Bill C-41 (Historical)

Strengthening Military Justice in the Defence of Canada Act

An Act to amend the National Defence Act and to make consequential amendments to other Acts

This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;
(e) modify the composition of a court martial panel according to the rank of the accused person; and
(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.
Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.

[The Chair, Conservative, Maxime Bernier]

We are back to work. This is meeting 55 of the Standing Committee on National Defence.

We are considering Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

We have an amendment by....

Yes, Mr. Hawn.

[The Chair, Conservative, Maxime Bernier]

So there is a proposal in front of us to discuss the proposal, the one from the NDP with some modifications, which we called option 3.

That Bill C-41, in clause 75, be amended, by replacing lines 7 to 9 on page 49 with the following:

86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to

(i) a severe reprimand,

(ii) a reprimand,

(iii) a fine not exceeding basic pay for one month, or

(iv) a minor punishment;

This is the subject of the proposed discussion.

Do any other members want to speak to the motion?

Mr. Hawn.

[Claude Bachand, Bloc, Saint-Jean, QC]

I do not want to repeat the comments of my colleague from the NDP.

First of all, I have here a document which has been handed to me by Mr. Hawn but in English only. I already have enough difficulty with legalese and lawyers, despite my great admiration for them. It is not easy to deal with these issues, so just imagine having to deal with such complex matters in a language which is not my first language. I know my English is good, but I would have liked getting the document in French.

Secondly, there is something intriguing in this document: it answers questions from the Liberals. It means that Liberals have had the document and asked questions they probably communicated to the parliamentary secretary, while we ourselves have not been consulted. I find improper this process where two parties consulted with each other while the other two parties were kept in the dark.

Consequently, I am not ready either to pass amendments to these clauses today, not before we are given some time to consider this document in French. Question period is not the best time to examine a legal document, especially in a language that is not mine. Therefore, we are not willing either today to pass these amendments that would put the final touch to our consideration of Bill C-41.

[The Chair, Conservative, Maxime Bernier]

Good afternoon and welcome to the 55^thmeeting of the Standing Committee on National Defence, which might very well be the last in the 40^th Parliament.

Pursuant to the Order of Reference of Monday, December 6, 2010, we are continuing with our consideration of Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

We have again with us our two expert witnesses from the Department of National Defence, Lieutenant-Colonel Dufour and Colonel Gleeson.

Thank you for being with us today. I know you will be able to answer questions members of the committee may have.

We are at clause 75.

I am going to give the floor to Mr. Hawn.

(On clause 75)

[Bryon Wilfert, Liberal, Richmond Hill, ON]

I have a quick question while the minister is here.

Given our current operations in Libya, I'm wondering whether this committee, after we finish Bill C-41--on Wednesday, hopefully--could get a briefing on the operation in Libya. I think it would be helpful to the members.

I'm not asking that it be the minister, but if someone could appear, we would certainly appreciate that, I'm sure.

[The Chair, Conservative, Maxime Bernier]

Good afternoon and welcome to this 53^rd meeting of the Standing Committee on National Defence. Pursuant to the Order of Reference of Monday, December 6, 2010, we are pursuing our study of Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

We have with us today Colonel Gleeson and Lieutenant-Colonel Gibson, from the Department of National Defence.

Thank you for your presence here.

I would like to tell members that if they have questions of a more technical nature, these gentlemen are here to answer them.

(On clause 11)

Last week, we were at clause 11, for which the NDP has moved amendments.

Regarding amendment NDP-4, I believe it had been suggested to group together amendments NDP-4, NDP-5, NDP-6 and NDP-7, so as to deal with them as a whole.

Mr. Harris, you have the floor on amendment NDP-4 and the question to bring together amendments NDP-4, NDP-5, NDP-6, and NDP-7.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

It's a nice goal, and everybody wants the system to move faster, but we have some significant problems with the amendment as written. In fact, I don't think it's going to make the process any more expeditious. More fundamental is that in proposed subsection 29.151(3), we say “The Federal Court shall award”. We can't tell the Federal Court what to do.

The other impact is that if we were able to tell them what to do, we would burdening the Government of Canada to fund that. It says “regardless of the outcome of the application”, so even if it were a frivolous claim or a claim without merit, we'd be putting the Government of Canada on the hook to fund that solicitor-client cost, or the court cost. That doesn't simplify it; in fact, it makes it more complicated.

Beyond that, Mr. Chair, and to our legislative clerk, I would submit that this is outside the scope of the bill because we would be amending the National Defence Act, not Bill C-41.

[The Chair, Conservative, Maxime Bernier]

Good afternoon and welcome to the 52nd meeting of the Standing Committee on National Defence. Pursuant to the order of reference of Monday, December 6, 2010, we are going to study Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

We have here with us today Colonel Gleeson and Lieutenant-Colonel Gibson, who were also here last week.

Thank you for being with us. If we need you, it will be very useful for members.

(On clause 6)

The Bloc Québécois has suggested that we amend clause 6. That's amendment BQ-3.1.

Mr. Bachand, the floor is yours. We are then going to move to amendment NDP-1, which also deals with clause 6.

[The Chair, Conservative, Maxime Bernier]

We are going to suspend our work. We will see each other again Monday afternoon for a clause-by-clause discussion of Bill C-41.

Mr. Bachand, you will have the opportunity between now and then to consider my judicious decision.

And, so, I can now adjourn our meeting. Thank you.

The meeting is adjourned.

[The Chair, Conservative, Maxime Bernier]

Thanks.

The second budget is in relation to Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts. The proposed budget is in the amount of $11,650.

I'm asking that this budget be adopted by the committee, in the amount of $11,650.

Do we have agreement?

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone.

We now continue the 51 ^st meeting of the Standing Committee on National Defence.

You have two budgets in front of you. We want to be able to reimburse the witnesses who were before us when we did our study on search and rescue and the other study on Bill C-41.

The first budget I want to have the committee approve is in relation to our study on search and rescue response times. The proposed budget is in the amount of $35,500. I'm asking the committee to adopt this budget in the amount of $35,500 to reimburse witnesses.

Do we have agreement?

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

Thank you, Vice-Admiral Donaldson, Colonel Grubb and Colonel Gauthier.

We are going to suspend our proceedings for a few minutes. Then we will move to the clause-by-clause study of Bill C-41.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chair, and, through you, to our witnesses.

Admiral, there's been significant discussion in this committee relating to the fairness of a summary trial process, although all witnesses have acknowledged the importance of the process.

In the course of those discussions, it's been suggested by some witnesses that Bill C-41 could be used as a vehicle to amend the NDA to eliminate the punishment of detention as a possibility at summary trial and remove any possibility that an offender convicted at summary trial would acquire a record under the Criminal Records Act.

Recognizing that, do you not currently have policy responsibility in the military justice area? I also note that you're the only representative in the chain of command to have appeared before us in the study of this bill. I'm wondering if you have any general comments or thoughts that you could share with us in this regard.

[VAdm Bruce Donaldson]

Sir, it's taken us very long to get here; this is not our first attempt. We have tried--I say we, but there have been two other bills before the House that did not make it through and died on the order paper. One of the reasons Bill C-41 is structured the way it is is to try to take the essential elements that were felt to be more or less agreeable and get those established so as to avoid another protracted process that might not lead us to some of the changes that we need to put in place.

In terms of the financial compensation, sir, I think the way government is structured, the way departments are structured, the way federal accountabilities are structured, and the way the Department of National Defence, the Chief of the Defence Staff, and the deputy minister are positioned in that organization work very well from a number of perspectives. However, in this particular one, it has become very challenging to connect all of that in a way that would give the chief the ability to make the types of decisions that from a grievance perspective we feel he ought to be able to make and yet accept for the government the financial commitment that this would entail in order to redress the grievance. We have looked at an internal procedural resolution to that and we continue to experiment with it, but because of some of these other issues, that procedural fix is unlikely to satisfy the members of this committee, because it's not satisfying me.

We have looked at the potential for a legislative change, but I believe that the cascading requirements of legislation may make that a rather challenging approach. We've looked at a way of approaching Treasury Board to get authorities for the chief in these specific areas. That work continues, with Treasury Board and internally, to see how we would do that. As I say, I have been surprised at the challenge that we have encountered in dealing with some of the positions inside and outside the department. They were fairly hard when we started this investigation, but I believe they have been adjusted through a process of dialogue, negotiation, and experimentation, to the point that I actually feel that we can probably address this issue through a combination of both regulatory adjustments through the Treasury Board and procedural adjustments to how we approach the question.

[VAdm Bruce Donaldson, Vice-Chief of the Defence Staff, Department of National Defence]

Thank you very much, Mr. Chair.

Honourable members of the committee, let me begin by thanking you for the opportunity to appear before you today to discuss this important bill. I'd also like to thank you on behalf of all members of the Canadian Forces for your continuing interest and support for the men and women who wear the uniform for our country. Your ongoing commitment to a modern and relevant military is most appreciated.

I hope that my appearance today, both on behalf of the Chief of the Defence Staff and in my own role as vice-chief, will be beneficial to this important study. With me today are Colonel Alain Gauthier, the director general of the Canadian Forces Grievance Authority, and Colonel Tim Grubb, the Canadian Forces provost marshal, or head policeman.

In a healthy democracy, an effective military should both reflect the society and the values that it is designed to protect, as well as maintain the necessary discipline, efficiency and morale to be operationally effective in delivering that protection.

The changes proposed by Bill C-41 are necessary to succeed in both aspects of this challenge. Specifically, the proposed updates seek to address the three main subject areas of the Lamer report: the military justice system; the position of Canadian Forces provost marshal and the related military police complaints process; and the Canadian Forces grievance process.

Both the minister and the Judge Advocate General have already spoken to the provisions of the bill that are aimed at updating the military justice system. On these matters I really must defer to the expertise of the Judge Advocate General, who has statutory responsibility under the National Defence Act for military justice. However, the other two topics, the Canadian Forces provost marshal and the Canadian Forces grievance system, are indeed part of my responsibilities as Vice-Chief of the Defence Staff. Today I'd like to focus my remarks on these topics.

With regard to the Canadian Forces provost marshal, the Lamer report recommended that the responsibilities and command relationships of this position be clearly defined in the National Defence Act. This is exactly what Bill C-41 proposes. The bill sets out the responsibilities of the provost marshal, specifies the minimum rank to be held by the provost marshal, and clearly defines the conditions of tenure for the position. The bill would also increase transparency by requiring the provost marshal to submit an annual report to the Chief of the Defence Staff.

I understand that some concerns have been expressed regarding Bill C-41's potential impact on the investigative independence of the provost marshal, and this afternoon I'd like to address those concerns.

It is important to note that the military police in general, and the provost marshal in particular, are unique amongst police in Canada. They perform military duties in addition to investigative duties and often conduct investigations in active theatres of operation such as Afghanistan.

Certain command relationships must exist to recognize this reality. Clause 4 of the bill provides that the provost marshal acts under the general supervision of the vice-chief of the defence staff in respect of the provost marshal's statutory duties. The clause authorizes the vice-chief of the defence staff to issue general instructions in writing regarding these responsibilities, and it requires the provost marshal to ensure that these instructions are made available to the public. I believe that this is generally well understood.

However, I understand that the section proposing that the vice-chief may issue instructions or guidelines in writing in respect of a particular investigation has been the subject of some concern. This authority, which would only be exercised in exceptional circumstances, reflects the necessity for a transparent mechanism to convey direction to the provost marshal when operational imperatives must take priority over or be weighed against the investigative obligations of the military police.

For example, given the unique requirement to conduct investigations in zones of armed conflict, this authority might be exercised in a situation the provost marshal is investigating under circumstances in which its continuation may for logistical reasons or because of high risk to CF personnel directly impact upon the potential success of an ongoing operation.

The VCDS is the appropriate authority to balance the commander's concerns for mission success and the provost marshal's need to advance an investigation. To protect against a potential abuse of this authority, Bill C-41provides transparency safeguards. It would require the provost marshal to make any instructions or guidelines from the VCDS regarding the specific investigation available to the public, unless the provost marshal himself or herself considers that making it public would not be in the best interests of the administration of justice.

In addition, existing sections of the National Defence Act would allow the provost marshal to make an interference complaint to the Military Police Complaints Commission if he or she suspected the VCDS of improperly interfering in an investigation. This is an area in which there are competing principles, requiring a balance between two legitimate and fundamental concerns: the investigative independence of the provost marshal and the responsibility of the chain of command for the accomplishment of operational objectives.

I believe that Bill C-41 proposes a viable and appropriate balance between these two imperatives. I also understand that in his report, Chief Justice Lamer concluded that independence was protectable through transparency and accountability, exactly what is proposed in this bill. Furthermore, on April 1, 2011, the Canadian Forces provost marshal will be assuming full command of all Canadian Forces military police directly involved in policing duties. The changes to the military police command and control structure are a continuation of the recommendations made in various reports to strengthen the independence, authority, and efficiency of the provost marshal in the exercise of his or her policing mandate.

I'd now like to turn to the subject of the Canadian Forces grievance process. Let me underscore that dealing effectively with grievances in the Canadian Forces is not a simple corporate management issue. It is a key leadership responsibility that the Chief of the Defence Staff, I, and all leaders take very seriously.

An effective grievance system is crucial to ensuring the welfare of the men and women of the Canadian Forces and to maintaining the very discipline, morale and operational effectiveness that I mentioned earlier. The bill would rename the Canadian Forces Grievance Board, which has done excellent work since 2000, as the Military Grievances External Review Committee. Renaming the organization would help reinforce the fact that the board, like the military police complaints commission, is an independent review body and not part of the Canadian Forces.

The bill would also make the entire grievance process more efficient by allowing the Chief of the Defence Staff to delegate his power as the final authority in the grievance process to other senior officers directly responsible to him. I must emphasize that the CDS would remain ultimately responsible and accountable for these decisions. It is not, as some have suggested before this committee, an abdication of the CDS's responsibility for the welfare of the men and women of the CF. Rather, it is a reflection of the reality recognized by Chief Justice Lamer that it is impractical and unreasonable to expect the CDS to personally decide every grievance in an organization of the size and complexity of the Canadian Forces. Both of these measures are endorsed by the grievance board.

Last spring, the Canadian Forces conducted a ten-year review of the grievance system and we remain committed to its constant improvement. This improvement involves many non-statutory changes that are already underway, many of which address some of the concerns presented by the grievance board. Several initiatives, such as the digitization of the grievance file, the creation of a central registry and the adjustment of timelines, are underway to reduce the time it takes to staff a grievance.

A key initiative is the trial of the principled approach, which allows the grievance board to review a larger number of files in order to increase transparency and fairness. Currently, the grievance board provides findings and recommendations on only four types of files: reversion of rank and release from the CF; conflict of interest and harassment; pay and financial benefits; and entitlements to medical and dental care.

I'm confident that these new initiatives will give us the ability to reduce the staffing of grievances to 12 months while increasing the transparency and the fairness of our complaint resolution system. Of note, the Lamer report recommended that the Chief of the Defence Staff be given statutory authority to approve financial compensation in resolving a grievance. While we agree with this recommendation and we are committed to its implementation, there are a number of complex authority issues that must be resolved before we can move forward.

When I took over as Vice-Chief of the Defence Staff last summer, my goal was to resolve this issue immediately, but I must admit that I have yet to find a mechanism that is legally, administratively, and practically acceptable. We are currently reviewing options that range from legislative amendments to ex gratia authority. This is one of my top priorities, and I will closely monitor the working group that has been tasked to find a solution.

Mr. Chair, let me conclude by re-emphasizing how important I believe it is that the provisions of Bill C-41 be adopted as soon as possible. In that vein, I would be pleased to assist you in your consideration of the bill by providing any additional background information or explanation that you might require.

I would like to once again thank you for your time. I welcome any questions you might have.