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.

Strengthening Military Justice in the Defence of Canada Act

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, since we seem to have unanimous consent to stray off topic, let me follow up on that one.

I would like to ask the hon. member about something that came up yesterday. The hon. member from the NDP talked about the Afghans not needing training because they beat the Russians.

I would like my hon. colleague's comment on the fact that we are not training the Afghans to be an insurgency. We are training the Afghan national army to be a professional organization mirroring as much as possible the Canadian Forces to actually deal with an insurgency. There is a subtle difference that may have been lost on the NDP. I would like my hon. colleague's comments on that.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, the parliamentary secretary posed a very good question and he worded it very well. He is absolutely right. We are actually scaling up the ability of the Afghans not only to have a constabulary force, but also an army so that we can be out of there and the Afghan people can provide for their own security.

In reference to the question by the NDP member, if we did not have a constabulary force in Canada, if we did not have an army to provide for our own security, what would we have? There would be anarchy. In countries without a proper police force, without a proper justice system, without a proper army, civilians are left to elements that are untoward and that can cause quite a bit of destruction and havoc.

We enjoy a secure country, so why on earth would we not enable other countries to have access to the same elements of a secure country? This involves a constabulary force, a strong economy, a strong justice system. It also involves the police which I would argue are more important, as the parliamentary secretary alluded to. At the end of the day the police are more important than the army in providing the day-to-day on the ground security for the people.

Once upon a time there was an Afghan domestic police force and remnants of it still remain. That grassroots police force which was driven from a tribal level had a great deal of respect. If the constabulary initiative we are engaging in with the Afghan national police can incorporate that historical element of a domestic grassroots, partially tribal-based Afghan national police force, we would have a culturally congruent Afghan national police constabulary force that could be secure and supported by the people in the long term.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I rise today to speak to Bill C-41, regarding military justice.

First, I have to respond to the comments in the last back and forth between the two members. It should be noted that the parliamentary secretary was trying to attribute the comments of the former Liberal leader to the NDP. My colleague was simply trying to get an actual position from the Liberal Party, which is difficult to do these days. He was raising the point that the former Liberal leader, the new ally or old ally, I do not know anymore, of the Conservative government, was asking why it is that we need to train more troops. It was his supposition, not that of my friend from Winnipeg. We have simply said that NATO is already going to meet its goals by next year and, as the parliamentary secretary knows, so is the Pentagon. Why did it break its promise and abandon the civilian equation?

It is a matter of getting things straight, and I know the parliamentary secretary was challenged at the special committee on Afghanistan on even knowing what the numbers were for his own government. It is interesting that he would now take the assertions of the former Liberal leader that there need not be more training for the Afghans because they beat the Russians. It was the former Liberal leader who said that. I know the member from B.C., his colleague who sits just a couple of desks away from the former Liberal Party leader, would know that as well.

Now that I have cleared that up, which is always difficult when we are dealing with a government that does not even read its own press releases, let us talk about the bill before of us.

When we are looking at strengthening military justice, it is important that we understand the ambit of this. This is an area that is important to look at. The last time we looked at the issue was in 1998. We were considering Bill C-25 at that time, legislation to modernize the defence act. However, the importance of military justice vis-à-vis changes to our Constitution and the Charter of Rights and Freedoms was not looked at.

Let me be very clear with the government that we will be supporting sending this bill to committee. I do not want the government to misquote us or attribute our comments according to what the Liberals might say on any given day, which is always challenging. Let me be crystal clear. We will support sending this bill to committee with a view to looking at strengthening some of its provisions.

With respect to this review, our members have already mentioned that we need to get it right. On the one hand, we need to look at what the responsibilities are of the military in terms of its conduct and allowing the military to discipline its troops in a way that is in line with its mandate. On the other hand, we also have to recognize the rights of members of our military as citizens, and ensure that they do not forgo the rights they have as everyday citizens.

It is a balancing act between recognizing the rights of members of our military as citizens of Canada in line with the charter provisions and understanding the unique role of the military in our society and the way it conducts itself. When we are talking about summary justice, for instance, the military has a special role to play which allows it to use its disciplinary tools.

I remember talking to my grandfather about my father's service in the second world war. As a sergeant, he had to ensure that the troops who were working with him understood that there was a code of conduct. In the case of my grandfather's service in the first world war, he told me about the fear that was invoked by his commanding officers. That was important because the discipline that is needed when in situ and also when being trained must be understood.

There is also a need for justice to be supported when there are allegations of misconduct. That is where we have to get the balance right. Notwithstanding the need for proper discipline, the need for summary justice for military conduct, we also need to ensure that if there are allegations of misconduct and there is a serious charge against a member of our military, that he or she is afforded the same protections the he or she would get if he or she had been charged outside the military under the ambit of the Criminal Code of Canada. That is where we have serious concerns.

If we look at the balance between the support of someone who is coming forward in the military justice framework versus regular court proceedings, we would know there is not an equal support for troops who are under the guise of military justice.

[The Speaker, Peter Milliken]

I hesitate to interrupt the hon. member but, as he knows, it is 11 o'clock. He will have 14 minutes remaining in the time allotted for his remarks when debate is resumed on this matter.

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.

[The Deputy Speaker, Andrew Scheer]

The hon. member for Ottawa Centre has 14 minutes left to conclude his remarks.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I rise to continue my comments on Bill C-41, the Strengthening Military Justice in the Defence of Canada Act.

Before question period, I was referencing the need to strike a balance when it comes to military justice. It is absolutely critical.

We have seen a lot of changes in our military. We have seen the merging of the Canadian Forces from three distinct groupings into one umbrella organization. There has been a lot of flux and change within the Canadian Forces, not just in the mandate but in the way in which they have been resourced and how they are organized. One of the things that has not kept up with the changes is military justice, and that is what this bill is about.

As I said before question period, I want to make it known that we support sending this bill to committee after second reading, so the committee can look at the legislation and propose improvements and perhaps amendments. Essentially what we are talking about here is modernizing the military justice system.

It is important to recognize the work that was done back in 2003 by the Chief Justice of the Supreme Court, the Hon. Antonio Lamer, who has since passed away. He made a lot of recommendations, not just on modernizing military justice but in other areas as well. He made 88 recommendations, most of which pertain to military justice and the rest to the oversight of certain bodies of the Canadian Forces, such as the Military Police Complaints Commission, which we have discussed quite often both in this House and outside of this place.

We did not get to all of his recommendations in this House. Essentially what we are trying to do with this legislation is to finish the recommendations that he had put forward. Some of the things include providing a greater flexibility in sentencing, including the introduction of intermittent sentences that extend the limitation period for liability claims by Canadian Forces members, and a number of other measures that bring the Canadian military justice system more in line with the civilian justice system.

Summary trials is one aspect of the military justice system. They are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the trial, and the judge is the accused person's commanding officer.

I mentioned the experiences of my father and grandfather when they served in the military. There was an understanding that they had to take orders and follow certain conduct. One of the things they would have wanted to see would be a modernization of the way in which discipline is assessed. Certainly when charges are brought forward against members of the forces, they should be accorded similar supports that they would be afforded in civilian trials under the Criminal Code.

As I mentioned before, there needs to be a balance between members of the military having to abide by certain codes of conduct that are obviously different from those that apply to public servants here in Ottawa, and their being afforded similar rights, if not exactly the same at least in outcome, for any trials they are involved in. If we leave out of the military justice system the same protections that would be afforded to citizens in a similar kind of scenario within our criminal justice system, then we have not struck the right balance.

We have to establish that. Within the military justice system, how do we ensure there is access to counsel and to the same kinds of processes that exist within our civilian system? When we look at the consequences, what will follow members of the Canadian Forces if there is discipline?

Right now, the concern is if discipline is handed out to someone in the Canadian Forces and the person has been found guilty of a certain crime within the code, would that individual have anything on his or her record in the civilian system? Would something languish and affect the individual negatively? That has to be understood.

The grievance procedure has to be overhauled. Right now there is a lack of access for those in the Canadian Forces who have been subject to a military trial. If there is no appeal, it is very difficult to say it is a fair system. It is hoped that a lot of these things will be addressed. Most people would see it as something we can work on in a multi-partisan way in order to modernize the act.

There must be access to justice in all of our institutions. If there are insufficient supports to counsel, then we will have a vastly insufficient system of justice for members of the Canadian Forces when we compare them to those who are under civilian oversight.

Summary justice for military conduct is understood as something one signs on to in terms of the military, but we also know that for people who are subject to military tribunals or justice, there are insufficient processes as it relates to our modern justice system particularly when we look at the charter. If we are to do this well, we need to hear from people who have studied this.

As I mentioned, the work that was done by former Chief Justice Antonio Lamer is important, but we also need to hear from those who have looked at how to modernize other jurisdictions to ensure we get the balance right. If we are able to do that and hear sufficient evidence from witnesses, we will be able to improve the bill by ensuring the aspirational aspects to modernize military justice will be found and strengthen the notion of what it means to have a fair trial within the military.

If we look at the history of the military and how it relates to the conduct of soldiers and how the accountability measures are put in place, it is clear to anyone who has looked at this that we are out of date in terms of what the processes are. When we looked at this in a previous Parliament, there was an attempt to get this moving.

Sadly, there was an election which most Canadians did not see coming. We believed the government was going to abide by its own legislation on fixed date elections, but it did what it has done too often and ignored its own legislation, even though it was a promise made by the Conservatives in an election. The government forced its proposal on us and then took it away because of its actions. That was the case in the 2006 to 2008 period when this legislation was in front of us.

It is important to understand that if this is going to be done, it needs the government's backing, not just by putting a proposal in front of Parliament and saying, “Here it is, this is what we support”, but by the government wanting to work with other members of this place to ensure this legislation gets through. It would be unfortunate if this bill died on the order paper and we were not able to modernize military justice. I do not have to tell members the need for it. We have seen some very sensational cases recently involving members of the military. It is important that there be a balance between ensuring that the military is able to behave and organize itself in a way that it sees fit, but at the same time in a way that falls in line with the justice system of this country.

In conclusion, if it is the intent of the government to modernize military justice, I think it will have a lot of support from members of all parties. However, the government must be open to ensuring that the rights of the accused would be supported, similar to that in a civil situation.

If the government is serious about modernizing the military justice system, we need to ensure that at committee the government is willing to listen to other parties, that the government is willing to support amendments based on sound evidence from witnesses. In that way, we can get the bill back to this place and ensure that the modernization process which started back in 1998 is completed in 2011.

[Laurie Hawn, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I listened with interest to my colleague's comments. This is best saved for committee but there are number of areas that he brought up which in fact have already been addressed, but that will become clear at committee.

I want to read a quote from former Chief Justice Lamer:

Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.

That being said, obviously there is always room for improvement. There is always room for modernization.

Would my hon. colleague agree that we are starting from a foundation of a system that is basically fair and just and has served us well for many years?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I would concur with the notion that we have a system that has tried to be fair and just in its delivery. The problem has been its structure. We have to catch up to the changes within our own Constitution when we look at the charter, for instance.

I think what Chief Justice Lamer was doing at the time is essentially what the parliamentary secretary said. He was acknowledging the spirit of what had been in place, but he was also underlining the fact that we need to catch up with the changes within our own Constitution and to ensure that the rights that are afforded civilians are afforded to our military. As I said in my speech, that is the balance we are trying to strike. I would agree with the parliamentary secretary on that. I would also note that it is important to capture the fact that he believed it was urgent that we modernize our system and ensure we get the balance right.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, picking up on the comments of the parliamentary secretary, in 1992 Chief Justice Lamer said:

Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.

Essentially he was talking about a separate system of military justice developed to deal expeditiously and fairly with service offences while respecting the Canadian Charter of Rights and Freedoms and meeting the expectations of all Canadians, not just those in the military.

Would the amendments that are being proposed here serve to enhance the independence and the effectiveness of military judges and their role in the military justice system?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I used the word “balance” a number of times in my comments. If we do not pay attention to strengthening the rights of the accused and access to things like counsel of their choice to ensure they have access to transcripts, some of the most basic fundamentals in justice, and if we do not have that as part of the reforms, then we will have failed.

On the one hand, it is important to note that there needs to be an understanding of the separate nature of the military in terms of its conduct. On the other hand, we need to ensure that we do not discriminate when it comes to the rights afforded all citizens of our country. That is where we have to be very clear on what our intentions are and what the outcomes are when this legislation gets to committee.

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

Mr. Speaker, I have a question that is in three parts. I want to thank the parliamentary secretary for sending me the annual report so quickly. I noted in it that summary trials in 1999 and 2000 were only 426. However, there is a five-fold increase in summary trials between the years 2000 and 2007-08, 2,035 summary trials. Perhaps when the member stands again to answer another question, he could tell us why there is a five-fold increase.

I know my colleague would be interested and would want to comment on the issue of giving victims a voice in this process by virtue of having victim impact statements similar to Criminal Code provisions. That should be something positive.

The parliamentary secretary said that although the backgrounder indicated the review would be only every five years, I believe he said that the plan now was to have a seven year review process. However, I was very interested in knowing what kind of review. It does not sound like it is parliamentary review at all. It sounds like it is a review involving the defence establishment itself and I would be a bit worried about that. Maybe we could get some clarification as to just who will find out about this review if and when it ever happens.

Maybe the member would like to expand on some of these points.

[Paul Dewar, NDP, Ottawa Centre, ON]

I would, Mr. Speaker, and I would start off with the importance of reflecting in military justice what exists in the regular system under the Criminal Code and civilian justice. When we look at victim impact statements, access to evidence and the ability of the victims or the accused to access resources, those are lacking and they are required.

The statistics that were just cited by my colleague from Winnipeg would indicate that there is an increase. If we are talking about an increase between 2008 and 2009 of the number of summary trials, and this is the database that we have before us, we are looking at over 2,000 between 2007 and 2008. If we go back from that date, it is 506. There is a major proliferation.

Why is that happening and how are we going to deal with it? At committee, we will need to hear how these cases are dealt with, how the structure handles it and, most important, what changes need to be made to modernize it.

If we are using a system and a structure that is antiquated and yet it is being given more and more to deal with, then we have to look at not only the resources available to deal with that, which I know is an issue within the military, but also the structures with which we are having to deal.

Finally, when we have seen changes in law from the government, it often forgets that when we change the law, we also have to ensure we provide the resources on the ground, be it at the provincial level or in this case for the military.

The Conservatives are great on the wedge politics of using justice issues and changing laws, but the resources they are providing to support the changes in law are very scant . That is yet another thing about which we have to be vigilant. The changes, as reflected by my colleague's intervention on the proliferation of cases, will also be commensurate with the resources that are provided for the military to deal with this. That is an issue we will have to deal with at committee as well.

[Laurie Hawn, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I will try to raise this in the form of a question, but in the wake of the Somali experience, there was obviously concern about the efficiency of the summary trial system. As a result, the amendments made by Bill C-25, which is coming into effect, confidence in that system was restored and summary trials were returned to their place of importance in the whole process. That is one reason for the increase.

The other thing is we have more people in the Canadian Forces and we do much more difficult ops. Afghanistan is a big factor in that. There are more summary trials because of the kinds of things that arise on those kinds of deployments. This is an answer to that question.

The simple fact is the system is not antiquated. The system is still effective. It needs updating and that is what we are doing.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, when we acknowledge we need to modernize, it usually means something is antiquated. I will not get into too much of a semantic argument with the parliamentary secretary because that probably will not serve anyone any justice at all.

However, it needs to be recognized that our system needs to be updated to reflect what happens with civilian justice. Anyone who is looking at it will realize that, and we are trying to achieve that on this side.