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

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

Mr. Speaker, I know the member has a great deal of experience in labour matters as a legal counsel. Would he like to comment on the consequences of the current system we have for grievances within the military, where it takes up to 12 months sometimes to get an initial response? Grievances sometimes take two, three, and four years. There were a series of recommendations from Justice Lamer to put time limits on responses, to have a grievance finished by the end of 12 months and a series of other measures to allow the matters to be resolved. None have been acted upon, although some of members accept the one year limit.

In his experience, what is the effect of that on a work force? Would he be able to extrapolate that to the military? Would the situation be the same or different?

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

Mr. Speaker, I have less experience in the labour area than he thinks I do, but I have been involved in it quite extensively throughout my career, mostly in terms of advising. In the employment situation where we would have wrongful dismissals, I would act in civil courts on those matters.

My experience generally has been that if there is no meaningful agreement, and whether this is in a collective bargaining situation or a work force where there is no organized collective agreement, it ends in severe morale problems. Timeliness is extremely important in any relationship and that is particularly true in the relationship between the employer and the employee as in these circumstances.

If there is no effective way of having the grievance dealt with in a timely fashion, the inevitable result for across any workforce, including the military but perhaps even more so in the military given the high stress they generally have to function under, is morale is severely impaired if those problems are not resolved at the earliest possible stage and resolved in a manner fair to both sides.

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

Mr. Speaker, there is a fair number of good aspects to the bill that we can support.

One is giving victims a voice with the introduction of victim impact statements. That is a very positive change. A review is planned every seven years. I am not sure how that review will be conducted, but it is certainly positive.

The most important aspect of the bill, in terms of improvements, is the sentencing options. The new provisions will allow for the possibility of absolute discharges, intermittent sentences and restitution orders. This whole process will bring the military justice system more in line with the civilian system.

Could the member think of any other positive aspects to the bill that I have neglected to point out?

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

Mr. Speaker, I would like to talk about the intermittent sentences. I had it in my notes but I ran out of time.

The use of intermittent sentences is particularly useful in that kind of a setting. Again, these will be relatively short-term periods of confinement to barracks or actual incarceration in the camp where the soldier is.

However, when we look at the responsibilities that soldiers have on an ongoing basis, to be able to spend that time either confined to barracks or in an actual prison cells for periods of time when they can still perform their other functions is extremely important.

Back to the issue of the team that is absolutely essential in a military setting, it is part of a platoon, part of a company and part of their military unit as a whole. To be removed from that for specific periods of time, for instance a day or both days of the weekend or in the evenings, those types of intermittent sentences are very useful in the military setting as opposed to what we would find in general society, although they are used on occasion in general society.

[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.

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

Mr. Speaker, as a parent of someone in the military, I am sure my colleague is concerned about the fairness by which his son and all military members are treated.

As my colleague indicated, people in the military often get treated more severely in terms of sentencing on the one hand because of military discipline reasons, and on the other hand because of the lack of full procedural fairness in accordance with the charter. They can still get a criminal record for doing things that they might be acquitted of if the different civil rules prevailed in the military. I wonder if my colleague would care to comment on that.

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

Mr. Speaker, his observations are very true. I believe it has been indicated by the parliamentary secretary that in 93% of cases the summary trial option is chosen as opposed to a court martial. I gather the reason for that is to get it over with and out of the way more easily and quickly. Then people find out later they have criminal records as a result.

When I was reading some of the case studies in the annual report, I saw where in one particular case a person chose a summary trial and when it was all said and done, the person had to admit that there was a lack of understanding of the process. Had the individual understood the process properly, he or she may not have taken that option.

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

Mr. Speaker, I know the figure of 93% has been used but not everybody has a choice. There are only certain offences in which people have a choice of having either a court martial or summary trial. There are a lot of offences where people cannot go the court martial route.

In civil courts, there is an option to go to the Supreme Court to be tried by a judge and jury or have it disposed of in a provincial court and 93% or more of the cases are decided in provincial court as well because the procedure is less frightening and it is more easily disposed of. That is not necessarily a statement about how fair it is but, rather, a statement of how available, convenient and less of a hassle it is. I leave that as a comment.

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

Mr. Speaker, that is very true. In some of the cases that I have been reading, people were interested in expediting the process. The whole culture in the military is to not really question authority in the first place and to trust superiors.

In one particular case, the person went for the summary trial option just to get it over with and trusted that he would be treated fairly. However, he did not receive the type of considerations he would have been given under a civilian system and, at the end of the day, had regrets about taking that particular option. When this bill passes, perhaps there should be some sort of promotion within the armed forces as to what the ramifications and implications are.

In addition, I believe there are only a few defence lawyers in the military justice system and they are overworked. I do not know how much proper advice they can be giving people when there are only four of them and they are overworked in the process.

[The Acting Speaker, Conservative, Barry Devolin]

Resuming debate. Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Conservative, Barry Devolin]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Conservative, Barry Devolin]

Accordingly, the bill stands referred to the Standing Committee on National Defence.

(Motion agreed to, bill read the second time and referred to a committee)