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.

Sponsor

Peter MacKay  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 10:30 a.m.
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NDP

Jasbir Sandhu NDP Surrey North, BC

Mr. Speaker, it is an honour to speak on behalf of my constituents in Surrey North.

I want to start by talking about what the Minister of National Defence pointed out in his speech. He pointed out that this bill is long overdue and should have been addressed before the Conservatives became government. That is due to the slow pace of the government in addressing the criminal justice system and the military. It is the government that has been dragging its feet over a number of years.

Having said that, I know the minister has had a rough run over the last couple of years, whether it was the military procurement or the pay difference in Afghanistan recently. I point out that this bill is a small step in the right direction, and I have to give the minister kudos for the small step in the right direction, but more could have been done with regard to the criminal justice system.

As the minister pointed out, this bill was introduced in the House back in October of 2011 and was an act to amend the National Defence Act and to make consequential amendments to other acts, basically strengthening military justice in the defence of Canada act. Bill C-15 would amend the National Defence Act to strengthen military justice following the 2003 report of the former chief justice of the Supreme Court, the Right Hon. Antonio Lamer, and the May 2009 report of the Standing Committee on Legal and Constitutional Affairs. Again, Justice Lamer made recommendations back in 2003, and it is only now that the government is getting around to addressing our broken military justice system.

Among other things, this bill would provide greater flexibility in the sentencing process. The bill would provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution, and it would modify the composition of court martial panels according to the ranks of accused persons and would modify the limitations, among many other things.

Bill C-15 is a step in the right direction. However, the government should have done more. Bill C-15 suffers from the Conservatives' slow-footed response to the LeSage report, which was not incorporated in the bill, along with the lack of wall-to-wall review of the sections of the National Defence Act pertaining to military justice.

Bill C-15 falls far short of key issues when it comes to reforming the summary trial system and the grievance system and strengthening the Military Police Complaints Commission. We are letting our soldiers down with this unnecessary slow pace of change. The NDP will continue to lay the groundwork for a larger review of the need for the modernization and civilization of the military legal system and the implementation of greater civilian oversight.

I am proud of my colleagues on the defence committee, who forced the government to make some amendments to the bill. As members may recall, I spoke on second reading of this bill about some of the shortcomings of the bill that New Democrats would like to strengthen. One thing was with regard to military personnel having criminal records. We were not comfortable with that particular clause in the bill. My NDP colleagues on the defence committee forced the Conservatives to accept an amendment, which would force changes so that over 90% of disciplinary offences would not result in criminal records. We will support Bill C-15 at this point. The NDP is proud to vote for the significant, tangible result that we have been vocally and legislatively in support of for the members of our Canadian military forces.

Our efforts have established one more important reform in building fairer military justice. It is important that the amendments that were offered by the New Democrats were accepted by the Conservatives. It is a small step, one aspect of the bill, not the entire bill. We would like to see more changes to the military justice system, so we can have a robust justice system in the military. This would be a small step in the right direction. One of the key elements was regarding the criminal records for military personnel, so 90% of those military personnel would not have a criminal record after going through this. That was an important first step.

Members of the Canadian Forces are held to an extremely high standard of discipline, and they in turn deserve a judicial system that is held to a comparable standard. The New Democrats will support Bill C-15's proposed improvements because it is a step in the right direction. However, the government should have done more. The Conservatives voted against several prudent NDP amendments at committee that asked to fully incorporate Justice Lamer's 2003 recommendations and some of Justice LeSage's 2011 amendments. They even voted against a clarification to the letter of the law in clause 35, as proposed by Justice LeSage. This has resulted in a failure to strengthen the proper safeguards for independence in the grievance system, military police or judicial elements of the military justice system.

The New Democrats are calling on the Conservatives to approach the military justice system in a holistic way. What the Conservatives have been doing is taking a piecemeal approach, a little bit at a time. The National Defence Act is a relic. We need to look at it in detail to reform it wall to wall and bring our criminal justice system in the military to the 21st century. The Conservatives had a chance to do this for the last six or seven years. However, they have not done it. They have taken a very piecemeal approach to the military justice system, and we are doing an injustice to the men and women who serve this country proudly. We can do much better. We can support our men and women by ensuring they receive justice when they need it.

Going back to Justice Lamer's recommendations, in 2003, the Rt. Hon. Antonio Lamer, former Chief Justice of the Supreme Court, presented his report on the independent review of the National Defence Act. The Lamer report contained 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the Provost Marshal. Bill C-15 would be the legislative response to these recommendations.

Former chief justice of the Superior Court the Hon. Patrick LeSage provided an additional review of certain sections of the National Defence Act, which was handed to the government in December 2011. The Minister of National Defence tabled the report in June 2012.

The Conservatives took over a year to table that report. They had it sitting on the minister's desk and he did not act at all. They have had a number of years to bring forward legislation so we can reform the military justice system, yet, as I have mentioned before, the Conservatives are foot-dragging on the issue of reforming our justice system. Even though we are supporting this particular bill, one of our major concerns is that, while it would be one little step in the right direction, there are numerous recommendations from the LeSage report and the Rt. Hon. Antonio Lamer recommendations that are not part of Bill C-15.

That is what the government needs to work on. It needs to take on a wall-to-wall review of the National Defence Act. The Conservatives have voted against amendments attempting to incorporate several of LeSage's recommendations.

Bill C-15 has appeared in earlier forms. Just going back through the history of it, first Bill C-7 and Bill C-45 died on the order paper due to the prorogation in 2007 and an election in 2008. In July 2008, Bill C-60 came into force, simplifying the structure of the courts martial and establishing a method for choosing the type of court martial more closely aligned with the civilian system.

In 2009, the Senate Standing Committee on Legal and Constitutional Affairs considered Bill C-60 and provided nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2000 Lamer report and the LeSage report. It outlined provisions related to military justice, such as sentencing reform, military justice committees, summary trials, court martial panels, the Provost Marshal and limited provisions related to grievance and the military complaints process.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament. The amendments carried over included those on court martial and military judges and security of tenure, appointment and age. There are other important amendments to Bill C-41 proposed at the amendment stage and incorporated at the end of the last parliamentary session. However, those amendments that were introduced to the previous bill were not taken into consideration in Bill C-15.

That is unfortunate, because we had a bill that went through the process. We heard from witnesses in the committee. Experts, judges and many people associated with the military justice system testified. We had reached a compromise. We reached across different parties. The Conservatives, Liberals and NDP worked together to bring about amendments that would serve our military justice system in a way that is fair. In committees, input is heard from key witnesses and amendments are reached. When that process takes place, all sides can be heard from. The committee recommended a number of amendments that would have helped make the system better.

However, as we have seen in the past from the Conservatives, they have failed to incorporate those very amendments that were agreed upon in the last session of Parliament. That is very unfortunate. The amendments that came out of the last session were a consensus from all three parties.

However, the Conservatives are not listening, and they do not want to incorporate those very amendments that would have formed more consensus towards how we could take a larger leap forward in forming our military justice system. They have backtracked a little from that. This is a smaller step in the right direction.

There was one amendment, a compromise that the NDP fought for in Bill C-41, clause 75. At the prompting from the NDP and in recognition of amendments absent, the Conservatives introduced this amendment into clause 75 of Bill C-15.

While this compromise that the NDP fought hard for in Bill C-41 and Bill C-15 is an improvement on the current legislation, it does not go far enough to improve the summary trial process for our Canadian Forces. It does not guarantee that a person who is convicted of an offence during a summary trial is not unfairly subject to a criminal record.

Furthermore, the Conservatives voted against prudent NDP amendments that would have ensured that the proper legislative mechanisms were in place to apply clause 75 retroactively.

We brought forward a number of other improvements at committee. I believe that is what committees are for. That is where we improve bills to make the laws we make in this place better to serve Canadians in a better way. Yet the Conservatives voted down every single one of those amendments.

This is a small step in the right direction. I think we could have taken a bigger step. In fact, I believe we need a wall-to-wall review of the National Defence Act to bring the act into the 21st century. Yet the Conservatives did not want to take even a slightly bigger step.

Here are some of the amendments we proposed at committee. One of the amendments voted down by the Conservatives would have given the Chief of the Defence Staff the financial authority to compensate CAF members in the grievance process. It amended clause 6 in Bill C-41, responding directly to Justice Lamer's recommendations. An amendment to clause 11 in Bill C-41 would have changed the composition of the grievance committee such that it would include 60% civilian membership and would exclude active-duty Canadian Forces members, thus enhancing the independence of the board.

These are common sense amendments that would improve the military justice system. These amendments in the previous Parliament were approved by the committee. Yet the Conservatives failed to bring them into Bill C-15.

Again, this is a small step in the right direction. They could have done more. They could have taken some of the testimony we heard at this committee for Bill C-15 and also at the committee in the previous Parliament. That committee had agreed to these amendments. Yet the Conservatives took those amendments out. That is puzzling. One year they agreed to them, and the next year, in a new parliamentary session, they are going back on their word. That is failing the very people who serve this country.

Another amendment we introduced was a provision to ensure that a person convicted of an offence during a summary trial would not be unfairly subjected to a criminal record. It amended clause 75 in Bill C-41.

These were very common sense amendments. I could go on about some of the changes we proposed and some of the things we would like to see in our approach to reforming the military justice system. The least this House could do is provide the Canadian Armed Forces with a modern National Defence Act so that they can carry on their jobs.

I want to go back to what I started with. The Minister of National Defence has had bad news over the last two years. He has bungled the F-35 procurement. It is a mess. It is a fiasco. I could use a number of other adjectives to describe it. We have seen a number of other scandals in the ministry of defence. We have seen recently a differential in pay in Afghanistan.

The Minister of National Defence could use a little bit of good news, and I would say that this is very little good news, which is going to reform the military justice system. We are calling for a wall-to-wall review of the National Defence Act so that we can reform the criminal justice system in the military and provide the support, encouragement and resources to our military personnel who serve us proudly.

I have a free voice to speak up in the House, to speak on behalf of my constituents from Surrey North, because of the very sacrifices the men and women in the military have made. The least the House could do is provide them with a modern National Defence Act so that they can carry on their jobs.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

March 21st, 2013 / 3:25 p.m.
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NDP

Raymond Côté NDP Beauport—Limoilou, QC

Mr. Speaker, today it is my pleasure to speak to Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, which brings about a number of improvements in response to recommendations concerning the military justice system.

Bill C-15 is simply the latest incarnation of various bills introduced in the House, such as Bill C-7 and Bill C-45 in 2007 and 2008, and Bill C-60, which came into effect in July 2008. Bill C-60 simplified the structure of courts martial and created a mechanism to choose a type of court martial more comparable to the civilian system. Bill C-41 was pretty good. At the time, it went farther than Bill C-15 did initially, but unfortunately, it was never adopted.

It is important to note that Bill C-15 came about because of concerns over how the military justice system has worked for years. A number of flaws were identified in the wake of the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and the May 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs.

Justice Antonio Lamer's authority was well established, and the government had every reason to take the former chief justice's many recommendations into account. To a certain extent, Bill C-15 is a response to those concerns. However, because it does not go far enough, we proposed amendments in committee. One of our amendments was agreed to, but the others were rejected, unfortunately. Nevertheless, we are pleased that Bill C-15 was improved enough for us to be able to support it at third reading.

By way of context, it is important to note that our military justice system operates separately from our criminal justice system because our military personnel play a special role in our society. Because of their role, they have certain special powers that ordinary citizens do not. Along with that, they have to comply with very high disciplinary standards related to the hierarchy and organization of the military system on the ground so that they can respond effectively during military operations. A lot of very structured preparatory work also has to happen.

There is a very specific way in which the military justice system must answer to that structure, which is separate from society. The system must be held to very high standards and must not needlessly trap veterans and former members of the Canadian Forces after they have finished serving. They find themselves trapped in needless uncertainty because of mistakes they made that, normally, would not result in a criminal record.

We can be pleased with the fact that, in committee, the NDP was able to get a major amendment passed, which changed nearly 95% of disciplinary code infractions so that they will no longer result in a criminal record.

That is the main reason we are now supporting Bill C-15.

As everyone knows, a criminal record comes with very unpleasant consequences. For example, a criminal record can keep a member from starting a new life and pursuing a second career, a career that could be limited by the member's inability to travel to the United States or to fulfill certain duties that he is qualified for because of his military experience and training. The fact that it is so easy to have a criminal record after spending one's life in the armed forces is a major irritant and totally unacceptable.

I mentioned two reports, one by Justice Antonio Lamer and one by a Senate committee. However, we would have liked the government to respond more quickly, and we want it to respond with tangible measures to the report by the former Ontario Superior Court Chief Justice LeSage. He also completed a study on the National Defence Act, which he presented to the government in December 2011. Bill C-15 does not really cover that, which is very unfortunate.

Another aspect is rather ironic. I am currently a member of the Standing Committee on Finance. We recently examined Bill C-48, a huge and very technical bill that makes changes to some aspects of the Canadian tax system. Instead of a gradual, piecemeal approach, we would have liked to see a more major reform, although not a massive one that would make it impossible to study the military justice system.

I was a member of the Standing Committee on Justice and Human Rights, and I noticed a very similar approach when it was time to change some details in the Criminal Code. There was a real lack of vision, which is truly appalling. Our soldiers, who fulfill a very important and admirable role, both in Canada and around the globe, should definitely not be victims nor should they be subjected to such improvisation on the government's part. It is really appalling. Our soldiers would be much better off if the military justice system had the same or similar standards as the civilian justice system, since this would bring us in line with other countries.

When the NDP forms the government in 2015, our party will be committed to doing more to make a real difference, which will allow us to offer all members of our armed forces a justice system worthy of that name and, above all, worthy of the appearance of justice earned.

That is probably the most important aspect, and the final point I wanted to make. Ensuring the appearance of justice is a fundamental principle of our justice system. This appearance is especially fundamental because it forms the basis of public confidence and, therefore, the confidence of members of the armed forces in the military justice machine.

I hope the government has listened to our hopes and wishes. I thank the government again for accepting a fundamental amendment regarding the consequences of possibly getting a criminal record.

I am now ready to hear my colleagues' comments and answer their questions.

Motions in AmendmentStrengthening Military Justice in the Defence of Canada ActGovernment Orders

March 21st, 2013 / 12:35 p.m.
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NDP

Pierre-Luc Dusseault NDP Sherbrooke, QC

Mr. Speaker, I am pleased to rise today.

I am delighted to have the opportunity to speak to Bill C-15 after my colleagues. I must admit, they made very interesting and very precise speeches on the amendments proposed by the hon. member for Saanich—Gulf Islands. I thank the hon. member for her efforts and for presenting these amendments.

First of all, I must say that I support her amendments. We had presented practically the same ones in committee. Clearly, we are going to support them because they are quite logical.

I will come back to that a little later in my speech because it has been mentioned a few times that consideration of the amendments must be very precise at report stage, which is what I will try to do as much as possible today to enlighten my colleagues on this bill and, more specifically, on the amendments.

If I may, I would like to give a little background before moving on to the heart of the subject, even if it does not please my colleagues.

I think Canadians listening to us would be very pleased to know how Bill C-15 ended up in the House, what we are currently doing and what still needs to be done for it to eventually become law.

The process began in 2003. In this debate today, we have been saying that the process began 10 years ago, following on the report of the Right Hon. Antonio Lamer, former chief justice of the Supreme Court. The report contained 88 recommendations.

Bill C-15 is a kind of legislative response to the recommendations in that report. However, there is a big “but”, because Bill C-15 does not completely reflect those recommendations. In reality, it responds very little to the report that contained 88 recommendations. In fact, the government has attempted to implement only about 20 of them since then.

Since 2003, the report by the hon. Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice has also been presented. That was in December 2011. On June 8, 2012, the Minister of National Defence himself tabled that report here in the House. Although the Conservative government has had the LeSage report for over a year, it still did not incorporate any of its recommendations into Bill C-15.

As the hon. member for Beaches—East York pointed out, the government has been sitting on that report for a year now and nothing has been implemented. The NDP, however, did try to have some of those recommendations incorporated into Bill C-15.

There have also been several other versions. I will not spend too much time on this, since that is not really what interests us the most at this stage of the bill. However, there was also Bill C-7 and Bill C-45, which both died on the order paper because of the 2008 election after Parliament was prorogued. Then, in July 2008, there was another version, Bill C-60.

The bill that was most in line with what we wanted was Bill C-41, introduced in 2010, also further to the Lamer report. All of the bills introduced after that report were basically in response to that report. Bill C-41, which had fortunately been amended in committee, also died on the order paper because an election was called, which, as some people may recall, was due to a case of contempt of Parliament on the part of the Conservative government, on a question of access to sensitive documents. That is also not the subject of today's debate. We all remember what happened.

Bill C-15 is similar to Bill C-41, which was the result of committee work in the last session. However, significant amendments made at committee stage during the last Parliament were not included in Bill C-15. When Bill C-15 was introduced, one of our biggest disappointments was that it did not contain all of the changes made to Bill C-41 during the previous Parliament. We were very disappointed, and we wondered why they had not been included in Bill C-15.

However, I should point out that we had a small win in committee and we managed to do some good. Not that long ago, we had to make changes so that nearly 95% of the offences in the code of discipline would no longer result in a criminal record. That is an important win for us. Canadians who do not serve in the Canadian Forces are subject to the Canadian Charter of Rights and Freedoms, which uses a fair and balanced justice system to protect the public. However, we felt that members of the Canadian Forces were not offered the same protection as other Canadians.

That brings me to the two amendments proposed by the member for Saanich—Gulf Islands. I would like to read Bill C-15, as it now stands. We are talking about clause 4 of the bill, which would add sections 18.3 through 18.6 to the current National Defence Act, after the existing section 18.2. The two amendments focus on subsections 18.5(3) and 18.5(4), which read as follows:

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

We tried to amend these provisions in committee. Unfortunately, those amendments were not accepted and the provisions remained unchanged. Today, two motions were moved. We want to expand on clause 4 to make it a bit more specific by adding the following:

The Vice Chief of the Defence Staff may, with the consent of the Provost Marshal and in accordance with the respective roles, responsibilities and principles set out in the Accountability Framework signed by the Vice Chief of the Defence Staff and the Provost Marshal on March 2, 1998, issue instructions or guidelines in writing in respect of a particular investigation, providing that the rationale for issuing the instructions or guidelines is also stated.

This motion further narrows the proposed amendment to Bill C-15 in order to ensure the transparency of orders given by the Vice Chief of the Defence Staff and the Canadian Forces Provost Marshal, a position created by this bill. All of clause 4 is, in fact, an addition to the current National Defence Act with regard to the Canadian Forces Provost Marshal.

In our opinion, subsection 18.5(3) was much too problematic. The statement that “[t]he Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation” means that the Vice Chief of the Defence Staff has the power to give instructions to the Canadian Forces Provost Marshal with respect to a particular investigation.

I liked the analogy used earlier by the hon. member for Scarborough—Guildwood about the military and civilian police. He spoke about the mayor of a city calling up the local police chief and telling him how to proceed with an investigation or what he can or cannot do. We would regard that as direct interference in the right to an independent police investigation, whether it was being conducted by the civilian or military police. The law must be much more clear and transparent to ensure that there is no interference in investigations, which must remain as independent as possible.

My time is up. I would be pleased to answer questions.

Motions in AmendmentStrengthening Military Justice in the Defence of Canada ActGovernment Orders

March 21st, 2013 / 11:25 a.m.
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NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Mr. Speaker, before addressing clause 4 and the related amendments, I would like to provide some background on Bill C-15, so that things are clear for everyone who is watching or trying to follow the debate.

Bill C-15 has appeared in various forms. First of all, Bills C-7 and C-45 died on the order paper because of prorogation in 2007 and the election in 2008.

In July 2008, Bill C-60 came into force. It was intended to simplify the structure of the court martial system and establish a method for choosing the type of court martial that would mesh better with the civilian system. After that, in 2009, the Standing Senate Committee on Legal and Constitutional Affairs studied Bill C-60 and made nine recommendations containing amendments to be made to the National Defence Act.

Then, Bill C-41 was introduced in 2010. It responded to the 2003 Lamer report and the Senate committee report I just mentioned. It contained provisions on military justice, including sentencing reform.

The issue of military judges was addressed in Bill C-16 and therefore was not covered in Bill C-15. Bill C-15 also addressed military committees, summary trials, court martial panels and the Canadian Forces Provost Marshal, and contained a certain number of provisions related to the grievance and military police complaints processes.

Then, Bill C-41 died on the order paper because the election was called, but I would like to point out that this bill had been studied in committee and that there had been amendments—

Motions in AmendmentStrengthening Military Justice in the Defence of Canada ActGovernment Orders

March 21st, 2013 / 11:05 a.m.
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Ajax—Pickering Ontario

Conservative

Chris Alexander ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, obviously we have never taken the position that there were not improvements required to ensure the constitutionality of this legislation.

That is why, in addition to the four failed attempts we have had to amend this legislation, there have also been Bill C-60 and Bill C-16. That means six pieces of legislation for this House, over four parliaments, without a full, thorough-going modernization, update, taking place yet.

Could I ask the hon. member to return to the issue at hand today? Why is it that he is speaking, after all our consideration in committee of this issue, in favour of a reprised amendment, essentially, that goes against the testimony of the Provost Marshal of the Canadian Forces on March 2, when he said that the safeguards in place are robust, and goes against the testimony of the Vice Chief of the Defence Staff, who says that this provision is required to potentially save lives on the battlefield, using the example of a live fire exercise?

February 27th, 2013 / 4:50 p.m.
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NDP

Jack Harris NDP St. John's East, NL

I might remind my colleague that, led by Mr. Harris, the legislation with respect to military judges went through all three stages of legislation in the House of Commons, with respect to Bill C-16, in a matter of three weeks. It was introduced on maybe October 10 or 11 and was passed into law before the end of that month, because it was regarded as a necessity, given the circumstances that presented themselves.

I don't think we need to play politics with this. We can have legitimate arguments here. A similar thing happened with the passage of Bill C-60 in about a month. That was before I was here, in 2006 or 2007.

We are here as politicians for the good of the country. We may have differences about what we're doing now, but in a time of emergency or special circumstance, as we saw with the concerns about the legitimacy of the military justice system because of the rulings under the Charter of Rights and Freedoms, actions are taken. My view is that is exactly what would happen in the circumstance we're talking about, if this country were at war.

February 27th, 2013 / 4:40 p.m.
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Col Michael R. Gibson

It's an interesting question, Mr. Chair, because this was canvassed in a Court Martial Appeal Court case called Grant, and it was also canvassed before the Standing Senate Committee on Legal and Constitutional Affairs in their review of Bill C-60. What they essentially said was that they could envisage circumstances in which the accused may consider it to be in his or her interest to have the matter dealt with by summary trial, notwithstanding the expiry of the limitation period, and in essence they would give that option to him or her.

In general terms, of course, summary trials are more expeditious than courts martial. They occur much more rapidly. They generally occur with less publicity. It would be up to the accused to make his or her assessment, with the appropriate advice, as to what they thought would be in their best interests.

February 11th, 2013 / 3:55 p.m.
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Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Mr. Drapeau, you stated in a recent article that you're not opposed to summary trials and you said that again today, but you had concerns regarding their constitutionality.

In fact, you had the opportunity to make this submission to Chief Justice LeSage during the second independent review of Bill C-25 and Bill C-60. In rejecting your point of view, he stated:

...regarding the constitutionality of the summary trial process, I am satisfied, as was former Chief Justice Dickson, that “the summary trial process is likely to survive a court challenge as to its constitutional validity”.

Given that two former chief justices of Canada and the former chief justice of the Ontario Superior Court of Justice have assessed Canada's summary trial process as constitutional and compliant with the Charter of Rights and Freedoms, can you explain why the committee should not follow the opinion of these respected Canadian jurists?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 11th, 2012 / 12:50 p.m.
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NDP

Jean Rousseau NDP Compton—Stanstead, QC

Mr. Speaker, it is an honour and a great pleasure for me to try to put in my two cents' worth today in this debate on Bill C-15.

I have studied labour relations. I have also worked as an employee representative in grievance procedures. In my field of studies, I also did human resources management. I have been on the employer side and the union side. So I have been on both sides.

I am going to try to show why it is extremely important that we have a fair and equitable system for our soldiers for handling grievances relating to all the various disputes that arise between them and their superior officers and their institution, the Canadian Forces.

We have a bill that amends eight acts: the Access to Information Act, the Criminal Code, the Financial Administration Act, the Privacy Act, and others.

This bill is in fact 60 pages long. That is almost modest, compared to what we have been used to getting from the government for some time now.

To begin, let us do a review of part of the history of this bill.

In 2003, the Right Hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, submitted a report on the independent review of the National Defence Act. He is not just anybody. He had much to say about judgments concerning grievances that had gone to the labour court, the Court of Appeal, and ultimately the Supreme Court. The Lamer report contained 88 recommendations concerning the military justice system, the Military Police Complaints Commission, the grievance procedure, which I will address at greater length today, and the Canadian Forces Provost Marshal.

Bill C-15 is the legislative response to those recommendations. However, only 28 recommendations have been incorporated into this new version.

Bill C-15 has appeared in several forms over the course of its history.

First, we had Bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007—I think we know it is the practice of the Conservatives to cut off debate—and the 2008 election was called.

However, in July 2008, Bill C-60 made a comeback, simplifying the structure of courts martial and establishing a method for choosing the type of court martial that would be most consistent with the civilian justice system. That was precisely the objective that should have guided the sponsors of this reform and Bill C-15. That should be our goal: harmonization with the civilian justice system.

In 2009, the Standing Senate Committee on Legal and Constitutional Affairs considered Bill C-60 and made nine more recommendations to amend the National Defence Act.

In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and the 2009 Senate committee report. Provisions relating to the military justice system were included, such as provisions relating to sentencing reform, judges and military boards and committees, summary trials, the court martial panel and the Canadian Forces Provost Marshal and certain provisions relating to the Military Police Complaints Commission.

Essentially, Bill C-15 is similar to the version that came out of the Senate committee in the last Parliament. The amendments carried forward include the composition of the court martial panel and the appointment of military judges during good behaviour until the age of retirement.

Since I was elected, in May 2011, I have spent time on many occasions with soldiers of all ages, whether at Remembrance Day ceremonies with our courageous Canadian Legion members or at various meetings with soldiers and cadets in my region. I have met courageous, dynamic people who are very proud of their military profession.

However, when the time comes for them to return to peacetime life, these soldiers’ lives can be full of surprises and sometimes twists. All of them, the generations who lived through the major wars—the world wars, the Korean War or the Vietnam War—and other generations who have worked hard on numerous peacekeeping missions in the Middle East, in Africa, in Europe, or more recently in Iraq, Darfur and Afghanistan, deserve not only our admiration, but also our respect, for doing their duty.

That is why they deserve justice, a justice system in which they will be able to see themselves as individuals who are part of today’s modern society.

All these brave men and women have proudly carried the colours of our Canadian flag and staunchly defended the democratic principles we hold dear. Sometimes, however, and it must be said, the aftermath has left its marks, and sometimes they are heavy marks. When they come home, their life in our industrialized society begins, where the economy is what matters above all else. In this modern civilization, social status, acceptance by others, often comes from a person’s job and of course the pay associated with it, but also, everything depends on an academic background or wide-ranging experience here and there in the real world. Soldiers do in fact have an extraordinary background when it comes to understanding giving and duty. They are capable of great effort and courage.

And then, soldiers return to work in civilian life. This is why I focus on this when I talk about grievances in the military system and the consequences of those grievances. Whether or not it is appropriate, a candidate for a position that is available in a business is judged, most of the time, against objective criteria, I hope, but sometimes the candidate is assessed in a way, and let us not be afraid of the words, that may be more subjective. And so a little notation here or there about a minor problem during the person’s military service or in the performance of their duties during missions can sometimes become a major wrongdoing in the eyes of an employer who decides to make use of this workforce, which is so important to manufacturing and industry, but also to the service sector. That is why the NDP is truly disappointed that some of the amendments it proposed to Bill C-15 have not been incorporated.

I would like to mention the amendments concerning the authority of the Chief of Defence Staff in the grievance process. These amendments were a direct response to a recommendation by the Right Hon. Justice Antonio Lamer, the former chief justice of the Supreme Court of Canada. There are also the changes to the composition of the grievance committee so that 60% of its members would be civilians to make it more objective and to ensure that the grievance process is not conducted strictly by the military. Finally, there is the provision to ensure that a person convicted of an offence during a summary trial is not unfairly subjected to a criminal record. All too often, this criminal record will scare employers who need this labour force. As I mentioned, this workforce is important not only to the future of that business, but also to Canada's future.

As I already said in my speeches here, do not ask what this country can do for you, ask what you can do for your country. Those words are from John F. Kennedy, but they still apply. It is often said that Canada is a land that needs workers. The doors are open. We welcome them. However, we must not create problems for these applicants, for this workforce that is essential to our country's future. Believe me, Mr. Speaker, this kind of situation can seriously undermine a soldier's return to civilian life and his career after the military.

We need this workforce. Yet in this world, they will be subjected to a grievance system essential to justice and to fairness in the handling of disputes. Why not have harmonized the military and civilian justice systems in this respect? It would have been easy to do. This grievance adjudication system is even recognized by the Supreme Court in several decisions.

Bill C-15 on the reform of the military justice system should be based on the fundamental principles of law and justice on which our country was built. It is essential to put things back in place within National Defence and to give that department the means to adapt to the modern workplace, to the 21st century.

Still, the NDP believes this legislation is a step in the right direction—really—to bring the military justice system more in line with the civilian justice system. Other steps will have to be taken, and we hope the government will listen to our amendments.

May justice be done.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 11th, 2012 / 11:50 a.m.
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NDP

Francine Raynault NDP Joliette, QC

Mr. Speaker, I am sure people will say that the NDP members ramble on, always saying the same things in their speeches on Bill C-15, but we have not finished repeating ourselves. We want to make our voice heard.

I am very pleased to be taking part in this debate on Bill C-15, which I believe says a great deal about the values the Conservative government has chosen to promote and those it has decided to disregard. When a country claims to establish democracy and social justice in foreign countries, it is interesting to see how the government of that country treats its citizens.

And it is all the more interesting to see how this government decides to treat those who defend its citizens. Unfortunately, I believe this bill neither respects the men and women in uniform who defend this country nor represents Canadian values. Although it would be a good opportunity for the Conservatives to enter the 21st century, once again, they have missed the boat.

Bill C-15 is not new to this House. It is a response to a report by a former chief justice of the Supreme Court of Canada, the Right Hon. Antonio Lamer, who in 2003 made 88 recommendations in his review of military justice. The Conservatives have accepted 28 of that number. Military justice was also the topic of a report by the Standing Senate Committee on Legal and Constitutional Affairs in 2009 and has been the subject of many bills: C-7, C-45, C-60 and C-41, all of which died on the order paper.

It is unfortunate to have to say it, but the Conservatives do not surprise me. They have gotten into the habit of taking half-measures by introducing half-finished bills to impose their ideological agenda on all government bodies. I would never say these kinds of things if they were not true. I repeat, only 28 of the 88 recommendations in the Lamer report were accepted for the purposes of this bill.

Even worse, the Conservatives knowingly disregarded all the work done by the Standing Committee on National Defence. The bill's title has changed, but its objectives remain the same. So why forget in 2012 work that was done in 2011? With the Conservatives, it is the myth of Sisyphus: we always have to start over, again and again.

The way the Conservatives use our institutions never ceases to astonish me. We have everything we need to conduct a discussion and come up with proposals that are more in line with what Canadians want. Unfortunately, the Conservatives prefer to squabble in the House rather than conduct a healthy debate. If that were not the case, why would they have rejected the NDP's amendments to Bill C-41, a forerunner to Bill C-15? The truth is that, in committee and in the House, the Conservatives only hear one voice: their own.

However, the government has every interest in listening to the NDP on this matter, if it wants to avoid making a serious mistake. I want to focus on one point regarding Bill C-15 that I find particularly annoying: summary trials. The Minister of National Defence claims Canadians know that the military justice system treats those who serve them fairly and in accordance with Canadian standards and values. It is all well and good to say that, but when the facts do not support the allegations, it is better to say nothing.

So let us talk about Canadian values. Aside from empty rhetoric, I wonder where those values now stand. There is a very useful document that we can refer to in these kinds of situations: the Constitution. In 1983, this country included in its Constitution a passage on the rights of military members. It states that, like all Canadians, they are entitled to a fair trial, represented here by a court martial.

In spite of the Constitution, the Lamer report, the Senate report and numerous recommendations by the NDP, the Conservatives have retained summary trials. But what is a summary trial? It is a judgment rendered by an immediate superior officer without a public trial, without any written record of the proceedings and without any right to counsel, and it automatically results in a criminal record.

Even minor offences result in a criminal record. When they leave the military, people convicted in this way may have trouble finding a job or a place to live.

Is that any way to thank those who defend us, by throwing them out into the street for a minor offence?

This is no exaggeration. In 2008 in 2009, 96% of military offences were prosecuted by summary trial. This is the armed forces, and a firm hand is called for. Our military members are used to strict discipline and expect to be treated strictly. That is why the NDP proposed that harsh penalties be applied, such as imposing fines and docking pay, but there is quite a difference between that and handing out criminal records for being 10 minutes late.

The military members who serve this country deserve all our consideration. They are career military people who know the responsibilities inherent in their choice of occupation. We no longer have conscription. It is time we recognized that fact. They are in the armed forces because they are concerned about defending all citizens and are prepared to make major personal sacrifices. The least we can do is treat them fairly.

Summary trials have been abandoned in Great Britain, Ireland, New Zealand and Australia. Why should Canada insist on continuing this old tradition?

The NDP believes this bill is headed in the right direction by further harmonizing the military justice and the civilian justice systems. However, it does not address key issues involved in reforming the summary trial system and the grievance system or in reinforcing the Military Police Complaints Commission.

I have met veterans in my riding who are proud of the work they have done. Every year, we honour them on Remembrance Day. However, perhaps the best way to thank them would be to give those who follow in their footsteps a little more respect.

Ultimately, I believe that the Conservatives have missed an opportunity with Bill C-15. They are delaying Canada's entry into the 21st century.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 11th, 2012 / 11:35 a.m.
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NDP

Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC

Mr. Speaker, it is an honour to speak after my colleague, who gave an excellent speech, not only on the substance of the bill, but also on its form and the Conservatives' process of introducing omnibus bills, proroguing Parliament and not respecting the work of parliamentarians. We are being repeatedly gagged: over 30 gag orders in a year and a half.

This highlights how the majority Conservative government is undermining the health of our democracy and respect for the work of parliamentarians. This bill is yet another example of that. In a way, the government is not respecting the work of parliamentarians because we are being asked to redo something that was already done once before.

I really liked the analogy that it is as though the government took the previous version instead of the new version of the bill out of the photocopier. The government figured it was no big deal, that it would all be sorted out in committee, since it would ask parliamentarians to redo what their predecessors had already done. It is a waste of time. The Conservatives are used to wasting money. Now, they are wasting time.

Before outlining all our concerns with this bill, I would like to make something clear. When we discuss justice or correctional systems issues that affect people's lives, we must not underestimate the importance of these debates and discussions in our society.

Mr. Speaker, you are more aware of the repercussions of the justice system, whether civilian or military, than many people here. Today we are pleased to be discussing the military justice system that affects the men and women who serve in the Canadian Forces.

We New Democrats believe that some elements that are not in the current bill should be there in order to improve the bill and respond to the legitimate hopes and aspirations of the people in our armed forces. The men and women in our armed forces serve under extremely strict and severe rules of discipline. We understand why that is, of course. However, it is important that they have an equally strict justice system that is functional and well managed in order to ensure that justice is done, that they are not victims of inequity and that the consequences do not follow them into their lives after they leave the armed forces.

Most people join the armed forces when they are quite young. It is not often that someone my age signs up. Thus, they are in the prime of life when they finish their service. They will need to continue working, to find a job and housing, and perhaps they will want to travel or study abroad. But under the current system, there are consequences from offences that are minor, but serious within the Canadian Forces, which we acknowledge. And that can leave its mark—it has been discussed to some extent—such as a criminal record that will complicate their lives.

We are aware of that, and I think that many Quebeckers and Canadians would be shocked to learn that people who risk their lives, their safety and their health while serving their country could be penalized for the role they have played. If they committed a similar offence in civilian life, the consequences and the price to pay would be less significant. That needs to be said. We must discuss this so that Canadians and Quebeckers have confidence in the military justice system. At this time, major improvements are needed in order to respect the sacrifices being asked of the men and women who serve in our armed forces.

In our opinion, the key issues in reforming the system are the issue of summary trials, which we will come back to; the existing grievance system; and the need to strengthen the powers of the Military Police Complaints Commission. This is not our only request for strengthening the powers of certain commissioners or officers; I am spending my days arguing in favour of more powers for the Chief Electoral Officer, but that is another topic.

There is a lot of background to Bill C-15, which we are studying today. We have been considering this matter and trying to find ways to improve it for some time now. In 2003, Antonio Lamer, a former chief justice of the Supreme Court of Canada, tabled a report on his independent review of the National Defence Act. The Lamer report contained 88 recommendations on military justice, the Military Police Complaints Commission, the grievance process and the roles and powers of the Canadian Forces Provost Marshal. Bill C-15 is the response to those recommendations. However, only 28 of them were included in the Conservatives' bill. What happened to the other 60? They suddenly disappeared with a wave of the magic wand by the Conservatives, who feel they are not necessary. However, we think the recommendations contain important ideas on necessary improvements to the military justice system.

Bill C-15 is the latest version of a bill that is part of a long legislative saga. Let us not forget bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and an election subsequently called in 2008. The prorogation that killed Bill C-7 was caused by the Conservative Prime Minister, who was afraid his government would be overturned by legitimately elected parliamentarians democratically representing the citizens of Canada. He therefore chose to shut down Parliament rather than step up to his responsibilities.

In July 2008, Bill C-60 came back with a vengeance, simplifying the structure of courts martial and establishing a method for choosing the kind of court martial most consistent with the civilian justice system. In 2010, Bill C-41 was introduced as a response to the 2003 Lamer report and the 2009 Senate committee report. It contained provisions respecting military justice issues, such as sentencing reform, military judges and committees, summary trials, court martial panels and the Canadian Forces Provost Marshal, and certain provisions respecting the Military Police Complaints Commission.

Bill C-15 is essentially similar to the version of Bill C-41 that the Senate committee introduced in the last Parliament, of which I was obviously not yet a member. The amendments made to it include some aspects that were already there, whereas others have been forgotten along the way. It is as though Tom Thumb left some pebbles along his path but lost a few.

Some ideas in the amendments introduced by the NDP are thus not included in Bill C-15, and yet they are important: provisions respecting the authority of the Chief of Defence Staff in the grievance process, which is a direct response to a Lamer report recommendation; changes in the composition of grievance committees so that they include more civilians—we have to open the door and welcome people who have a different perspective, outlook or viewpoint than those of people who have come directly from the Canadian Forces because we believe that would help strike a balance—and provisions guaranteeing that a person convicted of an offence in a summary trial is not unfairly subject to a criminal record. Once again, we are being forced to do a job that has already been done.

The bill contains many important reforms. There is a silver lining because there are some good measures in the bill. In fact, improvements have been made. However, we believe that we must do much more to ensure that members of the Canadian Forces have a good justice system. For these reasons, the NDP will be voting against Bill C-15 at second reading stage.

Important work remains to be done, including reforming the summary trial system. Amendments made to Bill C-15 do not do enough to correct the injustice of summary trials. At present, a conviction results in a criminal record. Summary trials are held without the accused being able to consult counsel. There are no appeals or transcripts of the trial, and the judge is the accused person's commanding officer. We believe that this ignores the principles of natural justice that are features of legal systems around the world. The fact that the commanding officer is the judge can sometimes cause problems with the impartiality of his judgment and ruling.

Minor offences, such as insubordination, quarrels, misconduct, and absence without leave, do not warrant the harsh consequences of a criminal record. We believe that, to be fair to our soldiers, we have to improve the bill. We hope to work with all members to ensure that justice can finally be done for the people working in the Canadian Forces.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 6th, 2012 / 3:50 p.m.
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NDP

Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC

Mr. Speaker, I am obviously very honoured to be here in this House to discuss Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, which we are examining today.

On this side of the House, we believe that this bill is a step in the right direction, but it is unfortunately a small step. We believe that military justice must be a part of Canada's justice system as a whole. Military justice laws must be consistent with other laws in our justice system, particularly when it comes to the principles of fundamental rights. Military justice must be fair and equitable so that it does not negatively affect discipline and so that it helps maintain morale among our troops. Our soldiers volunteer to participate in our armed forces. They must always be entitled to fair treatment.

During the study on a bill that dealt with the same issue, we tried to ensure that the military justice system procedures were effective and consistent with the need for disciplinary issues to be resolved quickly. However, efficiency and speed should not trump the fundamental principles of justice. Just because they are members of the military does not mean that the fundamental principles of justice do not apply to them.

The origins of this bill date back to 2003. I would like to provide some background so hon. members understand its origin and scope. In 2003, the Right Hon. Justice Antonio Lamer, former Chief Justice of the Supreme Court of Canada, submitted a report on the independent review of the National Defence Act. This report contained 88 recommendations on various military justice issues.

The government introduced Bill C-15, in response to this report and its recommendations. I must point out that, of the 88 recommendations in the report, only 28 were included in this bill. The provisions in Bill C-15 appeared in other bills that were previously introduced in Parliament. There was Bill C-7 and Bill C-45, which both died on the order paper.

In July 2008, the government introduced Bill C-60 to simplify the court martial structure and establish a system for choosing the court martial format that would harmonize best with civilian justice. In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-60 and made nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and to the Senate committee's 2009 report.

When the committee studied the bill, it approved some of these amendments, which would have resolved some of the problems raised by the bill. Oddly enough, they are not included in Bill C-15, which has been introduced and is before us.

Some of these amendments had been proposed by the Judge Advocate General as compromises to correct the system in an acceptable manner. They removed certain offences from the list of those that would not result in a criminal record. However, the government simply deleted these amendments when drafting Bill C-15.

That is the extent of the Conservatives' respect for the work of Parliament. Unfortunately, they believe that they can do as they wish without regard for the previous work of Parliament because they have a majority. Basically, Bill C-15 is similar to the version of Bill C-41 introduced by the Senate committee in the last Parliament. However, that bill contained the provisions of bills C-7 and C-45, which died on the order paper, as I mentioned.

The provisions in the bill were not included in Bill C-60. The bill also implemented the recommendations made by Justice Lamer in 2003 and those made by the Senate committee in 2009. At committee stage of Bill C-41, my colleagues on the Standing Committee on National Defence proposed amendments to Bill C-41 to lengthen the list of offences that could be considered minor. My colleagues believed that these minor offences did not warrant a criminal record. The proposed amendments also would have lengthened the list of penalties that could be set by a tribunal without resulting in a criminal record.

However, many of the amendments proposed for Bill C-41 were, unfortunately, not included in Bill C-15. Although it contains some worthwhile provisions, Bill C-15 also has some shortcomings. If the bill makes it through second reading, we hope to be able to discuss those shortcomings and ensure that the bill will make the military justice system as fair and effective as possible.

I would like to focus on the provisions concerning summary trials, since some of them, as they are written, could have serious consequences for soldiers, particularly during their transition to civilian life.

A summary trial is one where the chain of command is allowed to judge subordinate soldiers. It is important to point out that these trials are held without lawyers, without a jury, without a system of evidence and without witnesses, unlike in the civilian justice system. Over 95% of military trials are summary trials. A conviction in a summary trial sometimes results in a criminal record. There is no recourse and no transcript of the proceedings. This is too severe for members of the Canadian Forces who are convicted of minor offences.

These minor offences include insubordination, quarrels, misconduct, absence without leave, drunkenness and disobedience of a lawful command. These offences are undoubtedly very important for military discipline, but do not necessarily call for a criminal record.

In committee last March, the NDP proposed amendments to Bill C-41 to increase from five to 27 the number of offences that could be considered minor and would not merit a criminal record if a minor sentence were imposed. The amendment also added to the list of penalties a tribunal may impose without giving the offender a criminal record, for example, a severe reprimand, a reprimand, a fine equal to one month's salary and any other minor sentences. These amendments were very important to us, and that is why we want them to be included in Bill C-15.

A criminal record can make soldiers' lives very difficult after they leave the military. A criminal record can make it hard for veterans to get a job, rent an apartment, travel or get insurance. Many Canadians would be shocked to learn that the soldiers who so bravely served our country could end up with a criminal record because of flaws in the military justice system.

I have seen first-hand the problems experienced by some veterans during their transition to civilian life and I know it has been extremely difficult for some. As I said, I am a member of the Standing Committee on Veterans Affairs. Veterans shared their concerns with us loudly and clearly and talked about the obstacles they face in their transition to the civilian world. It is hard for veterans, especially for injured veterans, to find work in the civilian world. Considering the number of veterans working in the public service, it is clear that priority hiring for veterans is not always respected.

The private sector, and especially the construction industry, is trying to do its part, but this private sector initiative is not available to all veterans, since it is not available in all provinces. Veterans therefore have to obtain educational equivalencies for the training they received during their service. If they are saddled with a criminal record on top of that and have to go through the commission to get a pardon, which costs $600, we are doing nothing to help them reintegrate properly into civilian life.

As I said earlier, we would like the bill to include these provisions.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 6th, 2012 / 1:15 p.m.
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NDP

Anne-Marie Day NDP Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, I would like to begin by thanking my colleagues for having so brilliantly stated their stance on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to another act. This bill has appeared in several forms.

First of all, bills C-7 and C-45 died on the order paper because of the 2007 prorogation of Parliament and the 2008 election. In July 2008, Bill C-60 charged back, simplifying the court martial structure and establishing a method for determining which type of court martial would be most consistent with the civilian justice system. In 2009, the Senate Standing Committee on Legal and Constitutional Affairs studied Bill C-60 and made nine recommendations to amend the National Defence Act.

Before moving on, it is very interesting to note that there is nothing new about how the Conservatives go about their business when they want to push through more complex bills. Bill C-60, which was the version studied in the Senate report, was introduced in Parliament by the Hon. Minister of National Defence on June 6, 2008, towards the end of the second session of the 39th Parliament, and passed on June 18, 2008.

Bill C-60 was intended among other things to make the National Defence Act consistent with the decision of the Court Martial Appeal Court of Canada in R. v. Trépanier. In this decision, the court acknowledged that some provisions of the National Defence Act and the Queen’s Regulations and Orders contravened section 7 and paragraph 11(d) of the Canadian Charter of Rights and Freedoms.

These provisions were declared unconstitutional. They enabled the director military prosecutions to decide, when charges were being laid, on the kind of court martial that would try the accused, and for the court martial administrator to convene the court martial in accordance with the decision of the director of military prosecutions. This court decision became effective immediately, and led to some uncertainty about the possibility of being able to continue to convene courts martial under the National Defence Act unless Bill C-60 could be passed quickly.

However, this view was dismissed at hearings of the Senate committee on the evidence of Michel Drapeau, a retired colonel, who maintained that this view was inaccurate. He said that the Court Martial Appeal Court of Canada, in R. v. Trépanier, had come up with a straightforward and useful approach to getting rid of the clause that was violating the accused’s rights.

Nevertheless, there is also a practical interim solution that could easily be implemented. For charges laid under section 130, the accused could be given the option to choose his or her trier of facts. There is no legal obstacle to this approach because section 165.14, which gives this right to the prosecution, does not apply to these offences.

We would like to clarify that there is no danger of creating a legal void during the interim period that would result in failure to apply the law for want of prosecution. Offences under section 130 of the National Defence Act can also be prosecuted in civilian courts even if they were committed outside of Canada. That is covered in section 273 of the National Defence Act.

Why did the government rush passage of this bill? Even members of the Senate committee could not help but point this out:

Given the speed with which Bill C-60 was studied in both the House of Commons and the Senate, concern was expressed that it was difficult to thoroughly assess the potential impact of this legislation. Consequently, the bill was amended by the House of Commons Standing Committee on National Defence to add a review clause.

Under false pretences, the government succeeded in pressuring opposition parliamentarians to pass this bill even though, according to the court ruling, it had many years to amend the act but did nothing. In his ruling in Trépanier, Justice Létourneau said:

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.

This bill contains many important reforms. The NDP has supported the much-needed overhaul of the military justice system for a long time. Members of the Canadian Forces are subject to extremely high standards of discipline and deserve a judicial system with comparable standards.

However, the NDP will oppose Bill C-15 at second reading stage. This bill has a number of flaws that we hope will be discussed in committee, if passed at second reading. The NDP does not oppose the substance of the bill. However, in its current form, the bill does not take into account all the recommendations of the Lamer report. Moreover, the Conservatives have ignored the amendments the NDP proposed to a virtually identical bill that was introduced in the previous Parliament. Those amendments were originally adopted because we had a minority government at the time. However, the amendments have again been removed from the bill.

In the previous Parliament, the Conservatives admitted that the recommendations had merit. This is no longer the case, now that they have a majority, and it makes us wonder if they are merely engaging in the lowest form of petty politics rather than putting the interests of our soldiers in civil society first.

The bottom line is that the NDP opposes the bill in its current form at this stage of the legislative process. We hope that these amendments will be made in committee.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 6th, 2012 / 12:15 p.m.
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NDP

Guy Caron NDP Rimouski-Neigette—Témiscouata—Les Basques, QC

Mr. Speaker, I would appreciate it if you could let me know when I have one minute left.

I am pleased to rise in this House to speak to Bill C-15. We have to make sure, first and foremost, that the men and women who work to defend us are able to represent us in the armed forces and have the tools to avoid putting their lives at risk unnecessarily. We also have a responsibility to provide them with an operational framework that is appropriate and fair.

And that is what Bill C-15 on the military justice system, which is now before us, claims to do. This bill originates in the responsibility of the Minister of National Defence to arrange for an independent review of the amendments to the National Defence Act every five years. That requirement is set out in clause 96 of Bill C-25 which was assented to in 1998.

In 2003, Justice Antonio Lamer was instructed to examine the provisions and application of Bill C-25. He concluded that “Canada's military justice system generally works very well, subject to a few changes”. Justice Lamer proposed those few changes in the form of 88 recommendations, some of which were addressed in Bill C-7, which became Bill C-45, and then C-60.

After Bill C-60 was passed and assented to, it too was the subject of a review, this time by the Standing Senate Committee on Legal and Constitutional Affairs of the House of Commons. That report was released in 2009 and is entitled “Equal Justice: Reforming Canada’s System of Courts Martial”. Bill C-41, which is now Bill C-15, was to act upon the nine recommendations in that report, which addressed both the Lamer report and Bill C-60.

The justification for having a separate justice system for the armed forces has been repeatedly demonstrated, and in 1992 the Supreme Court of Canada did so very eloquently in R. v. Généreux. One piece of tangible evidence of the importance of having a system that is specific to the military, as Justice Lamer himself admitted, is the fact that certain offences in the Code of Service Discipline do not have the same importance in the civilian justice system, and sometimes there is no equivalent for those offences: for example, disobeying an order of a superior officer.

The Minister of National Defence referred in committee to the old adage that our justice system is a living tree, meaning that the military justice system has to evolve. The Senate committee summarized that very well when it said that “the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general”.

However, we must be careful not to fall into the other extreme, and make sure that, notwithstanding this overriding disciplinary aspect, people who work in the armed forces do not lose their rights that are guaranteed by the Canadian Charter of Rights and Freedoms.

The Senate committee also stated that “with the exception of section 11(f) of the Charter, the rights enumerated in the Charter do not distinguish between proceedings under the military and civilian justice systems”.

As well, the Supreme Court of Canada has held that this separate justice system does not violate the individual’s rights since it is still able to guarantee the individual “the right to equality before the law and to be tried by an independent and impartial tribunal”. It is therefore essential to ensure that the actors in the military system are effective, independent and impartial.

Let us now come back to the crux of this bill, which, I must say, has become weaker with every version. Although, according to a Supreme Court justice, Bill C-45 did not resolve the problem it was created to address, Bill C-15, which we are currently discussing, does not take into account all the work done in committee during the examination of the previous version of the bill, Bill C-41.

In fact, some amendments that were adopted in the past were not included in this new version of the bill. Yet, these amendments changed practices that did not fit with the desired evolution of the military justice framework.

I hope I have enough time left to talk about the three main amendments proposed by the NDP, which were adopted in the past but excluded from Bill C-15.

The first is the reform of the summary trial system, so that a conviction at a summary trial in the Canadian Forces no longer automatically results in a criminal record. During hearings before the Senate committee, many witnesses expressed their disagreement with this practice. There is even more cause for concern given that most offences are dealt with in this manner.

Michel Drapeau, one of the witnesses, said:

There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year....

From where I stand, I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial.

In committee last March, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased from five to 27. The amendment also adds to the list of penalties a tribunal may impose without them being entered on the record, for example, a severe reprimand, a reprimand, a fine equal to one month's salary and other minor sentences. That was significant progress in terms of summary trials, but since that amendment was not included in Bill C-15, we want it to be included now.

The second amendment concerns the military grievances external review committee. Currently, the grievance board does not allow reviews by people outside of the military system. It is made up of retired members of the Canadian Forces. We would like the committee to be perceived as an independent, external civilian body. There is a problem with the makeup of the committee and the appointment process if the armed forces want to maintain that reputation. Committee membership should therefore include individuals from civilian society.

The NDP's amendment suggested that at least 60% of the members of the grievance committee should never have been a Canadian Forces member or officer. This amendment was agreed to in March 2011 for Bill C-41, but it was not included in Bill C-15. It must be put back in the bill.

One major flaw in the current military grievance system is the fact that the Chief of Defence Staff can resolve certain financial matters arising from grievances. That goes against a recommendation in the Lamer report. Despite the fact that the Minister of National Defence supported the recommendation, the government has failed to act on it for the past eight years. The NDP proposed an amendment to do with this at committee stage of Bill C-41. Even though it was agreed to in March 2011, it was not included in Bill C-15, and the NDP will fight to put it back in the bill.

The third amendment that I would like to talk about would strengthen the Military Police Complaints Commission. Bill C-15 amends the National Defence Act to establish the time required for the Canadian Forces Provost Marshal to resolve complaints and protect complainants from being penalized for having filed a complaint in good faith.

Giving the Military Police Complaints Commission more power, effectively turning it into a watchdog, was virtually ignored. There should be a legislative provision to give the commission more power so that it can be authorized to investigate and report to Parliament.

In conclusion, the fact that the Conservatives deliberately botched the bill and removed some of the key elements that resulted from the hard work done by the members of the House of Commons committee and all parliamentarians in this House is further proof of this government's lack of respect and consideration for the parliamentary process.

Why did the Conservatives not keep the amendments proposed by the NDP and adopted at committee stage last spring, when Bill C-41 was studied, after long hours of debate that seemed to have moved the bill in the right direction?

By not including these amendments in Bill C-15, the Conservatives are undermining the important work done by all members of the Standing Committee on National Defence and also the recommendations made by Canadian Forces representatives during the last session of Parliament. The Parliamentary Secretary to the Minister of National Defence rose in the House to give the first speech at second reading. He said:

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

This government also recognizes, as did Chief Justice Lamer in his 2003 report, that there is room for improvement.

If the parliamentary secretary really meant what he said, why did he ignore all the improvements made by this Parliament in committee? Although truly unfortunate, that is the Conservative government's approach. Not only has it dropped the amendments agreed to in committee, but it has ignored a number of recommendations, picked the ones it wants and rejected the rest.

The official opposition will oppose the bill at second reading, knowing that the bill will be referred to committee. And we truly hope that the amendments agreed to when the committee studied the issue will be included in order to make this a more balanced bill.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 4:45 p.m.
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NDP

Djaouida Sellah NDP Saint-Bruno—Saint-Hubert, QC

Mr. Speaker, before I begin, I, too, would like to congratulate the member for Scarborough Southwest for his commitment. I listened intently to his speech, as I did the speeches of all my NDP colleagues, which stand in stark contrast to the hollow speeches emanating from the other side.

Let me reassure my colleague: I think it is a relatively new practice in the House to speak without saying a single word. That is not why we were elected, however, and the NDP intends to do its job.

I see that we have dealt with many different iterations of Bill C-15, namely Bill C-7, Bill C-45, Bill C-60 and Bill C-41.

I know that in the last session of Parliament, the NDP brought forward several amendments, including amendments to increase the Chief of the Defence Staff's authority in the grievance process, to change the grievance board's membership so that 60% of its members are civilians and to ensure that anyone summarily convicted of an offence not be unfairly burdened with a criminal record.

I would like my colleague to tell us how people, especially Canadians, will react when they find out that their military men and women, who have so bravely served our country, could end up with a criminal record because of flaws in our military justice system.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 4:35 p.m.
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NDP

Dan Harris NDP Scarborough Southwest, ON

Mr. Speaker, I am a little disappointed to be rising in the House today. I would have been much happier rising if this were Bill C-41, from the last Parliament, and to be speaking to and supporting that very important piece of legislation. However, what the government has done with Bill C-15 is turn it into what I would have to call a prequel, which is what is there before one gets to a final bill. This should be what we had before we got to something like Bill C-41, in the last Parliament, when all of the parties participated, had a debate, and agreed to bring the bill forward in a way the parties would all have been able to support. However, that is really not what the government is interested in.

There are many important reforms in the bill, and the NDP supports the long overdue update of the military justice system.

Members of the Canadian Forces are held to an extremely high standard of discipline. They, in turn, deserve a judicial system that is held to a comparable standard. While this is not an issue at the forefront of most people's minds, a lot of Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a system that lacks the due process usually required in civilian criminal courts. The way the system of justice in the military is set up right now, a soldier can receive a criminal record for very minor offences, such as insubordination, quarrels, disturbances, absence without leave and even drunkenness. These matters could be extremely important to military discipline, and we would probably all agree on that, but they are not worthy of a criminal record.

A criminal record can make life after the military very difficult. Getting a job, renting an apartment and travelling abroad are all made far more difficult when someone has a criminal record. Our brave men and women have enough challenges re-entering civil society without a criminal record on their backs.

The NDP will fight to bring more fairness to the Canadian military justice system for the men and women in uniform who have put their lives on the line in the service of Canada.

The issues addressed in the bill are not new and date back, as we have heard many times today, at least to the independent review of the National Defence Act, released in 2003, by the Rt. Hon. Antonio Lamer, former chief justice of the Supreme Court.

The issues contained in Bill C-15 have indeed appeared in earlier forms. There was Bill C-7, which died on the order paper due to prorogation in 2007. We all remember that wonderful time. Then there was Bill C-45, which died on the order paper after the current government was found in contempt of Parliament.

In July 2008, Bill C-60 came into force, simplifying the structure of the courts marshal and establishing a method for choosing a type of court marshal more closely aligned with the civilian system.

In 2009, the Senate Committee on Legal and Constitutional Affairs considered Bill C-60 and provided nine recommendations for amendments to the National Defence Act.

In 2010, Bill C-41 was introduced to respond to the 2003 report and to the Senate committee's report. It outlined provisions related to military justice, such as sentencing reform, military judges in committees, summary trials, court marshal panels, the provost marshal and limited provisions related to the grievance and military police complaints process. In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament, minus all of those amendments.

The amendments carried over include courts marshal composition and military judges' security of tenure. However, other important amendments passed at committee stage at the end of the last parliamentary session were not included in Bill C-15. These include the following NDP amendments: the authority of the Chief of the Defence Staff in the grievance process, responding directly to Justice Lamer's recommendation; changes to the composition of the grievance committee to include 60% civilian membership; and a provision ensuring that a person convicted of an offence during summary trial is not unfairly subjected to a criminal record.

If one member of the government would get up at this point, I would ask what in those amendments was so scary and offensive that the government would pull them out of the bill before reintroducing it. However, I doubt that I will have that chance.

I am opposing Bill C-15, as it contains shortcomings that need to be re-addressed because the amendments I mentioned were pulled from the previous version of the bill. Far too often the government takes bills that were fixed and then breaks them again before bringing them to Parliament. It is a trend that we are seeing again and again. In the next two and a half years before the next election, I wonder how many other things Conservatives are going to break anew before bringing them before Parliament.

The amendments in Bill C-15 do not adequately the unfairness of summary trials and the conviction of service offences from those trials in the Canadian Forces, which result in a criminal record. Summary trials are held without the accused being able to consult counsel; there are no appeals or transcripts of the trial; and the judge is the accused person's commanding officer. I wonder how many of us in civilian life would ever want to be tried by our boss.

These trials are unduly harsh for certain members of the Canadian Forces who are convicted of very minor service offences. Bill C-15 does make an exception for a select number of offences if they carry a minor punishment defined in the act, or a fine of less than $500, so they will no longer result in a criminal record. This is one of the positive aspects of the bill, but it does not go far enough.

At committee during the last Parliament, NDP amendments to Bill C-41 were carried to expand the list of offences that could be considered minor and not worthy of a criminal record from 5 such offences to 27. If the offences in question received a minor punishment, one the NDP amendments also extended the list of punishments that might be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a reprimand or a fine equal to one month's basic pay, or another minor punishment. This was a major step for summary trials. However, this amendment was not retained in Bill C-15. We want to see it included.

Another matter that needs to be amended relates to the external military grievances review committee. At present the grievance committee does not provide a means for external review. Currently it is staffed entirely by retired Canadian Forces officers, some only recently retired. If the Canadian Forces grievance board is to be perceived as an external and independent oversight civilian body, as it is designed to be, then the appointments process needs to be amended to reflect that reality. Thus, some members of the board should be drawn from civil society.

The NDP would like to see a provision that at least 60% of the grievance committee members never have been officers or non-commissioned members of the Canadian Forces. This amendment to Bill C-41 was passed in March 2011, but again it was not retained in Bill C-15. There seems to be no good amendment that the Conservatives do not want to see gone. It is important that this amendment also be put back in the bill.

Another major flaw in the military grievance system is that the Chief of the Defence Staff presently lacks the authority to resolve any and all financial aspects arising from a grievance, contrary to a recommendation in the Lamer report. Despite the fact that the Minister of National Defence at the time agreed to this recommendation, there have been no concrete steps taken over the past eight years to implement this recommendation. The NDP proposed an amendment to this effect to Bill C-41 at committee. Although the amendment passed in March 2011, once again this amendment is nowhere to be found in Bill C-15. It should be included.

Another aspect of the bill that needs to be addressed is the need to strengthen the Military Police Complaints Commission. Bill C-15 amends it to establish a timeline in which the Canadian Forces provost marshal will be required to resolve and conduct complaints as well as protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, the NDP believes that more needs to be done to empower the commission. Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions that would empower it to act as an oversight body.

I will be happy to answer some questions. I hear disappointment from the other side of the room, but I will be more than happy to include you in the conversation.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 4:30 p.m.
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NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, I appreciate the member speaking in the House today to this very important bill.

The bill has a very long history. It was previously Bill C-7, Bill C-45, Bill C-60, and Bill C-41.

The original report goes back to 2003, so it is certainly high time we dealt with this bill in the House.

What concerns us is that some of the key issues and amendments the NDP put forward, in good faith, at committee have been left out of the bill. We still do not have an answer on that. I wonder if the member would like to address that concern, because they really should have been included in this new version of the bill.

I think the members of the Canadian armed forces need to have a better military justice system. We are here in the House to ensure that it happens.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 3:50 p.m.
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NDP

Isabelle Morin NDP Notre-Dame-de-Grâce—Lachine, QC

Mr. Speaker, I am pleased to rise today to speak to Bill C-15.

There are three Royal Canadian Legions in my riding. I am proud that these legions help our veterans and active military service people. I have met with many Canadian veterans who tell me about the issues that are important to them. Bill C-15 is about military justice, which is an important issue.

I am happy to raise my concerns today with the House over a misguided policy that would ultimately hurt members of the Canadian Forces. Bill C-15 proposes some solutions to ongoing problems with military justice, but this is also not the first attempt to deal with such problems.

I will start by noting that our country's military service men and women are held to a very high standard when defending Canadian values abroad, values of democracy, justice and peace. The Canadian Forces deserve a military justice system that respects these values in all instances, including the grievance system and complaints commissions. The Conservative government chose not to do that.

The government has decided to go against an amendment already passed at committee, which would allow changes to the composition of the grievance board to include a 60-person civilian membership, amended clause 11 in Bill C-41. The parliamentary committee's recommendation was simple, and that was that some members of the Canadian Forces Grievance Board should be drawn from civil society.

Why did the Conservatives not retain the amendments proposed by the NDP that passed during the study of Bill C-41 last spring? By failing to include these amendments in Bill C-15, the Conservatives undermine the recommendations of the Canadian Forces representatives during the last session of Parliament.

When defining the grievance process and highlighting its importance, the Lamer report in 2003 stated:

—unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances...It is essential to the morale of CF members that their grievances be addressed in a fair, transparent, and prompt manner.

That is one of the primary reasons we cannot understand why the NDP's proposed amendments to Bill C-41 have been dropped. I will continue to speak about the reasons why we will unfortunately not be able to vote in favour of this bill.

This bill was introduced after a series of bills that were passed in the House of Commons over the past 10 years. First there were bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and the election was held in 2008. In July 2008, the government introduced Bill C-60, which came back stronger and simplified the structure, but it too died on the order paper. In 2009, the Senate Standing Committee on Legal and Constitutional Affairs studied this bill and recommended nine amendments, but it went no further.

In 2010, Bill C-41 was introduced, and it reached committee stage, where amendments were proposed. Unfortunately, it too died on the order paper. That brings us to Bill C-15. As my colleagues have mentioned, amendments had been proposed in committee and accepted, but they are now being dropped.

I would like to comment on what my colleague just said about the arrogance of the government. It repeatedly tells us that we do not want to work with it, that we vote against its bills and that we are opposed to all kinds of things. Then it comes and tells us that we are opposing a better bill on military justice for veterans.

This bill contains many things that we cannot accept. Furthermore, we had proposed some amendments that I believe were very appropriate. We had recommended changes to the composition of the grievance board to have it consist of 60% civilians. We had recommended that authority be given to the Chief of Defence Staff in the grievance process, in direct response to a recommendation made in the Lamer report.

We had proposed that a person convicted of an offence in a summary trial ought not to be unfairly subjected to a criminal record.

I would like to return to the criminal record. At the moment, the Canadian Forces system is very strict and discipline is very important. These people represent our country. They have to be upright, fair and, as it were, highly disciplined.

At the moment, five of the offences considered minor do not lead to a criminal record. This means that out of 27 such offences, 22 can lead to a criminal record.

I have not looked at my list, but my colleague from Trois-Rivières just mentioned that one of the offences was being absent without leave. I find it ridiculous that that being absent without leave can result in a criminal record.

I am going to tell you about a personal experience. Before coming to this place, I taught adults at two schools, in Sherbrooke and Quebec City. Unfortunately, a lot of young adults in my courses had criminal records. They told me how much that restricted their lives and complicated their efforts to look for work, for example. They always had to answer the question about whether they had a criminal record. They obviously had to tell the truth. Those people told the truth. They said they had a criminal record. Naturally, that can scare an employer. If you are more knowledgeable and you know what sort of behaviour resulted in a criminal record, that can change things.

Having a criminal record can also prevent you from travelling. It is harder to go to the United States, for example. Someone who has completed his military career and saved up money to go to the United States and spend a weekend with his children at Disneyland could be denied entry to the United States because he has a criminal record. This can take on grotesque proportions.

I feel we have an opportunity to change that. Some things are abnormal and disproportionate. You can have a criminal record for being absent without leave. These are things that we can change, and we should seize the opportunity to do so since we are studying the bill.

The government tells us that the wheels of bureaucracy grind slowly and that moving things forward takes a long time. I agree: sometimes it does take a long time and that is why we have been studying the bill for 10 years.

We do not want this bill to die on the order paper. We want it to be passed, but passed logically and responsibly so as to move things forward.

We can decide that some offences that are considered minor will not result in a criminal record. This is the opportunity to do so now, and we must not miss it.

I wanted to add to what the British Columbia Civil Liberties Association says, that military officers who impose sentences at summary trials want to maintain unit discipline and discourage future offences—everything is fine to that point—not to inflict on the accused consequences consistent with having a criminal record in the civilian world.

The British Columbia Civil Liberties Association thus emphasizes the fact that a criminal record has consequences in the civilian world. We would not want to go too far.

As I mentioned earlier in my speech, it is very important for the military world to be highly disciplined, but this goes a little too far.

We are definitely in favour of reforming the legislation concerning the military system.

The bill does not go far enough. Only 28 of Justice Lamer's 88 recommendations were adopted, not even half. None of the amendments put forward by the NDP was adopted either. In our view, this bill does not go far enough, and we will vote against it in the next vote for that reason.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 1:40 p.m.
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NDP

John Rafferty NDP Thunder Bay—Rainy River, ON

They are the Cardinals to our San Francisco Giants, I guess, Mr. Speaker. That is the way I look at it.

Among other things, the bill provides greater flexibility in the sentencing process. It provides additional sentencing options, including absolute discharges, intermittent sentences, and restitution. It modifies the composition of a court martial panel according to the rank of the accused person. It modifies the limitation period applicable for summary trials. It allows an accused person to waive the limitation periods and clarifies the responsibilities of the Canadian Forces Provost Marshal. It makes amendments to the delegation of the Chief of the Defence Staff's powers as a final authority in the grievance process.

I do not want people watching at home to think that there are not some good things in the bill as it moves forward. The bill is a step in the right direction. It is a step in the right direction toward bringing the military justice system more in line with the civilian justice system. However, Bill C-15 falls short on key issues when it comes to reforming the summary trial system, reforming the grievance system, and strengthening the military complaints commission.

In 2003, the Right Hon. Antonio Lamer, who is the former chief justice of the Supreme Court, presented his report on the independent review of the National Defence Act. It contained 88 recommendations. Bill C-15 is the legislative response to those recommendations, but to only 28 of those recommendations. Sixty are missing. Only 28 of those recommendations have been implemented by this legislation through regulations or by way of a change in practice.

This legislation has also appeared here in earlier forms, first as Bill C-7and then as Bill C-45, which died on the order paper due to prorogation in 2007 and the election in 2008. In July 2008, Bill C-60 came into force, and some changes were made at that time.

In 2010, Bill C-41 was introduced to respond to the Lamer report. It outlined provisions related to military justice, such as the things we are talking about today: sentencing reform, military judges and committees, summary trials, court martial panels, the provost marshal, and limited provisions related to the grievance and military police complaints process.

In essence, Bill C-15 is similar to the version that came out of committee in a previous Parliament. The amendments carried over include court martial composition and military judges' security of tenure, meaning appointments and age.

However, other important amendments passed at the committee stage at the end of the last parliamentary session were not included in Bill C-15. These included, not surprisingly, NDP amendments that we felt were and are important. One was the authority of the Chief of the Defence Staff in the grievance process, which responds directly to Justice Lamer's recommendation. Another was a change to the composition of the grievance committee to include 60% civilian membership. Third was a provision ensuring that a person convicted of an offence during a summary trial is not unfairly subject to a criminal record, and that is no small thing.

Let me say again, because I know that my friend across the way will be asking me a question, that there are many important reforms in the bill. We support the long overdue update of the military justice system. Members of the Canadian Forces are held to an extremely high standard of discipline, and they, in turn, deserve a judicial system that is held to a comparable standard.

However, there are some shortcomings in the bill, and we hope that they will be addressed at committee stage if the bill passes second reading.

The first is the reform of the summary trial system. The amendments in the bill do not adequately address the unfairness of summary trials. Currently, a conviction for a service offence in a summary trial in the Canadian Forces may result in a criminal record. Summary trials are held without the ability of the accused to consult counsel. There are no appeals and no transcripts of the trial, and the judge is the accused person's commanding officer. This causes undue harshness for certain members of the Canadian Forces who are convicted of very minor offences.

Some of these minor service offences could include, for example, insubordination, quarrels, disturbances, absence without leave, and disobeying a lawful command. These are matters that could be extremely important to military discipline but that I do not feel are worthy of a criminal record.

Bill C-15 makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine of less than $500 so that they no longer result in a criminal record. This is one of the positive aspects of the bill, but it does not, in my opinion and in the opinion of the NDP, go far enough.

At committee stage last March, NDP amendments to the previous bill, Bill C-41, were carried. They expanded this list of offences that could be considered minor and not worthy of a criminal record if the offence in question received a minor punishment.

A criminal record could make life in the military very difficult and could make life after the military very difficult. Criminal records could make getting a job, renting an apartment, and travelling difficult. Many Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a system that lacks the due process usually required in civilian criminal courts.

The second amendment we talked about was a reform of the grievance system. I know that my friend across the way will probably have a question about that. At present, the grievance committee does not provide a means of external review. I think that is important. Our amendment provides that at least 60% of the grievance committee members must never have been officers or non-commissioned members of the Canadian Forces. The amendment was passed but was not retained in the bill as it stands today.

The third amendment concerns strengthening the Military Police Complaints Commission. I do not think care has been taken to provide the Military Police Complaints Commission with the required legislative provisions that empower it to act as an oversight body.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 12:40 p.m.
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NDP

Sadia Groguhé NDP Saint-Lambert, QC

Mr. Speaker, Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, proposes a series of measures to enhance the military justice system. This bill is a legislative response to some of the recommendations made by Justice Lamer in 2003 following his review of the National Defence Act and to recommendations made by the Standing Senate Committee on Legal and Constitutional Affairs six years later. Of Justice Lamer's 88 recommendations, Bill C-15 takes just 28 into account. Sixty recommendations were not included in the bill that the Conservatives introduced in response to the key concerns raised by the Lamer report on national defence.

In its current incarnation, the bill resembles previous national defence and military justice reform bills introduced in the House, such as Bill C-7 and Bill C-45, which died on the order paper when Parliament was prorogued in 2007 and when the election was called in 2008.

The following year, in July 2008, Bill C-60 proposed a simplified courts martial structure and set out a precise method for choosing a type of court martial that would harmonize well with Canada's civilian justice system. It was introduced and debated in the House before being referred to the Senate committee that studies legal and constitutional affairs. After a painstaking review of the bill, the Senate committee made nine recommendations for changes to the National Defence Act.

Later, in 2010, Bill C-41 was introduced in the House of Commons. The main purpose of the bill was to address the key recommendations that Justice Lamer made in 2003 and that the Standing Senate Committee on Legal and Constitutional Affairs made in 2009.

Bill C-41 included provisions to reform the military justice system in the areas of sentencing, judges and military committees, summary trials, court martial panels and the Canadian Forces provost marshal. Further provisions proposed changes to the Military Police Complaints Commission.

The bill before us today, Bill C-15, is similar to Bill C-41, which was introduced by the Senate committee in the previous Parliament. It provides, among other things, greater latitude regarding the sentencing process and additional sentencing options, such as absolute discharges, intermittent sentences and restitution. It modifies the composition of a court martial panel according to the rank of the accused person, and the limitation period applicable to summary trials. It also allows an accused person to waive the limitation periods. In addition, the bill sets out the Canadian Forces provost marshal's responsibilities.

As the NDP members who spoke before me pointed out, our party believes that the bill is a step in the right direction to bring the military justice system more in line with the civilian justice system. Unfortunately, it fails to address the fundamental issues that a serious military justice reform must tackle, including summary trials, grievances and measures that should be contemplated to strengthen the Complaints Commission.

Because it is silent on these substantive issues, Bill C-15 seems from the outset to be unfinished business that has not been given proper consideration.

During the debates on previous bills dealing with National Defence reform, relevant amendments were proposed and adopted at committee stage at the end of the last parliamentary session. We are sorry to see that these amendments were not even taken into consideration in Bill C-15 as it now stands.

The amendments proposed by the NDP included changes to the powers of the Chief of the Defence Staff in the grievance process, which stems directly from a recommendation made in the Lamer report, changes to the composition of the grievance committee so that 60% of its members would be civilians, and a provision to ensure that a person found guilty of an offence during a summary trial would not unfairly be given a criminal record. The Conservatives rejected all of these amendments.

The NDP has long supported a necessary update of the military justice system, but not at any cost. We, New Democrats, think that members of the Canadian Forces are subject to extremely high disciplinary standards. Therefore, they deserve a justice system governed by similar standards.

Many Canadians would be shocked to learn that the people who have served our country with such valour can have a criminal record under a system that does not have the procedural regularity that is ordinarily required in the civilian criminal courts.

The NDP will firmly oppose Bill C-15 at second reading as long as measures have not been adopted to improve it throughout. New Democrats will continue to fight to make the Canadian military justice system fair for the men and women in uniform who have risked their lives in the service of Canada.

That said, the weaknesses and flaws in this bill mean that we cannot support it. The following are some of the weaknesses in the bill that make it impossible for New Democrats to agree to it.

Let us talk about the reform of the summary trial system. The amendments in Bill C-15 do not adequately address the injustice of summary trials. At present, a conviction in a summary trial in the Canadian Forces means that a criminal record is created. When summary trials are held, accused persons are unable to consult counsel. There is no appeal and there is no transcript of the trial. In addition, the judge is the accused’s commanding officer. This is too harsh for some members of the Canadian Forces who are convicted of minor offences. Those minor offences include insubordination, quarrels, misconduct and absence without leave. This is undoubtedly very important for military discipline, but it does not call for a criminal record.

Bill C-15 provides an exemption so that certain offences, if there is a minor sentence determined by the act or a fine of less than $500, will no longer lead to a criminal record. This is one of the positive aspects of this bill. We think this bill does not go far enough.

Last March, at committee stage, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased to 27 from five.

This was an important step forward for summary trials. However, that amendment was not retained in Bill C-15 and we want it to be included again.

A criminal record can make life after a person’s military career very difficult. With a criminal record, getting a job can be a thing of the past, and renting an apartment and travelling can be very difficult. Many Canadians would be shocked to learn that members of the military who have served our country so courageously can have a criminal record because of flaws in the military justice system.

Let us talk about reforming the grievance system. At this time, the grievance committee does not allow for external review. Retired employees of the Canadian Forces, some of them very recent retirees, sit on the committee. If the Canadian Forces Grievance Board is to be seen as an external, independent civilian body, as it should be, the appointment process needs to be amended to reflect that. This committee should therefore be composed, in part, of civilian members.

The NDP amendment suggests that at least 60% of the grievance committee members must never have been officers or members of the Canadian Forces. The amendment was adopted in March 2011, for Bill C-41, but it was not incorporated into Bill C-15. It is important that this amendment be included again.

Let us talk about the authority of the Chief of Defence Staff in the grievance process. One of the major weaknesses of the military grievance system is that, contrary to a recommendation in the Lamer report, the Chief of Defence Staff lacks the authority to resolve the financial aspects of grievances. Although the defence minister approved the recommendation, no concrete action has been taken in the past eight years to implement it. The NDP proposed an amendment to this effect when Bill C-41 was at the committee stage. Although this amendment passed in March 2011, it was not retained in Bill C-15. The NDP will fight to have it put back in.

Let us talk about strengthening the Military Police Complaints Commission. Bill C-15 amends the National Defence Act to establish a timeline in which the Canadian Forces provost marshal will be required to resolve complaints and protect complainants from being penalized for submitting a complaint in good faith. The NDP believes that more needs to be done to strengthen the commission.

Retired Colonel Michel W. Drapeau is an expert in military law. Here is what he had to say before the Standing Committee on National Defence on February 28, 2011.

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

It is up to the Conservatives to explain to the House why the relevant recommendations that were agreed to during the debate on Bill C-41 have not been incorporated into this bill.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 11:15 a.m.
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NDP

François Choquette NDP Drummond, QC

Mr. Speaker, today I will be speaking about Bill C-15. I will begin with a brief history of this bill.

In 2003, the Rt. Hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, tabled his report on the independent review of the National Defence Act.

The Lamer report contained 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces provost marshal. Bill C-15 is the legislative response to these recommendations.

We must mention, however, that only 28 of the 88 recommendations have been included in this legislation. Thus, the response is incomplete. Bill C-15 is not a full response to the Lamer report.

Bill C-15 has appeared in a number of previous forms. First there was Bill C-7, which died on the order paper when Parliament was prorogued in 2007—an act that, by the way, was undemocratic—and then Bill C-45, which met the same fate when the 2008 election was called.

In July 2008, Bill C-60 came along, simplifying the court martial structure and establishing a system for choosing the court martial format that would harmonize best with civilian justice.

In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-60 and made nine recommendations for amendments to the National Defence Act.

In 2010, Bill C-41 was introduced as a response to the 2003 Lamer report and the 2009 report from the Standing Senate Committee on Legal and Constitutional Affairs.

It included provisions related to military justice, such as reforms to sentencing, military judges and committees, summary trials, the court martial panel and the Canadian Forces provost marshal, as well as provisions pertaining to the Military Police Complaints Commission.

Essentially, Bill C-15 is similar to the version of Bill C-41 tabled by the Senate committee in the last Parliament. The accepted amendments included the composition of the court martial panel and the appointment of military judges during good behaviour until their retirement.

Some important amendments were adopted at the committee stage, at the end of the last parliamentary session. Unfortunately, they were not included in Bill C-15. It is really strange, because many of these amendments were suggested and supported by the NDP and by others. For example, one amendment dealt with the authority of the Chief of the Defence Staff relative to the grievance process. That was a direct response to a recommendation in the Lamer report, and it is missing. There was also an amendment regarding changes in the composition of the grievance board, so that 60% of its members would be civilians. Once again, it is not in this bill. Finally, there was a provision to ensure that a person found guilty of an offence at a summary trial would not be unjustly burdened with a criminal record. That, too, is missing.

What the NDP wants are simple and important things that affect military justice and show respect for the people who serve the country by defending our rights and freedoms.

This bill does propose a number of important reforms. The NDP has long been in favour of the necessary updating of the military justice system. Members of the Canadian Forces are subject to very severe discipline and, thus, deserve a judicial system that is governed by rules comparable to those in the civilian system.

This bill has many shortcomings that we hope will be discussed in committee if the bill is passed at second reading.

The first thing that must be reviewed is the reform of the summary trial system. It is a serious problem. The amendments in Bill C-15 do not deal adequately with the injustice of summary trials. There is a true injustice in these trials. At present, a guilty verdict from a summary trial in the Canadian Forces results in a criminal record. Summary trials can cover many things, some of them insignificant.

They may apply not only to such serious charges as insubordination, but also to less serious offences such as drunkenness or the like, which have nothing to do with the criminal offences that would be found on a criminal record. This is a serious problem that must be reformed, and it must be done immediately.

For example, summary trials are held without the accused being able to consult counsel. There is no recourse and no transcript. We can imagine how a trial is conducted when there is no transcript of what was said. The name says it all: “summary trial”. It is summary, with no real justice and no recourse to a real, fair justice system. Summary trials are held for minor and major reasons, and there is no logic to them.

Moreover, the accused person’s commanding officer acts as the judge. That is much too harsh for some members of the Canadian Forces who are convicted of minor infractions. The fact that the commanding officer is also the judge raises questions about the impartiality of the process. Therefore, changes are needed.

These minor offences include insubordination, as I said, but also quarrels. “Quarrel” is a pretty big word to describe someone raising their voice to someone else. We have to look at the definition of “quarrel”. We are not talking about striking and injuring someone here. Accordingly, we do not see why this should result in a criminal record. Misconduct, again, is very broad. As I said, it is the commanding officer who decides all of this.

Absence without leave, drunkenness and disobeying a command are all undoubtedly very important for military discipline, I agree, but they do not deserve a criminal record, particularly since these soldiers have lives after their military service. Someone who quarrelled with one of his colleagues and who returns to civilian life could find himself with a criminal record because of this.

It then becomes difficult to find a job, to travel outside Canada and to find housing. This creates a whole host of problems for people who, let us not forget, serve the Canadian public and defend our rights and freedoms. Because of some of these measures, their own rights and freedoms are being trampled on somewhat by this military justice system. This process needs to be revised.

I could touch on many other aspects that need to be revised, but I will not have time. A lot of competent people have looked into this. Bill C-15 does not properly reform the military justice system.

To conclude, we in the NDP believe the Canadian Forces already have to meet extremely high standards when it comes to discipline. We know the strict discipline this job calls for. Members of the military are entitled, in return, to a judicial system that is required to meet comparable standards. A criminal record can make life after the military very difficult. Criminal records complicate the process of finding a job, renting an apartment or travelling.

Accordingly, the NDP will fight to make the Canadian military justice system fairer for the men and women in uniform who have risked their lives in the service of Canada. For that reason, it is very important that this act be revised, to respect and honour our soldiers.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 23rd, 2012 / 11 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, on October 7, 2011, the Minister of National Defence introduced Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 amends the National Defence Act to strengthen and alter military justice following the 2003 report of the former chief justice of the Supreme Court, the right hon. Antonio Lamer, and the May 2009 report of the Senate Standing Committee on Legal and Constitutional Affairs.

Among other things, the bill would provide greater flexibility in the sentencing process and additional sentencing options, including absolute discharges, intermittent sentences and restitution. It would modify the composition of a court martial panel according to the rank of the accused person and modify the limitation period applicable to summary trials. It would also allow an accused person to waive the limitation periods. The bill would clarify the responsibilities of the Canadian Forces provost marshal and, finally, it would make amendments to the delegation of the Chief of Defence Staff powers as the final authority in the grievance process.

New Democrats believe that Bill C-15 is a step in the right direction to bring the military justice system more in line with the civilian justice system. However, it falls short on key issues when it comes to reforming a number of required aspects of the military justice system, including the summary trial system, the grievance system and the Military Police Complaints Commission.

I will provide some background. In 2003, the right hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, presented his report to the independent review of the National Defence Act. The Lamer report contained 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the provost marshal. Bill C-15 is the legislative response to these recommendations, but thus far only 28 of those recommendations have been implemented in legislation, regulations or via changes in practice.

This bill has appeared in earlier forms. First, Bills C-7 and C-45 died on the order paper due to prorogation by the Conservative government in 2007 and an election in 2008. In July 2008, Bill C-60 came into force simplifying the structure of the court martial system and establishing a method, which was more closely aligned with the civilian system, for choosing the type of court martial. In 2009, the Senate committee consider Bill C-60 and provided nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and the Senate committee report. It outlined provisions related to military justice, such as sentencing reform, military judges and committees, summary trials, court martial panels, the provost marshal and limited provisions related to the grievance process and the Military Police Complaints Commission.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament. There are a number of amendments that carry over, which include the court martial composition, military judges' security of tenure and provisions relating to the appointment process and the age of judges. However, other important amendments that passed at committee stage at the end of the last parliamentary session are not included in Bill C-15. These include the following, which were also presented by the New Democrats as amendments to that piece of legislation.

What is missing from this bill is the authority of the Chief of Defence Staff in the grievance process, which responds directly to Justice Lamer's recommendation; changes to the composition of the grievance committee to include a 60% civilian membership; and finally, a provision to ensure that a person who is convicted of an offence during the summary trial is not unfairly subjected to a criminal record. It is this last point that causes particular concern to all Canadians who care about the justice system in this country.

There are many important reforms in this bill and the NDP supports the long overdue update to the military justice system. Members of the Canadian Forces are held to an extremely high standard of discipline and they, in turn, deserve a judicial system that is held to a comparable standard. The NDP will be opposing this bill at second reading. However, there are shortcomings in this bill that we hope can be addressed at the committee stage if, in fact, it gets that far. Here are some of the amendments that we hope to see passed.

The amendments in Bill C-15 do not adequately address the unfairness of summary trials. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Summary trials, though, are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the so-called trial, and the judge is the accused person's commanding officer. This causes undue harshness on certain members of the Canadian Forces who can be, and are, convicted of very minor service offences, offences that would not otherwise be criminal offences.

For example, some of these minor service offences include insubordination, quarrels, disturbances, absence without leave, drunkenness and disobeying a lawful command. These could be matters that are extremely important to military discipline, but they are not necessarily worthy of a criminal record. Certainly drunkenness is not a criminal offence, and many members of the House would probably attest to that.

Bill C-15 also makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine less than $500 to no longer result in a criminal record. This is one of the positive aspects of the bill but it does not, in our opinion, go far enough.

At committee stage last March, the NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not necessarily worthy of a criminal record. We would increase that number from five specified offences to 27, if the offence in question received a minor punishment.

The amendment also extended the list of punishments that may be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a reprimand on its own, a fine equal up to one month's basic pay or another minor punishment.

This was a major step forward for summary trials. However, this amendment was not retained in Bill C-15, and we want to see it included here.

We also believe it is important to reform the grievance system because at present the grievance committee does not provide a means of external review. Currently it is staffed entirely of retired Canadian Forces officers, some only relatively recently retired. If the Canadian Forces Grievance Board is to be perceived as an external and independent oversight civilian body, as it was designed to be, then the appointment process needs to be amended to reflect that reality. Thus, some members of the board should be drawn from civil society.

The NDP amendment provides that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. Again, this amendment was passed in March 2011 in Bill C-41 but was not retained in the bill before the House. We think it is important to see that amendment retained in the bill.

Finally, the NDP believes we must strengthen the Military Police Complaints Commission. The bill amends the National Defence Act to establish a timeline within which the Canadian Forces provost marshal would be required to resolve conduct complaints as well as to protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, the NDP believes that more needs to be done to empower this commission.

Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions empowering it to act as an oversight body. This commission must be empowered by a legislative provision that will allow it to rightfully investigate and report to Parliament.

Let us talk about what some independent people have said about the bill. I want to quote Colonel Michel Drapeau, a retired colonel from the Canadian Forces and a military law expert. Here is what he said in February 2011:

I strongly believe that the summary trial issue must be addressed.... There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

Colonel Drapeau also said:

—I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I believe all members of the House want to see members of the Canadian Forces guaranteed the very charter rights that we send them into harm's way to fight for on our behalf. One part of those rights is that when people face potential criminal sanctions, they have a right to counsel. They have a right to a judge that is independent. They have a right to transcripts and a meaningful right to appeal. Bill C-15 does not allow this and I urge all members of the House to work on this bill to address those serious problems.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 22nd, 2012 / 6:15 p.m.
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NDP

Alexandrine Latendresse NDP Louis-Saint-Laurent, QC

Mr. Speaker, for almost a year and a half, I have had the opportunity to debate in the House a number of issues that are dear to me. At times, we must also debate issues with which we are not as familiar. You will agree that we cannot be interested in everything all the time. However, that does not mean that the issues are not very interesting, and I do not doubt their importance. For many Canadians, everything to do with the military is somewhat of a mystery. The public definitely knows that Canada has an army and many people are very proud of it. However, the internal workings of the armed forces are a mystery to mere mortals.

A year and a half ago, that was the case for me. Since arriving here, I have had the opportunity to meet many members of the armed forces and I have become aware of the issues that are important to them. I have also asked the veterans in my riding many questions, and they have kindly and patiently answered them.

Bill C-15 is about military justice and it is a truly interesting subject. I will summarize the bill in order to provide some context. Bill C-15 is the Act to amend the National Defence Act and to make consequential amendments to other Acts. True to form, the Conservative government gave it an optimistic short title—Strengthening Military Justice in the Defence of Canada Act. Coming up with such upbeat titles is a new trend. I would not put it past the Conservatives to introduce a bill to diminish the rights of aboriginal peoples and name it “encouraging the legal and economic autonomy of first nations”. The cheerful words are a bit much.

Bill C-15 addresses some very clear problems and, in a way, proposes some clear solutions. This bill originated in 1998 when the Liberals were in power. During the 1990s, it was determined that the National Defence Act absolutely had to be modernized and achieve a better balance. It was significantly amended in 1998, after the release of three different reports that questioned its effectiveness. The Liberals introduced Bill C-25, which contained clause 96 stating that, every five years after the bill is assented to, there would be an independent review of the amendments made to the National Defence Act to see whether they were effective and whether any adjustments were needed.

This brings us to 2003, when the Lamer report came out with its 88 recommendations. Everyone agreed that the Lamer report was an effective tool and that it clearly indicated the steps to follow to improve and modernize our National Defence Act.

When the Conservatives came to power in 2006, they inherited the Lamer report and its recommendations. The Conservative government was aware that it had to continue reforming the National Defence Act. Under the Conservatives there were all kinds of disappointing twists and turns. In the first two minority, and rather unstable, Conservative governments, the two attempts to pass legislation to comply with the Lamer report recommendations died on the order paper.

In 2008, there was a turn of events. On April 24, the Court Martial Appeal Court of Canada, in R. v. Trépanier, declared unconstitutional the provisions in the National Defence Act enabling the director of military prosecutions to choose the type of court martial for a given accused. This essentially meant that, from then on, in certain cases, accused persons had the right to choose the type of court martial to be convened.

The Conservatives had to react to this event as quickly as possible. Their legislative attempt failed in the wrangling of minority governments, and suddenly there was a court case that they needed to respond to. Their response was Bill C-60, which made minor changes to the military justice system. The Lamer report definitely remained the foundation for future legislation, but it also led to a report from the Senate Standing Committee on Legal and Constitutional Affairs entitled, “Equal Justice”. That report, commissioned by the Minister of National Defence, was agreed to in principle by the government when it tabled the report.

At this time, we have an abundance of studies and information to guide the whole legislative process of amending the National Defence Act. However, the tone has already been set. It will never be applied as a whole, but rather in bits and pieces. That is not necessarily a bad thing. We cannot change everything at once, unless the government decides to throw an omnibus bill at us concerning the National Defence Act, but I think the staff at the Prime Minister's Office, based on the two huge tomes that we have seen in recent months, are burned out. You see, the first victims of these paving stone expeditions are the legislative and political staff in the Prime Minister's Office.

Significant progress was made in 2010. Bill C-41, which was the direct forerunner of Bill C-15, was introduced in the House on June 16, 2010. It made it through the entire legislative process, was debated and discussed, and several of the NDP's proposed amendments were included. Unfortunately, Bill C-41 died on the order paper when Parliament was dissolved during the last federal election.

Not long after a new Parliament was formed, in June 2011, there was yet another twist. The Court Martial Appeal Court of Canada, in R. v. Leblanc, declared unconstitutional the provisions regarding the appointment of judges and the length of their terms.

The Conservatives wanted to fix the problem as quickly as possible, so in came Bill C-16, which was introduced and assented to in the fall of 2011. At the same time, at the very beginning of the 41st Parliament, the Minister of National Defence appointed the hon. Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice, to conduct the second independent review of Bill C-25, passed in 1998. His report was recently tabled on June 8, 2012. And that is where we are now.

This topic has been debated in Parliament for 13 years. We have the Lamer report and we have the report from the Standing Senate Committee on Legal and Constitutional Affairs, all of whose recommendations the Conservative government accepted. Now we have Bill C-15. So what is the problem?

As I said, Bill C-15 in itself is relatively well done and addresses specific urgent problems. Except there was a bit of a sleight of hand. All of the recommendations that the NDP had managed to get accepted for Bill C-41 magically disappeared.

We were not kidding around when we proposed amendments during the previous Parliament. We were being serious. They were discussed in detail and they were accepted. The NDP wants to see these amendments in Bill C-15 as well.

If I may, I would like to quickly describe the purpose of those amendments.

First, there is one very important thing: we believe that Bill C-15 fails to properly address the problem of reforming the summary trial system.

A summary trial takes place when a member of the Canadian Forces is guilty of a lack of discipline in a strictly military setting. That person will be judged by his or her commanding officer on site, without a transcript, in order to maintain military discipline. That is fine in and of itself. Members of the military are subject to rigorous discipline in the course of their duties, but since they are only human, they may make mistakes and commit minor offences. Unfortunately, right now, these minor offences lead to a civilian criminal record.

The NDP does not believe that this type of purely military insubordination should result in a criminal record. I am somewhat disturbed that soldiers who bravely put themselves in harm's way for my safety and who are under an unusual amount of pressure must, when they return to civilian life, carry a criminal record that could prevent them from travelling or getting a bank loan all because of a simple matter of insubordination.

In February 2011, the British Columbia Civil Liberties Association said that military officers who impose sentences during a summary trial often want to make a show of discipline for the unit and discourage future offences, not impose on the accused the consequences that go along with having a criminal record in the civilian world.

We are talking here about really minor offences, and in the last Parliament, the NDP sold the committee on expanding the list of so-called minor offences from 5 to 27. We want this amendment to be put back into Bill C-15. If it is not, we will not support the bill.

This is not a conspiracy. The countries with which we have everything in common have already done so. It is a fairly powerful list: Great Britain, Australia, New Zealand and Ireland.

If they have done this, I do not understand why Canada would not.

The second point pertains to the reform of the military grievances system. Right now, the grievance board does not allow external reviews. However, the grievance board should be an independent, external civilian body. Right now, only retired members of the Canadian Forces are on the board. I am not saying that they are not doing the job properly, but the system is not working. A change must be made.

Do we have to wait for another Court Martial Appeal Court ruling for things to be done right?

We suggest that at least 60% of the members of the grievance board be civilians. This amendment was agreed to in the last Parliament, but is not included in Bill C-15. We are right about this, and we want this amendment to be included.

Once again, for these reasons we will not be supporting this bill.

The third amendment that is missing from Bill C-15 concerns the Military Police Complaints Commission. It is a minor point, but the NDP believes that much more should be done to strengthen this commission.

It should be granted more powers by means of a legislative provision and it should be able to legitimately conduct investigations and report to Parliament. It is for the good of the military. We want this amendment included as well.

In the end, it is quite gratifying to be part of this long process that began in the late 1990s under the Chrétien government.

I am quite aware that such important statutes as the National Defence Act cannot be amended by only three or four pieces of legislation. Change will inevitably take many years. The work is well under way. The Conservative government has dealt with this matter rather appropriately, which is quite rare. However, as always, the NDP must be vigilant in order to put the finishing touches to the bill. The Conservatives want to act too quickly, and they have not got all the details right.

If the valuable and important amendments that we won acceptance for in the last Parliament are not restored, the NDP will unfortunately vote against the bill.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 22nd, 2012 / 4:45 p.m.
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NDP

Pierre-Luc Dusseault NDP Sherbrooke, QC

Mr. Speaker, I thank my hon. colleague from Dartmouth—Cole Harbour for sharing his time with me. I am very grateful.

It is a great pleasure to speak about this issue, as the city of Sherbrooke is proud to be home to two Canadian Forces reserve units, two institutions, the Fusiliers de Sherbrooke and the Sherbrooke Hussars. I have had the pleasure and privilege to meet with them many times over the last year or so. I have great respect for them and am eternally grateful for the work they do day after day. My respect for their work is why I feel a duty to rise today to speak to Bill C-15. Our men and women in uniform protect our lives, so I have a duty to protect their interests in the House of Commons.

I would like to give some background about the legislation we currently call Bill C-15, which has had many past iterations. On October 7, 2011, the Minister of National Defence introduced An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 will strengthen military justice. It is a direct response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, in May 2009, work done by the Standing Senate Committee on Legal and Constitutional Affairs.

The NDP believes the bill is a step in the right direction to harmonize military justice and civilian justice. It has gone off course, however, just like a defective submarine. There will be a few colourful expressions in my speech. I sometimes enjoy expressing myself that way. Our summary trial and grievance systems are in urgent need of an overhaul, and the Military Police Complaints Commission needs to be strengthened.

I would like to delve into the background a little to better illustrate the need for reform. In 2003, the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, submitted his report on the National Defence Act. It contained 88 recommendations aimed at demining various areas, including military justice, the Military Police Complaints Commission and the grievance process. Only some of the mines were cleared, however, as only 28 recommendations have been implemented. I think we would all agree that a partly demined field remains quite hazardous.

Bill C-15 has donned many types of camouflage. First off, Bills C-7 and C-45 both died honourably in combat because of prorogation in 2007 and the elections in 2008. It is our contention that we would not be here debating this bill right now if the government did not have a nasty habit of hitting the panic button and proroguing Parliament.

Later, Bill C-60 was sent to the front lines wearing slightly different camo. It simplified the court martial structure, bringing it more in line with the civilian justice system. In its report, the Standing Senate Committee on Legal and Constitutional Affairs made nine recommendations regarding potential amendments to the National Defence Act.

In 2010, Bill C-41—we have amassed a number of bills, making things somewhat complicated, and I hope everyone is able to keep track of the numbers—was sent out to the front lines in response to the Lamer report and the Senate committee. Bill C-41 proposed reforms to sentencing, military judges and commissions, and summary trials, among other things. We could say that Bill C-15 is the brother-in-arms of C-41. The amendments brought forward cover the composition of the court martial panel and the appointment of military judges with security of tenure to a fixed retirement age.

However, some basic amendments made at committee at the end of the last session of Parliament were not included in Bill C-15, and that poses a problem for us. Is it by chance that three amendments that were very important to the NDP are not included in today's version, Bill C-15?

The three amendments relate to: the chief of Defence Staff's authority in the grievance process, which was a direct response to one of the Lamer report recommendations; changes to the composition of the grievance committee to include a 60% civilian membership, as discussed earlier today; and the provision ensuring that a person convicted for an offence during a summary trial is not subjected to a criminal record, which we also discussed earlier. I will talk about these three amendments, which—we do not know why—are not included in Bill C-15, the bill we are debating today.

Bill C-15 does not deal effectively with the unfairness of summary trials.

Right now, a conviction during a summary trial in the Canadian Forces results in a criminal record. What is sad for our troops is that those who are accused are not able to consult with counsel. There is no right of appeal and no transcript of the trial. Everything is off the record. What is more, the judge is the accused's commanding officer. So much for an impartial hearing.

An expert in military law, retired Colonel Michel Drapeau, said the following in February 2011:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year....As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

A soldier slips up because of ongoing stress. We are not talking here about major offences but about misconduct, absence without leave or disobedience of a lawful command. We recognize that a soldier's code of ethics and code of conduct are the fundamental pillars that have become the pride of the Canadian army, but first and foremost, soldiers are human beings. They go through things that few people in our society experience. They live in a state of perpetual stress. We are not asking for military immunity but simply to put into perspective these acts of misconduct, which do not in any way warrant a criminal record and everything that goes along with that.

In committee in March, we proposed to expand the list of offences that could be considered minor and not worthy of a criminal record from 5 to 27 in order to give soldiers more latitude. This amendment was abandoned and we want it to be restored. We do not want this amendment to become the unknown soldier of the bill. We want it to be acknowledged. When soldiers who have a criminal record as a result of a minor misconduct finish their military service, they will find it difficult to find a new job or even to rent an apartment.

While our soldiers ought to be held to the very highest standard of behaviour, the reality is that soldiers are human and thus imperfect. Soldiers are also entitled to a fair and equitable justice system, just like all other Canadians. It is a constitutional right to be represented and to have access to a fair trial.

The second amendment concerns the reform of the grievance system. The current grievance board does not allow for external review. Are we still living in the fearful cold war era when everything must be hidden? Retired Canadian Forces personnel serve on that board. In fact, almost everyone on that board is from some kind of military background. We think that is not at all reasonable. The Canadian Forces Grievance Board should be seen as a civilian, external, independent body. That is why we proposed that 60% of the board or committee’s members should be neither officers nor enlisted personnel in the Canadian Forces. That amendment was approved for Bill C-41, but it is not included in Bill C-15 before us today. We wonder why not.

The third amendment that had been included in the previous bill, C-41, and that we would have liked to see in this bill is the strengthening of the Military Police Complaints Commission. The idea of giving this commission more powers so that it could act as a watchdog has been almost ignored. Its scope of action must be broadened so that it can legitimately investigate and report to Parliament.

The question must be asked: why have the Conservatives not kept the amendments proposed by the NDP and adopted by the committee in 2010 when Bill C-41 was studied? These amendments were good soldiers that could have protected the interests of our military personnel. The Conservatives are continuing to undermine the progress made by all members of the Standing Committee on National Defence and the recommendations made by the representatives of the Canadian Forces.

Such good soldiers as those amendments must not be abandoned. Even our allies—the United Kingdom, Australia, New Zealand and Ireland—have decided to modernize the summary trial process. Why has Canada—having dithered so long on the issue—not got down to the task of finding the necessary tools to ensure that our military personnel are properly represented and judged?

As we have said many times, we are opposed to Bill C-15, because we see it as a tank without any firepower and without armour, one that makes it impossible for our soldiers to get a fair and impartial trial.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

October 22nd, 2012 / 4 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, it is an honour to rise in the House today to speak to Bill C-15.

First, I would like to congratulate our national defence critic, the hon. member for St. John's East, who is doing an amazing and remarkable job on a file that can be difficult, given that we are dealing with a government that would rather act like G.I. Joe than seriously examine the country's national defence needs, analyze the cost to Canadian taxpayers and have a comprehensive view of Canada's defence role as it relates to the deployment of military personnel in our country and abroad.

I have tremendous respect for the Canadians who work for our Canadian Forces. I have met many of them, since there are obviously a number in my riding, it being in the national capital region. In my riding, it is not unusual for people to frequently come across Canadian Forces members. I really admire the work that they do, here, inside our borders, and around the world, especially in light of what has been going on. It takes a special person to put his or her life in danger to protect our values, rights and what we stand for every day.

That is why we cannot afford to let the government take so many years to introduce this bill. I said “so many years”, because in 2003, retired Chief Justice Lamer was asked to produce a report on the situation and to make recommendations regarding the bill.

The summary of Bill C-15, which was produced and which I will give a little background on shortly, states the following:

This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,

(a) provide for security of tenure for military judges until their retirement;

(b) permit the appointment of part-time military judges;

(c) specify the purposes, objectives and principles of the sentencing process;

(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;

(e) modify the composition of a court martial panel according to the rank of the accused person; and

(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.

The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.

Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.

As I said a moment ago, I believe this quite lengthy bill has been long due since 2003. However, “long due” does not mean we should hand out blank cheques, even though the bill concerns national defence and our men and women working for the Canadian Forces. The NDP is not in the habit of handing out blank cheques.

This bill has previously appeared in a number of forms, as bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and when the election was called in 2008. In July 2008, Bill C-60 was introduced and it came back with a vengeance. Bill C-60 simplified the structure of courts martial and established the method for selecting the type of court martial that would harmonize best with the civilian justice system. In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined the bill and recommended nine amendments to the National Defence Act.

This happened after 2003, when the Right Honourable Antonio Lamer tabled a report on his review of the National Defence Act, a report that contained 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces provost marshal.

Looking at Bill C-15 as it currently stands—because that is the one we have to consider—we realize that it is supposed to be a legislative response to those recommendations. However, only 28 recommendations have been included in the bill.

I will say it right away—and the critic said this—we will not support this bill at second reading because, in any case, the government will be referring it to committee. However, there are so many flaws, serious flaws, in this bill, and it is not because it should have been introduced so long ago that we should adopt any such poorly constructed legislation. That is our position on the matter.

In 2010, Bill C-41 was introduced in response to the 2003 Lamer report and to the Senate committee's 2009 report. It contained the military justice-related provisions respecting, for example, sentencing reform, judges, military panels, summary trials, the court martial panel, the Canadian Forces provost marshal and certain provisions respecting the Military Police Complaints Commission.

It can nevertheless be said, for those who were here at that time—I was not—that bills C-41 and C-15 resemble each other and are similar to what was introduced by the Senate committee during the last Parliament.

The amendments stood included those concerning the composition of a court martial panel, and security of tenure for military judges until retirement.

However, other important amendments—and I want to emphasize this—adopted at the committee stage at the end of the last parliamentary session were not included in Bill C-15. That includes the NDP's amendments respecting the authority of the Chief of Defence Staff in the grievance process—a direct response to a Lamer report recommendation—changes in the composition of the grievance committee so that 60 % of members would be civilians and the provision to ensure that a person guilty of an offence on summary conviction would not unfairly be given a criminal record. That is the amendment under clause 75 of Bill C-41.

We have been in favour of bringing the military justice system up to date for a long time now. There is no doubt about that and I do not want to hear anybody say otherwise in this House. Members of the Canadian Forces are known to be subject to extremely strict rules of discipline and they deserve a justice system that is subject to comparable rules.

I remember when I first started out as a lawyer, doing criminal law, that there was a judge in the Outaouais district—he is still there–near Gatineau, where I am a member of Parliament, who used to tell us, because he had a military background, that nothing could be as secret and closed as military justice. This is understandable, because it operates in accordance with a very closed system of discipline. It is understandable. I think that members of the Canadian forces voluntarily submit to these extremely strict rules of discipline.

They often have absolutely critical work to do, and the chain of command is not very tolerant of exceptions. All of that is understandable and yet, sometimes there are certain types of behaviour problems—I repeat, “behaviour problems”. And those who are not accustomed to this environment can be completely flabbergasted at what can lead to a criminal record for a member of the Canadian Forces. Anyone practising criminal law in civil society, or dealing with labour rights or grievances, will find provisions in these bills that are rather surprising.

To begin with, they mention reform. For us, the problem is that the reform under discussion is of the summary trials system. The amendments in bill C-15 do not adequately address the injustice of summary trials. At the moment, a summary trial conviction in the Canadian Forces means a criminal record. Some might say, “good for them”. However, summary trials are held without the accused being allowed to seek legal or other counsel. They have no recourse and there are no transcripts of the trial. Moreover, the judge is the accused's commanding officer. This is too harsh for some members of the Canadian Forces who are convicted for minor offences. Once again, some may say that there is no room for exceptions, but there are times when it is completely ridiculous.

I have had people come and consult me, but the problem was that everything had already been taken care of.

Let us put ourselves in the place of a member of the Canadian Forces who has committed an offence, for example, absence without leave or a quarrel with another member. The member’s own commanding officer tells him he will have a summary trial. We cannot seriously think that a member of the Canadian Forces is going to go against what his own commanding officer suggests. We cannot really call this transparency. That may be too harsh for some members of the Canadian Forces who are convicted of minor offences. I will say it again, because it is important to know what we are talking about. These minor offences include insubordination, quarrels, misconduct, absence without leave, drunkenness, disobeying a command, and so on. This is certainly very important for military discipline, and I am not saying otherwise, but does it call for giving someone a criminal record? It is important that we ask ourselves that question.

Having a record will have an effect when the member leaves the Canadian Forces. He may have trouble finding a job once he rejoins the civilian world. Bill C-15 does provide an exemption so that if there is a minor sentence handed down under the act or a fine of less than $500, certain offences are not entered on the person’s record. This is one of the positive aspects of the bill, but we think it does not go far enough. We hope the committee will do its job. I do not know whether the Standing Committee on National Defence is as extraordinary as the justice committee. At the Standing Committee on National Defence, even when self-evident amendments are moved, they are not adopted.

Last March, at committee stage, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and so would not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased to 27 from five. The amendment also adds to the list of sentences that a tribunal may impose without them being entered on the record: for example, a severe reprimand, a fine equivalent to a month’s salary and other minor sentences.

This was an important step forward for summary trials. However, the amendment to Bill C-15 was not accepted. It is therefore entirely to be expected that we would want to include it again. A criminal record can make life after a person’s military career very difficult. It can mean losing a job, being refused housing, having trouble travelling, and so on. If Canadians knew that members of the military who served our country so courageously are being treated this way for the kinds of misconduct I have referred to, I think some of them would be in shock, as I was when I read the bill and what had gone on over the last 10 years in this regard.

There is also the question of reforming the grievance system. As a labour lawyer, I have always advocated the greatest possible transparency and independent arbitrators, because it affects the labour relations between the parties. The same is true when we talk about a Military Grievances External Review Committee. At this time, the Canadian Forces Grievance Board does not allow for external review. The people who sit on the Military Grievances External Review Committee are retired Canadian Forces employees and some very recent retirees. So if the Canadian Forces Grievance Board is to be seen as an external, independent civilian body, as it should, the appointment process definitely needs to be amended to reflect that. The committee should therefore be composed, in part, of civilian members.

The amendment that the NDP suggested, and that it will certainly suggest again when the bill is examined in committee, is that at least 60% of the grievance committee members never have been officers or members of the Canadian Forces. I repeat: it is the Military Grievances External Review Committee. The amendment was adopted in March 2011, for Bill C-41, but it was not incorporated into Bill C-15.

It is extremely important that people from the outside be part of the external review committee, and I am persuaded that my colleagues will agree with me. It is therefore important that the amendment be included again.

There is the whole question of the authority of the Chief of the Defence Staff in the grievance resolution process. There is a major weakness in the military grievance system. The Lamer report contained a recommendation concerning the fact that the Chief of the Defence Staff does not have the power to settle financial claims in grievances. In spite of the fact that the Minister of National Defence approved the recommendation, no concrete action has been taken in the last eight years to implement it.

The ministers responsible for certain portfolios who come before our committees need to agree to the amendments we recommend. When it comes time to amend legislation, those ministers need to remember what they have said.

During committee examination, the NDP proposed an amendment, which was adopted in March 2011. Nonetheless, the amendment was not incorporated into Bill C-15. If this bill is referred to committee, the NDP, under the leadership of the official opposition’s national defence critic, the member for St. John's East, will continue to fight for this.

There is also the question of strengthening the Military Police Complaints Commission. Very little has been said about granting that commission greater powers so that it acts as an oversight body. The commission’s powers must be expanded by legislation so that it is able to investigate legitimately and report to Parliament.

The NDP is not alone in making the case for the need to amend Bill C-15. A number of organizations support our positions, including the British Columbia Civil Liberties Association, which has said that fundamental fairness requires that systems that impose serious penalties on individuals provide better procedural protection.

In R. v. Wigglesworth, the Supreme Court of Canada, an arm of our democracy, confirmed that, if an individual is to be subject to penal consequences such as imprisonment, he or she should be entitled to the highest procedural protection known to our law. I believe that will come as a shock to no one.

That is often where the problem lies. Military justice is often opaque or not very transparent. No one knows exactly what goes on, except those curious individuals who want to know more. It is important that justice indeed be done. That is even more important for the members of our Canadian Forces who dedicate themselves body and soul to each and every one of us, to all the Canadians we represent. They go to other countries to promote fundamental values and rights, democracy, the right to a fair trial and so on. And yet, once back in Canada, those members, for all kinds of reasons, are sentenced without receiving the advice of counsel or being able to obtain a transcript. When a former Canadian Forces member consults a civilian lawyer, that lawyer has trouble representing the member because the member’s file contains absolutely nothing other than what he or she has said.

I would not go as far as my colleague from Scarborough—Guildwood, who spoke before me, but I believe that is a small step. Many years have elapsed since the Lamer report, and I believe the members of the Canadian Forces deserve a lot better than Bill C-15.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

June 19th, 2012 / 8:45 p.m.
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NDP

Matthew Kellway NDP Beaches—East York, ON

Madam Speaker, I am happy to rise today to speak about Bill C-15, the strengthening military justice in the defence of Canada act. As per its title, Bill C-15 is intended to amend the National Defence Act on matters related to military justice.

There is a substantial context to the bill. It has a fairly long history and iterations of the bill have come before this House, many iterations in fact.

The bill is a legislative response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, the May 2009 report of the Senate Standing Committee on Legal and Constitutional Affairs.

Chief Justice Lamer's report was a very comprehensive and independent review of the National Defence Act, which arrived at 88 recommendations pertaining to the military justice system, suggesting there are a lot of issues that need to be corrected.

However, to date only 28 of these recommendations have been implemented in the form of legislation, regulations or even change in practice. Clearly, much work remains to be done.

Other efforts to respond to the chief justice's report preceded the bill before us tonight. Bills C-7 and C-45 died on the order paper, in 2007 and 2008 respectively.

Bill C-60 made a dent in Chief Justice Lamer's recommendations, in 2008. Bill C-41 was introduced in 2010. It went through committee stage with agreement for some positive amendments, but it too eventually died on the order paper.

This bill, Bill C-15, seeks to accomplish a great deal in response to Justice Lamer's report and the Senate committee report.

Among other things, the bill would provide for greater flexibility in the sentencing process; and additional sentencing options, including absolute discharges, intermittent sentences and restitution. It would modify the composition of a court martial panel according to the rank of the accused person, modify the limitation period applicable to summary trials and allow an accused person to waive the limitation period. It clarifies the responsibilities of the Canadian Forces provost marshal, and, finally, it make amendments to the delegation of the Chief of the Defence Staff's powers as the final authority in the grievance process.

The bill is a step in the right direction, in that it would move the military justice system more in line with the civilian justice system. This much is true. However, it falls too short on some of the key objectives, those being reforming the summary trial system, reforming the grievance system, and strengthening the military complaints commission.

Curiously, the bill even falls short of Bill C-41 as amended by the committee. In our view, it is not worthy of the support of this House as currently drafted.

This view is informed most fundamentally by the principle that the men and women of our Canadian Forces are entitled to the same rights that we send them to fight for around the world. What a terrible and bitter irony it would be if we, as Canadians, were to stand aside and allow the men and women of our Canadian Forces to become effectively second-class citizens in our midst, particularly when we have intervened around the world in deadly conflicts to uphold basic human rights and systems of rule or law that ensure such rights are protected.

These rights to which we are so committed, for which we are prepared to put at risk the lives of young Canadians, in fact do not permit the kind of treatment to which we subject the men and women of our Canadian Forces under our current military justice system.

This requires a bit of an explanation about military systems of justice, in that military justice is a bit different from the justice system that prevails in the rest of civil society because of the primacy attached to the issue of discipline and efficiency in the military.

Retired Colonel Michel Drapeau is an expert in military justice and law and is the author of the only really significant military legal text in Canada. He had this to say about the implications to military justice of the centrality of discipline to the functioning of the military:

Few professions are as dependent on discipline as is the military. Discipline is fundamental to military efficiency, cohesion and 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 in the right place. At the personal level, discipline ensures also that in 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.

Another statement reads, “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.”

In 1980 and 1992, the Supreme Court of Canada examined the constitutionality of certain aspects of the military justice system. On both occasions it affirmed that a separate system of justice was needed to meet the unique requirements of military discipline. This is especially so because certain actions, like being absent without leave, which are offences in the military, are not obviously civil offences.

However, there is a tension here in the military justice system that must be resolved through legislation. There must be, on the one hand, speedy response to breaches of discipline. On the other hand, there must be adherence to law and as far as possible, that means adherence to the Charter of Rights and Freedoms and principles of natural justice. That is, principles that suggest that any system of justice should be heard and decided by a neutral impartial body and that, in the most general terms, the hearing be fair. That is, provide notice, the opportunity to examine evidence, to speak, to answer and so on. At this point this tension remains unresolved.

The B.C. Civil Liberties Association commented on the interests influencing the system. It said that military officers who give out sentences in summary trials are concerned with showing unit discipline and deterring future violations, not the effect they impose on an accused in the civilian world with a criminal record, for example.

We believe this tension is resolvable. We do not believe that the need for an efficient military justice system is inconsistent with, and therefore needs to take the place of, fundamental principles of justice for the members of our Canadian Forces. We believe that the bill is potentially salvageable with the necessary amendments at committee.

At the core of the issue before us is the matter of summary trials. In the context of the Canadian armed forces, summary trials are disciplinary actions which are generally less serious than courts martial. They are designed to deal with minor service offences with limited possible punishments. Offences can range from insubordination and drunkenness to being absent without leave. Actions like this, while destructive to the flow of military life, are less serious in the civilian world.

Retired Colonel Michel Drapeau testified before the national defence committee that summary trials continue to be the dominant disciplinary method used to try offences by the Canadian military. In 2008-09, there were a total of 1,865 cases determined by summary trial, and only 67 heard by court martial.

A 2008 CBC study found that military charges against Canadian Forces members had risen dramatically in the years since Afghanistan. Post-Afghanistan, disciplinary charges had increased by as much as 62% in certain areas.

Just 10 years previous, there were only 1,300 summary charges laid, compared to 2,100 in the midst of the Afghan conflict in 2006-07.

Most Canadians are likely unaware that the summary trial procedure exposes soldiers to penalties, including imprisonment and even more seriously the potential that following convictions they will have a criminal record that will continue through to their civilian lives.

While subsequent Judge Advocate General annual reports have indicated that the frequency of convictions has declined since the high point of the Afghanistan conflict, what is being left behind and what continues are convictions under this very inadequate form of justice. Canadian Forces personnel were still punished, and depending on the sentences, will have criminal records for the rest of their lives.

It is not news that having a criminal record can make life after the military very challenging. Ordinary things like getting a job, travelling, or renting an apartment become very difficult. Most Canadians would be shocked to learn that our soldiers, who bravely served our country, can get a criminal record from a system of justice that lacks the due process usually required in civilian criminal courts.

The objective of summary trials is to promote and maintain unit discipline. Therefore, the focus is on dealing with alleged offences expeditiously and returning the member to service as soon as possible. Fairness and justice, which are guaranteed in civil criminal trial, take a back seat to discipline and deterrence. In summary trials the accused do not have access to counsel. There are no appeals or transcripts of the trial and the judge is the accused person's commanding officer.

Through proposed and accepted amendments to Bill C-41, an iteration of this bill in the previous Parliament, we had gone much further down the road of reconciling this tension in the military justice system of expediency and the inclusion of fundamental legal principles. For example, a key New Democrat amendment to Bill C-41 was the provision ensuring military personnel convicted of offences during a summary trial would not be subject to a criminal record. We believed then, and we still believe, that those who bravely serve our country should not be deprived of the rights and protections that other Canadians enjoy.

It should be noted that Bill C-15 makes an exemption for a limited number of offences, if they carry a minor punishment which is defined under the act or a fine less than $500, to no longer result in a criminal record. This is a positive aspect of Bill C-15, but it does not in our view go far enough.

A New Democrat amendment to Bill C-41 also expanded the list of offences that could be considered less serious and would therefore merit less severe punishments and no carry-over of records to an individual's civilian life. That too had been accepted through committee with Bill C-41. This is one of the amendments that we would like to see included in Bill C-15.

Another area in which Bill C-15 falls short is with respect to grievance committees. In his 2003 report, Chief Justice Lamer described for us the grievance process in the military. Having spent about 20 years involved with grievance proceedings in the workplace context, I was surprised to learn about a grievance process in the military. However, Chief Justice Lamer stated in his report:

Grievances involve matters such as benefits, personnel evaluation reports, postings, release from the Canadian Forces, [et cetera] all matters affecting the rights, privileges and other interests of CF members.... Unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances.... It is essential to the morale of the CF members that their grievances be addressed in a fair, transparent, and prompt manner.

That is not happening presently in the Canadian Forces.

The grievance committee, under this system, is a group which is intended to be an independent civilian oversight body to be composed entirely of non-Forces members. In fact, it is composed entirely of retired Canadian Forces officers, and some just recently retired. Like the summary trials system, there is obviously an apprehension of bias in this system. As it is the purpose of this body to have an outsider perspective on matters such as benefits and personnel evaluations, it should be obvious that former Canadian Forces soldiers are not capable of bringing, or are not seen to bring, an objective and independent viewpoint to their task. This seems like a very obvious breach of the rule against bias.

The New Democrats have proposed that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. This amendment, too, was accepted as part of Bill C-41 and should also be a part of Bill C-15.

Finally, Bill C-15 would fail to strengthen the Military Police Complaints Commission. While Bill C-15 would amend the National Defence Act to establish a timeline within which the Canadian Forces provost marshal would be required to resolve conduct complaints as well as protect complainants from being penalized for filing good faith complaints, nothing has been done to effectively empower the commission to act as an oversight body. We believe it is necessary that the Military Police Complaints Commission be empowered by a legislative provision that would allow it rightfully to investigate and report to Parliament.

In conclusion, I will bring it back to Colonel Drapeau for the final word on this matter. He said, in part:

...I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I will leave the government side to ponder that question.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

November 4th, 2011 / 1:10 p.m.
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Conservative

Chris Alexander Conservative Ajax—Pickering, ON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Security of Tenure of Military Judges ActGovernment Orders

November 4th, 2011 / 12:45 p.m.
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Bloc

André Bellavance Bloc Richmond—Arthabaska, QC

Mr. Speaker, it is a pleasure for me to participate in the debate on Bill C-16. The Parliamentary Secretary to the Minister of National Defence is well aware that the Bloc Québécois supports this bill.

What we take issue with is that the parliamentary secretary has said in the House that we have failed to provide unanimous consent, which is completely false. I will give an example. Today, I gave unanimous consent, on behalf of the Bloc Québécois which I represent, to the agreement between the Cree and the federal government. We had already given our word and consent with respect to this bill.

With regard to Bill C-16, we were asked for our support yesterday at the same time that we were asking for unanimous consent to pay tribute to veterans. Remembrance Day is at hand. We are all wearing poppies—I see, Mr. Speaker, that you are wearing one also—to commemorate the battles fought by our veterans, the people who went overseas to fight in two world wars and other conflicts, which unfortunately should not have occurred but did, and who fought for our freedom.

The dean of the House of Commons, the member for Bas-Richelieu—Nicolet—Bécancour, wanted to rise, like members of other parties, and pay tribute for a few minutes to the people who fought to protect our freedom and to prevent dictators from taking control of the world and suppressing freedoms, as was recently the case in Libya. The leader of the Green Party also wanted a few minutes to address the people and pay tribute to our veterans. This was refused by lack of unanimous consent. We were simply told that the Conservative government had the right to do so and that it was within the rules.

I know that the government was probably afraid that the Green Party and the Bloc Québécois would use this precedent to intervene and rise often in the House, saying that they want to be recognized as parties. We have known from the beginning that we do not have 12 members, just 4, and that the leader of the Green Party is the only member of Parliament for her party. For that reason, the interim leader of the Bloc Québécois specifically stated yesterday, when making the request, that he did not want to set a precedent and that he simply wanted to make a statement.

That was one of the lowest moments I have experienced since being elected in 2004. I have rarely seen a government rebuff the opposition parties in a such a way and on such an occasion.

We did not give our unanimous consent to Bill C-16 then and we are opposing it today because the fault lies with the government for not being alert enough to introduce it sooner. The government could have introduced this bill as early as September 19, when Parliament resumed, but it waited until October 7. The government has also introduced a series of bills and has prevented the opposition from debating them and discussing them properly by moving closure and time allocation motions five or six times. I do not even know how many there have been, but closure has been moved on at least five or six bills. We cannot follow the normal legislative process because the government is in a very big hurry. It made legislative choices, but Bill 16, which we are discussing today, was not part of them.

The Conservatives chose to introduce Bill C-10 on justice. They decided to abolish the firearms registry and destroy the data. They also introduced a bill that will diminish Quebec's political weight in the House. There was also the bill on the Canadian Wheat Board. They chose to introduce all those bills instead of Bill C-16. I want to come back to Bill C-16 to which we could have given our unanimous consent. We only did what the government said it would do, in other words, follow the rules. I have been in federal politics long enough to know there are rules to be followed in the House. There is a legislative process to be followed: first reading, second reading, third reading and work in committee.

I understand perfectly well that there was a court order, but if the government was in such a hurry, it could have made sure that this bill went through all the stages as quickly as possible. After all, it is the government that sets the agenda.

Yesterday, by refusing to allow us to pay tribute to veterans, if the government was trying to send a message that we do not exist, that we are not an official party and that we do not deserve to speak in this House, it failed. Today we are sending our own message that we are still here. Just like the Conservative members, and in fact like all members of the House, we were democratically elected. Even the Prime Minister himself must acknowledge that he was democratically elected in his riding and that he is an MP first and foremost, and Prime Minister second. I think it is our duty to do things correctly here.

Thus, there are no second-class MPs in this House. I never thought that when there were 50 Bloc Québécois MPs, nor do I think that today, just because we are fewer in number. My message to the government is that it should think carefully before acting as heinously as it did yesterday. Nevertheless, once again, it is the government's fault that it did not introduce the bill earlier. And we support Bill C-16, especially since a court decision will strengthen the independence of military judges. That is very important. The Minister of National Defence introduced Bill C-16, An Act to amend the National Defence Act (military judges), in the House of Commons at first reading.

The Court Martial Appeal Court of Canada delivered its judgment in the Regina v. Leblanc case. In its decision, the appeal court determined that the provisions in the National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces regarding the appointment and retirement of military judges do not sufficiently respect judicial independence as required by section 11(d) of the Canadian Charter of Rights and Freedoms.

In declaring certain National Defence Act provisions constitutionally invalid and inoperative, the Court Martial Appeal Court in Regina v. Leblanc suspended the declaration of invalidity for a period of six months to allow remedial legislation to be enacted. The declaration will be effective December 2, 2011.

Bill C-16 amends the provisions of the National Defence Act that deal with the tenure of military judges, providing that they serve until the retirement age of 60 years, unless removed for cause on the recommendation of an inquiry committee or upon the resignation of the military judge.

To give a bit of background and explain the situation in full, I should mention that judges used to be appointed for a predetermined period of time. I believe it was for five years, but when a judge's term was up for renewal, it seemed that he or she did not have complete independence at that time. Now the process will simply be the same as it is for other judges. The tenure for military judges will allow them to sit as such until the retirement age of 60 years. That creates a balance. It sends a message that we will improve the situation around judicial independence, which is something we in the House could in no way be opposed to.

Justice Lamer made a number of recommendations, and this is one that we have agreed with from the outset. The Bloc Québécois believes in keeping military justice separate from civilian justice. It makes sense for the Canadian armed forces to have its own justice system, in light of the particularities of military life and military requirements. This bill corrects a situation that created a fairly significant difference between the civilian justice system and the military justice system, in order to improve the military system.

It is absolutely necessary to have discipline within an army. Without that discipline, we would lose any sense of structure and effectiveness. Since the primary goal of our armed forces is to protect the safety of Canadians, this issue is vitally important. The Supreme Court of Canada recognized this principle in 1992:

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 of the military. 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. 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, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.

A number of changes were called for. I think that Bill C-16 is a step that, I repeat, addresses only one of Justice Lamer's recommendations. We can go step by step. That is no problem.

There are also offences in the Code of Service Discipline that do not have equivalents in civilian justice. For example, the offences of disobedience of lawful command or disobedience to a superior officer do not exist in civilian justice. Military justice applies to three categories of people: military personnel in the regular forces, reservists and civilians who work with military personnel on missions.

But although military justice is necessary, people who join the Canadian Forces do not lose their rights, including their charter rights.

For 12 years, a great deal of thought has been given to modernizing military justice to bring it more in line with civilian justice. In its May 2009 report, the Standing Senate Committee on Legal and Constitutional Affairs wrote the following, “...the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general.”

We therefore feel it is important that the government consider not only the issue of the independence of military judges but also the entire military justice reform. In my opinion, even the Parliamentary Secretary to the Minister of National Defence can understand that, when we talk about such a bill, it goes without saying that we should expand our discussion and thought process a bit to include the whole military justice policy, particularly since more than one recommendation was given by Justice Lamer and the Senate committee.

Military justice reform dates back to 1997 and stems from two reviews. First, a special advisory group received a mandate to study the Code of Service Discipline set out in the National Defence Act. Then, the commission of inquiry into the deployment of Canadian forces to Somalia was asked to review how to handle the actions of certain soldiers sent to that country.

The two resulting reports led the government to introduce Bill C-25, which came into effect on September 1, 1999. This bill amended the National Defence Act by abolishing the death penalty in the military justice system, a very important change; incorporating civilian parole ineligibility provisions; creating the Canadian Forces Grievance Board; creating the Military Police Complaints Commission; strengthening the independence of military judges by making changes to the terms of their appointment, their qualifications and their tenure; and creating new positions within the military justice system in order to separate the investigative function from the prosecution and defence functions.

Clause 96 of Bill C-25 provided for an independent review every five years in order to examine the amendments to the National Defence Act. Many of the amendments I just listed are still pending. I am counting on the current government and its Minister of National Defence to take into account the majority of the recommendations that I mentioned just a few moments ago.

With this in mind, the federal government appointed a former Supreme Court justice, Antonio Lamer, to conduct the first review. He presented his report to Parliament in March 2003. Military justice has been on the radar for some time now, and here today we have this bill—barely two pages long—regarding the independence of judges. There will undoubtedly be other, more significant, changes that will improve the National Defence Act and that will also implement Justice Lamer's recommendations, which, as I have said before, are already 10 years old.

In his report, Justice Lamer observed that “Canada's military justice system generally works very well, subject to a few changes.” Consequently, he made 88 recommendations to improve military justice. I will not list the 88 recommendations, although some here might like me to do so.

I will briefly refer to some of Justice Lamer's 2003 recommendations: arrest procedures and pre-trial detention; procedures for proceeding by indictment; the structure of the court; sentencing; aligning the rights of the accused with those in a civil court such that the accused could choose the type of court martial and such that the finding of court martial panels would be arrived at by unanimous vote; strengthening the independence of the principal intervenors in the military justice system; and improving the grievance and military police complaints processes.

In order to implement Justice Lamer's recommendations and amend the National Defence Act, the government introduced Bill C-45 in August 2006. It died on the order paper. In March 2008, the government introduced another bill, Bill C-7, which was identical to Bill C-45 and also died on the order paper when an election was called in the fall of 2008.

In April 2008, the Court Martial Appeal Court of Canada handed down a decision in the case of Regina v. Trépanier. At issue was the possibility of choosing the type of court martial. The Court Martial Appeal Court of Canada ruled that a provision of the National Defence Act that gave the court martial administrator exclusive authority to select the type of court martial was unconstitutional. The Court Martial Appeal Court of Canada found that it was unacceptable that the accused could not chose the kind of court martial that would judge him or her.

Following that ruling—which brings us to where we are today—the federal government introduced Bill C-60 to accomplish the following: to more closely align the manner in which the mode of trial by courts martial is determined with the approach in the civilian criminal justice system, while still satisfying the unique needs of the military justice system; to reduce the types of courts martial from four to two; to allow military judges to deal with certain pre-trial matters at any time after a charge has been preferred; and to require court martial panels to make key decisions on the basis of a unanimous vote. Bill C-60 passed in the House on June 18, 2008.

One of Justice Lamer's recommendations has been incorporated into Bill C-16 before us today.

I repeat—and I will conclude on this in just a moment—the Bloc Québécois is not opposed to Bill C-16. The Bloc did not break any agreements to speed things up. The government alone is responsible for its own legislative agenda. It could have introduced the bill to get it through all the various steps in the usual way, knowing very well that a court order meant that a certain timeline had to be respected.

I cannot believe that, with the army of people and public servants available to the Minister of National Defence, it did not occur to him to look at a calendar and ensure that all the steps could be completed regarding Bill C-16. It is because of the government's own negligence that it is so keen to have the bill fast-tracked, because it did not do its homework.

I cannot believe that the government behaved in this manner. However, as I explained at the beginning of my speech, it is simply because the government made other choices. It had other priorities. It wanted to reduce Quebec's political weight with Bill C-20, for instance. It wanted to put the Canadian Wheat Board out of commission. It also decided to rule out all potential debate on Bill C-10 regarding justice. I can assure this House, not everyone is pleased about that. It is no longer only Quebec that opposes that bill. We will soon be up to 10 provinces that oppose the bill. But the government decided to make it a priority anyway.

In closing, it should have found a way to move a little faster on this matter and introduce Bill C-16 earlier. Had it done so, we might not still be talking about it today.

February 7th, 2011 / 5:15 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Cathcart, can you explain to me how the document before us was produced? I know that Judge Lamer made recommendations. Some of them were implemented by regulation, others in the context of Bill C-60, and a number of other recommendations will be applied by passing Bill C-41. But who decided on the content of this bill? Was it you, as judge, or your predecessor, who said which changes had to be made and who then sent them to the Minister of National Defence, who gave his approval? How did this document end up before us today?

February 7th, 2011 / 3:35 p.m.
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Central Nova Nova Scotia

Conservative

Peter MacKay ConservativeMinister of National Defence

Thank you very much, Mr. Chair.

As you said, I am joined by Brigadier-General Blaise Cathcart, justice advocate general of the Canadian Forces.

Mr. Chair and colleagues, thank you for giving us the opportunity to present Bill C-41.

I'm very pleased to be with you at the committee as you begin your examination of Bill C-41. This legislation is specifically aimed at strengthening the Canadian military justice system.

Let me begin by stating how much I appreciate the support that has already been expressed by members of the committee, by members of the opposition in particular, for Bill C-41, and the indication that has come from the committee regarding the willingness to consider this bill in a timely manner.

I say that because, as many of you will know, there is quite a history with this bill. It is coming back now for the third time, and this is a bill of some urgency and priority, I would suggest to you. The government's legislation is in response to the Lamer report. This is the third time, as I mentioned, the legislation has been introduced in response to that report. It was first introduced as Bill C-7, in April 2006. It subsequently died on the order paper. It was back as Bill C-45, a successor bill introduced in March 2008, which also died as a result of an election call. As members are now aware, this bill was introduced in June of 2010.

The Lamer report was tabled in Parliament in the year 2003 and followed an independent review of portions of the National Defence Act to be amended by Bill C-25. Chief Justice Lamer made numerous recommendations that were aimed at improving not only the military justice system but also the Canadian Forces grievance process as well as the military police complaints process.

He said, and I quote, “Canada has...a very sound and fair military justice framework in which Canadians can have trust and confidence”, and I believe this to be absolutely true. But of course that is not to say, as with any justice system, that it cannot be improved. The old adage about our justice system being a living tree equally applies to the military justice system. I see my friend from Beauséjour nodding in agreement. I'm sure that's an expression he heard at law school as well.

That's what the government is seeking to achieve with this legislation, Mr. Chair.

The bill reflects recent recommendations made by the Senate Committee on Legal and Constitutional Affairs after their study of Bill C-60. Bill C-60 was required to respond to the judgment of the Court Martial Appeal Court in the case the Crown versus Trépanier.

As you consider Bill C-41, I also believe it is important to keep in mind that the military justice system is a separate system of justice designed to promote the operational effectiveness of the Canadian Forces. This separate and distinct aspect was upheld by the Supreme Court of Canada in R. v. Généreux.

The military justice system contributes to the maintenance of discipline, efficiency and morale within our military. It reinforces the command structure of our military in support of both day-to-day and operational activities. Given the key role our military plays in protecting Canadians and advancing Canadian interests and values, ensuring that the National Defence Act keep pace with developments in the law and Canadian society is important.

Bill C-41 is a key step that is part of a process of continuous improvements—the classic living tree. And the bill has a number of key provisions that I'll touch on.

It will enhance the independence of military judges by providing them with security of tenure until the age of retirement. That is, of course, consistent with all members of the Canadian Forces. This is consistent with the tenure of judges in the Canadian civil justice system as well, Mr. Chair.

Bill C-41 also includes a statutory articulation of the principles of sentencing in the military justice system, which provides guidance in the sentencing process. This guidance parallels that provided in the Criminal Code, while taking into consideration the specifics of the military justice system.

One of the concerns expressed by some honourable members during the debate at second reading was that the sentencing of the military justice system might be unduly harsh in comparison to the civil system. It should be noted that Bill C-41 will provide statutory protection against undue harsh sentences being imposed by service tribunals. The bill in fact proposes that the principle of restraint will be followed in the sentencing system of the military justice system. This means that a determination should always be made as to what is the minimum sentence required to maintain discipline, efficiency, and morale within the military, and it requires that the sentence be imposed by the service tribunal.

This bill will also enhance the flexibility of sentencing by providing a greater ability to tailor a sentence to the particular circumstances of the offender and of the offence—also consistent with our civilian system—and by allowing for additional sentencing options, in effect modernizing the act in the form of absolute discharges, intermittent sentences, and restitution orders, all of which are now incorporated into the Criminal Code.

Bill C-41 also provides for the introduction of victim impact statements. This will permit individual victims of offences to more readily express themselves in the sentencing process at courts martial.

Together with enhanced provisions for restitution, Bill C-41 will therefore help ensure that victims of offences are not disadvantaged by having a particular case tried in the military justice system rather than in the civilian one.

I understand that during the debate at second reading there were also concerns raised regarding the fairness of the military justice system, particularly in relation to the summary trial system. In that regard, I would like to remind my colleagues that two of Canada's most eminent jurists, the late Chief Justice Brian Dickson and Antonio Lamer examined this system in significant detail. As you're aware, the Lamer report touches specifically on this. While making recommendations for refinement, both of these eminent jurists endorsed it, and they noted that the summary trial system strikes the necessary balance between meeting the unique disciplinary needs of the Canadian Forces and the needs to respect the rights of individual members of our military.

It should be noted, Mr. Chair, that Bill C-41 also includes provisions to improve the efficiency of the grievance and military police complaints process. For instance, it addresses the Canadian Forces grievance process with a view to making it more effective, transparent, and fair. The suggested amendments would require that grievances be treated as quickly as circumstances permit. They would also allow for a greater delegation of authority to the Chief of the Defence Staff in the treatment of grievances.

Finally, the bill will also establish the position of the Canadian Forces Provost Marshall in the National Defence Act, and specify the functions and responsibilities of the position , as well as make improvements to the fairness and efficiency of the military police complaints process.

In conclusion, Mr. Chair, just let me emphasize that a sound military justice system is absolutely key to our military, as it is in our society. It's key for the readiness, for the effectiveness, and it's key for the morale of the Canadian Forces themselves.

Our men and women in uniform, as you know, put their lives on the line in the service of our country. They need to know they can rely on a justice system that supports, protects, and enables them as they undertake the crucial tasks that we set forward. Canadians similarly need to know that their country's military system will treat those who serve fairly and in a way that corresponds to Canadian norms and values.

The proposed amendments ensure that the military justice system keeps pace with evolving legal standards in the Canadian criminal justice system and they reinforce the continued compliance of the military justice system with the Canadian Charter of Rights and Freedoms, while always preserving the system's capacity to meet essential military requirements.

Thank you very much, Mr. Chair and colleagues. I look forward to your questions.

Thank you.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

December 6th, 2010 / 1:15 p.m.
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Liberal

Geoff Regan Liberal Halifax West, NS

Mr. Speaker, you are right that members are given significant leeway. If we were all required to talk only about clauses in a bill that we are debating at any one time, a lot of the comments from both sides of the House would be cut short.

My hon. colleague seems to be upset. He should remember that I started off by saying that we are going to support this bill at second reading. We want it to go to committee to be studied. I am surprised he is so upset. I would think he would want me to finish what I have to say.

Let me finish by quoting what the Chief of the Air Staff said at the time:

The next generation fighter is very high on my list. We know government wants to get to that discussion soon, and we definitely need to get on with the process to get a new fighter. It sounds like a long time away, but as we know, it takes a lot to go through a contracting process and produce a new fighter.

He was clearly talking in future tense. Here was a case at the same time. For the member to say that there was a competition back then that Canada was part of is conduct unbecoming. I do not know if it falls under the military justice procedure, but it certainly ought to.

In June 2008, the Senate passed Bill C-60 in response to a ruling by the Court Martial Appeal Court of Canada in the Trépanier case. The bill addressed some of Justice Lamer's recommendations.

In 2009, the Standing Senate Committee on Legal and Constitutional Affairs released a report entitled Equal Justice: Reforming Canada’s System of Courts Martial. This report made nine recommendations.

Therefore, we can consider Bill C-41 to be more or less a combination of the Senate's report and Bill C-45, except for the recommendations already addressed by Parliament with Bill C-60.

My colleague from Markham—Unionville will have other comments on this matter, and I look forward to hearing what he has to say. For the time being, I await questions and comments.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

November 26th, 2010 / 12:35 p.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, I am pleased to speak on behalf of the Bloc Québécois to Bill C-41. This bill was introduced on June 16, 2010, to amend provisions of the National Defence Act governing the military justice system.

The amendments, among other things, provide for security of tenure for military judges until their retirement; permit the appointment of part-time military judges; specify the objectives and principles of the sentencing process; provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution; modify the composition of a court martial panel according to the rank of the accused person; and modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.

The text of this bill, beyond what I just listed on military justice, also sets out the Canadian Forces provost marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the military grievances external review committee.

Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other acts.

The Bloc Québécois wants Bill C-41 to be studied in committee. It is true that the purpose of this bill is to improve the military justice system by enhancing judicial independence, but we lean heavily in favour of the healthy administration of justice. Accordingly, we are in favour of any initiative to enhance impartiality and the quality of judges and courts. However, this bill is long and complex and it contains a number of other measures. That is why we are calling for it to be studied in committee, in order to have witnesses inform our decisions.

I will try to put this into context. Military justice reform dates back to 1997 and stems from two reviews. First, a special advisory group received a mandate to study the code of service discipline set out in the National Defence Act. Then, the commission of inquiry into the deployment of Canadian forces to Somalia was asked to review how to handle the actions of certain soldiers sent to that country.

The two resulting reports led the government to introduce Bill C-25, which went into effect in 1998. This bill amended the National Defence Act by abolishing the death penalty in the military justice system; incorporating civilian parole ineligibility provisions; creating the Canadian Forces Grievance Board; creating the Military Police Complaints Commission; strengthening the independence of military judges by making changes to the terms of their appointment, their qualifications and their tenure; and creating new positions within the military justice system in order to separate the investigative function from the prosecution and defence functions.

Clause 96 of Bill C-25 provided for an independent review every five years in order to examine the amendments to the National Defence Act. That was in 1997. With this in mind, the federal government appointed a former Supreme Court justice, Antonio Lamer, to conduct the first review. He presented his report to Parliament in March 2003.

In this report, Justice Lamer observed that “Canada's military justice system generally works very well, subject to a few changes.” Consequently, he made 88 recommendations to improve military justice, especially in the areas of arrest procedures and pre-trial detention, procedures for proceeding by indictment, the structure of the court and sentencing. He recommended that the rights of the accused be more in line with those in a civil court so they could choose the type of court martial, and that the finding of court martial panels be arrived at by unanimous vote. The purpose of another recommendation was to strengthen the independence of the principal intervenors in the military justice system and to improve the grievance and military police complaints processes.

In order to implement the recommendations of Justice Lamer and amend the National Defence Act, the government introduced Bill C-45 on August 27, 2006, but it died on the order paper.

So the government introduced Bill C-7, which was identical to Bill C-45, on March 3, 2008, and it died on the order paper when the election was called in the fall of 2008. Of course Bill C-45, which had been introduced on August 27, 2006, died on the order paper when the election was called in December 2006.

In April 2008, the Court Martial Appeal Court of Canada handed down a decision in the case of R. v. Trépanier. At issue was the possibility of choosing the type of court martial. The Court Martial Appeal Court of Canada ruled that a provision of the National Defence Act that gave the court martial administrator exclusive authority to select the type of court martial was unconstitutional. The Court Martial Appeal Court of Canada found that it was unacceptable that the accused could not chose the kind of court martial that would judge him or her.

Following that ruling, the federal government introduced Bill C-60 to accomplish the following: to more closely align the manner in which the mode of trial by courts martial is determined with the approach in the civilian criminal justice system, while still satisfying the unique needs of the military justice system; to reduce the types of courts martial from four to two; to allow military judges to deal with certain pre-trial matters at any time after a charge has been preferred; and to require court martial panels to make key decisions on the basis of a unanimous vote.

Bill C-60 passed in the House on June 18, 2008.

Bill C-41 is a new version of Bill C-45 and therefore fits into the notion of general reform with a view to implementing Justice Lamer's recommendations.

Bill C-41 before us here today is a new version of Bill C-45 and, once again, aims to implement Justice Lamer's recommendations. A closer look at Bill C-41 reveals that it fits into the broad military justice reform that began in 1998, as I mentioned. It contains several provisions.

First, it contains a number of provisions concerning military judges, which I will list. It provides judges with tenure until their retirement, grants judges immunity from liability as granted to a judge of a superior court of criminal jurisdiction, grants the chief military judge the authority to establish rules of practice and procedure with the Governor in Council's approval, improves the system's flexibility by appointing part-time military judges from a panel of reserve force military judges, and stipulates that in order to be appointed as a judge, the member must have served as an officer for at least 10 years.

There are provisions in Bill C-41 concerning summary trials. For one, in terms of the limitation period, charges must be laid within six months after the offence is alleged to have been committed, and the trial must commence within one year after the offence was committed. The accused person may waive the limitation period established for summary trials.

There are other provisions related to the court martial panel. In the majority of cases, the rank required in order to sit as the senior member of a panel would be lowered from colonel to lieutenant-colonel. As well, the pool of Canadian Forces members eligible to sit on a General Court Martial panel would be enlarged, and the number of non-commissioned members would increase from two to three for the trial of a non-commissioned member.

In addition to these provisions, Bill C-41 would reform military justice by putting additional restrictions on the power to arrest without warrant, by extending the limitation period from six months to two years in terms of civil responsibility, by granting the Chief of the Defence Staff the authority to cancel an improper release or transfer if the member consents, by indicating that the role of Canadian Forces provost marshal is provided for in the National Defence Act as well as by setting out his responsibilities and ties to the Canadian Forces chain of command and by requiring the provost marshal to provide the Chief of the Defence Staff with an annual report on his activities and those of the military police.

Lastly, Bill C-41 would protect individuals who file any type of complaint with the Military Police Complaints Commission and would require the provost marshal to resolve conduct complaints or to close cases within 12 months.

This is clearly an impressive and important bill. Once again, that is why the Bloc Québécois wants to discuss it in more detail in committee and wants to bring in witnesses with expertise in military justice so that they can provide some insight.

There are other arguments. The Bloc Québécois is not opposed to keeping military justice separate from civilian justice. It makes sense for the Canadian armed forces to have its own justice system, in light of the particularities of military life and military requirements. It is absolutely necessary to have discipline within an army. Without that discipline, we would lose any sense of structure and effectiveness.

Since the primary goal of our armed forces is to protect the safety of Canadians, this issue is vitally important. The Supreme Court of Canada recognized this principle in 1992, in the Généreux decision, which I will quote:

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 of the military. The safety and well-being of Canadians [and Quebeckers] depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. 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, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.

I repeat, that was a quote from the 1992 Supreme Court ruling in the Généreux case. The Bloc Québécois subscribes to the principle of keeping military justice separate from civilian justice.

There are also offences in the Code of Service Discipline that have no equivalents in civilian justice. I am thinking of offences such as disobeying a command or a superior officer. Military justice applies to three categories of people: military personnel in the regular forces, reservists and civilians who work with military personnel on missions. But although military justice is necessary, people who join the Canadian Forces do not lose their rights, including their Charter rights.

For 12 years, a great deal of thought was given to modernizing military justice to bring it more in line with civilian justice. In its May 2009 report, the Standing Senate Committee on Legal and Constitutional Affairs wrote the following:

...the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general.

The Bloc Québécois feels it is useful and necessary to reform military justice. Obviously, we have some fears and also some suggestions. As I said, the Bloc Québécois wants this bill to be sent to committee so that we can call the appropriate expert witnesses. But we feel that justice must prevail at all levels of society, and justice often depends on police work. We are afraid that because the provost marshal can be reappointed, he will not want to delve too deeply into something that could ruffle feathers among the defence staff. The Bloc Québécois will ensure that this does not happen, and we will introduce amendments to correct this situation.

Once again, when we have a complex bill before us, we need to take the time to do the necessary analyses and studies. This is the case with this bill. The provost marshal, who is the person who will ultimately be in charge of military justice within the armed forces, will have a renewable term. We need to look at that.

Why must this mandate be renewable when judges are appointed until they retire? We must then consider how this would affect the provost marshal's work. Would he give the defence staff less firm direction because his mandate is renewable? Would he be more sensitive when a case involves defence staff? It would be to our advantage to ask these questions in committee.

It is important that the listening public understands how this works. Committee work is of the utmost importance to the operation of any parliament, whether it be the British model or any other parliament in the world. Witnesses may appear before the House of Commons only in very exceptional circumstances. Generally speaking, with only a few exceptions, witnesses appear before committees.

It is therefore important that the national defence committee take all the time required to analyze Bill C-41 and examine all of its ins and outs. It is true that military justice must become more like civilian justice, simply so that citizens can understand how military justice works and relate to it. If the military justice system is completely different from the civilian justice system, citizens will not understand it and might question all the work done by our military personnel. Thus, this is a very important issue.

This work began in 1998. Some bills were deferred or came to an abrupt halt when an election was called. We must now—and I hope we will have time—deal with this issue before the next election campaign.

I am interested in responding to the questions of my fellow members. Once again, the Bloc Québécois supports sending this bill to committee for improvement. We hope to convince members of other parties of the benefits of the improvements we would like to make to it.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

November 26th, 2010 / 10:15 a.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

Mr. Speaker, with respect to the specific number of charges, those past and those projected, previous charges would be a matter of record, and I could get those numbers if he wishes.

The main point is there was a requirement after the Lamer Commission to modernize the Canadian Forces military justice system to bring it more in line with some of the aspects of the civilian justice system with respect to the Criminal Code.

Recommendations were made to make the provisions for judges more clear, to ensure their independence was maintained, to pay more attention to the rights of victims, in conformity with the Charter of Rights and Freedoms, and to ensure changes as recommended by Justice Lamer, 88 in all, were actioned. Most have been actioned and others are in the process of being actioned.

The purpose behind this is to bring us in line with all of those recommendations, which the government of the day accepted all of them in fact or in principle. It has been a long and torturous process. As a result of several minority Parliaments, bills such as this have gone forward only to be stopped by elections and so on.

Some of the aims of the Lamer Commission have been achieved through Bill C-60 and through other changes to regulations and policies. Not all of them have to be legislated. A lot has been accomplished.

A couple of things still need to be done, even after we pass Bill C-41. More complex issues are being worked on as we speak. Again, this is another try, hopefully a successful one this time, to get the provisions of the Lamer Commission actioned and into law.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

November 26th, 2010 / 10:05 a.m.
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Edmonton Centre Alberta

Conservative

Laurie Hawn ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, I am pleased to support this bill to amend the National Defence Act. This bill will ensure that Canadians can maintain their trust in our military justice system. This bill will improve the speed and fairness of the military police complaints process. Furthermore, this bill will give members of our armed forces access to a faster, fairer and more flexible grievance process.

In 1998, Bill C-25 made significant amendments to the National Defence Act. One of the amendments was the requirement for an independent review of those portions of the National Defence Act amended by Bill C-25.

The late right hon. Tony Lamer, former chief justice of the Supreme Court of Canada, was appointed to conduct the first independent review, and his report was tabled in Parliament in November 2003. In his report, former Chief Justice Lamer made 88 recommendations: 57 pertaining to the military justice system; 14 regarding the Canadian Forces provost marshal and the military police complaints process; and 17 concerning the Canadian Forces grievance process.

The bill that we are debating today is the Government of Canada's proposed legislative response to recommendations made in the Lamer report. Implementing the proposed response will require changes to the National Defence Act, the Queen's Regulations and Orders to the Canadian Forces and some administrative practices.

A similar bill, Bill C-7, was introduced in April 2006 but it died on the order paper when Parliament was prorogued. A successor bill, Bill C-45, was introduced in March 2008 but that bill also died on the order paper.

While the bill before us today largely mirrors the contents of previous bills, some changes have been made, and I will discuss those changes in a few moments. It should also be noted that some amendments to the National Defence Act related to changes suggested in the Lamer report were made in June 2008 by Bill C-60. Bill C-60 was required to respond to the judgment of the Court Martial Appeal Court in the case of R. v. Trépanier.

Further, during consideration of Bill C-60, the minister requested members of the Senate Standing Committee on Legal and Constitutional Affairs to consider studying the provisions and operation of Bill C-60 and to provide a report on their findings and recommendations, which the committee did in May 2009.

In October 2009, the Minister of National Defence responded to the Senate committee members thanking them for their recommendations and indicating that all of their recommendations were either accepted or accepted in principle by the government.

Thus, in a nutshell, the present bill replicates most of the provisions of Bill C-45, minus some provisions implementing Lamer report recommendations, which have now already been enacted in Bill C-60, plus some additional elements arising from the recent recommendations made by the Senate committee.

I would now like to discuss the amendments we are proposing for the National Defence Act in the current bill.

In his report, former Chief Justice Lamer wrote that, as a result of the changes made in 1998 by Bill C-25, “...Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.” He added that observers from other countries see this system as one their country might wish to learn from. However, he also pointed out that there remain areas for improvement in the military justice system.

The Department of National Defence analyzed the recommendations in the Lamer report very carefully. It undertook extensive policy analysis and consultation to determine the appropriate legislative response to the recommendations. This response is reflected in the legislative amendments we are considering today. These amendments deal with the military justice system, the Canadian Forces provost marshal and the military police complaints process, and the Canadian Forces grievance process.

I would like to look at each of these areas in turn, beginning with the military justice system.

The Canadian military justice system has been developed to deal expeditiously and fairly with service offences, while respecting the Canadian Charter of Rights and Freedoms and meeting the expectations of Canadians. It is a system designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale. It must also ensure that members of the Canadian Forces who are subject to this process are dealt with fairly.

The proposed amendments to the military justice system would make improvements both in process and in substantive law. They would also ensure that the military justice system keeps pace with evolving legal standards in Canadian criminal law.

Simply put, the bill before us today would reinforce the continued compliance of the military justice system with the Canadian Charter of Rights and Freedoms, while preserving the system's capacity to meet essential military requirements.

I will now go over the main military justice amendments proposed in the bill.

The bill would strengthen the provisions of the National Defence Act regarding the independence of military judges. More specifically, the bill would ensure that judges are appointed until retirement.

The bill would increase the timeliness and flexibility of the system by providing for the appointment of part-time military judges to a reserve force judges panel.

The bill would modernize and enhance sentencing provisions of the Code of Service Discipline.

It would provide more flexibility in the sentencing process, including absolute discharges, intermittent sentences and restitution orders, providing summary trial presiding officers and military judges at courts martial with a greater ability to tailor a sentence having regard to the particular circumstances of the offence and the offender, replicating many of the options available in the sentencing regime of the civilian justice system.

As well, a greater voice would also be given to victims by providing the introduction of victim impact statements at courts martial.

The bill will set out the sentencing goals and principles that will apply to military tribunals, promote the operational effectiveness of the Canadian Forces and uphold a system that supports a fair, peaceful and safe society.

This codification of sentencing principles and objectives in the National Defence Act would provide an important statutory articulation of the fundamental principles underpinning Canada's military justice system, as well as providing guidance concerning sentencing to all actors in the military justice system, including presiding officers at summary trials, military judges at courts martial and the appellate judges of the Court Martial Appeal Court and the Supreme Court of Canada. This statutory guidance would parallel that already provided in the civilian criminal justice system in the Criminal Code, with the additional specification of factors unique to the distinct military justice system.

I will now explain the key elements of the bill as they relate to the Canadian Forces provost marshal and the military police complaints process.

Although the National Defence Act establishes specific responsibilities for the Canadian Forces provost marshal in relation to the military police complaints process, neither the actual position of the provost marshal nor the full scope of its responsibilities are found in the current act.

Establishing the Canadian Forces provost marshal in the National Defence Act would bring greater clarity to the role and responsibilities of that position and to the military police in general.

We cannot forget that military police are different from all the other police entities in Canada. They can be called upon to undertake both traditional police duties, such as investigating offences, and what I would call purely military duties, such as providing security for airfields and other defence establishments or facilitating movement of troops in a theatre of operations. Bill C-41 reflects the dual nature of the Canadian Forces provost marshal's responsibilities.

It would also ensure that the provost marshal has the independence necessary to ensure the integrity of military police investigations and promote professional standards.

At the same time, the bill recognizes that the provost marshal will be directly responsible to the senior Canadian Forces chain of command regarding the military functions of the military police.

Bill C-41 would also enhance the timeliness and fairness of the military police complaints process by requiring the Canadian Forces provost marshal to resolve complaints within one year of receiving them in normal circumstances, and by protecting individuals who submit complaints in good faith from penalty.

I will now turn to the Canadian Forces grievance process.

In his report, former Chief Justice Lamer indicated that there was a clear need to improve the process for dealing with grievances submitted by members of the Canadian Forces. The proposed changes to the National Defence Act would help ensure that grievances are addressed in a fair, transparent and prompt manner.

For example, the bill provides for an amendment to the National Defence Act requiring the Chief of the Defence Staff or those he authorizes, where circumstances permit, to informally and expeditiously deal with any issues that arise.

At the same time, the bill allows for an expansion of the Chief of the Defence Staff's responsibilities as the final authority in grievance procedures.

These changes would enhance the efficiency of the process and ensure that a backlog of grievances, such as that which existed at the time of the Lamer report, does not recur.

Before concluding, I will discuss the differences between the bill we have before us today and previous Bill C-45. While the content of Bill C-41 is largely the same as that of the previous Bill C-45, some modifications have been made.

Principally, the differences between the two bills reflect the deletion of issues that have already been dealt with in the interim in Bill C-60, such as the requirement for unanimity of the panel to convict or acquit an accused person at a general court martial, the reduction of the number of types of courts martial from four to two, and the enhancement of the powers of military judges to deal with pretrial matters such as disclosure.

Other differences are related to the recent recommendations of the Senate committee. These include reducing distinctions based on rank and the composition of panels for general courts martial, amending the limitation period for summary trials to provide that a charge must be laid within six months after the day on which the service offence is alleged to have been committed, and allowing an accused person to waive the application of a limitation period for summary trials in certain circumstances.

A further point to note relates to the independent review provision. As recommended in the Lamer report, a provision will be added to the National Defence Act requiring that portions of the act relating to the military justice system, the military police complaints process and the grievance process be reviewed and updated on a regular basis.

In the current bill, as was done in Bill C-45, the timeline for conducting future reviews has been modified to seven years. This would allow for more comprehensive and useful reviews to be conducted by ensuring sufficient time to work with and assess amendments to the National Defence Act after they come into force before a review is conducted.

Finally, this bill would propose that the name of the Canadian Forces Grievance Board be changed to the military grievances external review committee. The Canadian Forces Grievance Board plays a vital role in the process established under the National Defence Act for members of the Canadian Forces to seek redress of grievances. The impartial findings and recommendations of the Canadian Forces Grievance Board buttressed by that organization's institutional independence from the Canadian Forces and the Department of National Defence helped to increase the confidence of Canadian Forces members in the grievance process.

The proposed change in name would assist in communicating the Canadian Forces Grievance Board's current role, in particular its institutional independence and mandate to all stakeholders. It should be emphasized that the bill merely proposes a change in the organization's name, at its own request, to assist in this regard, not in its mandate, which will remain unchanged.

To conclude, reforming the military justice system is just one step in a process of continuous improvement.

As Canadians, we are privileged to have a military justice system that reflects our values and respects the rule of law.

These proposals to amend the National Defence Act would ensure Canada's military justice system remains one in which Canadians can have trust and confidence. They would clarify the roles and responsibilities of the Canadian Forces provost marshal and bring greater timeliness and fairness to the military police complaints process. They would ensure that a more responsive, timely and fair grievance process is available. I am confident that these amendments would serve to further strengthen the Canadian Forces as a vital national institution.

This is a very technical bill and for that reason it would be appropriate to pass this bill quickly at second reading and get it to committee where we can hear various expert witnesses to drill down into the details that many will want to do. It is more appropriate that it be done in that setting where we time can take time to reflect fully on all the implications and suggestions that may be come up.

I request that hon. members pass this bill quickly at second reading and move it on to committee for further consideration.

June 18th, 2008 / 3:25 p.m.
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Liberal

The Speaker Liberal Peter Milliken

National Defence ActGovernment Orders

June 17th, 2008 / 1:50 p.m.
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Conservative

The Acting Speaker Conservative Royal Galipeau

Pursuant to order made earlier today, 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 third time and passed on division.

(Bill read the third time and passed)

National Defence ActGovernment Orders

June 17th, 2008 / 1:45 p.m.
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Independent

Louise Thibault Independent Rimouski-Neigette—Témiscouata—Les Basques, QC

Mr. Speaker, first I want to mention something that I believe is important although it is not related to this debate. Yesterday, in my speech on Bill C-29, I talked about the lack of consideration and the unfairness that independent members have to endure. Our presence in this House is just as legitimate as that of the 304 members with party affiliation.

The Conservative government, among others, regularly seeks the unanimous consent of the House to deal with certain issues as quickly as possible. All parties and independent members should at least be informed. It is essential if we want to do our job. I repeatedly—and being as persistent as I am, when I say repeatedly, I really mean it—asked both the Leader of the Government in the House of Commons and the Chief Government Whip to have the decency to inform all four independent members. They just chose to be stubborn and took a malicious pleasure in not doing that, even when other independent members or myself were in the House when a motion was introduced.

I have no reason not to do my job by letting bills or motions go through by unanimous consent without being consulted, which means without even knowing what it is about.

As members of Parliament, the essence of our work continues to be to develop legislation that is fair and equitable. Therefore, it is only normal to know what it is that the government wants to ram through the House of Commons. That is what I wanted to say on this.

Bill C-60 seeks to correct a problematic situation created by the court martial appeal court in the Trépanier case. The fact that an accused cannot choose before which court he can defend himself was ruled inconsistent with the Canadian Charter of Rights and Freedoms, and the chief military judge more or less lost the power to convene a court martial. The government wants to break this impasse before the end of the session, to allow courts martial to be convened.

The bill also introduces other procedural changes. Most of them are clarifications made necessary by other judicial decisions, such as clarifying the limitation period with respect to summary proceedings.

Yesterday, the bill was referred to a committee, which heard experts. The committee did its job. Its report is published in the blues. The committee cancelled the transitional provision in clause 28 and ordered a mandatory review, within two years of this bill becoming law.

This not only makes perfect sense, it is also good insurance. Given the speed at which we are proceeding to deal with this issue before the end of the session, at least we can be assured that, in two years from now, this issue is going to be re-examined and it will be possible to take action.

In conclusion, I believe that legislative work can be done diligently and respectfully, and I think it is important to point this out today.

National Defence ActGovernment Orders

June 17th, 2008 / 1:35 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, we are here today really on an emergency basis because of problems arising from the Federal Court of Appeal decision in the R. v. Trépanier.

The problems we are addressing with regard to the military justice system precede Trépanier. That decision came down at the end of April of this year. The problems the court was addressing in that case, and which were resolved rather summarily by dismissing the charges against Corporal Trépanier, stem from a long-standing frustration on the court's part that successive governments have not dealt with the needed reforms in the military justice system.

In this regard, it is important to recognize that Justice Lamer was commissioned almost six years ago to prepare a report. He prepared a very lengthy and detailed report of the analysis of the problems with the military justice system and set out very clear and specific recommendations on how to deal with those problems. That resolution surfaced first in a bill under the former Liberal administration and then in the form of Bill C-45 under the current Conservative administration.

The process has been very slow. We heard from the parliamentary secretary that Bill C-60, which is before us today, was a very quick process, and he is accurate in that regard.

The overall process has been extremely slow and unacceptably slow for the Federal Court of Appeal. For that reason, the court struck the section down in the National Defence Act that dealt with this part of the military justice system and, in effect, dismissed the charges against Corporal Trépanier.

Those are serious charges against him, with no reflection on whether he is guilty or innocent of the charges. The reality is, at this point, if that decision stands, then the charges will not be dealt with on their merits.

What was determined in the Trépanier decision was the system that allowed exclusive authority to the prosecutor to determine the type of trial an accused person would have within the military justice system was simply unacceptable in the context of Canada today, and in particular with regard to the Charter of Rights and Freedoms.

Bill C-60 addresses this issue. Again, the bill is the same as in the recommendations from Justice Lamer and what is still contained in Bill C-45.

The government has been very slow on moving Bill C-45 ahead. It has given priority to a number of other bills and let this one languish, and that is unacceptable. Any number of other issues may be confronting our military justice system, in terms of issues under the charter, that could find us in the same situation in the next few months or the next year or two.

We absolutely demand that the government move Bill C-45 forward rapidly so we can deal with it. It has substantial support from all the opposition parties. Some specific provisions need to be corrected and some additions need to be made to it, but the bulk of the bill is one that has wide support among all the parties. I urge the government to move rapidly on it when we come back in the fall.

With regard to the specific provision in Bill C-60, as we have heard from some of the other speakers, with the exception of a couple of the paragraphs and clauses, it had all party support. In particular, by limiting the jurisdiction or the authority of the prosecutor and giving much more democratic and civil libertarian provisions to the accused, so the nature of the trial would appear at least on the surface to be more equitable, these have all been incorporated in the legislation in the form of Bill C-60.

I point out in particular that we have done away in Bill C-60 with the former format of having four different types of trials that there could be. We have reduced the number to two, which again, to a great extent, mirrors the situation in our criminal justice system generally for civilians in this country.

If Bill C-60 is passed, we will have a system where there will be a single judge, and generally speaking that will be for the less serious offences, and the accused will have the right to choose a judge and a five member panel, which would be in the form of a jury, if I can make the analogy with the civilian system.

In addition to that, although we have had panels in the past, a combination of a judge and a three member panel, there will now be five members on the panel. As opposed to the current system, the panel will have to be unanimous in its decision if a person is to be acquitted or convicted, again mirroring the situation in our criminal justice system and generally in our society.

That is a major step forward. There were several others perhaps of less significance, but it is a bill that all the parties were prepared to support.

Yesterday in committee we made two changes to the bill. One was to delete a whole clause. There was quite some disagreement over this in terms of the discussion. In particular, the Parliamentary Secretary to the Minister of National Defence argued strenuously at the time, as he is wont to do every so often, that by deleting clause 28 in its entirety, we would be taking rights away from the accused. I know he still believes that.

My assessment of clause 28 was just the opposite. By leaving it in, we were curtailing the rights of the accused. Ultimately we were able to reach a consensus among the opposition parties to delete it. I know I have not convinced my colleague, the parliamentary secretary, but I will continue to try to do that to establish that we were right in deleting it. In the end, the opposition parties voted that down.

Another issue came up for debate in committee, which resulted in a change, not the one we necessarily wanted or not the only one we wanted. We were quite supportive of the position that the Bloc Québécois took, its critic in particular, in wanting a sunset clause. It is simply bad legislative process to run bills rapidly through the House. We know from many years of bad experiences that when we do that, we expose ourselves, as a legislature and our community as a whole, to mistakes being made.

I know my colleague from the Bloc has been very clear on a number of occasions that he is experienced. I have had the same experience as well where we have agreed to run a bill through rapidly and then, in retrospect, have realized that we made a mistake or simply left a gap in the legislation. The Bloc member's proposal to put in a sunset clause seemed to me to make good sense. We were supportive of it and, unfortunately, could not gather enough support to press it through.

The mandatory review that the Liberals proposed, which was adopted ultimately by a majority of the committee, and is in the bill before us today, has two major problems. We know, again, from many years of experience in analyzing mandatory reviews that all too often they are never conducted.

One of the flaws in our legislative process is that there is no penalty to the legislature or the government if we in fact do not put in place a mandatory review. Even though the legislation is clear that we have to, if it is not done, there is no penalty. There have been repeated occasions where bills have passed through the House, become law and the mandatory review is never carried out, or is carried out years after it is supposed to be.

The other problem with the mandatory review, and my colleague from the Bloc mentioned this, is that even if it is done, there is no imperative on the government to accept the recommendations that come out of it. It can simply say that it will not proceed with the recommendations and the changes needed are never pursued. Whereas with the mandatory sunset clause, the government would no choice but to address the issue if in fact a major problem arose.

Although overall we in the NDP support the legislation, we have serious problems with not having the sunset clause. Beyond that, hopefully the bill will resolve the issue that Trépanier has created and we can continue with the criminal justice system within the national defence system.

National Defence ActGovernment Orders

June 17th, 2008 / 1:25 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, I did not want to go back to the first part of my last presentation. However, some people, and even some members, are still asking me why the military needs to have its own system of justice, instead of trying soldiers in civilian courts. I would therefore like to take a minute to explain to the people watching that this is an international practice. In fact, I believe that all countries have a military justice system.

Anyone who is wondering about the validity of military justice should read the report by Mr. Justice Lamer, the former Chief Justice of the Supreme Court of Canada, who conducted a study of military justice to determine whether it was as valid as civilian justice. He concluded that it most definitely was and added that, although military justice worked well on the whole, he felt some minor changes were warranted.

I just wanted to clarify that, because many people wonder why the military has its own justice system. Some people see this system as an exception and have a hard time accepting it, but all countries have a military justice system, and it would seem that military justice is as valid as civilian justice.

Why is Bill C-60 before the House this week? As I said the last time, the military justice system has a multi-tiered structure. For example, minor offences will be dealt with in summary trials presided over by commanding or senior officers, who do not necessarily have legal training. In fact, nearly 90% of cases are minor offences that will be dealt with immediately in summary trials.

However, there was an urgent need for action regarding courts martial. There are four types of courts martial. A ruling from one of the four types of courts martial can be appealed to the Court Martial Appeal Court of Canada, and that is what happened in the case of R. v. Trépanier. On April 24, the appeal court ruled that provisions of the act violated the Canadian Charter of Rights and Freedoms and that, as a result, there would be no more courts martial. The government asked whether it was possible to postpone implementing this decision for a year, so that it could make the necessary preparations and adjustments, but the court refused.

So, since April 24, we have been in a kind of legal limbo. We were summoned and told why action was urgent. The Bloc Québécois understood the urgency. We did, however, want to revisit certain elements, and that is why this bill is at the third reading stage today.

When the Court Martial Appeal Court brought down its decision, we told ourselves that a bill needed to be introduced to make changes. The government took the matter seriously and prepared Bill C-60. But what struck us as less serious is that it took one very important aspect before the Supreme Court. In fact, the government considered the judgment in R. v. Trépanier as having constitutional repercussions, which it wanted to have settled by the Supreme Court. That seems to us to be incongruous. I had confirmation of this yesterday from some military lawyers. In fact, the government can examine what constitutional changes arise out of this judgment, but there is also a danger. The Supreme Court of Canada—and this was confirmed to me—could study Bill C-60 and recommend that changes be made to it.

We could then end up on a collision course between the Supreme Court and the Parliament of Canada in connection with Bill C-60. That is why we speak of incongruity. The House will probably not get the point, but we would recommend to the government that it quite simply back off from its Supreme Court appeal, because it might cause complications. This is strictly our point of view, but one worth raising.

I will now return to the point raised by my Liberal colleague. We were in favour of a sunset clause in order not to end up in the same trap as with the veterans charter.

I remember a few years ago, at more or less this same point in the session, when everything becomes urgent, that the focus was on the importance of a veterans charter.

It was passed much more quickly than Bill C-60. It actually went through all stages in one fell swoop. That ended up causing huge problems later on. The fact is that, when legislation is passed that way, no witnesses are heard and no discussions take place. We move right along, with the consequences this entails.

Understandably, to prevent the same thing from happening with Bill C-60, we suggested a sunset clause. This clause allows the legislation to be passed but ensures that, two years from now, it will have to be passed again. That is different from what the Liberal Party is proposing, which my hon. colleague discussed earlier. The Liberals are proposing a complete overhaul in two years. Let me remind the House of what that means. The committee can meet and make recommendations to the minister to change some things, but the minister may well come out and say that he does not accept the recommendations and will not change those aspects we would like him to change.

So, should a problem arise after Bill C-60, the first thing that would happen is that we would have to wait two years. Then, after the overhaul takes place, the minister will not be required to act on the committee's recommendations. With a sunset clause, however, we start afresh. What has already been done is not redone, of course, but if problems have been encountered in the application of the act following its passage, we would be on much stronger footing to argue our position and amend the legislation per se.

We were very disappointed when the two majority parties, namely the Conservative Party and the Liberal Party, did not adopt the sunset clause.

I want to talk about the Liberals' attitude. I have noticed a change in the Liberal Party in the past few months, namely when it comes to debating Afghanistan. I remember quite well the Liberal Party saying that the mission would end in 2009 and that it would not be extended beyond that. Much to everyone's surprise, the last time the Liberal Party talked about Afghanistan it said that it would support the Conservatives and allow the mission to carry on until 2011. The same thing is happening in the committees. I sense a change in attitude. The Liberal Party is probably doing well in the polls. It already sees itself forming the next government and it is already reacting as such. It does not want to complicate matters. Instead of adopting important principles, perhaps it should be a little more flexible because soon it might occupy the benches on the other side of the House.

I see that the Liberal Party is in bed with the Conservative Party. I noticed that with respect to Afghanistan and I often see that in the Standing Committee on National Defence. I cannot wait to point this out to my Bloc Québécois colleagues in caucus tomorrow. This is systemic and that is too bad. Sometimes some parties will close their eyes on important principles at the thought of ending up on the other side soon and in an attempt, while they are still on the opposition side, not to create a problem they will have to deal with once they are in government. That is the sad reality. The Conservative Party and the Liberal Party will be bedfellows from now on. In my opinion, that was very apparent in this bill, just as it was in the debate on Afghanistan.

This situation is deplorable. I am calling on my colleagues to rise above this partisan battle. In studying bills, they have to defend the interests of the people, the troops or any other group. That has to be the priority in any analysis and the hope of sitting in government benches must not govern their behaviour in Parliament.

National Defence ActGovernment Orders

June 17th, 2008 / 1:20 p.m.
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Liberal

Anthony Rota Liberal Nipissing—Timiskaming, ON

Mr. Speaker, I rise today to speak to Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act. Bill C-60 seeks to amend certain provisions of the National Defence Act, which I will refer to as the NDA from now on, to be in line with our constitutional standards.

The Court Martial Appeal Court, CMAC, decision struck down the subsection from the NDA providing for the convening of courts martial in the military justice system.

Bill C-60 addresses the need for a legislative solution. It reduces the number of types of courts martial from four down to two: the general court martial for more serious offences or the standing court martial. It ensures the military justice system is in balance with our Charter of Rights and Freedoms.

I think that is an important point to make because we want to make sure that our men and women who are in uniform have all the same rights and freedoms as other Canadians. We are not taking anything away from them; we are not giving them anything special. We are just asking them to be at the same level as any other Canadian and I think that is only fair.

What precipitated Bill C-60 was the Trépanier case. On April 24, 2008, the CMAC decision was made for the Trépanier case and this was a catalyst for the bill because the section under attack was deemed unconstitutional. It found that the current provisions in the NDA violated the Charter of Rights and Freedoms under section 7. Trépanier argued very effectively that putting the power to choose the type of court martial in the hands of a prosecutor violated his rights to a full answer and defence, and to control his defence.

What are the problems with the current provisions? As I mentioned earlier, it gives exclusive power to the prosecution to unilaterally choose the court martial before which a trial takes place and these provisions are unconstitutional. As a result, these provisions are no longer operative and since they have been struck down, they cannot operate in a military system. Therefore, what we have is a complete paralysis of the justice system within the military.

This prevents new trials from proceeding and uncertainty about those trials that have already commenced. As mentioned earlier by the previous member who spoke, this could have an impact of up to 50 cases this year. Therefore, the decision that was put forward in the Trépanier case obstructs many victims from obtaining justice due to this paralysis.

Why was Bill C-60 introduced? There was a need to provide a legislative remedy to convene pending cases. We need to modernize and change the provisions to improve their fairness and meet constitutional standards and we need to ensure that the military justice system is fair and does not violate individual charter rights.

We have a need to provide timely and fair trials to individuals so that the victims can obtain justice. To sit here in limbo and not pass Bill C-60 would mean that many people, who are in a situation where they are waiting for their case to proceed, would not have the right to go ahead. That could cause many problems down the road as well in cases where it would take too long. That would be a whole other issue that would come before the courts.

Basically, what we are looking at is legislative reform here today and we are making those changes. They are happening very quickly. I will talk to the rush of this particular bill a little later.

However, I just want to talk to some of the concerns that I have regarding the bill. While I support the bill and understand its urgency, and it is crucial to ensure that there is nothing that we have overlooked, I am a little uncomfortable with passing the bill in under two weeks and without the thorough review that I think it deserves. The role of a parliamentarian is to examine bills carefully and ensure that there are no negative long term consequences.

Last night the defence committee met. The members went over the bill and had long discussions, but I think we could have used probably a few more witnesses just to clarify some of the finer points. Overall though, I am very comfortable with what we have come up with. There have been amendments and that is something that I think has been dealt with fairly handily.

When I spoke earlier, I mentioned about rushing through and that is something that is always a concern when we are passing a bill that will have a long term effect on any legal proceeding. To circumvent any problems that may arise down the road, we proposed an amendment.

The committee has approved that amendment. In order to address the concerns about the speed at which Bill C-60 has been put through, the committee proposed that a mandatory parliamentary review be done in two years. This would ensure there were no flaws or unintended consequences. This would not affect the legislation if passed. It would not paralyze the military system.

One of the other possibilities was to have a sunset clause. My concern with a sunset clause is that if there were a sunset clause and by some act of fate the parliamentary system did not act quickly enough, the act would have to be suspended again and we would be right back where we are today without a proper procedure. The military system would be paralyzed again. It would create an injustice not only to the accused, but to the victim of the crime. A sunset clause is one area that has been looked at and spoken to sufficiently and it is not a viable option, but reviewing the act to make sure that everything is in place and there have been no injustices is probably key.

Ultimately, I support passing this bill to resolve the constitutional violations and to provide justice for the victims, on the condition that a mandatory parliamentary review within two years be in place.

National Defence ActGovernment Orders

June 17th, 2008 / 1:15 p.m.
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Edmonton Centre Alberta

Conservative

Laurie Hawn ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, I am pleased to speak to this important bill to amend the National Defence Act.

First, I want to thank hon. members of the House from all parties for the cooperation in expediting this important bill.

The purpose of the military justice system is to deal with matters that pertain directly to discipline, efficiency and morale of the military.

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 more speed 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 ordinary courts have been given jurisdiction to punish breaches of the Code of Service Discipline. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.

Bill C-60 is an act that will ensure our military justice system remains one in which Canadians can have trust and confidence. It will enhance the fairness of the military justice system, both from the perspective of the accused person and the Canadian public. It will ensure that members of the Canadian Forces enjoy a right to choose how they will be tried that parallels the rights found in the Canadian civilian criminal justice system.

Remedying an impasse that was created by an appellate court judgment, it will ensure that justice can continue to be done for accused persons as well as for victims. It will preserve the viability of the military justice system in fulfilling its key role to the maintenance of discipline, efficiency and morale upon which the Canadian Forces depend.

In particular, the bill will closely align procedures for the selection of the type of trial by court martial, as well as court martial decision making, with the approach in the civilian criminal justice system, but it will also preserve the attributes that are essential to satisfy the unique needs of the military justice system.

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

The Canadian military justice system is designed to promote the operational effectiveness of the Canadian Forces in the ways I have already mentioned, but it must also ensure that members of the Canadian Forces are dealt with fairly.

Key to ensuring this over time is the supervisory 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 adjustments in our military justice system.

One such instance is the Court Martial Appeal Court's decision of April 24, 2008 in the case of R. v. Trépanier.

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

The court held that these provisions of the National Defence Act violated the charter and were of no force and effect. Importantly, the court refused to stay its decision, effectively removing the authority to convene courts martial, an essential step in bringing matters to trial.

Leave to appeal the decision in Trépanier is being sought from the Supreme Court of Canada, along with a stay of execution of the decision. However, neither the appeal nor the stay will provide a clear, timely, and certain solution to the problems created by the Trépanier decision. Left unaddressed, trials by court martial cannot be conducted. Serious offences may go unpunished and victims will not see justice done.

Bill C-60, now before the House, is the government's legislative response to this Court Martial Appeal Court's decision. It will bring clarity and stability to the court martial convening process, and allow the process to continue to function.

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

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

Finally, the bill will strengthen court martial decision making by providing military judges with authority to deal with pretrial matters at an earlier stage in the process and enhance the reliability of verdicts by requiring key decisions of the panel at a general court martial to be made by unanimous vote rather than by a majority vote as at present. That brings it more in line with what we would see in a civilian court with a civilian jury.

We have had good cooperation at the defence committee in working this through fairly quickly. We went through clause by clause last night at the defence committee and received agreement in almost all respects. One clause was debated and deleted. That did not take away from the effectiveness of the bill that left committee last night.

We have added one important aspect to the bill and that is a mandatory review and report after two years. After two years of the new bill being in force, it will be referred back to a committee of the House or Senate, or both, in a report issued that will guide the House in follow-up action.

An amendment that was defeated was in fact a sunset clause. The danger with a sunset clause is that it would put us back in the same situation that we are in today, where, in effect, the military justice system has ceased to function because courts martial cannot be convened. All of this is done with the best of legal advice from the judge advocate general branch and from a panel of very qualified and distinguished legal minds.

The benefit of all of these legislative amendments is that they will allow the court martial process to function. They will bring clarity, certainty and stability to the military justice system. More importantly, the impact of not making these amendments is that courts martial cannot be convened. The court martial process will become paralyzed. Very serious offences may go unpunished and victims will not see justice done.

Currently, there are about 50 cases that are in danger, as time goes by, of not being brought to justice. That simply should not be acceptable to anybody in the House, the Canadian public, and it is not acceptable to the Canadian Forces.

My plea to members of the House is to pass this measure quickly and get it to the other place, so we can pass it into law by the end of this session. The government is not trying to force something in a hurry. We are up against a timeline. The fact is that the decision came down in Trépanier only about seven weeks ago. For anybody who has been in the House for longer than the orientation session, they will know that there has in fact been fairly quick movement to bring necessary changes like this forward.

It is important that members of the House and all parties come together and pass Bill C-60 that would allow the military justice system to continue, and ensure that justice is done and seen to be done both for the accused and, more importantly, for the victims.

National Defence ActGovernment Orders

June 17th, 2008 / 1:10 p.m.
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Conservative

The Acting Speaker Conservative Andrew Scheer

Pursuant to an order made earlier today, Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, as amended, is deemed concurred in at report stage on division.

(Motion agreed to)

(Bill C-60. On the Order: Government Orders:)

June 17, 2008--Report stage of Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, as reported (with amendment) from the committee--Minister of National Defence.

Business of the HouseRoutine Proceedings

June 17th, 2008 / 10:55 a.m.
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Edmonton Centre Alberta

Conservative

Laurie Hawn ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, I rise on a point of order. After consultation, I think if you seek it, you will find unanimous consent for the following motion. I move:

That, notwithstanding any Standing Order or usual practice of the House, in relation to Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, the bill may be called for debate today; a Member from each recognized party and an independent member may speak for a period not exceeding 10 minutes, after which time the Bill shall be deemed concurred in at the report stage on division and deemed read a third time and passed on division.

Motor Vehicle Safety ActRoutine Proceedings

June 17th, 2008 / 10:05 a.m.
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Liberal

Ralph Goodale Liberal Wascana, SK

Just to be clear, Mr. Speaker, is the government House leader referring to Bill C-60?

Motor Vehicle Safety ActRoutine Proceedings

June 17th, 2008 / 10:05 a.m.
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Conservative

Peter Van Loan Conservative York—Simcoe, ON

Mr. Speaker, consultations took place with the parties, and I am expecting unanimous consent for the following motion: “That, notwithstanding any standing order or usual practices of this House, Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act may be called for debate today; a member from each recognized party may speak for a maximum of 10 minutes, after which the bill shall be deemed concurred in at the report stage on division, and deemed read a third time and passed on division.”

National DefenceCommittees of the HouseRoutine Proceedings

June 17th, 2008 / 10 a.m.
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Conservative

Rick Casson Conservative Lethbridge, AB

Mr. Speaker, I have the honour to present, in both official languages, the fourth report of the Standing Committee on National Defence on Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act.

June 16th, 2008 / 6:50 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

No. My question is whether there are some accused people now who have been introduced in front of courts martial that are being abolished by Bill C-60.

June 16th, 2008 / 6:45 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Coming back to my question, I'm not sure I heard an answer in what you said. As we speak, have any accuseds been brought before courts martial that Bill C-60 is abolishing?

June 16th, 2008 / 6:45 p.m.
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LCol Michael R. Gibson

If I may add one point, Mr. Chair, I think it's important for the members of the committee to understand that the Court Martial Appeal Court did not say anything was wrong with the types of courts themselves. If the person is there and they're happy to be tried by, for example, a disciplinary court martial, there's nothing wrong with a disciplinary court martial in the view of the Court Martial Appeal Court, and that's what this transitional provision is capturing. If the accused is there and he's content to be there, there's nothing wrong with that type of court, even though it would be abolished ultimately by Bill C-60. That particular court should be allowed to proceed to its conclusion.

June 16th, 2008 / 6:45 p.m.
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NDP

Dawn Black NDP New Westminster—Coquitlam, BC

I'm finding it difficult to understand how each of the accused could be given these options, including information about Bill C-60, when Bill C-60 has only just been drafted and the decision on Trépanier came down on April 24. It seems to me there is a time gap there. I am very concerned about some accused going through the track on a system that has already been deemed by the appeal court to be faulty, and the appeal court is asking for changes to be made.

As I hear the discussion going on, I feel more and more strongly that we should eliminate this clause.

June 16th, 2008 / 6:40 p.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

Essentially they've already been given the rights of Bill C-60 just by the transition process that you mentioned.

June 16th, 2008 / 6:40 p.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

Just to follow on with that, what I was hearing before—and I think this is correct—was that, in effect, the accused has been given the rights that will fall to people under Bill C-60, just by the process that you have mentioned. The other thing, which we haven't talked about, is that the new requirement for unanimous panel findings will apply in any case. They're getting the extra protection of that.

June 16th, 2008 / 6:35 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

I wanted to raise the argument that Mr. Comartin just raised, that the accused at the time was under another sytem. I'll admit to you quite frankly that, if I were defending an accused under the old system and was told that the accused was to be prosecuted under the old system, not the new, as defence attorney, I would object to that and would definitely institute proceedings to correct the situation.

Another thing can poison the matter, in my opinion. Under the old system, there were four courts martial. There could be accuseds prosecuted before one court martial that, under Bill C-60, no longer exists. If I were a defence counsel, I would definitely say that Bill C-60 has just cancelled two courts martial because they thought there were too many and want to judge my client under an old court martial that no longer exists under the new Bill C-60. That's another argument for deleting clause 28. Everyone has to be governed by the same act. Otherwise, I think you'll have problems. You wanted to solve a problem, but you may be causing a bigger one, in my opinion. So, thus far, I'm in favour of deleting clause 28.

June 16th, 2008 / 6:30 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

I'm still with Mr. Drapeau, in spite of the explanation. The reality is that you're going to have maybe very few cases, as few as four, but the numbers are going to grow as this bill moves forward—assuming it gets through the Senate quickly, but if not, it's going to be even more so.

What you're really doing is denying that group of people, a short list, or perhaps a somewhat longer list once they find out about Trépanier and say, “Yes, I want to exercise my rights; I didn't think I had them before,” because the case law was on both sides of the point. In fact, the leading case law before Trépanier would have been that they didn't have this right. Trépanier has now given that to them. On top of that, now the legislature of the land, in the form of Bill C-60, is going to give that to everybody else but deny it to them. It is not logical. It's not consistent with the way law should be drafted.

Secondly, I'm very concerned about the message the Supreme Court may take from this legislation with clause 28 staying in. I don't know if you can appreciate this, but here's what we have.

We have the Trépanier decision, which says this is the model you should be following in terms of the election in the way trials should be conducted and the right of the accused to make those elections. We are now coming in as the legislature and saying, “Yes, we recognize that and we agree with the Federal Court of Appeal.” But if you're sitting there as a Supreme Court justice, you're then looking at clause 28 and saying, “Okay, you've done all that, you've recognized the Court of Appeal decision, you've carried out your responsibilities to put that into play in Bill C-60, but you're denying it to this small group of people.”

I don't want to be the lawyer acting in front of the Supreme Court to try to rationalize that on our behalf, as the legislature of this country.

June 16th, 2008 / 6:10 p.m.
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Conservative

The Chair Conservative Rick Casson

Order, please.

We're going to go to clause-by-clause study of Bill C-60.

We have some expert witnesses here. That's how we will refer to them. We have Colonel Gibson and Colonel Gleeson.

We have a legislative clerk here. Many of you are familiar with this gentleman. He's been on the Hill longer than most of us, I'm sure, except maybe for Mr. McGuire.

We should be able to zip through these quite quickly. Mr. Hawn, did you have something you wanted to mention before we start?

June 16th, 2008 / 5:25 p.m.
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Michel Drapeau

Definitely. Bill C-60 represents an improvement; there's no doubt about that.

June 16th, 2008 / 5:25 p.m.
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Michel Drapeau

I don't think, from that standpoint, passage of Bill C-60 as it stands changes much. It will permit certain adjustments, but the grapefruit will remain a grapefruit: it won't become an orange. There's really no possible comparison between the Canadian military law system and that of the Americans. I don't think we should expect there to be one. There are certain common points, but there are a lot of differences as a result of the size of the American forces and the fact that the navy, army and air force each have their own system.

A comparison can be drawn with the British, Australian, French and New Zealand forces. As regards summary trials—and the Trépanier decision talks about this—those who are subject to the code, in France, because they have committed offences in their country, are subject to civilian, not military courts. That's how it works in France. In English and Australia, the judge advocate general is not an armed forces officer, but an officer of the highest chambers of justice. He remains completely outside the Department of Justice. In England, the director of prosecutions is a lawyer at the bar, not a military officer.

It appears that the British and Australian systems have taken another tangent that, rightly or wrongly, we have not followed. That is perhaps due to the lack of critical review by a committee such as yours. Whatever the case may be, there are an increasing number of pronounced differences.

June 16th, 2008 / 5:25 p.m.
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Conservative

Steven Blaney Conservative Lévis—Bellechasse, QC

Thank you very much, Mr. Chairman.

From what I can see, Mr. Drapeau, you think the bill is well put together. I have two questions for you.

There is the Trépanier affair, of course, which we've discussed extensively. However, we've also mentioned a decision in the Grant affair, which contains certain incongruities, but that the bill would clarify. I would like to hear your comments on that subject.

In addition, it's sometimes said that when we compare ourselves with others, we're consoled. I'd like to know, in the event Bill C-60 is implemented, how we would position ourselves in terms of military law relative to our allies, particularly the Americans and Europeans.

June 16th, 2008 / 5:20 p.m.
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Michel Drapeau

Before I can describe the impact, if I could, I would question the utility or sagacity of even having a sunset clause in Bill C-60. I have to ask myself the question, why we would want to do that? This bill is not a transitory provision; it's not something that we're going to try for a while and see if it works. It's a result of a constitutional challenge before a court, where the court has spoken unanimously that it has to be done.

So I would certainly not include a sunset clause in Bill C-60, which is fairly small in scope, but very important if you happen to be an accused, and very important if you going to be going through a court martial. Those changes were already proposed by Chief Justice Lamer and ought to have come forward through Bill C-45.

So the last thing I would want to do is to suggest a sunset clause. Instead of a sunset clause in Bill C-60, I would suggest that whenever you go through Bill C-45, the National Defence Act have in it a mechanism whereby there is a delayed schedule of some sort, so that it has to be reviewed from stern to whatever. And we're really talking here about the Code of Service Discipline within the National Defence Act. It's not everything, but it's the bulk of it. And it has to be in light of changes in the criminal law system and lessons that we learn, as we are in operations for the first time since World War II, or on that scale. Surely there are lessons that we are learning from applying our Code of Service Discipline in an operational setting abroad. So will there not be change resulting from it?

That mechanism ought to be enshrined in the act. Whether it's for every three years or every five years, whether there is an independent body from outside of DND, it should be looked at it and changes be proposed to Parliament, and we should not tinker with the act--for instance, a requirement to have a permanent court. Could that be set? Maybe, and certainly through Bill C-45, because I am familiar with some of it....

Allow me maybe to end on this comment, that we take into account the changes that are being made by all allies to their military justice systems. For instance, in military summary trials, as we heard recently, one doesn't have a right to representation; one doesn't have a right to records; one doesn't have a right to appeal. Yet you could be sent to detention for a long period, and the Trépanier decision told you how uneasy and uncomfortable detention can be. In other countries, some of them very allied to us, like Britain, they have introduced into their codes a review mechanism for those decisions, and administrative tribunals may be....

I think that with this mechanism in our act, we will be able to take a comprehensive and beneficial review of the act and propose not only what the military wants, but also what we as a society, and you as legislators, ought to have in order to keep it in sync—not behind, but in sync—with the civilian criminal law system and with society, because at the moment I think we're catching up.

June 16th, 2008 / 5:20 p.m.
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Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Thank you, Mr. Chairman.

Mr. Drapeau, it's my understanding that at the end of the sunset period--whatever that date was--Bill C-60 would cease to exist and its the provisions would no longer be valid. Bill C-25 made amendments to the National Defence Act in 1998, and they included a requirement to complete and table a review within five years of the bill receiving royal assent. That eventually gave rise to Bill C-45. So we have quite a gap in time between the review and the actual tabling of the bill.

Given that a sunset clause and the end of the provisions of Bill C-60 could result in a gap, there being no legislation to cover the end of the sunset point to the enactment of the next legislation, can you describe what the impact of that would be?

June 16th, 2008 / 5:05 p.m.
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Michel Drapeau

This bill raised no problems for me until I read it. Reading it simply made me jump. As I told you, perhaps something is escaping me or I don't understand the logic underlying this point. Perhaps, but I don't understand it. Without clause 28, Bill C-60 would not be a problem for me and would have my full approval.

What problems can that hypothetically cause in the four or five potential cases, if there are four or five? Would that deal a death blow to military justice? I don't think so. I'd be surprised if it would mean that an accused would not face the rigour of military justice in those circumstances. I would be even more surprised after reading the Trépanier decision, which anticipates this problem.

June 16th, 2008 / 5 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

But this is precluding, then, those cases that have been commenced. If we pass it this week and it gets through the Senate next week and is given royal assent a few days later, by the end of June, for any of the cases that have come up and commenced, they don't get the opportunity to use Bill C-60. And then they're going to be into the possibility of challenging them under the constitutional provisions.

June 16th, 2008 / 4:55 p.m.
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Michel Drapeau

And that is fine. What the Trépanier decision says is--in a simplistic way because it's the only way to look at it, is--fine, you don't have to wait until Bill C-60. They know about Bill C-60. You don't have to wait until there is a decision to change that; you can make the offer now. You can seek consent.

June 16th, 2008 / 4:55 p.m.
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Michel Drapeau

I hesitate to give you a comment, because it's made in a vacuum. I simply don't understand the logic.

There has to be logic, and maybe I'm being not unfair but simply don't understand. Maybe the wording is not quite as tight as it ought to be, or maybe the wording leaves an aspect that I'm not seeing and you are not seeing. But for me, Bill C-60, until I read that....

There are a couple of things I'd rather not be part of because we're introducing things that are above and beyond Trépanier, but when I come to that, what does it mean? I almost have to play a bingo card and say, if I move this, this happens, and if I move that, that will happen. I don't get a satisfactory answer. In fact, it muddles the issue instead of clarifying it. The purpose of a transitional provision is to make it clear so that you know where you stand as you move from one regime to the next.

Now, this says, as we move from one to the next, you guys are going to be subject to the old regime. Yes, but we have declared the old regime unconstitutional. What do you mean?

Not only that, I know you're challenging it in court, but the court may well go along with it. If it does, if the court says “appeal denied”, then if you gentlemen and ladies pass this act, it would mean that you have said—if I read this correctly—that the old law applies.

Excuse me, but I shake my head.

June 16th, 2008 / 4:55 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Drapeau, I've been trying to figure out whether clause 28 of Bill C-60 is an endorsement of the government's position in their appeal. Does it open the door? Should we perhaps delete subclause 28(1) and, as Mr. Rota was suggesting, rely on the existing law or practice? Do you have any comments on that?

June 16th, 2008 / 4:45 p.m.
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Michel Drapeau

I wouldn't say all of the above, but somewhere in between. The Trépanier decision is crystal clear. It has been said with a high degree of care that this decision did not come about all of a sudden; it was a unanimous decision by the court. There have been several previous instances where the court has signalled its uneasiness about the significant difference between the civilian criminal system and the military criminal system. It served due notice in a previous decision and has now declared this provision unconstitutional.

Bill C-60 enshrines into the National Defence Act the concept that an accused will have the right, and that will make it equal to the civilian criminal system. The only grey zone is those who are in the system now and came after Trépanier. There may be three or four, but there are certainly not 100, because there's a maximum of 60 a year.

So those are cases of exception that you may need to look at. But I don't think you need to have a sunset clause if we limit our discussion to having it right in the National Defence Act that an accused, from this point onward, would have a right that is not unlike that enjoyed by a civilian criminally accused individual. That will remain on the books for a long time.

So I don't see any sunset clause being required there. I cannot second-guess what the Supreme Court would do and whether it would be reversed on appeal. Even if it were reversed by the Supreme Court, it's a still a good thing to give our military men and women facing criminal trial under the codes of discipline a right at least equal to that enjoyed by civilians. So even if you as legislators weren't pushed by the lack of constitutionality of that provision, in fairness there ought to be some form of equity between the two.

June 16th, 2008 / 4:35 p.m.
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Colonel Retired) Michel Drapeau (As an Individual

Thank you, Mr. Casson.

Let me open by thanking the members of this committee for permitting me to appear before you this afternoon to present my analysis of Bill C-60.

Also allow me to introduce Zorica Guzina, who, like me, is interested in Canadian military law, both in her everyday practice and in her teaching at the University of Ottawa.

Given the very short notice to conduct this analysis and the short amount of time for my appearance this afternoon, I thought it would be best for me to present the results of my review in a booklet, which you have before you.

On page 1 of the booklet is a summary table outlining the existing structure and organization of courts martial. There are four types of courts martial. I give you a description of their powers and of the rights of the accused, among other things.

On page 2, I provide a very brief decision by the Court Martial Appeal Court in Trépanier v. Her Majesty the Queen, rendered April 24 of this year, which gave life to Bill C-60.

I draw your attention to the fact that, in its decision, the Court Martial Appeal Court also referred to the recommendations made by the late Chief Justice Antonio Lamer upon his review of the National Defence Act in 2003. The purpose of those recommendations, which were pressing at the time, was to simplify the structure of the courts martial in order to create a permanent military court. The recommendations echo, at least in part, the amendments proposed in Bill C-60.

On page 3, I present a table on the essential aspects of Bill C-60.

In response to the recent decision by the CMAC declaring unconstitutional a provision by which the director of military prosecutions, not the accused, could choose the type of trial—either a panel and a military judge, or a military judge alone—Bill C-60 repeals that provision. At the same time, Bill C-60 simplifies the current system from four courts martial—a general court martial, a disciplinary court martial, a standing court martial, and a special court martial—down to two. This is something that late Chief Justice Lamer recommended in his 2003 report following his review of the then National Defence Act.

Bill C-60 then makes a fairly good number of other minor amendments, many of which are already included in Bill C-45, which I presume will receive, in the fullness of time, a more substantial discussion because this has yet to take place.

As for my general assessment, I do not have any major issues with Bill C-60. Above and beyond providing an accused with the right to elect the type of trial, it also simplifies the structure of the court martial, as first recommended by the late Chief Justice Lamer, and that is a good thing. The other minor amendments are also aimed at improving the military justice system, and on the whole, they are very apropos .

My concern—and it's reflected in the documents you have before you—is twofold, and some of it was addressed, at least in part, during the earlier part of the meeting when General Watkin was testifying.

The first one has to do with the tabling of this bill coincident with an application for leave to appeal before the Supreme Court of Canada in Trépanier. One of the documents that I'm giving you from the Supreme Court says that in fact an application to stay the execution of the Trépanier decision has been put before the court, and also an application for leave. Neither of these two has been heard so far.

My second concern deals with a transitional provision in clause 28 of the bill. It specifies that courts martial commenced but not completed by the time Bill C-60 comes into effect will be conducted under the old law. I heard some of the explanation for that, but it leaves me with a certain degree of doubt as to what the real impact will be of the operation of this particular clause. What do you mean? You may have the answer to it, but I don't.

Having said that, those are my opening comments, and I'd be pleased to take your questions.

June 16th, 2008 / 4:25 p.m.
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Bloc

Jean-Yves Roy Bloc Haute-Gaspésie—La Mitis—Matane—Matapédia, QC

Thank you, Mr. Chairman.

I don't agree with what you say about Bill C-60. Ultimately, you're short-circuiting the case that is before the Supreme Court by trying to pass a bill before the decision is made. That seems clear to me.

June 16th, 2008 / 4:25 p.m.
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Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Okay, so as I understand this, if Bill C-60 does not pass, the accused who are awaiting courts martial risk going free without being subject to the law.

Thank you.

June 16th, 2008 / 4:25 p.m.
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BGen Kenneth W. Watkin

Well, under our system, just as under the civilian justice system, the prosecutor will decide in terms of individual cases what the situation is in terms of the passage of time. The advantage of Bill C-60 and moving expeditiously is that it will limit that as being an issue. From our perspective, acting with urgency will put us back on a playing field where accused are getting their opportunity to have their cases heard and larger society and victim interests are ensuring that persons who have breached the Code of Service Discipline are having--

June 16th, 2008 / 4:25 p.m.
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Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

I have a brief question. If Bill C-60 does not pass, what will happen to the cases awaiting court martial? Will the charter provisions for the right to a timely trial be triggered?

June 16th, 2008 / 4:25 p.m.
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BGen Kenneth W. Watkin

The focus in Bill C-60 is a result of the urgency of the situation. That's why it's so narrowly focused in terms of the way ahead.

On the broader issue of representation, I did my master's thesis in 1989 on the constitutionality of the summary trial system. There was a review in 1994. It was subject of review by Chief Justice Dickson post-Somalia. He had two reports; the first report looked at some length at the summary trial system.

The goal is to be summary. There's no prohibition on lawyers being present; however, it rarely happens. As to the question of getting legal counsel, we have a fully funded legal aid system in the military, so an accused who is being dealt with at court martial will have defence counsel provided. That can be military counsel or there's also provision to provide civilian defence counsel so that their rights are protected.

June 16th, 2008 / 4:25 p.m.
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Liberal

Alan Tonks Liberal York South—Weston, ON

I was intrigued by the question from my colleague Mr. Hawn with respect to the principles of natural justice that are entrenched in our Criminal Code and our Civil Code. Do the same principles apply at summary trials?

You said there are no lawyers at summary trials. Granted, they deal with less serious issues and so on, but was there ever any consideration given that Bill C-60 attempts to bring into sync those legal principles? I suppose that wasn't implicated out of the Trépanier decision, but has it ever concerned the department from a justice perspective?

June 16th, 2008 / 4:20 p.m.
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BGen Kenneth W. Watkin

From my perspective as superintendent, it's essential that we get clarity, get Bill C-60, get the court martial system operating, provide these extra rights to the accused, and get a process that ensures that victims' needs are being met and broader military societal needs are being met.

On the question of review, we already live under various forms of review in the military justice system.

June 16th, 2008 / 4:20 p.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

If we just passed Bill C-60 as it is with a mandatory review after two years or whatever--either one of those solutions--from your point of view of handling the military justice file, would that be satisfactory? Please feel free to disagree.

June 16th, 2008 / 4:20 p.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

Just to emphasize what I get out of the whole process, it's to make the military justice system--whether it's with Bill C-60, Bill C-45, or other things--more compatible with the civilian justice system and have equal justice for all. But we understand that the military justice system is always going to be a little bit different for reasons of discipline, and so on.

June 16th, 2008 / 4:20 p.m.
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BGen Kenneth W. Watkin

I find it difficult to answer that question, other than to say we will have a fully functioning justice system and courts proceeding. This committee will have had a hand in making that happen.

In terms of learning about the operation of the system in Bill C-60, we'll provide the type of background influence that will affect any legislative initiative.

June 16th, 2008 / 4:20 p.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

At some point in the fall we will proceed with Bill C-45. Assuming we pass Bill C-60, is it going to make it easier for parliamentarians to understand how this works? Will it make it easier to get Bill C-45 passed, just because people will understand it better? I know I'm asking for a pretty subjective opinion here.

June 16th, 2008 / 4:15 p.m.
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BGen Kenneth W. Watkin

Bill C-45 clearly deals with those parts of the Lamer report that were accepted and put forward as legislation. Bill C-60 deals with the provisions that have arisen as a result of the Trépanier decision. There are some overlapping provisions. Two in particular are the requirement for a majority vote by the panel members and the ability of a judge to deal with pretrial matters. There's a process set out in the legislation that whichever one gets passed first will deal with those issues that overlap.

In particular, the importance of the unanimous vote is that it's tied to the whole issue of having a jury trial. Our existing system has a majority vote. Chief Justice Lamer's recommendation was that it go to a unanimous vote, and that was accepted. With Bill C-60, there's the potential to have even more panel trials to ensure that fundamental protection for the accused is captured. The two are very integral to one another.

June 16th, 2008 / 4:15 p.m.
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BGen Kenneth W. Watkin

It has the danger of bringing a system to a halt.

One of the effects of Bill C-60, obviously, is that it's fundamentally changing the system. If those effects of Bill C-60 come to a halt, you won't have the ability to convene courts martial. Those provisions in fact will disappear. It has in it questions about the extent of the jurisdiction, the type of punishments of the various trials, and the ability for an accused to choose the type of trial. So we'd find ourselves back in a situation where in fact you would have a larger question in terms of the ability to function with a court.

June 16th, 2008 / 4:15 p.m.
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Conservative

Laurie Hawn Conservative Edmonton Centre, AB

Thank you, Mr. Chair.

Thank you, General and panel, for being here.

I just want to correct one thing my honourable colleague Mr. Wilfert said. Bill C-45 was actually introduced in March 2008, not October 2007—just for editorial purposes.

Bill C-60 is not intended to be a temporary measure. Bill C-60 is intended to be a permanent measure. Is that correct?

June 16th, 2008 / 4:10 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

If the appeal is successful, the Supreme Court would have to make a finding that, in effect, Bill C-60 is not necessary.

June 16th, 2008 / 4:10 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

—after facts that arose or led to the charges in Trépanier. Can you make it retroactive to the statute as proposed? Bill C-60, as it is right now, is not retroactive.

June 16th, 2008 / 4:10 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

But even then, Bill C-60 will have come into effect—

June 16th, 2008 / 4:10 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

So assuming it's granted and goes ahead, is it correct there's no way that Bill C-60 is going to apply to the Trépanier case? This is not retroactive; we cannot use Bill C-60 to try to upgrade Trépanier.

June 16th, 2008 / 3:55 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Can a Supreme Court decision result in a partial rescinding of the bill under study? Could the Supreme Court go so far as to decide that a given clause of Bill C-60 does not apply? In other words, can the decisions we make today be amended by the Supreme Court?

June 16th, 2008 / 3:45 p.m.
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BGen Kenneth W. Watkin

I'd be happy to do that, and thank you for the opportunity to clarify that issue.

I'm taking reference in the decision to four and a half years to refer to the 2003 Chief Justice Lamer independent review that was statutorily required from Bill C-25 in 1999.

First, I think it is important to outline that the military justice system has been under extensive review in the past decade. In the post-Somalia period, we had the Somalia inquiry and its recommendations. We had two reports by Chief Justice Dickson. These resulted in a number of recommendations, the vast majority of which were accepted by the government. Bill C-25 was passed and came into force in 1999.

Interestingly enough, one of the recommendations from the second Dickson report was on setting out the role of the new convening of courts and the role of the DMP. It suggested that the DMP advise...at that time the report said the chief military judge, but as the legislation was drafted, it became the court martial administrator of the type of trial. Of course, this is one of the sections that was struck down.

In 2003 we had the review by the late Chief Justice Lamer. To put that review in context--obviously an extensive review--his comments were, as I noted in my opening remarks, that “Canada has developed a very sound and fair military justice system in which Canadians can have trust and confidence”. He noted there were a few areas that could be improved, and termed them as “a few changes”.

There was nothing in his report that indicated those recommendations were constitutional in nature--in other words, advances on the system of justice and recommendations. There was an extensive review of the recommendations in the Lamer report. There were 57 recommendations that dealt with the court martial and discipline system per se, and 52 of them were accepted in whole or in part. Two of the recommendations that were not accepted were recommendations 23 and 25, which are caught in the present Bill C-60.

The reason they weren't accepted was that there was a belief that the system of having four types of courts was working well. It provided flexibility that better met the needs of discipline of the different types of courts and powers of punishment--numbers of panel members, for example. A disciplinary court martial has three panel members, where a general court martial has five.

The Nystrom decision in 2005 of the Court Martial Appeal Court was a non-binding decision. It did not settle the issue of its review of some of the challenges that were presented by offering accused the type of court. Specifically, the court indicated it wasn't addressing the constitutionality, but it did express deep concern over this issue and the provision, and it set out its preference in its decision for this type of process, similar to what was in the Lamer report. However, at that time there was a previous unanimous binding decision of the Court Martial Appeal Court. It upheld in the mid-1990s that the chain of command--in other words, someone who wasn't as independent as the director of military prosecutions--could choose the type of court, and this did not violate the charter. So we had a non-binding decision in the Nystrom case, and an earlier binding case.

In addition to that, shortly after that case was yet another case where the Court Martial Appeal Court indicated that there were good reasons administratively why there might be a problem having a general court martial with five members in a remote location. When this was argued at the trial level--when Trépanier came forward and the judge at the trial level accepted the binding case from the 1990s, not the non-binding decision in Nystrom--that got appealed to the Court Martial Appeal Court, and we have the decision.

June 16th, 2008 / 3:30 p.m.
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Brigadier-General Kenneth W. Watkin Judge Advocate General, Department of National Defence

Thank you, Mr. Chairman and members of the committee. Good afternoon. Bonjour.

I would like to start by thanking you for the opportunity to appear before the committee today. As judge advocate general, I have the statutory responsibility for the superintendence of the administration of military justice. This appearance provides me the opportunity to explain the contents and intended operation of Bill C-60.

As judge advocate general, I am not only concerned with the efficiency and effectiveness of the military justice system; my obligation is also to ensure its fairness. That responsibility extends to addressing the effect that individual cases have on the system of military justice as a whole. As the late Chief Justice Antonio Lamer stated in his 2003 review of the military justice system, “Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence”. This bill is designed to strengthen that military justice framework.

Mr. Chairman, the distinctive nature of the military justice system has been acknowledged by the Supreme Court of Canada and the existence of a system of military tribunals with jurisdiction over cases governed by military law is constitutionally recognized in the Canadian Charter of Rights and Freedoms.

The National Defence Act establishes the Code of Service Discipline which provides for a two-tiered system of military tribunals: summary trials and courts martial. Summary trials are presided over by officers in the chain of command and are limited in terms of the types of offences that can be tried, and the punishments that can be awarded. Summary trials are as their title suggests: "summary" in nature. Lawyers are normally not present and the trials involve less serious disciplinary incidents. These incidents most often relate to training, drill and deportment, but can also include assault, minor drug and other offences related to unit level discipline.

While the vast majority of service offences are dealt with by summary trial, it is clear that some offences must be dealt with by the more formal court martial system. Serious military offences can be sent directly to court martial, which you would recognize as similar to a civilian criminal trial.

There are presently four types of courts martial; however, Bill C-60 would simplify the structure and reduce the types of courts martial to two. Military judges preside at courts martial. A court martial may be composed of a military judge sitting alone or a military judge sitting with a panel of members similar to a civilian jury trial. At such trials, there is an independent prosecutor, and the accused is defended by either a military or civilian defence lawyer.

The court martial serves another essential function in our system of justice. For most service offences, the accused must be offered an election to be tried by court martial. This crucial safeguard for the accused's rights permits a service member to choose a trial presided over by a military judge and to be represented by fully qualified lawyers. At the same time, if a commander commences a summary trial and subsequently determines the matter should be sent to court martial, he or she can do so. The option of proceeding to court martial therefore provides an essential mechanism to ensure fairness to the accused, and it protects the broader interests of the military in Canadian society.

Court martial decisions can be appealed to the Court Martial Appeal Court, consisting of civilian judges from the Federal Court and superior courts of criminal jurisdiction. Court Martial Appeal Court decisions can be appealed to the Supreme Court of Canada.

An essential attribute of the military justice system is fairness. Again quoting the late Chief Justice Lamer, we should strive “to offer a better system than merely that which cannot be constitutionally denied”.

In order to ensure that members of the Canadian Forces continue to be dealt with fairly, it is necessary to make adjustments to the system from time to time in response to judgments from appeal courts.

Mr. Chairman, on April 24th, 2008, the Court Martial Appeal Court found in the case of R. v. Trépanier that the exclusive power of the Director of Military Prosecutions to choose the type of court martial violates an accused person's constitutional rights under the Charter. The Court also struck down the section of the National Defence Act which authorized the Court Martial Administrator to convene courts martial. The convening of a court martial is an essential step in bringing a matter to trial. Most significantly the Court held that these provisions of the National Defence Act are of no force and effect. The Court was not willing to suspend the effect of its decision.

This Bill has thus been developed and introduced on a priority basis to address the urgency of the situation which has been created by the striking down of these sections of the National Defence Act.

While efforts have been made to continue with courts martial that were already convened, there have not been any new courts convened in the past seven weeks. Left unaddressed, an inability to conduct trials by courts martial will adversely affect the administration of military justice and, with it, the maintenance of discipline, efficiency, and morale upon which the operational effectiveness of the Canadian Forces depends.

In addition, important societal interests are at risk because accused persons will not benefit from the right to trial within a reasonable time, a right to which they are constitutionally entitled. As a result, serious offences may go unpunished in which victims and society would not see justice done.

Leave to appeal the decision in Trépanier is being sought from the Court Martial Appeal Court, along with a stay of execution of the decision. The courts provide the forum through which to address important constitutional issues. However, it should be appreciated that an appeal is unlikely to provide the timely and certain answer to the challenges created by the Trépanier decision. A legislative solution will provide this required certainty in a timely manner.

Mr. Chairman, I would like to directly address an issue that may be of concern to members of the Committee. That is why is Parliament being asked to pass Bill C-60 on an urgent basis, while leave to appeal to the Supreme Court of Canada is being sought concurrently. It is important to appreciate that while the proposed legislation and the appeal flow from the judgment they are two separate and distinct matters. If Leave to Appeal is granted the Supreme Court of Canada will deal with the constitutional legal issues raised by the Trépanier decision.

The Bill on the other hand is about making the military justice system work now and into the future. It ensures that both the effects of that decision and associated broader policy issues are addressed. Put simply, Bill C-60 will bring clarity, certainty and stability to the court martial convening process.

I would like to outline briefly for you the contents and effect of the bill.

The bill simplifies the court martial structure, establishes a comprehensive framework for the selection of the type of court martial to try an accused, and enhances the efficiency and reliability of decision-making. Specifically it will, as has been noted, reduce the number of types of courts martial from four to two, expand the jurisdiction of the standing court martial to include all persons subject to the Code of Service Discipline, increase the powers of punishment of a standing court martial from imprisonment for two years less a day to imprisonment for life, and limit the powers of punishment of a court martial that tries a civilian to imprisonment, a fine, or both.

In terms of the type of court martial to try an accused person, it will set out the serious offences that must be tried by General Court Martial; prescribe when relatively minor offences must be tried by Standing Court Martial; and, in all other cases, permit the accused person to choose between trial by military judge alone or a "panel" court.

Respecting Court Martial decision-making, it will provide military judges with the authority to deal with pre-trial matters at an earlier stage in the process, and enhance the reliability of verdicts by requiring a unanimous vote by panel members for findings such as guilty or not guilty at a General Court Martial.

Mr. Chairman, the proposed amendments are intended to respond clearly and decisively to the concerns expressed by the Court Martial Appeal Court. Bill C-60 responds directly to the issues identified in the Trépanier decision, but it is not limited to the narrower questions that arise from the facts of that case.

For example, the Trépanier decision focused on a military offence under section 130 of the National Defence Act, which incorporates civilian criminal offences. The ability to deal with section 130 service offences, such as trafficking in drugs, is essential to the maintenance of discipline. However, a military law does not distinguish between those incorporated offences and other specifically enumerated offences such as disobedience of a lawful command, which can attract a punishment of life imprisonment. As a result, this bill does not limit itself to the incorporated offences, but rather provides the same expanded rights to all accused persons, whether they are charged with an incorporated offence or one specifically enumerated in the National Defence Act.

In keeping with the objective of providing clarity in the system, the bill also provides an opportunity to clarify certain provisions of the National Defence Act following the judgment of the Court Martial Appeal Court in R. v. Grant. Unlike the Trépanier decision, the court in Grant did not find a breach of the charter, but ordered a matter that was statutorily required to be tried by court martial due to the passage of time be retried by a summary trial. The court noted it was providing a remedy tailored to the specific facts and circumstances of that case.

As superintendent of the military justice system, I must not only look at the outcomes of specific cases, but also address their effect on the larger system of military justice. For example, the direction in Grant that a new trial be conducted by summary trial instead of at court martial has created considerable uncertainty in respect to the accused person's election rights and the ability of a commander to refer a matter to court martial prior to or during the summary trial. The importance of these mechanisms in ensuring fairness to an accused and protecting the broader interests of military and Canadian society were noted earlier in my remarks.

Bill C-60 will clearly indicate that the power of the Court Martial Appeal Court is to order a new trial by court martial. The duty to act expeditiously under the Code of Service Discipline arises upon the laying of the charge, and the one-year limitation period is a jurisdictional provision reinforcing the summary nature of those proceedings.

Mr. Chairman, the court martial tier of the military justice system constitutes an essential tool with which to accomplish the fundamental purpose of the system. It is my assessment as the judge advocate general that amending the National Defence Act on a priority basis is required to bring the needed clarity, certainty, and stability to this situation. This bill will enhance the fairness of the military justice system from the perspective of accused persons and the Canadian public by reinstating a statutory provision authorizing the convening of courts martial. It will ensure that justice can continue to be done for accused persons as well as for victims.

Mr. Chairman, in order to allow sufficient time to address any specific concerns you have, I will now conclude my introductory remarks. Two members of my staff, Colonel Pat Gleeson and Lieutenant-Colonel Michael Gibson, are present with me here today to assist you in the review of Bill C-60.

Thank you. I would be pleased to answer any questions that you may have.

I would be happy to respond to any questions you might have.

June 16th, 2008 / 3:30 p.m.
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Conservative

The Chair Conservative Rick Casson

I call the meeting to order.

Today we are meeting pursuant to the order of reference of Monday, June 16, 2008, on Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another act.

Appearing as witnesses in the first hour are General Kenneth Watkin, judge advocate general; Colonel Patrick Gleeson; and Colonel Michael Gibson.

Sir, I will leave it up to you to proceed, and then there will be a round of questions. I'm sure you're familiar with the process at the committee, and hopefully any questions that our committee members have of you, you'll be able to respond to.

National Defence ActGovernment Orders

June 16th, 2008 / 12:30 p.m.
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Conservative

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)

National Defence ActGovernment Orders

June 16th, 2008 / 12:25 p.m.
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NDP

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 / noon
See context

Central Nova Nova Scotia

Conservative

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.

Extension of Sitting HoursRoutine Proceedings

June 9th, 2008 / 3:10 p.m.
See context

York—Simcoe Ontario

Conservative

Peter Van Loan ConservativeLeader of the Government in the House of Commons and Minister for Democratic Reform

Mr. Speaker, I would like at this time to move the standard motion that can be made only today. I move:

That, pursuant to Standing Order 27(1), commencing on Monday, June 9, 2008, and concluding on Thursday, June 19, 2008, the House shall continue to sit until 11:00 p.m.

Mr. Speaker, as I indicated last week in answer to the Thursday statement, this is we have work to do week. To kick off the week, we are introducing the customary motion to extend the daily sitting hours of the House for the final two weeks of the spring session. This is a motion which is so significant there is actually a specific Standing Order contemplating it, because it is the normal practice of this House, come this point in the parliamentary cycle, that we work additional hours and sit late to conduct business.

In fact, since 1982, when the House adopted a fixed calendar, such a motion has never been defeated. I underline that since a fixed calendar was adopted, such a motion has never been defeated. As a consequence, we know that today when we deal with this motion, we will discover whether the opposition parties are interested in doing the work that they have been sent here to do, or whether they are simply here to collect paycheques, take it easy and head off on a three month vacation.

On 11 of those occasions, sitting hours were extended using this motion. On six other occasions, the House used a different motion to extend the sitting hours in June. This includes the last three years of minority government.

This is not surprising. Canadians expect their members of Parliament to work hard to advance their priorities. They would not look kindly on any party that was too lazy to work a few extra hours to get as much done as possible before the three month summer break. There is a lot to get done.

In the October 2007 Speech from the Throne, we laid out our legislative agenda. It set out an agenda of clear goals focusing on five priorities to: rigorously defend Canada's sovereignty and place in the world; strengthen the federation and modernize our democratic institutions; provide effective, competitive economic leadership to maintain a competitive economy; tackle crime and strengthen the security of Canadians; and improve the environment and the health of Canadians. In the subsequent months, we made substantial progress on these priorities.

We passed the Speech from the Throne which laid out our legislative agenda including our environmental policy. Parliament passed Bill C-2, the Tackling Violent Crime Act, to make our streets and communities safer by tackling violent crime. Parliament passed Bill C-28, which implemented the 2007 economic statement. That bill reduced taxes for all Canadians, including reductions in personal income and business taxes, and the reduction of the GST to 5%.

I would like to point out that since coming into office, this government has reduced the overall tax burden for Canadians and businesses by about $190 billion, bringing taxes to their lowest level in 50 years.

We have moved forward on our food and consumer safety action plan by introducing a new Canada consumer product safety act and amendments to the Food and Drugs Act.

We have taken important steps to improve the living conditions of first nations. For example, first nations will hopefully soon have long overdue protection under the Canadian Human Rights Act, and Bill C-30 has been passed by the House to accelerate the resolution of specific land claims.

Parliament also passed the 2008 budget. This was a balanced, focused and prudent budget to strengthen Canada amid global economic uncertainty. Budget 2008 continues to reduce debt, focuses government spending and provides additional support for sectors of the economy that are struggling in this period of uncertainty.

As well, the House adopted a motion to endorse the extension of Canada's mission in Afghanistan, with a renewed focus on reconstruction and development to help the people of Afghanistan rebuild their country.

These are significant achievements and they illustrate a record of real results. All parliamentarians should be proud of the work we have accomplished so far in this session. However, there is a lot of work that still needs to be done.

As I have stated in previous weekly statements, our top priority is to secure passage of Bill C-50, the 2008 budget implementation bill.

This bill proposes a balanced budget, controlled spending, investments in priority areas and lower taxes, all without forcing Canadian families to pay a tax on carbon, gas and heating. Furthermore, the budget implementation bill proposes much-needed changes to the immigration system.

These measures will help keep our economy competitive.

Through the budget implementation bill, we are investing in the priorities of Canadians.

These priorities include: $500 million to help improve public transit, $400 million to help recruit front line police officers, nearly $250 million for carbon capture and storage projects in Saskatchewan and Nova Scotia, and $100 million for the Mental Health Commission of Canada to help Canadians facing mental health and homelessness challenges.

These investment