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.

Motions in Amendment

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am pleased to rise today.

I am delighted to have the opportunity to speak to Bill C-15 after my colleagues. I must admit, they made very interesting and very precise speeches on the amendments proposed by the hon. member for Saanich—Gulf Islands. I thank the hon. member for her efforts and for presenting these amendments.

First of all, I must say that I support her amendments. We had presented practically the same ones in committee. Clearly, we are going to support them because they are quite logical.

I will come back to that a little later in my speech because it has been mentioned a few times that consideration of the amendments must be very precise at report stage, which is what I will try to do as much as possible today to enlighten my colleagues on this bill and, more specifically, on the amendments.

If I may, I would like to give a little background before moving on to the heart of the subject, even if it does not please my colleagues.

I think Canadians listening to us would be very pleased to know how Bill C-15 ended up in the House, what we are currently doing and what still needs to be done for it to eventually become law.

The process began in 2003. In this debate today, we have been saying that the process began 10 years ago, following on the report of the Right Hon. Antonio Lamer, former chief justice of the Supreme Court. The report contained 88 recommendations.

Bill C-15 is a kind of legislative response to the recommendations in that report. However, there is a big “but”, because Bill C-15 does not completely reflect those recommendations. In reality, it responds very little to the report that contained 88 recommendations. In fact, the government has attempted to implement only about 20 of them since then.

Since 2003, the report by the hon. Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice has also been presented. That was in December 2011. On June 8, 2012, the Minister of National Defence himself tabled that report here in the House. Although the Conservative government has had the LeSage report for over a year, it still did not incorporate any of its recommendations into Bill C-15.

As the hon. member for Beaches—East York pointed out, the government has been sitting on that report for a year now and nothing has been implemented. The NDP, however, did try to have some of those recommendations incorporated into Bill C-15.

There have also been several other versions. I will not spend too much time on this, since that is not really what interests us the most at this stage of the bill. However, there was also Bill C-7 and Bill C-45, which both died on the order paper because of the 2008 election after Parliament was prorogued. Then, in July 2008, there was another version, Bill C-60.

The bill that was most in line with what we wanted was Bill C-41, introduced in 2010, also further to the Lamer report. All of the bills introduced after that report were basically in response to that report. Bill C-41, which had fortunately been amended in committee, also died on the order paper because an election was called, which, as some people may recall, was due to a case of contempt of Parliament on the part of the Conservative government, on a question of access to sensitive documents. That is also not the subject of today's debate. We all remember what happened.

Bill C-15 is similar to Bill C-41, which was the result of committee work in the last session. However, significant amendments made at committee stage during the last Parliament were not included in Bill C-15. When Bill C-15 was introduced, one of our biggest disappointments was that it did not contain all of the changes made to Bill C-41 during the previous Parliament. We were very disappointed, and we wondered why they had not been included in Bill C-15.

However, I should point out that we had a small win in committee and we managed to do some good. Not that long ago, we had to make changes so that nearly 95% of the offences in the code of discipline would no longer result in a criminal record. That is an important win for us. Canadians who do not serve in the Canadian Forces are subject to the Canadian Charter of Rights and Freedoms, which uses a fair and balanced justice system to protect the public. However, we felt that members of the Canadian Forces were not offered the same protection as other Canadians.

That brings me to the two amendments proposed by the member for Saanich—Gulf Islands. I would like to read Bill C-15, as it now stands. We are talking about clause 4 of the bill, which would add sections 18.3 through 18.6 to the current National Defence Act, after the existing section 18.2. The two amendments focus on subsections 18.5(3) and 18.5(4), which read as follows:

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

We tried to amend these provisions in committee. Unfortunately, those amendments were not accepted and the provisions remained unchanged. Today, two motions were moved. We want to expand on clause 4 to make it a bit more specific by adding the following:

The Vice Chief of the Defence Staff may, with the consent of the Provost Marshal and in accordance with the respective roles, responsibilities and principles set out in the Accountability Framework signed by the Vice Chief of the Defence Staff and the Provost Marshal on March 2, 1998, issue instructions or guidelines in writing in respect of a particular investigation, providing that the rationale for issuing the instructions or guidelines is also stated.

This motion further narrows the proposed amendment to Bill C-15 in order to ensure the transparency of orders given by the Vice Chief of the Defence Staff and the Canadian Forces Provost Marshal, a position created by this bill. All of clause 4 is, in fact, an addition to the current National Defence Act with regard to the Canadian Forces Provost Marshal.

In our opinion, subsection 18.5(3) was much too problematic. The statement that “[t]he Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation” means that the Vice Chief of the Defence Staff has the power to give instructions to the Canadian Forces Provost Marshal with respect to a particular investigation.

I liked the analogy used earlier by the hon. member for Scarborough—Guildwood about the military and civilian police. He spoke about the mayor of a city calling up the local police chief and telling him how to proceed with an investigation or what he can or cannot do. We would regard that as direct interference in the right to an independent police investigation, whether it was being conducted by the civilian or military police. The law must be much more clear and transparent to ensure that there is no interference in investigations, which must remain as independent as possible.

My time is up. I would be pleased to answer questions.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am pleased to be on my feet today to talk to Bill C-15 at report stage and to deal with a colleague's proposed amendment to Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

The title is interesting. One wishes there were a shorter handle on the title, but it is also more commonly known as the “strengthening military justice in the defence of Canada act”.

We have had lots of discussion this morning on the issue of relevance of the debate and what we are talking about. What is important to understand and appreciate here is that the amendment before us for discussion and debate is a piece of a system. It sits in the broader context of the military justice system. It is important to understand the relationship of that amendment and the issues implicated by that amendment in the context of the broader justice system.

Members may recall that we had opposed this bill at second reading on this side of the House, but an important amendment has come out of committee that allows us to reluctantly support the bill when we move on to third stage. I say “reluctantly” because the bill would still be far from what it ought to be. It would make a number of changes to the military justice system that would be positive, but not all of its changes would be positive, and that is why our colleague's proposed amendment to the bill is welcome today. It is an important issue to contemplate and debate.

The bill has had a long history. It was 10 years in the making to get to this point, and it is important that it get a thorough vetting. The parliamentary secretary talks as though his party was not in government for seven of those years, but in fact it was, and he should be asking questions back in the lobby about why we waited around for seven years for this important bill to arrive.

Nevertheless, there is a long history to this bill. It emerges out of a couple of very comprehensive reports.

The Rt. Hon. Antonio Lamer had a crack at it in 2003. He made 88 recommendations, which is suggestive of some of the very significant deficiencies in the military justice system.

There was a Senate committee report dealing with the same matters. Then again there was another report by a former chief justice of the Supreme Court, Patrick LeSage, and the parliamentary secretary should contemplate why the Conservatives sat on that report for a year before bringing it forward if he is in such a hurry to see this bill and these changes implemented.

In the interim, we have had elections. The Liberals had two years with it as well, and they did not do anything, and we have had a Conservative prorogation. It seems there is a general resistance. In fact, we have even walked backwards from where we have been in earlier Parliaments, when we had Bill C-41 die on the order paper.

The significance of Bill C-41 was that it dealt with an issue that is very important to our party, and that is the issue of service-related offences that can proceed through summary trial and result in a criminal record.

Former Colonel Michel Drapeau has spoken at length about the unique nature of military justice systems and the need to balance an expeditious justice system providing for deterrence and ensuring discipline, and the importance of that in having efficient armed forces while also ensuring that the rule of law predominates.

Therefore, in the military justice system we get this summary trial process which, in the normal course in civilian life, we would not recognize as a form of fair justice.

In this process, one's own commander can sit in judgment and there are no transcripts, no right to counsel, et cetera. This is important, because about 95% of cases that go to trial go through this system.

However, we are supporting the bill because at the end of the day we have managed, over the years, to persuade the Conservative Party that fewer of the offences that can go through the summary trial procedure can actually attract a criminal record that a member of the armed forces might take into civilian life. Bill C-15 would lessen the number of those offences. That is a very positive thing and that is why the bill, with or without this amendment, is worthy of our support.

Nevertheless, we are left with an approximate form of justice with this summary trial process, and this is where the importance of the amendment comes in. It is the investigation that precedes that approximate form of justice that becomes extremely important, and that investigation process must be done properly.

The Conservatives have taken the accountability framework that was put together following the Somalia inquiry that set out the relationship between the Vice Chief of the Defence Staff and the Provost Marshal and are turning that administrative document into statute, which is a worthy thing to do. However, in the course of doing so, the Conservatives have done something quite unfortunate, and that brings rise to the amendment today.

This amendment is worthy because the bill would provide new powers to the Vice Chief of the Defence Staff with respect to military police investigations, those very investigations that will end up in summary trials. Clause 4 of the bill proposes adding a subsection 18.5(3) to the National Defence Act to say that:

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

Currently the accountability framework language says:

The VCDS shall not direct the CFPM with respect to specific military police operational decisions of an investigative nature.

Further, it says under section 7(a) that:

The VCDS will have no direct involvement in individual ongoing investigations but will receive information from the CFPM to allow necessary management decision making.

Those provisions are there, and they flow from the principles and purpose of the accountability framework. Of course, this accountability framework flows from the extremely unfortunate incidents in Somalia, which, although they may have been in the last century, are critically relevant to this discussion today.

The purpose of the accountability framework that came out of the Somalia inquiry is to ensure the provision of a professional and effective military police service for independent investigations, to balance competing interests and priorities and, critically, to ensure that the Provost Marshal is accountable to the Vice Chief of the Defence Staff for “developing and maintaining police standards which are consistent with those of other police agencies”. Who in Canada would want to deny the men and women of our Canadian armed forces an investigation into alleged misconduct that is consistent with those of other police agencies?

That is what the accountability framework allowed. History proves that it is a workable document and provided for reasonable, fair investigations leading into these summary trials.

It is most unfortunate and very much a backward step for the government to now propose in Bill C-15 an investigation process that is inconsistent with those of other police agencies in this country.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I want to start my remarks by thanking you, Mr. Speaker, regarding the issue that was raised about relevancy. I think the various Speakers in this place are quite, pardon the term, liberal in the way that they allow us to put things into context, because each one of us brings to the House a particular life experience.

I hate to say this, but in my case it was 50 years ago that I was in the Canadian military for a couple of years. I recall one of the first things we were talked to about was good order and discipline. I want to take members back for a moment, again, in the sense of a context of the power and the control that is exercised within military circles. If we were in the military in 1914 and going through basic training, they would be firing live ammunition over the top of us as we crawled through a field. Obviously, over time, those kinds of things changed.

I was in the military in 1963-64. Two years before, a corporal would have had the right to strike me if I was doing something he was not satisfied with. That changed. At the time I was there, they still found ways to draw our attention to their dissatisfaction. As we stood at attention, they would come over and say, “Excuse me, I'm adjusting your tie” and then adjust it so tight that we would start to turn blue.

The context and the reason I am saying this is that it shows the thinking of those people in power and why there has to be some kind of limitation. Rights have evolved for all Canadians in this country over a number of years, particularly the last 50 to 75 years. Other speakers today have talked about the fact that Canadians, average Canadians on the street, would believe that those rules and rights apply to all citizens. Therefore, we find ourselves in a situation, and I will not give the history as others have done, where corrective measures were started in previous houses of Parliament. We did not succeed at those times in concluding them. Then we got to the point where Bill C-15 was brought forward. I understand it was a year, roughly, since the last report calling for change had been received.

There are other remarks I would like to make but I want to speak directly to the amendments that have been proposed today. I want to say very clearly that we do not agree all the time with the member for Saanich—Gulf Islands. However, in these two amendments, she is attempting to go further than the members of the committee were allowed to go by the government, because some of the amendments we proposed in that committee were voted down by the government.

This, at least, affords us all the opportunity to discuss at length some important aspects of the bill that are missing. If we give consideration to the requirement of the Vice Chief of Defence Staff to make a relevant rationale available to the public regarding his or her instructions or guidelines given to the Provost Marshal, that is a very serious application of accountability.

When I describe the things that have changed within the military from those past years, from the live fire in training to striking people and all those things, over time people came to clearly understand what improper usage is.

This is one of those cases where now we have the Vice Chief of the Defence Staff put in the public purview where the public will be able to see what his rationale was. I think that would improve the situation. It would require a level of due diligence that is not required today. Therefore, I certainly support that amendment.

The second amendment would require that instructions or guidelines given by the Vice Chief of the Defence Staff, again, to the Provost Marshal, be in accordance with the respective roles, responsibilities and principles set out in the accountability framework, signed by the Vice Chief of the Defence Staff and Provost Marshal back in 1998. Think of that date. We hear government members on the other side talk about how long it has taken to accomplish changes. It certainly has been a while.

Again, I want to stress that the NDP supports these amendments.

The accountability framework states that the Vice Chief of the Defence Staff shall not direct the Canadian Forces Provost Marshal with regard to military police operational decisions relative to an investigation. We have an area here where we are going to have a contradiction in the framework resulting from the amendment, which could be problematic going forward. From our perspective, that whole provision should have been removed. Hopefully I am being clear in the sense of the relationship between these things.

We do believe, though, that the amendment is an improvement. It does not go where we would like it to go totally, but it is an improvement on what is in the bill. We strongly believe that granting the Vice Chief of the Defence Staff the authority is in clear violation of that previous aspect. Very clearly, that just means, to the government side, that there is going to be more work required here on this.

I would like to go back to some of the notes I put together a little earlier. I had added those additional thoughts as I was sitting and listening to the debate here. In this place we often comment, particularly across to the other side, about the limitations on debate and the fact that time allocation, over and over, has prevented us from properly looking at a bill.

In this place we all know that sometimes when we are sitting here on House duty that there are debates that do not have the depth that they should have. Most times there is something we can learn from listening to the other members of Parliament. For example, for myself, the first few minutes of my presentation today came about because of the reminders coming from the statements from the government side and from previous members who spoke before me. The value of having that open debate is so important to this place and to what we are able to do.

Let us go back to a previous bill, Bill C-41, which I have not studied to the depth that committee members would have. When it came out of committee it had some recommendations that had passed at the committee stage but were left out of Bill C-15. We are kind of struggling on this side of the House to understand why that was necessary. When there was agreement in the previous committee on Bill C-41, why would the government not say, “We have looked at this. We have studied it. We will advance it forward in Bill C-15”? The government chose not to.

I would suggest a major omission was the failure to include a broadened list of offences, removed from the consequences of a criminal record. During the process on Bill C-15, New Democrats, both in the House and in committee, pressed for changes and amendments in that area. The purpose of that was to reduce the effect of disciplinary offences regarding possible criminal records.

We also challenged the failure of full charter rights in these cases. Full charter rights are as fundamental as it gets. There is no excuse or justification in my mind for a person who is serving their country, in some instances putting their lives at risk, to not have the value of the Charter of Rights and Freedoms as every other Canadian has. Our military members, if anyone, who defend our Charter of Rights and Freedoms, who defend our very freedom, should have the absolute rights of all Canadians. I think it is incumbent upon this place to ensure that happens.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I would first like to say that I do not think that any member should claim that another member has contempt for the Canadian armed forces. I think his comments were unacceptable. The parliamentary secretary should retract his comments. Just because we have a different idea of what constitutes national defence, that does not mean that we have contempt for our soldiers. I find those comments particularly insulting. I work with my colleague from St. John's East every day, and I know that he respects the men and women of our military.

Yes, 10 years is a long time to implement Justice Lamer's recommendations. The Liberals were in power and they did not do so. I do not know why.

That said, instead of introducing a bill similar to Bill C-41, which had been amended, the government introduced Bill C-15, which was a step backwards.

If the Conservatives had introduced a Bill C-15 that was similar to what Bill C-41 had become, we would have perhaps wasted less time. Instead they chose to go backwards. What can we do? They are the ones who introduced the bill, and they decided to go backwards.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, before addressing clause 4 and the related amendments, I would like to provide some background on Bill C-15, so that things are clear for everyone who is watching or trying to follow the debate.

Bill C-15 has appeared in various forms. First of all, Bills C-7 and C-45 died on the order paper because of prorogation in 2007 and the election in 2008.

In July 2008, Bill C-60 came into force. It was intended to simplify the structure of the court martial system and establish a method for choosing the type of court martial that would mesh better with the civilian system. After that, in 2009, the Standing Senate Committee on Legal and Constitutional Affairs studied Bill C-60 and made nine recommendations containing amendments to be made to the National Defence Act.

Then, Bill C-41 was introduced in 2010. It responded to the 2003 Lamer report and the Senate committee report I just mentioned. It contained provisions on military justice, including sentencing reform.

The issue of military judges was addressed in Bill C-16 and therefore was not covered in Bill C-15. Bill C-15 also addressed military committees, summary trials, court martial panels and the Canadian Forces Provost Marshal, and contained a certain number of provisions related to the grievance and military police complaints processes.

Then, Bill C-41 died on the order paper because the election was called, but I would like to point out that this bill had been studied in committee and that there had been amendments—

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

Thank you.

I just want to respond to some of Mr. Alexander's comments.

Clayton Ruby is not the only one to raise concerns about this. The Criminal Lawyers' Association expressed grave concerns about it. They were opposed to the giving of a criminal record to people who were charged and convicted under a summary trial, objected to the procedures and to the constitutionality of it.

Mr. Justice LeSage, himself, in his report, said:

...I have very real concerns about obtaining a criminal record from a summary trial conviction. The issue of criminal records flowing from convictions at summary trial must be reviewed. The very damage that flows from a criminal record and the potential effect on a person’s life is far too severe a consequence for most offences tried by summary trial. I am fully supportive of the summary trial as an efficient and effective method of maintaining discipline. However, because the summary trial, although constitutional for its purposes—

—and I think he's again talking in the general way—

—does not provide the panoply of safeguards of a civilian criminal trial, the unintended consequence of acquiring a “criminal record” at a summary trial should occur only in exceptional circumstances.

Now we're not talking about exceptional circumstances here. I suppose one might argue that if we're getting 94% out of 100%, the other 6% must therefore, by definition, be exceptional. I don't think that's the case. There's no particular special circumstances. For example, the mere shoving of a person is an assault. If one decided to charge someone with assault, you could get a conviction, possibly even in a criminal court. But I doubt very much that every shoving match that occurs in the military is dealt with by a charge of assault, just as every time something like that happens in a school yard or a school, the police are called. But I think it could be recognized that this kind of behaviour could be a discipline issue; fighting, shoving, even striking someone could be a discipline issue, but not necessarily one that ought to attract a criminal offence.

Mr. Alexander referred to the eight offences that we're talking about that are Criminal Code offences. If there are only eight offences that we're talking about, then you make a choice.

You invoke the police in a civilian trial system to ensure that what is regarded truly as a criminal offence ought to be treated as such, handled by the civilian authorities. A person gets all of the rights that they're entitled to under our Constitution and under the law, and if they're convicted, they end up with the consequences of that.

If it's going to be regarded as a disciplinary matter, we've all agreed that it's important to have a military discipline system, one that is, as Justice LeSage said, “an efficient and effective method of maintaining discipline” through the summary trial process. It's fast; it can be dealt with in a matter of days, not in the kind of time that a civil trial might take. It can restore unit cohesion, restore morale, restore discipline in a swift way and an appropriate way, and the punishment might be greater than one would get for the same offence in society.

We understand that may be required to maintain that discipline and efficiency. It's not being done because it should be. No one says soldiers should be punished more than civilians. That's not the purpose of it, not to provide a greater punishment.

Mr. Alexander's argument about treating them more leniently by not getting criminal records doesn't hold water in this context. Because the purpose of making it tougher on the individual is to ensure that the unit cohesiveness, the discipline, and the morale is maintained, not to punish them for the rest of their lives with a criminal record.

That's not the point here at all. The issue is the punishment that you're given, the process by which you get there, doesn't have the same constitutional protections, and therefore as Justice LeSage says, ought not to attract the unintended consequence in many respects of having a criminal record. Clause 75, with the G-2 amendment, goes some way to recognizing it, and it has taken a couple of years. It's taken the last iteration of this bill, Bill C-41, Bill C-15, and two years of arguments to get to the point where it was accepted. It was accepted in the last Parliament mainly because it was a minority Parliament. I would venture to say, given the makeup of the last Parliament and the makeup of this committee, there's no possibility that the changes to clause 75, which are now there, would have got through. If they didn't get through then, they'd be unlikely to be passed by this committee.

It's all very well to talk about ten years to get here, or six years or seven years or three iterations or whatever, but we would never have got here if it wasn't for the arguments that were made in the past two years. We're now here, but we're here obviously because the recognition of the consequence of a criminal record is a serious matter and the government and Parliament has now decided to do something about that, not everything, but something about that, and that something is contained in Bill C-15, clause 75.

We are putting forth the proposition or the argument that we must go further, that we must prevent people from getting a criminal record when they don't have due process of law, which every other citizen outside of the military has access to if they are going to obtain a criminal record. That's the distinction we're making here. We're saying to the men and women who sign up to the military that they could come out of here with a criminal record without due process of law. Every other person in our society who is going to end up with a criminal record has the constitutional guarantees, has the ability and the right to a fair and independent tribunal with the right procedural protections that are enshrined in our Constitution, and the procedures, laws, cases, and all the things that have been put into our law as the law progressed.

As retired Justice Létourneau said, the law has changed. The law changes as time goes on. There's been a development in the law and in the application of the Charter of Rights to our criminal law and our system. He suggested that the military justice system has not kept up with that. I have to agree with him; we are trying here to help it catch up in this particular aspect. Yes, we have a military justice system that may need a fundamental review but we have an opportunity here to say we want to make sure in the meantime that we don't give people criminal records who don't have legal protection.

If the concern is, and I know it is, that some people who perhaps should have a criminal record are not going to have one, well then there is a solution. That solution is to have them charged in the civil system. If someone commits a sexual assault against a minor on a base or a rape, then they can be tried civilly and prosecuted to the full extent of the law, and they will have the consequences associated with that. But we don't want to have a system wherein the only people in our system of justice who don't have access, as of law, to the procedural protections of our Constitution are the people who are serving our country in the military. That's a situation we'd find ourselves in if we don't pass this amendment here today.

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

In a word, no. I accept absolutely no responsibility for the fact that it's taken, as you suggest, nearly a decade to get to where we are. This legislation has been before this House on a number of occasions for a number of reasons, and I can detail them as to why. The House was prorogued by your Prime Minister. An election was called earlier than legislation required it. There were all sorts of reasons that the previous versions of the legislation never got through.

One of the reasons, of course, was that the matter was debated and we just passed off and put aside one of the significant consequences, and that had to do with the summary trial matter, which took, I suppose, six or seven months after the debate on Bill C-15 started and took place in the House. The government finally acknowledged that perhaps they were prepared to agree to put back an amendment that was passed in the last Parliament.

In the last Parliament we had numerous amendments. We had a very thorough discussion, and I don't think the speed at which this bill passed in the last Parliament left anything to be desired. We went through clause-by-clause study fairly rapidly, in three or four days at the most, with witnesses and the clause-by-clause.

During that particular Parliament I was where Mr. McKay is. We brought forth a dozen or more amendments, of which eight or nine were passed. They were stripped out of the bill the last time, so I guess we have to argue them again. So I take no responsibility for the fact that Mr. Justice Lamer was asked to make some recommendations back in 2003, and that we're here now in 2013. I only came here in 2008, and we had an opportunity to debate Bill C-41, and we made improvements to it. It was actually sent back to the House in good time to be passed, but the government chose not to call it for debate in the House of Commons. That's not my doing.

So we don't accept any responsibility for that. The government chooses when legislation is called.

To suggest that all of these reports are being taken into consideration, I would refer you to your own comments about Mr. Justice LeSage. Whereas that was only tabled in the House in June, well, that may be, but the government had it in December because it was tabled with the government in December, and the government had plenty of time to incorporate Mr. Justice LeSage's recommendations into this report and also to deal with amendments that had been proposed the last time and which the government didn't agree with, only because they thought the wording needed to be improved. Yet they didn't take any steps to improve the wording and bring them back some two years later.

So let's not be too sweeping about these remarks. What I'm suggesting here, with what we now have from this government, after recognizing that it took some time to get to where we are, is that there'll be another seven years before we even look at what needs to be done to this legislation. That's what's wrong.

If we are here now still dealing with the LeSage recommendations going back to 2003—

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

I would like to move that amendment.

This is, I guess, a technicality, in the sense that we have to thank Justice LeSage for pointing it out. He pointed out that, based on a similar amendment in Bill C-41 in the last Parliament, there was a need for some certainty here, because of the confusion as to “after that day” being added there: what day is “that day”? He proposed that it be clarified by ensuring that the day we're talking about is that the summary trial can commence within one year after the day on which the offence is alleged to have been committed.

We have therefore moved this amendment, which is NDP-17, to give that clarity. I don't have much more to add to it than that. He does explain in his report that “after that day” is confusing. It's difficult to understand what day we're talking about in “the summary trial commences within one year after that day”. He's a judge. He tells us that he finds it ambiguous and confusing. They're the ones who are asked to apply these laws.

This puts on a limit. Of course, someone can always make an objection to a court or to a tribunal that the charge is taking place at the wrong time and have it thrown out. He suggests there is a need for clarity here. We are taking his advice and putting this to the committee to have that clarity imposed or put in the bill to allow that proper interpretation to be made and the intention of the legislature to be clear.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you very much.

I want to come back to your presentation.

You said that, under the version of clause 75 contained in Bill C-41, 95% of cases tried at summary trial would not result in a criminal record. That means, then, that out of 2,000 summary trials, 100 people could still end up with a criminal record or, at least, not benefit from the provisions in clause 75.

Unless I'm mistaken, under the version of clause 75 contained in Bill C-41, when someone commits an offence that does not correspond to a criminal offence in the civilian system, there is no guarantee that the individual will not acquire a criminal record. It makes no such guarantees. All it does is ensure that an individual who would not have acquired a criminal record in civilian court for the same offence is much less likely to acquire one in the military system.

Is that correct?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

The biggest challenge when it comes to drafting a bill is articulating its intent in a legal text using legal jargon. Since we began studying this bill, I believe a consensus has emerged among the Conservatives, the Liberals and the NDP on the principle that an individual should not have a criminal record if the same offence would not have resulted in a criminal record in civilian court. That principle makes sense. I don't think I'm mistaken in saying that everyone is in agreement on that.

We don't agree, however, on other aspects. Let's discuss clause 75. I do realize that the proposed amendment—I am referring to what was set out in the previous legislation, Bill C-41—would mean that, in most cases, the offender would not acquire a criminal record. But the fact remains that some people could, even in cases where that would not have happened in the civilian system. So there are still a few holes.

How do you think Bill C-15 could be fixed to plug those holes and ensure that no member of the military winds up with a criminal record for an offence that would not have resulted in the same in civilian court? What can we do to rectify that?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you.

Mr. Holloway, I would like to pick up on the matter of summary trials and clause 75 of Bill C-15.

According to the Queen's Regulations and Orders for the Canadian Forces, or QR&Os, prior to passing sentence, the presiding officer of a summary proceeding shall take into account many factors, including the number, gravity and prevalence of the offences committed, as well as the family problems and financial situation of the accused. What that means, then, is that, when two individuals of the same rank commit the same offence, there is no way to ensure that both receive the same sentence, owing to the numerous factors the presiding officer must take into account. I don't object to the requirement to take those factors into account.

Pursuant to clause 75 of Bill C-15, and even in its previous incarnation, Bill C-41, the determination as to whether the accused will be subject to a criminal record is based on the sentence imposed on the accused. I would like to hear your take on that.

Furthermore, looking at the amendments contained in Bill C-41, among the sections of the National Defence Act that were added, some were not added to the amending legislation. For instance, section 98 of the act concerns those who aggravate disease or infirmity. That was not included in the amendments under Bill C-41.

I have met people who were accused and subjected to a summary trial under section 98, because they had sprained an ankle during a particularly challenging leader's course and had asked for a bandage in order to be able to walk on the ankle for three days, as they did not want to have to start the very difficult course over again. It's common for people to do that kind of thing, depending on the mission. Since that section was not included in the amendments under Bill C-41, the accused could have been subject to a criminal record.

In light of the fact that numerous factors must be taken into account, I would like to know whether clause 75 of the bill could not use more effective wording, to prevent people from having criminal records as a result of a conviction or summary trial, a proceeding that would not have happened in the civilian justice system for the same offence or act. I realize, of course, that we're talking about legal language for a bill and that kind of thing isn't done on the fly. I would appreciate it if you could provide some suggestions in writing afterwards.

I'd like to hear your take on what I just said.

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

Dean Holloway, during your opening remarks before the committee on Bill C-41, you stated, and I'm paraphrasing here, that the purpose of the military justice system is to preserve unit cohesion and to ensure that young women and men will willingly place themselves in situations of extreme peril because someone tells them to, and for no other reason. You mentioned this a bit today.

Can you explain that further, please?

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

Thank you, Mr. Chair.

I want to thank all of our guests for coming here today and offering their opinions and experience to the committee.

This is a complex bill in the sense that there are a lot of clauses that we're dealing with here. Some of them have to do with relationships, as Ian Holloway has pointed out, in terms of the nature of military justice and it being a different system.

I think we all recognize the importance in the military context of having a disciplined system that responds to the operational needs. As Dean Holloway pointed out, in an extreme situation where the taking of a life is part of an obligation that one is required to do, I'm sure implied in that, Dean Holloway, is the qualification that unless such an order is unlawful, in which case one would be required to refuse. These are not black and white situations we are dealing with. We are dealing with degrees. All three of you have been in the military, so perhaps you could all offer your opinion on that.

One of the concerns that we have raised on this issue this time out and the last time with Bill C-41 was the attraction of criminal records to service offences. There are quite a lot of them, as we know. We do know that the procedure for some retrials is rather bereft of procedural protections that would normally be attracted in a civil trial, and yet we end up with individuals getting criminal records. There are dozens of offences. I add to that the fact that, based on the last records that we have here from the JAG, there are some 2,500 offences per year in a relatively small force—65,000 regulars and another 20,000 or so reservists—most of which are tried by summary process. That's only for one year. If you're in for five or ten years, what percentage of our forces come out having served and being subject to the kind of discipline we're talking about—for good reason—end up with criminal records for which no pardons are available? Now they have something called a record suspension. Isn't there something wrong with that, and shouldn't we try to find a way to fix it?

I'm inviting all of you, because I know you're junior ranks, Dean Holloway, and others have served as officers, so there are different perspectives here.

[MGen Blaise Cathcart]

Again, I can't speak for the government. You heard the minister last week addressing those issues, and on clause 75 he's obviously said publicly many times that the government has gone back and reviewed that. I think that's just an indicator, frankly, of the process.

In vibrant democracies such as ours there's great debate. Reasonable people can disagree reasonably, review matters, and come back with a final answer that will hopefully fit the bill. Ultimately in some cases that will be determined not by our judgment but by the judgment of a court perhaps, as in the case of your reference to Bill C-41, and Bill C-15. That's what makes our system strong and vibrant: we think we have it right; the courts don't, and we'll respond to that as we have.

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

Well, sir, with all respect, I'm sure your predecessors had the same view on other legislation which we had to rush through Parliament in November 2011 to fix the status of the military judges as a result of a constitutional decision that declared there was a problem. I would suggest that other JAGs have been down this road before and have had the same kind of confidence.

The last time out, in 2011, in Bill C-41, and you and your then deputy were a part of that, substantial changes were made to clause 75 as a result of concerns about the constitutionality, in our view, and perhaps agreed to by the government, about the undue imposition of criminal records on people. As a result of that concern, substantial changes were made, from 5 or 6 offences to 25 or 26 offences, with respect to eliminating a criminal record.

Yet, when this bill went back to the House of Commons after having this study and review, and I guess you would call it a compromise that was reached, we see that's gone. Somebody decided it wasn't necessary to do that, or to even bring in some of the provisions recommended by Justice Lamer that were there and are now out again, such as the simple changes to continuing the term of office for a member of the grievance board or the Military Police Complaints Commission if they were in the middle of a case. These things were stripped out of the bill as well.

It gives me pause to wonder whether these amendments, and the discussions that went on in this committee, were even taken seriously.