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.

[Pierre Daigle]

My point here is that in 2003 former Chief Justice Lamer was still the Supreme Court's chief justice. He said that it was not acceptable and should be done within DND and the CF.

What I'm saying is that financial delegation authority exists right now, and the DM uses that. The DM gives financial delegation authority to a captain, a lawyer captain, who can spend $10,000 on a farmer in Afghanistan, but does not give to the Chief of the Defence Staff, who is the head of the whole Canadian Forces, the authority to spend $100 on someone who lost something on duty.

I support the Minister of National Defence. Mr. Chair, I really do appreciate that I was invited here on very short notice, but when I followed this up recently, I saw that the Minister of National Defence said in front of this committee that Bill C-41 includes provisions to improve efficiency of the grievance process with a view to making it more effective, transparent, and fair. I am saying if you don't give the Chief of the Defence Staff that authority, you're not going to make it transparent, fair, and effective.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thanks, Mr. Chair, and thank you both for being here.

First, let me thank you for your attention to duty, both in uniform and since then.

A lot of this doesn't relate to Bill C-41, but it's an important topic to discuss nevertheless. One of the problems here is that we're mixing the Financial Administration Act and the National Defence Act, I think.

You note in your report, “The Canadian Forces Grievance Process: Making It Right for Those Who Serve”, that you recommend the Chief of the Defence Staff be given the authority to settle financial claims and so on. That was recommended by Chief Justice Lamer. That principle has been accepted by governments of both stripes. Obviously it's been a long time. Apparently it's not as easy to resolve as might be suggested.

You note in your special report that the Financial Administration Act provides Treasury Board with the responsibility over the financial management of the federal government and that Treasury Board delegates certain powers to ministers and deputy heads of departments. In turn, the deputy minister is the chief accounting officer for the Department of National Defence. He is the financial authority.

Do you believe that Treasury Board would have to be involved in delegating powers to anyone other than the minister or the deputy minister? Do you know if the Financial Administration Act would have to be amended to allow this to happen?

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Daigle. I remind committee members that we are examining Bill C-41 and that your questions must be relevant to the current debate. I am convinced that this will take place in that manner. I therefore give the floor to Mr. Dryden.

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone, and welcome to the 49th meeting of the Standing Committee on National Defence. Pursuant to the order of reference of Monday, December 6, 2010, today we are studying Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts. I would like to welcome our witnesses, Michael Spratt and Constance Baran-Gerez, from the Criminal Lawyers' Association of Ontario.

Thank you for being with us.

Before giving you the floor, I will give the floor right now to Monsieur Bachand.

Mr. Bachand, you may now speak to one of your motions.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

We're not violently opposed to him coming. I'm just pointing out that now you could read into “make consequential amendments to other acts” that one of those acts is the FAA, I guess. So we're not violently opposed. I just want to make sure we're clear that this is not specifically a C-41 question. It's another question.

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

Let me read it.

He says the following: “My understanding is that the Standing Committee on National Defence is currently studying Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

I think that an aspect of the grievance process of the Canadian Forces should be included in the draft bill, since it would make it possible to correct a significant injustice that the members of the Canadian Forces are currently facing.”

I find that he is referring to Bill C-41 and his presence as a witness is perfectly acceptable.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Let me just read what...because I just had a chance to glance over it.

He's talking about the grievance process as it relates to the authority to provide financial compensation to fully resolve unfairness, which is a legitimate enough statement. But that's under the FAA, not the National Defence Act. C-41 deals with the National Defence Act, not the financial act.

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

I don't understand. An ombudsman sends us a letter and tells us that he wants to come and testify about Bill C-41 and the grievance process. Are you trying to tell me that it is not in his mandate or in our mandate? That's not what he says in his letter. He says that he wants to come and share his expertise based on a report he already did on Bill C-41. I don't see why we couldn't invite him to appear. I don't understand.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

No, it's not a C-41 issue. So if we're going to do something separately on that, I have no objection to that, but I just don't think it's a C-41 issue.

[Jack Harris, NDP, St. John's East, NL]

It's not an amendment to C-41, in other words.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

We can, but it's not part of C-41. That's a separate.... I'm not saying it's not a legitimate issue; I'm just saying it's not a C-41 issue.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

The Financial Administration Act. Thank you.

So it's not the National Defence Act that he's going to be discussing; it's the FAA. Pick whichever FAA you want.

The principle is fine. The principle is relevant, but it's not in relation to C-41 and the NDA. It's in relation to another act.

[Pascal-Pierre Paillé, Bloc, Louis-Hébert, QC]

Could that be added to Bill C-41?

[Pascal-Pierre Paillé, Bloc, Louis-Hébert, QC]

Last week, the JAG was here as well when we met with the minister. My colleague Mr. Bachand put a question to the JAG, who told us that, in his view, we would not have to pass another bill in order to make amendments. Unless I'm mistaken, you think it would be much more effective to include those recommendations in Bill C-41 right now, which would mean we would not have to redo a certain process or a certain amount of work in the next few years.

[Bruno Hamel]

Thank you for your question.

That is indeed a possibility. I also note that, when the minister appeared on Monday, he said he was open to recommendations from this committee. My role is to tell you that three of those concern the board's operations, without affecting its mandate. Consequently, they do not affect the aspect related to the committee's recommendations; these are operating tools. There is an openness; there is a possibility. So it's a necessary tool for the board. We've been working without it for 10 years; so you have to watch out. We're getting there, but now there's a possibility. If we want to include Judge Lamer's recommendations in Bill C-41 to a maximum degree, this is the opportunity to do so, unless you incorporate those recommendations in another bill.