will do nothing to impede the passage of the legislation. However, we have some suggestions and some comments that I would like to present to the House presently.

The need to provide a legislative remedy to convene pending cases is obvious. We agree with the need to modernize and change those provisions to improve its fairness and meet constitutional standards. We need to ensure the military justice system is fair, does not violate the charter and we need to provide timely and, most important, fair trials to the individuals so the victim can obtain justice.

Again, that is very important. We are supportive because we need to consider the situation with regard to the rights of the victim. The judge recommended the need for legislative reform.

Members may be a bit uncomfortable in moving quickly on this legislation but we have consent of the House to move this to a special committee of national defence this afternoon to hear from the JAG and others in terms of this legislation and, presumably, it will be reported back as expeditiously as possible and be dealt with at third reading.

The role of parliamentarians is to examine the bill and to ensure that what the government is proposing is what we will see.

We have another bill before the House called Bill C-45, which was introduced by the government back in October of last year. It is unfortunate that the bill has not moved along and that some of these amendments were not dealt with in Bill C-45 after this was introduced. It might have been appropriate for the government to have done that but it did not. It chose to deal with it separately and, therefore, we will deal with what we have. However, that would have been helpful.

There is the issue of taking leave to appeal to the court. Again, my understanding from the government is that that is another track because in the meantime we are not sure when the need for this legislation, if at all, would be heard. We understand that.

We would like to propose, however, that there be a mandatory parliamentary review, presumably, after two years. I think that within two years we would know whether or not the courts will respond. Therefore, rather than a sunset clause, for which some may argue, we think a mandatory review by Parliament would be appropriate. That has been done in other cases and it would allow parliamentarians to examine where we are at that particular junction. I think that would be a reasonable approach for us to take.

I have a couple of specific comments with regard to the legislation.

The Code of Service Discipline both authorizes the director of military prosecutions to select the type of court martial to be used in each case and requires the court martial administrator to convene the type of court martial selected, unless it clearly violates the accused's constitutional right.

If we look at section 165.14 and subsection 165.19(1) of the National Defence Act, it authorizes the director of military prosecutions to select the type of court martial to try an accused person against whom a charge was preferred and requires the court martial administrator to convene the type of court martial selected.

In the Trépanier case of April 24, these provisions were of no force, in effect, because they violated the accused. The court did not allow for any appeal. The court basically said that it stood by that decision. The government has now responded, as of June.

The legislation, as we understand it, will establish a legal framework which will govern the selection of the mode of trial by court martial, by operation of law, rather than the pursued direction of the director of military prosecutions, and this seems entirely reasonable. The accused person will have the ability to choose the type of court martial in circumstances similar to those set out in the Criminal Code. Again, that is reasonable.

Given the increased choice of the accused person as to the mode of trial, the number of types of court martial, as I indicated before, is now reduced from four to two.

The bill also will empower military judges to deal with the pre-trial matters as soon as a charge is preferred and will require key decisions of the court martial panel to be made by unanimous rather than by a majority vote, and again, that seems reasonable.

Serious offences must be tried in a general court martial by eliminating the special general court martial and disciplinary court martial, and expanding the jurisdiction of the standing court martial to include civilians, subject to the Code of Service Discipline. Again, because of the sensitivity of the legislation and given the court's decision, it is reasonable that we move forward as expeditiously as we can.

We do believe that the standing committee will have to look at the issue of an automatic review based on the fact that, depending on what happens within the next two years, we will have that opportunity to decide whether or not it needs to be extended. If there is the right to appeal directly, then obviously we can deal with it at that time, but it is important that we move forward.

There are up to 50 serious cases at the present time and we want to make sure that justice for the victims is there. Obviously, if this were delayed, this would not be the case. That is something that on this side of the House, and we join the government on this, we would not find very palatable at all.

Therefore, with the provision that we deal specifically with a review, within two years, the government can expect the support of the official opposition with regard to this legislation.

National Defence ActGovernment Orders

June 16th, 2008 / 12:20 p.m.
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Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, before I go into the details of the bill, it is important that those watching on television understand that there is a civilian justice system and a military justice system. Many people that I meet often wonder why military personnel are not governed by the same system as other citizens. It is important to understand that the military justice system is not new, and neither is the history and the definition of courts martial. Members of the military have always been judged by their peers. This is important.

Right away I want to reassure anyone who thinks this could be problematic. It is possible to appeal all the way up to the Supreme Court, which can evaluate cases and demand changes. By the way, Justice Lamer, one of the great chief justices of the Supreme Court of Canada, studied the military justice system. He also reassured Quebeckers and Canadians that this does not pose a problem. The judge said that he would make some minor amendments in order to reassure everyone and to make it known that the system is effective.

That being said, it is important to bear in mind that soldiers and military personnel are not an exception. This is another kind of justice, which is sometimes even more expedient. Trials can be held in theatres of operation. If someone's actions require discipline, we must not wait for that individual to return from the theatre of operations to resolve the matter externally. Swifter justice can often be achieved in this way, which is important.

As for the act's provisions, they are rather straightforward. Soldiers face summary trials for minor offences. Those who rule in such cases are not necessarily lawyers or judges, but rather they are often the commander or a superior officer. However, this is only for cases that are not overly serious. More serious cases are tried at courts martial. Four exist at this time, but the bill before us would eliminate two of them in an attempt to condense things and simplify the situation.

I would now like to address the fast tracking process. I would remind the House that this is not the first time that bills have been introduced near the end of a session, with claims that it is an emergency and that we must hurry up and pass the bills before the end of the parliamentary session. We have been fooled in some cases. The best example I can think of was the bill to implement the new veterans charter. The bill passed quickly at first, second and third readings, and that was it. However, there were some problems later on.

Thus, it is important to do two things. We must first assess the urgency of the matter and then pass the bill before the end of this session, for all the reasons we have already heard and others that I will explain later on. Furthermore, if we want to avoid making mistakes, we must write a sunset clause into this bill. I do not see a difference between what my hon. Liberal colleague is suggesting, that is, a mandatory review in two years, and a sunset clause. I am anxious to see how this problem will be solved in committee.

If we pass a bill quickly and go to committee this afternoon to try to resolve this once and for all, it is important to give ourselves room to say that if we make the slightest mistake with this bill we have the possibility, even the obligation, to come back to it under a sunset clause. In my opinion, it is very important to keep a sunset clause available in such cases.

What is the urgency with this bill today? That is not terribly complicated. It has to do with the Trépanier decision. As I was saying earlier, there are several levels of appeal in military justice. There is court martial and also the Court Martial Appeal Court. The latter was the level in question: the judges decided that the provisions of the legislation were unconstitutional and contrary to the Canadian Charter of Rights and Freedoms. When the government said it was complicated and that it would like to delay the application of the legislation for a year in order to clean things up, the Appeal Court refused.

This means that as of April 24, no court martial can sit because it was determined that they were in conflict with the Canadian Charter of Rights and Freedoms.

The director of military prosecutions caused the problem. Under the old legislation, he was the one who determined which court martial would hear a case. The judges ruled that this was not fair to the accused. Furthermore, in a civil proceeding, the accused can often choose which type of court to be tried in and can choose to appear before a judge or a jury. This was not possible under the act and that is why it was amended.

In closing, I would say that the work we are doing today is important. The Bloc Québécois understands the urgent need for action. It is clear that we will support this bill at second reading stage.

Nonetheless, we want to do serious work in committee this afternoon, but we know that will not be possible. When we have just half a day to study a bill, we risk making mistakes. To ensure that we have a safety net, adding a sunset clause would be the best course of action. That is why we will introduce one in committee this afternoon.

National Defence ActGovernment Orders

June 16th, 2008 / 12:25 p.m.
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Dawn Black NDP New Westminster—Coquitlam, BC

Mr. Speaker, I am pleased to speak, on behalf of the NDP, to Bill C-60, An Act to amend the National Defence Act. We will support the bill at second reading and its reference to the Standing Committee on National Defence later today.

The National Defence Act has not been reviewed often by the House of Commons. The last time it was amended was in 1998, and before that it went unchanged for 50 years.

On April 24 of this year, the Court Martial Appeal Court of Canada made a decision to strike down a section of the National Defence Act. I want to remind members of the House what the decision of the court said.

The panel of three judges said that the military justice system “is in dire need of a change and modernization to improve its fairness and meet the constitutional standards”. We should keep that warning in mind.

We should also keep in mind that many of the reforms promised could have been dealt with years ago. Military justice is separate from the civilian justice system because militaries must maintain discipline and morale. Breaches of discipline are dealt with speedily and sometimes more severely than they would be in the civilian world. This difference with the civilian system is crucial.

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.

In 1992 the Supreme Court recognized that military justice needed to be different from the civilian justice system. However, there was nothing in that decision that said the military justice system should be antiquated or behind the times.

In 1998 Bill C-25 was introduced to modernize the National Defence Act. The changes brought about are too numerous to mention here today, but for instance, it removed capital punishment from the books. The bill included an undertaking to review the act every five years so we have not faced another situation where Canada would go for 50 years without updates or revisions.

Former Supreme Court of Canada Chief Justice Antonio Lamer, undertook a study of military justice, His report was tabled in Parliament in November 2003. The report contained 88 recommendations, some of with which the government has not agreed. It was not until three years later, however, that legislation was introduced by the government to implement the recommendations of Lamer, and that was under the previous minister in the form of Bill C-7. That bill had many of the changes recommended by Lamer, however, it had a poison pill, which was to virtually eliminate the power of the Military Police Complaints Commission. This would have seriously undermined civilian oversight of the military police, so that bill was dropped.

The department has been faced with the problems brought up by the Trépanier decision for several years, but it did not reform the act. In the Trépanier decision, Justice Létourneau wrote:

The unanimous concern of this Court in Nystrom about the fairness of section 165.14 was expressed more than two years ago, i.e. on December 20, 2005. Since then, there have been five new constitutional challenges to that provision and appeals before this Court are pending. Retired Chief Justice Lamer made a recommendation as early as September 3, 2003 that section 165.14 be amended to give the accused the option to choose his or her trier of facts. As previously mentioned, he also made a recommendation that a working group reviewed the reorganization of the courts martial with a view to improving the fairness of the trial, at the center of which, as an important element of that reorganization, is the right for an accused to choose the trier of facts. Yet, Bill C-45 has been tabled before Parliament and it contains no remedial provision. The authorities have been given more than four and a half (4½) years to address the problem

As a result of the decision made by the Court Martial Appeal Court on April 24 of this year, the department suspended convening all courts martial. This is not a situation that can continue. Serious offences in the military must be prosecuted.

As it stood in the National Defence Act, the director of military prosecutions had the power to choose what type of court martial a member of the Canadian Forces would face. The idea of a prosecutor having this much power is completely contrary to accepted practice in the civilian justice system. As I said at the outset, we have to accept the military justice system will never be the same as the civilian system, but what justifiable military reason was there for this power being given to a prosecutor?

The three justices who made the determination in the Trépanier case, on April 24, said that the military justice system “is in dire need of a change and modernization to improve its fairness and meet the constitutional standards”. If an appeal court made that kind of ruling about the civilian justice system, the entire country would be outraged.

At the end of the day, it is up to Parliament to rewrite the act; it is not up to the courts. It is our responsibility to ensure that these urgent reforms are carried out. Such a delay of justice is a denial of justice.

Finally, I want to speak briefly about the lack of balance in staffing the military justice system. The JAG has 14 staff officers, who work on prosecutions, and four military judges, but how many military defence lawyers are there? There are only four military defence lawyers.

A system with an equal number of defence lawyers and judges would not be tolerated for one moment in the civilian justice system. Military defence lawyers are overworked and under-recognized, just like many members of the Canadian Forces.

I believe everyone in the House will come together to support changes to the act, and I hope we can do so quickly.

National Defence ActGovernment Orders

June 16th, 2008 / 12:30 p.m.
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The Acting Speaker Conservative Royal Galipeau

Pursuant to order made on Friday, June 13, Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, is deemed read a second time and referred to the Standing Committee on National Defence.

(Motion agreed to, bill read the second time and referred to a committee)