Bill C-60 (Historical)

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

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.

Strengthening Military Justice in the Defence of Canada Act

[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.

[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.

[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.

[Laurie Hawn, Conservative, Parliamentary 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.

[The Speaker, Liberal, Peter Milliken]

I have the honour to inform the House that when the House went up to the Senate chamber the Governor General was pleased to give, in Her Majesty's name, the royal assent to the following bills:

Bill S-207, An Act to repeal legislation that has not come into force within ten years of receiving royal assent--Chapter 20

Bill C-23, An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence--Chapter 21

Bill C-30, An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts--Chapter 22

Bill C-292, An Act to implement the Kelowna Accord--Chapter 23

Bill C-58, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2009--Chapter 24

Bill C-59, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2009--Chapter 25

Bill C-31, An Act to amend the Judges Act--Chapter 26

Bill C-287, An Act respecting a National Peacekeepers' Day--Chapter 27

Bill C-50, An Act to implement certain provisions of the budget tabled in Parliament on February 26, 2008 and to enact provisions to preserve the fiscal plan set out in that budget--Chapter 28

Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act--Chapter 29

Bill C-21, An Act to amend the Canadian Human Rights Act--Chapter 30

National Defence Act

[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)

[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.

[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.

[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.

[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.

[Laurie Hawn, Conservative, Parliamentary 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.

[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 House

[Laurie Hawn, Conservative, Parliamentary 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 Act

[Ralph Goodale, Liberal, Wascana, SK]

Just to be clear, Mr. Speaker, is the government House leader referring to Bill C-60?