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.

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

Thank you very much. If I have any time left at the end, I will share it with Mr. Bachand.

Thank you for being here. You will correct me if necessary, but I saw that you stated on two occasions in your text that amendments to the National Defence Act will be necessary in order to implement some of the recommendations not found in the bill. Do you believe certain recommendations could be included in Bill C-41 so that we aren't required to amend the act a second, third or fourth time?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

On the three recommendations that were not part of Bill C-41, is it not accurate to say that the one having to do with the fiscal year versus the calendar year and the one related to the board's completion of the caseload have been accepted, but are being put off until the current MPCC process is finished so that these recommendations would not be seen as interfering with that process? I believe that the department has accepted these recommendations, but is putting off the implementation of them until the MPCC process is over. Is that your understanding?

[Bruno Hamel]

Mr. Chairman, that's a question I will have to think about a little more at length because it's not part of Bill C-41. However, it reinforces the argument I made earlier in my address. The value added by the board, which is completely outside the Canadian Forces, is this notion of independence, that it is outside the chain of command. However, the regulations restrict our ability or do not allow us to exploit the full potential of that value.

That's why we firmly believe that, before the Chief of the Defence Staff renders his decision, he and the complainant—because we're talking about two parties here—should get the benefit of the board's review. I believe that, if the board were to be required by law to examine all cases at the first level before the Chief of Staff renders his decision, this notion of fairness, of transparency, would be guaranteed for all members of the Canadian Forces, regardless of the topic or subject of their grievance. The board adopted this position in 2000.

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

All right. That's what people complain about, the tendency to protect the various levels as you move up the hierarchy.

Mr. Hamel, you say this distinction increases military members' trust in the process. I've met a lot who don't really trust the process. Let me be clear: this isn't an attack on you or Ms. Maynard. In your view, will Bill C-41 enable us to make certain amendments in order to change the process that requires complainants to deal with individuals at various levels?

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

I have a few quite simple questions. Then Mr. Dryden will continue, if we have any time.

Mr. Hamel, thank you for your presentation. As you said, it was an introduction to your quasi-judicial institution. That overview was frankly very important for us. In any case, I learned a great deal.

Ms. Maynard, thank you as well for being here.

You targeted 18 recommendations made by former Chief Justice Lamer. Three of them, in your opinion, aren't included in Bill C-41. Did someone explain to you, or have you understood why they aren't included in it? Why the reluctance to include them? We support the bill, but we hope it will resolve a series of legal issues that moreover have been dragging on for a very long time. It would be unfortunate to miss out on three recommendations or three improvements to the bill.

[Bruno Hamel, Chairperson, Canadian Forces Grievance Board]

Thank you, Mr. Chairman.

Mr. Chairman and honourable members, good afternoon.

It's a pleasure to be here with you today to answer your questions concerning the Canadian Forces Grievance Board's role in the military grievance process, given that there are provisions in Bill C-41 that directly affect us.

Joining me here today is Caroline Maynard, general counsel and director of operations at the board.

I would like to begin by giving you an introduction to the board.

In operation since June 2000, the Canadian Forces Grievance Board is a quasi-judicial tribunal which is independent from the Department of National Defence and the Canadian Forces; it is, in effect, the external component of the Canadian Forces grievance process.

Since its creation, the board has earned a reputation as a centre of excellence in analyzing and resolving military grievances and has developed a substantial expertise on a variety of subjects relating to the administration of the affairs of the Canadian Forces. Apart from dealing with individual grievances, our work enables us to identify trends and areas of dissatisfaction, which we regularly share with the senior leadership of the Canadian Forces.

The board is mandated to review the grievances referred to it under the National Defence Act and the Queen's Orders and Regulations for the Canadian Forces. Under the regulations, four types of grievances must be referred to the board, which represents some 40% of the total that reach the final level of the grievance process. Other grievances can also be referred to the board on a discretionary basis.

Upon completing its review of a grievance, the board simultaneously submits its findings and recommendations to the grievor and to the Chief of the Defence Staff who is the final decision maker. The Chief of the Defence Staff is not bound by the board's findings and recommendations, but must provide reasons, in writing, should he choose not to act on them.

I am pleased to note that Bill C-41 includes a provision which would replace the board's current name with "Military Grievances External Review Committee". This may appear a minor matter, but it is in fact an important change that has long been sought by the board.

The board feels that its current name does not reflect its external role and that it has led to misunderstandings by giving the impression that the board is internal to the Department of National Defence and the Canadian Forces. The resulting confusion and complications have often been counter-productive.

This name change will lead to a better understanding of the specific and unique role for which the board was created. It will also underline its institutional independence while clarifying its mandate.

Also, as Bill C-41 is intended to be the legislative response to the report submitted by the late Chief Justice Antonio Lamer on military justice, I would like to reaffirm the board's support of the 18 recommendations related to the grievance process that are included in this report.

Several of these recommendations have already been implemented and others are contained in Bill C-41. Three recommendations, however, which specifically relate to the board and which were intended to facilitate its work, do not appear in the bill.

One of these recommendations proposes that board members be permitted to complete their caseload after the expiration of their term. A second would provide the board with a subpoena power, while the third calls for the alignment of the board's annual report with the fiscal year rather than the calendar year. To give effect to these recommendations, legislative amendments to the National Defence Act will be required.

Beyond these 18 recommendations, Chief Justice Lamer also pointed to other difficulties when he noted that, and I quote, "... the grievance process continues to suffer from unacceptable delays, it is overly bureaucratic and continues to lack transparency." The board shares the concerns of Chief Justice Lamer.

For this reason, on the issue of timeliness, the board has worked diligently over the years to increase its efficiency and has managed to reduce its file review to an average of 90 days. It has also been able to eliminate its backlog and to reduce its inventory of grievances, all this while ensuring that the quality of its work remains at a very high standard.

As a final point, I would like to return to the fact that only certain types of grievances are sent to the board for review. The National Defence Act places no restrictions on referrals to the board; however its implementing regulations limit our review to only four types of grievances.

Because of this, the majority of Canadian Forces members whose grievances reach the final level do not benefit from an external and independent review of their grievance by the board.

In examining only a fraction of the unresolved grievances at the final level, the board is of the view that it is not being used to its full potential. We believe that every Canadian Forces member should, at the final level, have their unresolved grievance reviewed by the board, regardless of the subject matter. This is a question of fairness and transparency, which were concerns raised by Chief Justice Lamer in his report.

On this subject, I would like to express the board's satisfaction with the introduction, on January 1, of an innovative pilot project, whereby the Canadian Forces have begun referring to the board all unresolved grievances that reach the final authority level.

Although this is a pilot project and these additional files are being referred to the board pursuant to the discretionary power found in the regulations, the board firmly believes in the benefits of such a model. By having all unresolved grievances reviewed by the board, members of the Canadian Forces and the Chief of the Defence Staff benefit from an independent and expert review. This optimizes the board's contribution to the grievance process.

The board is optimistic and hopes that this new model, if it performs as well as expected, will be adopted and implemented. Amendments to the National Defence Act and its regulations may be required for full implementation.

Mr. Chairman, in conclusion, the board welcomes the name change proposed by the bill and is encouraged by the recent initiatives put forward by the Canadian Forces regarding a new model for referring grievances. It remains resolved to maximize its contribution to the military grievance process.

I thank you for inviting me to speak here today. I would be pleased at this time to answer your questions.

[Col Patrick K. Gleeson]

Thank you for your question, Mr. Bachand.

That is a very good question. Bill C-41 implements a number of the Lamer recommendations, but as I mentioned earlier in the context of talking about victim impact statements, this is the statutory framework. Justice Lamer also made some recommendations that require a regulatory basis, and many of these recommendations need a regulatory backdrop in which to fully function. So there is still work to be done on the Lamer report once Bill C-41 receives royal assent. There will be a requirement to develop a number of regulations to support this scheme, and a good example of that is the victim impact statement scheme. It cannot operate based solely on the statutory framework out there; there has to be a regulatory framework behind it.

There is still a fair amount of work to be done. However, as the JAG mentioned earlier, 28 of those recommendations have already been put in force through regulations. Some of the summary trial recommendations, for example, have been into effect through regulatory change, and some of the evidentiary issues you raised have been put in force through regulatory change. So a mix of modalities and processes will get us there. This bill is key, because it is really the linchpin to put the rest of Lamer into force and into effect.

Until Bill C-41 receives royal assent, we are really at a standstill in this process.

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

Do you think that, with Bill C-41, previous bills and the regulations, everything that Judge Lamer raised in his report is now law? Or do you think that other provisions still need to be made and other bills put forward to Parliament to cover all the recommendations?

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

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

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

Okay.

Bill C-41 also makes reference to part-time judges. Would you tell the committee why that's important?

[BGen Bernard Blaise Cathcart]

Thank you, Ms. Gallant.

I don't want to go through all 88--one minute per each--but essentially the nature of the recommendations was such that some did require statutory changes. Those are the ones we're trying to deal with now through Bill C-41.

Others were handled by other means. Take policy, for instance; some of the policy decisions that were made were simple internal decisions to rewrite a policy, whether in the military justice world or in chain of command.

Another avenue was through regulatory changes, primarily the Queen's regulations and orders.

So in terms of the nature and scope of each type of recommendation made, you had to go through and decide, okay, in order to give effect to Mr. Justice Lamer's recommendation, what's the best tool to do so? And not in all cases were those determined to be legislative changes.

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

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

Justice Lamer made 88 recommendations, yet in going through Bill C-41 we don't see all the recommendations put into statute.

Would you explain to the committee why it is we're not seeing all the recommendations in an actual proposed bill?

[Peter MacKay, Conservative, Central Nova, NS]

Yes. Again, you'll find that this is a legitimate concern. If you were to look at this through the lens of how civilians might see the necessity of certain types of behaviour, certain types of dress, certain types of activities that are undertaken by the military, they might question why our system of justice in the military is geared in such a fashion. Those questions are answered again in the necessity of how the military train, how they respond, how they accept a certain doctrine by virtue of joining the Canadian Forces.

It was again the subject of considerable deliberation by Justice Lamer in the Généreux case. He talked about the need to sometimes add quickly, to frequently instill what might be deemed a more severe punishment for what are more mundane breaches of codes of conduct. This is all about maintaining that high standard of discipline, readiness, and behaviour that is in line with being effective as a member of the military but never being out of step with basic principles of fairness. The word “harshness” was thrown around a little bit during the debate, I know.

Bill C-41 incorporates something else, which is the principle of restraint. It uses those words “principle of restraint” so that the military system doesn't go overboard in applying sentences or discipline when it comes to certain what are more summary types of offences. Again, I think the bill itself is aimed at providing statutory protection for unduly harsh sentences while also upholding that code of discipline, that code of conduct, expected of members of the military in the pursuit of their career and in the pursuit of their objectives.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chair.

Thank you for attending today, Minister. It's good to see you here again.

Looking at this bill, it's certainly a really important opportunity to upgrade the military system, I believe. The information in here I think is going to be very positive to try to get it much closer to the civilian justice system.

One of the things that intrigued me, of course, was the concern in the Lamer report addressing security of tenure of judges until retirement. Can you maybe explain the necessity of this recommendation and how it's been incorporated into Bill C-41?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Harris.

Mr. Chair, through you, the short answer is, yes, of course. The primary purpose of this legislation is to ensure fairness, first and foremost, and to not disproportionately have sentences affect military in a way that would be disproportionate to our criminal justice system.

Having said that, there is, as you've noted and others have acknowledged, a distinct code of discipline here that takes us outside of the norm in which normal criminal justice would have application because of this necessity, and expectation from soldiers. I'm given some comfort in this legislation wherein we have included language that speaks of ensuring that breaches of military discipline be dealt with in a speedy manner, and also that we've included language aimed at ensuring that the sentences that apply are not unduly harsh, that they do not have a disproportionate effect.

Mr. Harris, you made reference to the necessity for soldiers to travel, and I know that is of particular concern. If there is anything on their criminal record that would prevent them from deploying, this would have a severe impact on their career. So striking that balance is what we seek to do.

I am encouraged, as was noted, that we will hear from other members of bar associations, those within the military...and I know that the Judge Advocate General can speak to this as well in greater detail, as to how we walk that fine line when we are trying to have these sentencing principles apply, when we're trying to strike that important and necessary code of discipline and standards that are expected of the military above and beyond what would apply in our civilian system.

You know, the purpose and the principles of sentencing also have an aspect of general and specific deterrence, of which I know that you, having practised criminal law, are also aware. That accounts for some of the necessity with regard to transparency around these trials and disciplinary hearings. It also, of course, is based in the long-held traditions of the chain of command.

I am concerned about a previous reference that was made by my friend Mr. Bachand to a choice of counsel. Depending on the charge and the seriousness of the charge, I would suggest that there is still room for choice of counsel. In fact, some involved in the more serious charges choose to seek counsel outside of the military system. That has been the case in a number of recent matters that have been before the courts and before military tribunals.

I am open to the recommendations of this committee, of course, and I am open to further amendments, should you choose to bring them forward, as they pertain to this and other provisions of Bill C-41.