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.

National Defence Act

[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)

[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.

[Peter MacKay, Conservative, Minister 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 Hours

[Peter Van Loan, Conservative, Leader 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 investments, however, could be threatened if the bill does not pass before the summer. That is why I am hopeful that the bill will be passed by the House later today.

The budget bill is not our only priority. Today the House completed debate at report stage on Bill C-29, which would create a modern, transparent, accountable process for the reporting of political loans. We will vote on this bill tomorrow and debate at third reading will begin shortly thereafter.

We also wish to pass Bill C-55, which implements our free trade agreement with the European Free Trade Association.

This free trade agreement, the first in six years, reflects our desire to find new markets for Canadian products and services.

Given that the international trade committee endorsed the agreement earlier this year, I am optimistic that the House will be able to pass this bill before we adjourn.

On Friday we introduced Bill C-60, which responds to recent decisions relating to courts martial. That is an important bill that must be passed on a time line. Quick passage is necessary to ensure the effectiveness of our military justice system.

Last week the aboriginal affairs committee reported Bill C-34, which implements the Tsawwassen First Nation final agreement. This bill has all-party support in the House. Passage of the bill this week would complement our other achievements for first nations, including the apology on Wednesday to the survivors of residential schools.

These are important bills that we think should be given an opportunity to pass. That is why we need to continue to work hard, as our rules contemplate.

The government would also like to take advantage of extended hours to advance important crime and security measures. Important justice measures are still before the House, such as: Bill S-3, the anti-terrorism act; Bill C-53, the auto theft bill; Bill C-45 to modernize the military justice system; and Bill C-60, which responds to recent court martial decisions.

There are a number of other bills that we would like to see advanced in order to improve the management of the economy. There are other economic bills we would like to advance.

These include Bill C-7, to modernize our aeronautics sector, Bill C-5, dealing with nuclear liability, Bill C-43, to modernize our customs rules, Bill C-39, to modernize the Canada Grain Act for farmers, Bill C-46, to give farmers more choice in marketing grain, Bill C-57, to modernize the election process for the Canadian Wheat Board, Bill C-14, to allow enterprises choice for communicating with customers, and Bill C-32, to modernize our fisheries sector.

If time permits, there are numerous other bills that we would like to advance.

These include Bill C-51, to ensure that food and products available in Canada are safe for consumers, Bill C-54, to ensure safety and security with respect to pathogens and toxins, Bill C-56, to ensure public protection with respect to the transportation of dangerous goods, Bill C-19, to limit the terms of senators to 8 years from a current maximum of 45, and Bill C-22, to provide fairness in representation in the House of Commons.

It is clear a lot of work remains before the House. Unfortunately, a number of bills have been delayed by the opposition through hoist amendments. Given these delays, it is only fair that the House extend its sitting hours to complete the bills on the order paper. As I have indicated, we still have to deal with a lot of bills.

We have seen a pattern in this Parliament where the opposition parties have decided to tie up committees to prevent the work of the people being done. They have done delay and obstruction as they did most dramatically on our crime agenda. They do not bother to come and vote one-third of time in the House of Commons. Their voting records has shown that. All of this is part of a pattern of people who are reluctant to work hard.

The government is prepared to work hard and the rules contemplate that it work hard. In fact, on every occasion, when permission has been sought at this point in the parliamentary calendar to sit extended hours, the House has granted permission, including in minority Parliaments.

If that does not happen, it will be clear to Canadians that the opposition parties do not want to work hard and are not interested in debating the important policy issues facing our country. Is it any wonder that we have had a question period dominated not by public policy questions, but dominated entirely by trivia and issues that do not matter to ordinary Canadians.

The government has been working hard to advance its agenda, to advance the agenda that we talked about with Canadians in the last election, to work on the priorities that matter to ordinary Canadians, and we are seeking the consent of the House to do this.

Before concluding, I point out, once again, that extending the daily sitting hours for the last two weeks of June is a common practice. Marleau and Montpetit, at page 346, state this is:

—a long-standing practice whereby, prior to the prorogation of the Parliament or the start of the summer recess, the House would arrange for longer hours of sitting in order to complete or advance its business.

As I stated earlier, it was first formalized in the Standing Orders in 1982 when the House adopted a fixed calendar. Before then, the House often met on the weekend or continued its sittings into July to complete its work. Since 1982, the House has agreed on 11 occasions to extend the hours of sitting in the last two weeks of June.

Therefore, the motion is a routine motion designed to facilitate the business of the House and I expect it will be supported by all members. We are sent here to engage in very important business for the people of Canada. Frankly, the members in the House are paid very generously to do that work. Canadians expect them to do that work and expect them to put in the time that the rules contemplate.

All member of the House, if they seek that privilege from Canadian voters, should be prepared to do the work the rules contemplate. They should be prepared to come here to vote, to come here to debate the issues, to come here for the hours that the rules contemplate. If they are not prepared to do that work, they should step aside and turnover their obligations to people who are willing to do that work.

There is important work to be done on the commitments we made in the Speech from the Throne. I am therefore seeking the support of all members to extend our sitting hours, so we can complete work on our priorities before we adjourn for the summer. This will allow members to demonstrate results to Canadians when we return to our constituencies in two weeks.

Not very many Canadians have the privilege of the time that we have at home in our ridings, away from our work. People do not begrudge us those privileges. They think it is important for us to connect with them. However, what they expect in return is for us to work hard. They expect us to put in the hours. They expect us to carry on business in a professional fashion. The motion is all about that. It is about doing what the rules have contemplated, what has always been authorized by the House any time it has been asked, since the rule was instituted in 1982. That is why I would ask the House to support the motion to extend the hours.

National Defence Act

[Peter MacKay, Conservative, Minister of National Defence and Minister of the Atlantic Canada Opportunities Agency]

moved for leave to introduce Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act.

(Motions deemed adopted, bill read the first time and printed)