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.

[Peter MacKay, Conservative, Minister of National Defence]

Thank you very much, Mr. Chair.

As you said, I am joined by Brigadier-General Blaise Cathcart, justice advocate general of the Canadian Forces.

Mr. Chair and colleagues, thank you for giving us the opportunity to present Bill C-41.

I'm very pleased to be with you at the committee as you begin your examination of Bill C-41. This legislation is specifically aimed at strengthening the Canadian military justice system.

Let me begin by stating how much I appreciate the support that has already been expressed by members of the committee, by members of the opposition in particular, for Bill C-41, and the indication that has come from the committee regarding the willingness to consider this bill in a timely manner.

I say that because, as many of you will know, there is quite a history with this bill. It is coming back now for the third time, and this is a bill of some urgency and priority, I would suggest to you. The government's legislation is in response to the Lamer report. This is the third time, as I mentioned, the legislation has been introduced in response to that report. It was first introduced as Bill C-7, in April 2006. It subsequently died on the order paper. It was back as Bill C-45, a successor bill introduced in March 2008, which also died as a result of an election call. As members are now aware, this bill was introduced in June of 2010.

The Lamer report was tabled in Parliament in the year 2003 and followed an independent review of portions of the National Defence Act to be amended by Bill C-25. Chief Justice Lamer made numerous recommendations that were aimed at improving not only the military justice system but also the Canadian Forces grievance process as well as the military police complaints process.

He said, and I quote, “Canada has...a very sound and fair military justice framework in which Canadians can have trust and confidence”, and I believe this to be absolutely true. But of course that is not to say, as with any justice system, that it cannot be improved. The old adage about our justice system being a living tree equally applies to the military justice system. I see my friend from Beauséjour nodding in agreement. I'm sure that's an expression he heard at law school as well.

That's what the government is seeking to achieve with this legislation, Mr. Chair.

The bill reflects recent recommendations made by the Senate Committee on Legal and Constitutional Affairs after their study of Bill C-60. Bill C-60 was required to respond to the judgment of the Court Martial Appeal Court in the case the Crown versus Trépanier.

As you consider Bill C-41, I also believe it is important to keep in mind that the military justice system is a separate system of justice designed to promote the operational effectiveness of the Canadian Forces. This separate and distinct aspect was upheld by the Supreme Court of Canada in R. v. Généreux.

The military justice system contributes to the maintenance of discipline, efficiency and morale within our military. It reinforces the command structure of our military in support of both day-to-day and operational activities. Given the key role our military plays in protecting Canadians and advancing Canadian interests and values, ensuring that the National Defence Act keep pace with developments in the law and Canadian society is important.

Bill C-41 is a key step that is part of a process of continuous improvements—the classic living tree. And the bill has a number of key provisions that I'll touch on.

It will enhance the independence of military judges by providing them with security of tenure until the age of retirement. That is, of course, consistent with all members of the Canadian Forces. This is consistent with the tenure of judges in the Canadian civil justice system as well, Mr. Chair.

Bill C-41 also includes a statutory articulation of the principles of sentencing in the military justice system, which provides guidance in the sentencing process. This guidance parallels that provided in the Criminal Code, while taking into consideration the specifics of the military justice system.

One of the concerns expressed by some honourable members during the debate at second reading was that the sentencing of the military justice system might be unduly harsh in comparison to the civil system. It should be noted that Bill C-41 will provide statutory protection against undue harsh sentences being imposed by service tribunals. The bill in fact proposes that the principle of restraint will be followed in the sentencing system of the military justice system. This means that a determination should always be made as to what is the minimum sentence required to maintain discipline, efficiency, and morale within the military, and it requires that the sentence be imposed by the service tribunal.

This bill will also enhance the flexibility of sentencing by providing a greater ability to tailor a sentence to the particular circumstances of the offender and of the offence—also consistent with our civilian system—and by allowing for additional sentencing options, in effect modernizing the act in the form of absolute discharges, intermittent sentences, and restitution orders, all of which are now incorporated into the Criminal Code.

Bill C-41 also provides for the introduction of victim impact statements. This will permit individual victims of offences to more readily express themselves in the sentencing process at courts martial.

Together with enhanced provisions for restitution, Bill C-41 will therefore help ensure that victims of offences are not disadvantaged by having a particular case tried in the military justice system rather than in the civilian one.

I understand that during the debate at second reading there were also concerns raised regarding the fairness of the military justice system, particularly in relation to the summary trial system. In that regard, I would like to remind my colleagues that two of Canada's most eminent jurists, the late Chief Justice Brian Dickson and Antonio Lamer examined this system in significant detail. As you're aware, the Lamer report touches specifically on this. While making recommendations for refinement, both of these eminent jurists endorsed it, and they noted that the summary trial system strikes the necessary balance between meeting the unique disciplinary needs of the Canadian Forces and the needs to respect the rights of individual members of our military.

It should be noted, Mr. Chair, that Bill C-41 also includes provisions to improve the efficiency of the grievance and military police complaints process. For instance, it addresses the Canadian Forces grievance process with a view to making it more effective, transparent, and fair. The suggested amendments would require that grievances be treated as quickly as circumstances permit. They would also allow for a greater delegation of authority to the Chief of the Defence Staff in the treatment of grievances.

Finally, the bill will also establish the position of the Canadian Forces Provost Marshall in the National Defence Act, and specify the functions and responsibilities of the position , as well as make improvements to the fairness and efficiency of the military police complaints process.

In conclusion, Mr. Chair, just let me emphasize that a sound military justice system is absolutely key to our military, as it is in our society. It's key for the readiness, for the effectiveness, and it's key for the morale of the Canadian Forces themselves.

Our men and women in uniform, as you know, put their lives on the line in the service of our country. They need to know they can rely on a justice system that supports, protects, and enables them as they undertake the crucial tasks that we set forward. Canadians similarly need to know that their country's military system will treat those who serve fairly and in a way that corresponds to Canadian norms and values.

The proposed amendments ensure that the military justice system keeps pace with evolving legal standards in the Canadian criminal justice system and they reinforce the continued compliance of the military justice system with the Canadian Charter of Rights and Freedoms, while always preserving the system's capacity to meet essential military requirements.

Thank you very much, Mr. Chair and colleagues. I look forward to your questions.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone. Welcome to meeting No. 46 of the Standing Committee on National Defence. Pursuant to the order of reference of Monday, December 6, 2010, we are going to hear testimony from witnesses regarding Bill C-41.

We have witnesses with us. I want to thank the Honourable Peter MacKay for being with the committee.

I know, Peter, that Brigadier-General Bernard Blaise Cathcart is with you.

Thanks for being with us.

We'll start right now. You have 10 minutes, Minister. Thank you very much.

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

We're all aware that committees regard legislation as a priority, and perhaps the clerk can help us here, but my understanding, from the people in our legislative crowd who've told me, is that it doesn't mean that everything else will come to a halt when we start working on this bill. It's up to the committee to determine the pace at which it's going to look at the legislation. It's not as if there's any intention to drag this out, and don't take that as the message. But I certainly don't think we have an obligation to drop everything and do nothing about this.

For example, we have a commitment to travel to Newfoundland and Nova Scotia in the first week we're back. I don't think this should displace that by any means. For obvious reasons, it's been announced and made public, and it's important to follow up on that.

So when the steering committee meets on Tuesday, I don't know what the intent is. Is it just the steering committee that will meet on Tuesday?

If that's the case, fine. At some point, the committee must determine....

By the way, I'm not going to be ready next Tuesday to say “Here are all of the witnesses that I can possibly call on Bill C-41”. That's not going to happen. This is premature.

As someone said, we just had this bill passed yesterday, or whatever day it was in the House. It's an extensive bill and the first time, other than for minor amendments, this bill will really be reviewed by Parliament and committee. So we're going to do a proper job, as far as I'm concerned. I don't think that requires us to say “Here are the witnesses”. I can indicate one or two, but I can't say I'm not going to call anybody else. I'm not going to be boxed into doing that by Tuesday afternoon at three o'clock, or whatever time we finish our meeting.

I'm not going to rock the boat here vis-à-vis my learned colleague's suggestion that the minister might be premature on this as well. But maybe we can have our steering committee meeting and have a full committee meeting to ratify whatever the steering committee meeting does. That seems to me to be an adequate agenda for Tuesday.

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

I share this point of view.

First, even if the minister came on Tuesday, we wouldn't have time to finish the study of the bill by Christmas. Moreover, we won't be sitting next Tuesday, as far as I know.

I think that having the minister appear, having him talk to us for an hour about Bill C-41, and then adjourning and returning home, then coming back in early February and starting it all again would do little good. But there's nothing stopping us from starting to think about what kind of witnesses we want to hear from.

I am currently taking steps to prepare amendments with legislative counsel. I would like to fine tune some things in this bill. I don't see the point of inviting the minister. His presence is still an important piece of the puzzle, the political piece, and we are having him appear on Tuesday. Then we will close the books and head home for a month.

I would like us to get off on the right foot at the end of January and have the minister join us then. I'm happy to. I think he'll be accompanied by the judge advocate general. It doesn't seem like much, but having the judge advocate general here is important because he can answer technical questions. If he comes with the minister and we talk about technical matters, and then we head off on vacation, eat a little turkey, drink a little wine—

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Chairman, we always welcome the minister. However, on Bill C-41 we want to look at drafting some amendments and we obviously want to study the bill a little more. We appreciate that the minister is available. Often, when we want the minister, he's not as available as we'd like. So we appreciate that.

However, given the fact that the House will be ending shortly, we would like to have some time to provide quality amendments to the legislation.

I appreciate the generous offer made by the parliamentary secretary to the minister. I would suggest that hopefully in early February we can have the minster for two hours, and not just on Bill C-41.

It would be our position, Mr. Chairman, that because of time constraints, we would like a little more time. We will respectfully decline the offer of the parliamentary secretary.

[The Chair, Conservative, Maxime Bernier]

First of all, I want to have a discussion with members of the committee about our meeting next week. Specifically, next Tuesday we will have a steering committee meeting regarding witnesses and how many meetings we will need for Bill C-41. We also want to discuss our trip to the east, the details of that trip, who we are going to visit, and whether we wish to have public hearings. We have a lot of things to discuss next week.

I also received a request from the minister that he is ready to appear before us next Tuesday, for an hour, to start Bill C-41 My proposal is to meet with the minister for an hour and then take an hour for our steering committee.

I just want to put that on the floor for discussion with the members before we decide.

Mr. Hawn.

Strengthening Military Justice in the Defence of Canada Act

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I thank the member for sharing his time on the debate on Bill C-41. Over a week ago, I had prepared a 20-minute speech on this subject so somehow I need to cut it down.

However, we have dealt with many of the really important issues through questions and answers and the speeches of the member for Windsor—Tecumseh today and our critic, the member for St. John's East, who have done an excellent job of dealing with the issue. In a general sense, when it comes to crime bills, the member for Windsor--Tecumseh is able to give solid answers on the bill, more so than I can get even from the government. There have been exceptions for the government. The odd government member has actually been very knowledgeable but it is very intermittent, but very consistent on the part of the member for Windsor--Tecumseh.

In terms of the background on the military justice system, I do not think it is well understood by people in regular society. People in regular society understand that there is a separate system and they know that it is more stringent than the regular justice system. I have a son in the military reserves and I have spoken to him briefly about this but I do not sense that he is really that well informed on all the ramifications of the involvement with the military justice system versus the regular justice system since he has had no involvement with either up to this point, and I hope it stays that way.

The statutory basis for the Canadian military justice system is set out in the National Defence Act and is known as the code of service discipline. Among other things, the code sets out who is subject to the jurisdiction of the military justice system. It establishes military offences such as striking a superior, disobedience of a lawful command and absence without leave. When I was looking at the annual report that the parliamentary secretary gave me, I was curious to find out why it was that the number of trials had gone up 2.5 times over 10 years. I was looking for specific cases because it is instructive to study case law and look at certain cases, which is done in law cases and in the insurance field.

I found some interesting cases in the annual report that deal with the issues I just mentioned, but in addition to that, drug issues. I thought that with drug testing going on in the military right now that drugs would not be a problem whatsoever, but there are a number of cases of personnel being involved in drug activities. With a force the size that we have, I guess it is to be expected that things like this would happen.

It incorporates all offences under the Criminal Code, other federal statutes and foreign laws. It establishes tribunals for the trial of service offences, summary trial and court martial. It establishes a process for the review or appeal of findings in sentence after trial. The military justice system is designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale.

As other speakers have mentioned, Chief Justice Lamer of the Supreme Court of Canada explained in Regina v. Généreux in 1992, 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 depends considerably on the willingness and readiness of a force of men and women to defend against threats to the national 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 of a civilian engaged in similar 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. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. We have to understand that the military not only operates within Canada but operates on a worldwide basis. Thus, there is a need for separate tribunals to enforce special disciplinary standards in the military itself.

The separate system of military justice 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. Charter issues in many ways have served to propel the bill that we see in front of us now and in earlier bills to make the changes to bring the long-standing military justice system more in line with the civilian justice system to the extent that it is possible. It has been indicated that it is not possible to make it a mirror image of the civilian system.

We have dealt with quite a number of important issues with respect to this bill over the last few debate days. I want to point out that establishing the victim's voice in this process is extremely important. Having a victim impact statement similar to the Criminal Code provisions included in this legislation is a groundbreaking and necessary change.

Comprehensive amendments to the National Defence Act were made in 1998 by Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts. These amendments included clarifying the roles and responsibilities of the Minister of National Defence, the Judge Advocate General and military judges. It separated on an institutional basis the system's investigative, prosecutorial, defence and judicial functions. It included a completing summary trial reform directed at modernizing the summary trial process, strengthening compliance with the Charter of Rights and Freedoms and enhancing procedural fairness.

Bill C-25 included strengthening oversight and review by establishing the external Canadian Forces Grievance Board. The member for St. John's East spoke about the grievance board. It also included the establishment of an external Military Police Complaints Commission which required the Judge Advocate General to report annually to the Minister of National Defence on the administration of military justice in the Canadian Forces. It also required the Minister of National Defence to have a review carried out of the provisions and operations every five years. It also eliminated the death penalty.

That has now been changed to a seven-year review, and it seems, by all accounts, to be acceptable. When we pass this bill on to committee, we will be opening it up to the committee inspection process. Witnesses will appear before committee and they will be subject to questions and answers. We will be able to drill down into the components that make up the individual parts of the bill.

I also wanted to talk about the additional sentencing options because that is really crucial to this whole process. Now there will be absolute discharges, intermittent sentences and restitution orders added into the process, which is going to improve the present system.

The House resumed consideration of the motion that Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I rise to speak to Bill C-41 in recognition of the fact that this bill is a significant step forward in the military justice system.

Before I go any further, I would like to signal that I am going to be sharing my time with my colleague from Elmwood—Transcona.

The bill would do a number of things, which I know, after listening to my colleague from St. John's, raises some concerns as well, but let me deal with some of the positive aspects of it, which I believe are major steps forward.

The bill introduces sentencing principles. I will not say they are as broad or liberal as the principles under the Criminal Code, but they are certainly a major move in that direction, setting out principles that would guide military judges when they are imposing sentences.

Again as we heard from my colleague from St. John's, the number of trials where this would be applicable under the court martial provisions is particularly important, less so in summary trials. The principles are set out, as well as the additional powers that are given to military judges.

For instance, under the new provisions, absolute discharges would be granted. A military judge may say someone is guilty of an offence but because of the scenario, the facts or circumstances of the individual's long service in the military, perhaps, say it is an aberration, a one-time event and, although serious, not one where the person should be carrying a criminal conviction into civilian life, and grant an absolute discharge. That is just one example. There are also provisions for restitution to be ordered way beyond what is within the scope of military courts at this point.

With regard to judges, here are two additional points. One is in terms of the system's not only being fair but appearing to be fair. There is now full tenure for military judges. They will have security of tenure, and it will not be possible to remove them arbitrarily until their normal age of retirement within the system. That is important for individuals who appear before judges. It is important for them to know that the judge does not have to be concerned with some superior officer somewhere being upset by the judge's conduct and removing him or her from office. That is a major advancement.

The other thing the bill provides for with regard to military judges is that part-time military judges would now be appointed. As we have already heard from some of the comments and questions, the number of trials is increasing fairly dramatically. The availability of part-time judges is important to allow trials to be conducted in a fair and efficient manner without long delays.

With regard to the development that is occurring, it makes me think of what we have done historically in our criminal justice system in Canada. For a long period of time, the lower courts were basically assigned jurisdiction of a fairly limited nature. It was mostly magistrates not trained as lawyers who sat in judgment of those cases.

Over the years, more responsibility was assigned. More serious cases were assigned to them. As we find in the military system, because they were more expeditious in most cases, the vast majority of people who had the option of going to a higher court stayed at the lower court, even though at times the justice was less than fair, if I could put it that way.

Over the years, especially as we moved to more concerns over civil rights, civil liberties and human rights, it became such that the magistrates are being phased out or have been phased out in most cases and everybody now has legal training, the Charter of Rights and Freedoms applies and rules of evidence apply much more stringently than in the past. We have gone through that system in the civil criminal justice system.

In effect, we are starting down that road now, this being just one of a number of bills in this regard. We are now moving fairly dramatically to try to do the same.

However we are dealing, obviously, with a different fact situation. Everybody recognizes the need for military discipline. And so what we are really attempting to do with this legislation, and other legislation and other changes occurring within the military justice system, is to strike that balance where the senior command, as well as the command in the field, has still sufficient control to impose military discipline, at the same time balancing off against the right of the individual person, who is charged with some offence under the military code, to a fair process.

We have to say we have some concerns with the process that is being instituted here, while it is a major step forward. There may be additional things. So, when this goes to committee, and it obviously will, we will be looking at ways of perhaps enhancing that balance so that individuals who appear before the summary courts will be treated fully fairly.

Let me just say in that regard that, because that fairness is quite important in terms of the individual member of the military feeling confident that he or she will be always treated fairly, still recognizing that they have to strike that balance, military discipline is still important.

Will we ever have a unionized workforce in the military? I suppose I have a bias in favour of thinking that may happen at some point. We are certainly not there at this stage. Although other countries have moved in that direction, we are not there at this stage. This would be a major step forward; however, there may be some refinements that could be made.

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

Mr. Speaker, I am please to join today in this debate at second reading on Bill C-41. It is important that we understand how military justice fits in with our justice system and the importance of military justice to the operation of the armed forces.

First, we are supporting the bill at second reading, although we see major deficiencies in the two areas that the bill talks about, and that is reformation to the operation of the criminal side of military justice and also the changes to the grievance board.

Military justice is a very important part of making our forces work. It is related to discipline within the military forces. I will quote retired Colonel Michel Drapeau who is very knowledgeable in military matters and military law. In fact, he has written the only significant Canadian work on military law, the annotated volume of the National Defence Act and related statutes. He had this to say about the importance of discipline:

Few professions are as dependent on discipline as is the military. Discipline is fundamental to military efficiency, cohesion, esprit-de-corps permitting commanders to control the use of violence so that the right amount and type of force can be applied in exactly the right circumstances, the right time and the right place. At the personal level, discipline ensures that at all times of great danger and risk, the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise. Likewise, group and individual discipline ensures adherence to laws, standards, customs and values of civilian society, even during combat operations.

Therefore, discipline is integral not only to the maintaining of an efficient armed forces but also to ensuring that the rule of law predominates within the military, particularly when engaged in great peril and danger in combat.

The late Chief Justice Antonio Lamer, in an important case in 1992, also talked about the importance of military discipline in maintaining the armed forces in a state of readiness. He said:

—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.

That might seem to be a bit unfair. In fact, that is really the subject of my remarks today.

Another comments on military discipline was made by my predecessor as defence critic for the NDP, Dawn Black, in speaking in the House on June 16, 2008, talking about military justice. She said:

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.

I refer back not to the Lamer study, but to an inquiry into the circumstances of Somalia when Canada was there initially as part of a UN peacekeeping mission but ended up in the midst of a war. The resulting inquiry by Mr. Justice Letourneau and the public outrage that resulted from the knowledge of what had happened in Somalia with our troops, and I will not go into the detail, was in fact the beginning of the dark days of the military in the nineties, as the Conservatives have said today. Mr. Justice Letourneau discovered, through his inquiry, that terrible things had happened that shocked Canadians, but the fault was all throughout the chain of command and the failure of leadership that prevented the system of discipline from operating.

When we talk about military justice, there has to be an emphasis on the justice side as well. We expect, want and need to have a high level of morale among our troops and we demand loyalty. However, it is a two-way street. The system must also be seen as fair.

In two areas of our military justice system that I want to focus on today that fairness is somewhat lacking. Those areas are the military justice system on the one hand, and I will go into details, particularly of a summary trial, and the issue of grievances on the other hand.

In our military system, grievances are written into the National Defence Act. We do not have a unionized military as some other countries do. Many thousands of individuals are subject to military discipline and are in a rigid, chain-of-command, top-down type of structure. Their only recourse when it comes to dealing with issues affecting their pay and benefits, their release, which is often very problematic, medical issues, getting adequate medical treatment and issues of that nature is through a grievance system. That grievance system is in disarray and the proposed changes in the legislation do not really deal with that.

Let me talk a bit about the summary trial issue. I think the public and members of the House of Commons have heard of court martials. I guess there is an assumption that most military justice goes through that procedure.

However, that is not the case. In dealing with discipline within the military forces, there is a less formal tribunal presided over by officers. These officers are not legally trained. It could be the commanding officer, or someone delegated by him or her, presiding over a summary trial. These officers are given a seminar on how to do this, but they do not have the ability to follow the rules of evidence and carry out a trial in accordance with the nature of criminal trials that would occur in our civilian courts. When I say “civilian”, I do not mean civil versus criminal.

The forum is the court martial itself, which is more analogous to a civilian court of criminal jurisdiction. That is provided for, and there is a whole series of rules and evidence that apply to that. In fact, it is a rather comprehensive code of evidence that applies to court martials.

However, in looking at the actual use of summary trials and court martials in Canada, it is pretty clear that it is very much the exception rather than the rule. In fact, in 2008-09, there were 1,963 trials in the military justice system. Of those, only 65, or 3%, were in fact conducted through a court martial. The other 1,898 were dealt with by the summary trial procedure.

There is nothing particularly wrong with that, except that under a summary trial procedure in the military, as opposed to in the criminal courts where our civilian population is tried for offences, there is a rather strict set of rules that involve the rules of evidence. It is guided by the provisions of the Charter of Rights and Freedoms. There is a very significant prohibition against any kind of prejudice or foreknowledge of the individuals or the cases.

The results are subject to appeal. There is a transcript, so if people do not like what happens to them because they think there was a legal error, they can appeal to a higher court. Also, they have the right to legal counsel in a criminal trial.

We are proposing that we take a significant look at this whole issue and say that there must be a trade off if we are to have summary trials in the military without rules. We need to know how these summary trials can end up for the individual involved. If our sons or daughters were in the military and they were tried under a summary trial and convicted, which y about 89% of those who have summary trials are convicted, they end up with a criminal record and that criminal record is treated the same as a criminal record for a trial before a civil court with all the rules and procedures in place.

The trials can take place before a commanding officer or someone delegated by him or her. They can result in fines, in imprisonment or in detention for up to 30 days in the case of a commanding officer and 15 days in the case of a delegated person. These are serious matters that result in the loss of freedom for an individual, a fine equal to 30 days' pay or a loss of rank for example. Those are the punishments for summary trials and yet the lack of procedural fairness in the Charter of Rights and Freedoms sense is not there.

If we need to have that system to maintain order, discipline and morale, which we do not have a problem with, then we should ensure that members of our forces do not end up with criminal records that they must try to get expunged through the Parole Board after they leave the military. We have seen the attitude of the government on the Parole Board. It does not seem to want the Parole Board to have too much power because everybody who is convicted of something is obviously a menace to society. It is even building jails now to house unreported crimes.

We have the concern that in the military system we need to have, as former Chief Justice Lamer said, speedy justice. Sometimes we need more punishment than others would encounter for the same offence, but if we do that, the trade off should be that individuals do not get a criminal record unless they are tried by a court that has that kind of support.

What are we talking about in terms of offences that could end up with criminal records? Of the number of charges in 2007-08, 29% of the offences were for absence without leave, AWOL; 6%, or 156 cases, were for drunkenness, which is section 97 of the Defence Acts; 19 out of 2,600 cases were charged against good order and conduct, prejudiced to good order and discipline of a sexual nature; and 138 cases for drugs and alcohol. A person who is charged under the National Defence for possession of drugs or alcohol could end up with an offence that results in a penalty of imprisonment, fine or a reprimand. There is a range of sentences.

The concern is that, at the end of the day, the individual ends up with a criminal record even though the procedural fairness is not there. It is not subject to a lawyer. It is not an independent tribunal. The person in the case, the commanding officer, can accept any kind of evidence that the person deems to be relevant to the charge and relevant to proof. That is not the case in a criminal court. In assessing whether a person is credible, the commanding officer quite often knows the individual or the delegated person may know the individuals or may know the witnesses. That is not something we would allow in a criminal court in civil jurisdiction.

The rules of procedure are not there. It is true that there are some procedural guidelines but there is no transcript. Individuals cannot go to an appeal court and say that their procedural rights were violated and therefore the case should be set aside. There is a review and sometimes the reviews are successful. They may result in a different charge or a different sentence but they are not appeals in the same kind of legal framework that we have in civilian courts.

While we think summary trials and the notion of a different system for military tribunals and military justice is reasonable, there must be a quid pro quo, there must be a balance so that if the rules are tougher, perhaps the sentences are tougher, they maintain discipline and order.

On the other hand, if people are not given all the same procedural rights as those in the Charter of Rights and Freedoms such as a civilian would have, they should not have a criminal record for the rest of their life unless they are able to go through the procedure of going to the Parole Board and getting a pardon. People leaving the service may have enough trouble trying to adjust to civilian life outside of the forces without having the additional burden of a criminal record for something that may have happened during their military service that was not serious.

Most of the offences we are talking about are very minor. If they were not minor they would be subject to courts martial with more severe penalties and most of these are relatively minor offences that do not often require serious discipline. They could be areas of military discipline that are extremely important, for example, insubordination, quarrels, disturbances and disobeying a lawful command are important to discipline but they are not something for which someone should have a criminal record.

The other area I want to talk about is the grievance procedure, which is extremely important to those in the military because they do not have any way of solving these problems without going through a grievance procedure. If they had a collective agreement they would have a grievance procedure. There would be time limits where the employer would have to respond. One of the previous speakers mentioned the Lamer report that had 88 recommendations. There are a whole series of recommendations in the Lamer report that have yet to be implemented, some of them may have even been accepted but their implementation is pending the completion of further study, we are considering the implementation under study, et cetera.

For example, that the Chief of the Defence Staff be given the necessary financial authority to settle financial claims and grievances, and that the Chief of the Defence Staff be entitled to delegate this authority. What is the importance of that? The importance is that if somebody has a pay and benefits problem that can be resolved by saying that the man should be paid his two months wages, the Chief of the Defence Staff should be able to solve that problem. He should have the authority and the budget to do that. The responsibility rests with the Chief of the Defence Staff and yet he is not given the financial authority to deal with it. That was recommended and accepted and yet the implementation is pending further study. Why is that? Seven years later after the Lamer report, we still have a series of recommendations like that.

We are also concerned about the grievance board itself. The change in the name to the external board when it is not external at all. It is still comprised of military or ex-military people. It does not require any military knowledge to do that. It requires people who are judicious and able to resolve disputes and can recommend they be done quickly and not take two years or longer to get grievances resolved.

[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.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, on the same point of order, I would ask you to ask my hon. colleague to stick to the debate that we are supposed to be having, which is on Bill C-41. It has nothing to do with the joint strike fighter or some imagined relevance of military justice, which is something that sticks in his craw.

If he is going to debate that, Mr. Speaker, you might want to ask him why the Liberal Party refuses to even go—

[The Acting Speaker, Conservative, Barry Devolin]

The hon. member for Halifax West is debating Bill C-41 and I would ask him, as I would ask all hon. members in this place, to stick to the matters at hand.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, they are the fans of my colleague, the member for Markham—Unionville. I get the impression they are more anxious to hear from him than from me. That is understandable, I suppose. He is an excellent member.

I am pleased to rise in debate today on Bill C-41.

We will vote in favour of this bill at second reading. Military justice must absolutely be updated. However, there are some clauses of the bill that, at first glance, are cause for concern. We would like to take the time to study the bill properly in committee.

In 1998, the Liberal government at the time passed Bill C-25. The purpose of that bill was to update the military justice system, and it included a clause that required the operation of the bill to be reviewed after five years.

The former chief justice of the Supreme Court, the Right Hon. Antonio Lamer, drafted a report containing 88 recommendations, which are the reason why we are debating this bill today.

Unfortunately, since the Conservatives have been in government, there has been little action to address Judge Lamer's recommendations.

In April 2006, the Conservatives introduced Bill C-7 to amend the National Defence Act. However, it was never brought to the House of Commons for debate. A year and a half later, the Prime Minister prorogued Parliament, which would, as we all know, become a recurring theme. The Prime Minister's actions in fact killed the bill. The Conservatives introduced it once and the Prime Minister killed the bill by proroguing Parliament.

It took the government approximately five months before reintroducing the bill as Bill C-45 on March 3 of that year. Once again, this bill was never brought forward for second reading debate, and a few months later the Prime Minister broke his own fixed election law, thereby killing the bill again.

It is difficult to believe that the Conservatives give any attention to military justice when we see them introduce bills with absolutely no intention of ever debating them. Therefore, I am pleased we are debating this today and hope we will see more of this bill, but that remains to be seen.

What this shows once again, unfortunately, is that we cannot trust the government, just as we cannot trust it when it comes to military procurement. We have seen what the Conservatives have been saying about the joint strike fighter project, the F-35s, the stealth fighters that they want to purchase. They have said for months in the House that a competition is not required because Canada was part of one back in 1999-2000.

The House resumed from November 26 consideration of the motion that Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.