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

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, for almost a year and a half, I have had the opportunity to debate in the House a number of issues that are dear to me. At times, we must also debate issues with which we are not as familiar. You will agree that we cannot be interested in everything all the time. However, that does not mean that the issues are not very interesting, and I do not doubt their importance. For many Canadians, everything to do with the military is somewhat of a mystery. The public definitely knows that Canada has an army and many people are very proud of it. However, the internal workings of the armed forces are a mystery to mere mortals.

A year and a half ago, that was the case for me. Since arriving here, I have had the opportunity to meet many members of the armed forces and I have become aware of the issues that are important to them. I have also asked the veterans in my riding many questions, and they have kindly and patiently answered them.

Bill C-15 is about military justice and it is a truly interesting subject. I will summarize the bill in order to provide some context. Bill C-15 is the Act to amend the National Defence Act and to make consequential amendments to other Acts. True to form, the Conservative government gave it an optimistic short title—Strengthening Military Justice in the Defence of Canada Act. Coming up with such upbeat titles is a new trend. I would not put it past the Conservatives to introduce a bill to diminish the rights of aboriginal peoples and name it “encouraging the legal and economic autonomy of first nations”. The cheerful words are a bit much.

Bill C-15 addresses some very clear problems and, in a way, proposes some clear solutions. This bill originated in 1998 when the Liberals were in power. During the 1990s, it was determined that the National Defence Act absolutely had to be modernized and achieve a better balance. It was significantly amended in 1998, after the release of three different reports that questioned its effectiveness. The Liberals introduced Bill C-25, which contained clause 96 stating that, every five years after the bill is assented to, there would be an independent review of the amendments made to the National Defence Act to see whether they were effective and whether any adjustments were needed.

This brings us to 2003, when the Lamer report came out with its 88 recommendations. Everyone agreed that the Lamer report was an effective tool and that it clearly indicated the steps to follow to improve and modernize our National Defence Act.

When the Conservatives came to power in 2006, they inherited the Lamer report and its recommendations. The Conservative government was aware that it had to continue reforming the National Defence Act. Under the Conservatives there were all kinds of disappointing twists and turns. In the first two minority, and rather unstable, Conservative governments, the two attempts to pass legislation to comply with the Lamer report recommendations died on the order paper.

In 2008, there was a turn of events. On April 24, the Court Martial Appeal Court of Canada, in R. v. Trépanier, declared unconstitutional the provisions in the National Defence Act enabling the director of military prosecutions to choose the type of court martial for a given accused. This essentially meant that, from then on, in certain cases, accused persons had the right to choose the type of court martial to be convened.

The Conservatives had to react to this event as quickly as possible. Their legislative attempt failed in the wrangling of minority governments, and suddenly there was a court case that they needed to respond to. Their response was Bill C-60, which made minor changes to the military justice system. The Lamer report definitely remained the foundation for future legislation, but it also led to a report from the Senate Standing Committee on Legal and Constitutional Affairs entitled, “Equal Justice”. That report, commissioned by the Minister of National Defence, was agreed to in principle by the government when it tabled the report.

At this time, we have an abundance of studies and information to guide the whole legislative process of amending the National Defence Act. However, the tone has already been set. It will never be applied as a whole, but rather in bits and pieces. That is not necessarily a bad thing. We cannot change everything at once, unless the government decides to throw an omnibus bill at us concerning the National Defence Act, but I think the staff at the Prime Minister's Office, based on the two huge tomes that we have seen in recent months, are burned out. You see, the first victims of these paving stone expeditions are the legislative and political staff in the Prime Minister's Office.

Significant progress was made in 2010. Bill C-41, which was the direct forerunner of Bill C-15, was introduced in the House on June 16, 2010. It made it through the entire legislative process, was debated and discussed, and several of the NDP's proposed amendments were included. Unfortunately, Bill C-41 died on the order paper when Parliament was dissolved during the last federal election.

Not long after a new Parliament was formed, in June 2011, there was yet another twist. The Court Martial Appeal Court of Canada, in R. v. Leblanc, declared unconstitutional the provisions regarding the appointment of judges and the length of their terms.

The Conservatives wanted to fix the problem as quickly as possible, so in came Bill C-16, which was introduced and assented to in the fall of 2011. At the same time, at the very beginning of the 41st Parliament, the Minister of National Defence appointed the hon. Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice, to conduct the second independent review of Bill C-25, passed in 1998. His report was recently tabled on June 8, 2012. And that is where we are now.

This topic has been debated in Parliament for 13 years. We have the Lamer report and we have the report from the Standing Senate Committee on Legal and Constitutional Affairs, all of whose recommendations the Conservative government accepted. Now we have Bill C-15. So what is the problem?

As I said, Bill C-15 in itself is relatively well done and addresses specific urgent problems. Except there was a bit of a sleight of hand. All of the recommendations that the NDP had managed to get accepted for Bill C-41 magically disappeared.

We were not kidding around when we proposed amendments during the previous Parliament. We were being serious. They were discussed in detail and they were accepted. The NDP wants to see these amendments in Bill C-15 as well.

If I may, I would like to quickly describe the purpose of those amendments.

First, there is one very important thing: we believe that Bill C-15 fails to properly address the problem of reforming the summary trial system.

A summary trial takes place when a member of the Canadian Forces is guilty of a lack of discipline in a strictly military setting. That person will be judged by his or her commanding officer on site, without a transcript, in order to maintain military discipline. That is fine in and of itself. Members of the military are subject to rigorous discipline in the course of their duties, but since they are only human, they may make mistakes and commit minor offences. Unfortunately, right now, these minor offences lead to a civilian criminal record.

The NDP does not believe that this type of purely military insubordination should result in a criminal record. I am somewhat disturbed that soldiers who bravely put themselves in harm's way for my safety and who are under an unusual amount of pressure must, when they return to civilian life, carry a criminal record that could prevent them from travelling or getting a bank loan all because of a simple matter of insubordination.

In February 2011, the British Columbia Civil Liberties Association said that military officers who impose sentences during a summary trial often want to make a show of discipline for the unit and discourage future offences, not impose on the accused the consequences that go along with having a criminal record in the civilian world.

We are talking here about really minor offences, and in the last Parliament, the NDP sold the committee on expanding the list of so-called minor offences from 5 to 27. We want this amendment to be put back into Bill C-15. If it is not, we will not support the bill.

This is not a conspiracy. The countries with which we have everything in common have already done so. It is a fairly powerful list: Great Britain, Australia, New Zealand and Ireland.

If they have done this, I do not understand why Canada would not.

The second point pertains to the reform of the military grievances system. Right now, the grievance board does not allow external reviews. However, the grievance board should be an independent, external civilian body. Right now, only retired members of the Canadian Forces are on the board. I am not saying that they are not doing the job properly, but the system is not working. A change must be made.

Do we have to wait for another Court Martial Appeal Court ruling for things to be done right?

We suggest that at least 60% of the members of the grievance board be civilians. This amendment was agreed to in the last Parliament, but is not included in Bill C-15. We are right about this, and we want this amendment to be included.

Once again, for these reasons we will not be supporting this bill.

The third amendment that is missing from Bill C-15 concerns the Military Police Complaints Commission. It is a minor point, but the NDP believes that much more should be done to strengthen this commission.

It should be granted more powers by means of a legislative provision and it should be able to legitimately conduct investigations and report to Parliament. It is for the good of the military. We want this amendment included as well.

In the end, it is quite gratifying to be part of this long process that began in the late 1990s under the Chrétien government.

I am quite aware that such important statutes as the National Defence Act cannot be amended by only three or four pieces of legislation. Change will inevitably take many years. The work is well under way. The Conservative government has dealt with this matter rather appropriately, which is quite rare. However, as always, the NDP must be vigilant in order to put the finishing touches to the bill. The Conservatives want to act too quickly, and they have not got all the details right.

If the valuable and important amendments that we won acceptance for in the last Parliament are not restored, the NDP will unfortunately vote against the bill.

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

Mr. Speaker, thank you for the opportunity to ask my colleague a question.

The summary trial is the most frequently used disciplinary method to deal with offences committed by Canada’s military personnel. In 2008-09, some 1,865 cases, or 96%, were decided by summary trial, and only 67 cases were tried through court martial. I am not sure who said that, but it has been mentioned.

What is my colleague’s opinion of summary trials and the other bills? The amendments passed during study of Bill C-41 have not been retained by the government in Bill C-15. The defence minister talked a little about them today. We wonder why the government would now agree to the amendments that were not included in the current bill.

[Peter MacKay, Conservative, Minister of National Defence]

Mr. Speaker, I have taken in some of the debate today. I know this is a bill that has been in front of Parliament, this Parliament and previous Parliaments. I think we are actually on our third or fourth iteration of this particular bill.

The latter comment from my friend opposite seemed to indicate that the NDP's position is that they will let the good get in the way of perfect. We are in a situation where there is an opportunity to send the bill to committee. We have in fact, and I want to be very clear, accepted some of the recommendations of previous attempts to bring the bill to fruition. In fact, some of them are found in this very bill, Bill C-15. Some of the opposition amendments were incorporated.

I want to debunk any myth that suggests there has not been compromise and a willingness to bring some of these elements of the bill forward. I would like to make just a few comments, if I might, with respect to confusion on this issue of criminal records.

To be clear, this important matter of criminal records flowing from convictions for service members, as found in clause 75 of Bill C-15, appears to be causing a great deal of consternation with members opposite. The members should be aware that what we have here is a bill that actually provides for specific service offences in minor circumstances, so that these would not constitute an offence for the purposes of the Criminal Code.

Further, former Chief Justice LeSage in his review of the National Defence Act indicated in his recommendation that there ought be a full review of the issue of criminal records. We have had three justices who have looked at this particular issue and found the summary trials process to be perfectly acceptable, workable, with some of these amendments.

In conclusion, in light of that recommendation, I would say, and I make this comment very openly here to the official critic for the NDP, their defence critic, the member for St. John's East, that the government is willing to bring in an amendment to clause 75 to match the committee stage amendments made to Bill C-41. That is on the record.

As far as this being harmful to our military or that there are different expectations of Canadians who served in Afghanistan alongside our NATO allies, our military justice system is the envy of our allies. We have, in fact, I would suggest, one of the best military justice systems—

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, on behalf of my constituents from Surrey North, I am honoured to speak to Bill C-15, which is an act to amend the National Defence Act, or as the government calls it, the strengthening military justice in the defence of Canada act.

While there are many important reforms in the bill and the NDP supports the long overdue update to the military justice system, as the official opposition we believe that Bill C-15 is a step in the right direction to bring the military justice system more in line with the civilian justice system. However, it falls short on key issues when it comes to reforming the summary trial system and the grievance system, and strengthening the military complaints commission.

Members of the Canadian armed forces are held to an extremely high standard of discipline and in turn they deserve a judicial system that is held to a comparable standard. A lot of Canadians would be shocked to learn that the people who bravely serve our country can end up with a criminal record from a system that lacks the due process usually required in civilian criminal courts.

A criminal record can make life a lot harder for military members after service. It can make getting a job, renting an apartment or travelling very difficult. The NDP will fight to bring more fairness to the Canadian military justice system for the men and women in uniform who put their lives on the line in service of Canada.

Bill C-15 basically amends the National Defence Act to strengthen military justice following the 2003 report of the former Chief Justice of the Supreme Court of Canada, the Right Honourable Antonio Lamer, and the May 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs.

In 2003, Lamer presented his report on the independent review of the National Defence Act. The Lamer report contains 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the provost marshal.

Bill C-15 is the legislative response to these recommendations. Thus far, only 28 recommendations have been implemented in legislation, regulations or via a change in practice.

In essence, Bill C-15 is similar to the versions of Bill C-41 that came out of committee in the previous Parliament. However, other important amendments that were passed at committee stage at the end of the last parliamentary session were not included in Bill C-15.

These include the following amendments that were introduced by the NDP regarding the authority of the Chief of Defence Staff in the grievance process, responding to Justice Lamer's recommendations; changes to the composition of a grievance committee to include at least 60% civilian membership, which was amended clause 11 in Bill C-41; and a provision ensuring that a person who is convicted for an offence during a summary trial is not unfairly subjected to a criminal record.

Those are some of the amendments that were introduced by the NDP in the previous bill but are not part of Bill C-15.

The summary trial is by far the most commonly used form of service tribunal in the military justice system. It is designed to deal with minor offences in a forum where the possible punishments are limited. The objective is to deal with the alleged offences in a fast manner within the unit and return the member to service as soon as possible, thereby promoting and maintaining unit discipline.

Courts martial deal with more serious charges prosecuted within the system and are also available to deal with less serious charges at the option of the accused person.

In the last Parliament, the committee heard from Michel Drapeau, who said that summary trials continued to be the dominant disciplinary method used to try offences by the Canadian military, and that in 2008-2009, a total of 1,865 cases were determined by a summary trial. That is 96% of the total. He also said that only 67 were heard by court martial. In other words, only 4%.

The current grievance process is also flawed. Unlike in other organizations, grievers do not have unions or employee associations to which to pursue their grievances. It is essential to the morale of the Canadian Forces members that their grievances be addressed in a fair, transparent and prompt manner.

There are some shortcomings in the bill that we hope we can address at the committee stage if it passes second reading. More specifically, these are reforming the summary trial system, reforming the grievance system and strengthening the Military Police Complaints Commission. I will briefly talk to those three points.

The amendments in Bill C-15 do not adequately address the unfairness of summary trials. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Summary trials 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. This causes an undue harshness on certain members of the Canadian Forces who are convicted for minor service offences.

For example, some of these minor service offences include: insubordination, quarrels, disturbances, absence without leave, drunkenness and disobeying a lawful command. These could be matters that are extremely important to military discipline but they are not worthy of a criminal record. Bill C-15 makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine of less than $500, to no longer result in a criminal record. This is one of the positive aspects of the bill but it does not, in our opinion, go far enough.

At committee stage last March, NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not worthy of a criminal record from five to 27. The amendments also extended the list of punishments that may be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a reprimand, a fine equal to one month's basic pay or another minor punishment.

This was a major step forward for summary trials. However, the amendment was not retained in Bill C-15 and we want to see it included. A criminal record can make life after the military very difficult.

The military grievance external review committee at present does not provide a means of external reviews. Currently, it is staffed entirely with retired Canadian Forces officers, some only relatively recently retired. If the Canadian Forces grievance board is to be perceived as an external and independent oversight civilian body, as it was designed to be, then the appointment process needs to be amended to reflect that reality. Thus, some members of the board should be drawn from civil society. The NDP amendment provided that at least 60% of the members of the grievance committee must never have been an officer or non-commissioned member of the Canadian Forces.

In regard to strengthening the military complaints commission, Bill C-15 amends the National Defence Act to establish a timeline within which the Canadian Forces would be required to resolve conduct complaints, as well as protect complainants from being penalized for submitting a complaint in good faith.

This is a good step in the right direction. However, the bill does not go far enough in addressing summary convictions or the complaints commission.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I would like to thank all who have risen to speak to the bill, particularly my colleagues in the New Democratic Party who are making a valiant attempt trying to persuade the government that we should be respecting the hard work at committee and the consensus that was reached.

I have to say at the outset that I appreciate the optimism of the speaker before me, but frankly, my experience since the Conservative government gained majority control has been that the hard work done in committee seems to be for naught. I hope the government will take heed. However, I would think it is an indication that, since the government chose not to include the consensus amendments, it is going to be an uphill battle to get them back in. However, we look forward to being surprised.

Canadians would be shocked to discover that under the current law, and even with the passage of Bill C-15, many who have bravely served our country, supporting the democratic processes, due process and rule of law for this nation and others, may obtain a criminal record through a system that lacks the due process that is available in civilian criminal courts to other Canadians.

Bill C-15 is the most recent of more than half a dozen tabled iterations, which the government let die. From that standpoint, what is the rush? We should spend time in committee, and if the amendments were previously valid, then let us discuss if they are still valid.

The changes that were previously brought forward and that we continue to call for were put forward not just by opposition members but by Justice LeSage; a former justice of the Supreme Court of Canada; Professor Michel Drapeau, from the University of Ottawa; a noted author and military lawyer; members of the armed forces; and many legal experts and defence counsel for military members.

While some of the needed reforms are included in Bill C-15—and we have been clear about that—regrettably, many of the most important ones are not.

In 2003, retired Supreme Court Justice Antonio Lamer provided a report outlining 88 recommendations to reform the system of military justice and bring it into the 21st century. He was retained to undertake a review of the court martial procedures under the National Defence Act and he did issue a report, again, with 88 recommendations relating to military justice, the Military Police Complaints Commission, the grievance procedures and the provost marshal.

As one of my colleagues has stated, Bill C-15 is a step in the right direction, yet no rationale has been provided by the government as to why, at this point in time with this iteration, it has now thrown out the majority of the agreed amendments.

Retired Colonel Michel Drapeau, noted legal expert and author on military justice, has commented that the National Defence Act “requires more than tweaks and tinkering to bring it into the 21st century”.

However, this is what we have before us today. Yes, there are some amendments and, yes, they are worthwhile, but it is still tweaking and tinkering rather than bringing forward a bill that is appropriate for this century.

In this century, is it not time that the military courts and grievance procedures were amended to instill independence of the decision makers, judicial independence, trial by peers and penalties on par with those in the civilian courts for other Canadians?

I wish to echo the sentiments of the member for Windsor—Tecumseh, who clearly presented his rationale for opposing Bill C-15. As he stated in the House: “...I am never going to vote for a bill that would treat our military personnel unfairly”.

That is the stance of all my colleagues in the official opposition.

The member stated that the second reason he was voting against the bill was that, despite the efforts of the committee members in the last Parliament to agree on amendments, the experience under this majority government has been continually, where we seek all-party consensus, that the PMO overrides and rejects that consensus.

Many in the House have noted the many iterations prior to this bill. We had the Lamer report in 2003, outlining significant, thoughtful changes to bring military tribunals into this century. In 2006, we had Bill C-7, which died on the order paper. In March 2008, we had Bill C-45, which died on the order paper. In 2008, we had Bill C-16 on courts martial. That was given royal assent. We had a little tinkering and it was good that one change was made, but it did not do overall reforms as had been recommended by Justice Lamer. There was a Senate report on equal justice for court martials in May 2009. Again in 2010, we had Bill C-41. The government tabled one amendment, but it died on the order paper. Then we had Bill C-16 in 2011. It passed narrow provisions to improve the appointment and tenure of military judges, but again it was just a tinkering at the edges. In March 2011, the Minister of National Defence commissioned yet another review by Justice LeSage.

It is time for a full, all-encompassing reform of the military justice regime. It is not merely the opposition saying this; it has been senior judges, military law experts and representatives of the military. It has been said over and over again. It has been agreed to by all party members of the committee.

Despite the six iterations since 2003, including this one, little concrete action has been taken to expedite a more just and equitable trial process for military accused. As my colleagues have reiterated to questions from the other side of the House, we do agree that Bill C-15 does provide a number of measures, including greater flexibility in sentencing, more sentencing options including absolute discharge, restitution and intermittent sentences. These are good measures. It modifies the composition of court martial panels and changes the power of delegation of the Chief of the Defence Staff for grievance procedures. Good on the Conservatives for agreeing to make some of those changes.

Unfortunately, the bill falls short in key issues: in reforming summary trials, in reforming the grievance system and in strengthening the Military Complaints Commission. Only 28 of Mr. Justice Lamer's 88 recommendations to improve military justice, the Military Complaints Commission, the grievance procedures and the provost marshal have been addressed.

Many amendments tabled by the New Democrats and put forward by the armed forces and passed at committee have been excluded from Bill C-15—for example, the authority of the Chief of the Defence Staff in grievance processes; changes to the composition of grievance committees and, as my colleague previously mentioned, to include 60% civilians on panel reviews; or to ensure that the persons convicted at summary trial are not unfairly subjected to a criminal record, particularly when we are dealing with minor offences.

Some of the critical reforms we brought forward previously and that have not been included provide the reasons that we cannot support the bill, including the reforms to the summary trial system; reforms to the grievance system; and strengthening the Military Police Complaints Commission. Again, these are matters that were tabled at committee and agreed to, but they are not found in Bill C-15.

Reforms to the summary trial system would include removing the criminal record for an expanded list of minor offences. In other words, there are a good number of offences where a young member of the military could be given a criminal record, where it is deemed inappropriate and would not happen in the civil system. Again, there is no right of appeal, no transcript, no access to counsel and often the judge is the accused's commanding officer.

As I mentioned, major reforms to the grievance system include reconstituting the panels with civilian members and strengthening the Military Police Complaints Commission to provide oversight.

In closing, it is a question of justice and equity for our dedicated military.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, I listened to my colleague’s speech.

He mentioned at one point that he was optimistic and believed that the Conservatives on the Standing Committee on National Defence were going to agree to the recommendations made by the opposition. At least, that is what he thinks.

I would like to know what prompts that optimism, given that at the committee in the previous Parliament, when Bill C-41 was examined, the main amendment that meant that 60% of members of the grievance committee would be civilians, and that was accepted by all of the opposition parties, was rejected by the Conservatives. They were the only ones who rejected it. And we can see exactly that, with that amendment having been deleted in the new Bill C-15.

What prompts my colleague to be so optimistic?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is a pleasure to speak today to Bill C-15.

I had the privilege of serving in the Canadian Forces for a few years. When I joined the forces, the last thing I thought about was military justice. There is no real explanation for the difference between military justice and civilian justice. The difference was never pointed out or anything of that nature.

After being in the forces for a relatively short period of time, I grew to believe that there was a need for a military justice system. Members of the forces face unique situations and, under those types of situations, there are dispositions that they would not get in a civil court system. The whole concept of respect, support and listening to our superior officers is a good example of that.

I was posted to two bases in Edmonton, Griesbach and Lancaster Park. I was living in Lancaster Park but Griesbach is where the military jail was located. Quite often I would be commuting between the two military sites and I would pass through the Griesbach jail. It was interesting, even though it was highlighted within the military, I think we need to put it into perspective.

At that time, the Canadian Forces consisted of somewhere in the neighbourhood of 60,000 personnel and many more participated in our reserves. However, the numbers fluctuate. We do not have a huge force today nor is it really necessary. We do not need to have 100,000 members. I think there is a growing dependency on our reserves and I do not know whether that is good or bad. A lot depends on our obligations and how that structure is put in place at a time when there is a greater demand. Right now, the numbers are relatively reasonable. Many would argue that we should be looking at expanding our regular force. There are some concerns related to that.

We have been talking all afternoon about some of the technicalities of what is within the law. What we are really talking about is somewhere in the neighbourhood of 40 to 60 individuals in the forces who might require some sort of judicial intervention known as a military court martial of some form. The types of offences vary significantly, just like in a civil court. At the end of the day it is a fairly small percentage of military personnel who are on the other side of the bench where they must defend themselves or get someone to defend them. I would suggest, and many would argue, it is a relatively small network but it is a growing network.

Colonel Drapeau authored a book on military justice, which was about 2,000 pages. We could probably all learn a great deal by reading what he was talking about. I must be honest and say that I have not had the opportunity to read it. It is a fairly extensive read. However, for those who are interested in getting a better understanding of some of the intricacies of military justice, I would suggest that they give some serious consideration to reading this book.

It is important to note that the government has not been successful in making the necessary changes. Many individuals for a number of years have been arguing and suggesting that the government be more proactive at making some of the changes that are being proposed today. We could go back to 2006 and Bill C-7, to which one member made reference. I was not here at that time but I understand it was a bill of a similar nature, which the government was unable to get passed. Afterward, it came up with Bill C-41, which again the government was unable to get passed. Then it brought forward Bill C-45 and it failed to get that legislation passed.

We have a different and new dynamic with the majority government and we now have before us Bill C-15. The Liberal Party has been very clear on the issue. We plan to support the bill because we see the merit of having a system that is more effective, fair and more transparent. We think that at the end of the day Bill C-15 would do all three of those things. As such, even though we have other concerns related to the legislation and we will have to wait to see after it goes to committee what ultimately happens, there is strong merit for this bill to go to the committee stage.

As has been pointed out, a series of amendments have been proposed over the last number of years. It was implied that some of those amendments would ultimately be incorporated into the bill. I should acknowledge at the very least that the government took into consideration a couple of the amendments but there was a sense that the government could have done more in terms of acknowledging other amendments. Now that there is a majority government, we anticipate that the bill will pass.

However, it can be very frustrating being in opposition when we have thoughts and ideas that make sense, we bring them forward in the form of amendments at committee stage and the government shies away from them. It is, indeed, unfortunate. We have seen a negative consequence of the government shying away from Liberal Party amendments in particular. I am thinking of bills like Bill C-10, where the Senate had to reintroduce Liberal Party amendments because at the committee stage the government did not see the merit in passing them. I suspect that, unfortunately, very few amendments will be received well enough to pass. However, we are hopeful that the government will recognize that we are trying to support and enhance this legislation. That is one of the reasons we felt it was important to support this bill going to committee.

It is also important to recognize some of the sentences being proposed in the bill: the concept of absolute discharge, intermediate sentences and the whole issue of restitution. If we can narrow the gap between military law and civilian law, we would see that as a positive thing. We want to ensure as much as possible that we are dealing with a system that is fair and, in part, this bill moves us in that general direction. It is fair to say that military law is quite often harsher and has less flexibility. In certain situations, one can understand that and see how it could be justified.

I just want to highlight two very important points as we continue to debate this, whether it is inside the House or in the committee. First is the importance of trying to narrow the gap between the military law and civilian law, thereby ensuring more rights, transparency and a sense fairness within the military structure. Second is to realize that a vast majority of members of the Canadian Forces are outstanding and there is never a need. As I indicated, we talking about 40 to 60 cases a year.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, I am very pleased to take part in today's debate on Bill C-15 on military justice.

As a former member of the Standing Committee on Veterans Affairs, I have nothing but the utmost respect for the work done by the men and women of the Canadian armed forces. I believe that these exemplary citizens deserve nothing but the best.

Bill C-15 amends the National Defence Act to strengthen military justice. The military justice system is a separate yet parallel system of justice within the Canadian legal framework. It is distinct from, but similar in many ways to, the civilian criminal justice system.

I would like to say a few words about the importance of military justice in the proper functioning of the Canadian Forces. The Supreme Court of Canada has, on more than one occasion, recognized and confirmed the requirement for a separate system of military justice to maintain and enforce discipline. A clear articulation of the court's view on this point was expressed by Chief Justice Lamer 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 nation's 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.

This excerpt addresses several basic themes of military justice. Discipline is the cornerstone of a professional military. It is critical to the success of Canadian Forces operations. However, when we talk about military justice, there has to be an emphasis on the justice side as well. We want to be able to count on excellent morale among our troops and we demand loyalty.

However, it is a two-way street. The system must also be seen as fair for the members of our armed forces. In the two areas of our military justice system that I want to focus on today, that fairness is somewhat lacking. I will therefore focus on summary trials and the issue of grievances.

In our military system, grievances are written into the National Defence Act. Our armed forces are subject to military discipline and are in a rigid, chain-of-command, top-down structure. Their only recourse when it comes to dealing with issues affecting their pay and benefits, their release, medical issues, getting adequate medical treatment and issues of that nature is through a grievance system. This grievance system is in disarray, and the proposed changes in the legislation do not really deal with that.

I would like to quote retired Colonel Michel Drapeau, who is very familiar with the military and the armed forces. Here is what he had to say about the grievance system:

Given the mounting number of grievances by CF members and the current state of disrepair of the CF grievance system, the last thing the CF leadership ought to do is attempt to mitigate problems related to grievances. In the Armed Forces, the submission of a grievance is normally seen as a measure of last resort imbued with significant career risks.

I think that when a member of the Canadian armed forces decides to submit a written grievance to his or her commander, it is because he or she sincerely believes that the issues in question justify filing a grievance and that they will be dealt with non-judgmentally. But as it stands, the grievance committee does not allow external reviews. If the Canadian Forces grievance committee is to be seen as an independent, external civilian body, as it should be, then the appointment process must be amended to reflect that reality. The committee should be made up of some civilian members. The NDP suggests that at least 60% of grievance committee members must never have been an officer or non-commissioned member of the Canadian Forces. This amendment was adopted in March 2011 for Bill C-41; however, it was not retained for Bill C-15, and that is unacceptable.

Another major flaw in the military grievance system is that the Chief of Defence Staff has little power to resolve financial aspects related to the grievances.

The NDP proposed an amendment in order to resolve this problem at committee stage for Bill C-41. Unfortunately, once again, this amendment was not retained in Bill C-15.

The second aspect I would like to talk about is summary trials. Summary trials are a suitable and fair means of dealing with minor service offences. A commanding officer or someone delegated by him or her may preside over a summary trial. These officers attend a training seminar, but often they do not have the necessary skills to preside over trials similar in nature to civilian criminal trials. Conversely, the court martial is in some ways a civilian court with military jurisdiction. A set of rules, including the rules of law, apply in courts martial.

The following quote is from the annual report of the Canadian Forces' Judge Advocate General:

A total of 1,998 service tribunals were held during the reporting period, representing 1,942 summary trials and 56 courts martial.... [The number of summary trials represents] approximately 97% of all service tribunals held in a given year.

Summary trials are therefore the norm rather than the exception. They can result in fines, imprisonment or a period of detention for up to 30 days, if the trial is presided over by a commanding officer. In addition, a number of military personnel dealt with by summary trial and found guilty could end up with criminal records similar to ones they would receive had they gone to trial before a civilian court, with all the applicable rules and procedures.

We do not oppose having a summary trial system in order to maintain order, discipline and morale, but we must nevertheless ensure that members of the Canadian Forces do not end up with criminal records that they must attempt to have expunged through the parole board after leaving the military. Imagine that. Our concern is that, in the military justice system, we need to have speedy trials, as former Chief Justice Lamer said. However, the trade-off should be that members of the military do not get a criminal record unless they are tried by a court that has the required support.

What is worrisome, at the end of the day, is that people could find themselves with a criminal record at the conclusion of an inequitable proceeding, without a lawyer, before a tribunal that is not independent. We still fear that the summary trial structure and process are a far cry from their civilian counterparts.

As I was saying earlier, the United Kingdom, Australia, New Zealand and Ireland, whose military justice systems resemble Canada’s, deemed it appropriate to change their summary trial system to provide a more equitable judicial process.

Why then deprive our Canadian Forces of the constructive amendments that could be made to summary trials? That is the question.

To conclude, Canadian military law is essential for the maintenance of discipline and order among the troops. However, our soldiers deserve a military justice system that is above all fair and equitable for the accused, while remaining sensitive to the need for military discipline. Although Bill C-15 includes a number of legislative provisions, some of which are welcome because they strengthen military justice, I, like my colleague the member for Sherbrooke, believe that it is a leaky old boat and that soldiers deserve much better. Frankly, we could do better.

The government's bill also includes too many provisions that do not go far enough or that are simply useless for dealing with the pressing problems within our military justice system. As I said previously, and having been a member of the Standing Committee on Veterans Affairs, soldiers deserve better than to find themselves with a criminal record after having served their country with pride and dedication. The government says that it is thinking of our veterans’ transition to civilian life, but what kind of shadow or cloud hangs over them when they are told that they may end up with a criminal record? Frankly, it makes no sense. These are not the kind of conditions that would allow us to say that we love our veterans and will take care of them. It is not true and it is wrong.

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

Mr. Speaker, I thank my hon. colleague from Dartmouth—Cole Harbour for sharing his time with me. I am very grateful.

It is a great pleasure to speak about this issue, as the city of Sherbrooke is proud to be home to two Canadian Forces reserve units, two institutions, the Fusiliers de Sherbrooke and the Sherbrooke Hussars. I have had the pleasure and privilege to meet with them many times over the last year or so. I have great respect for them and am eternally grateful for the work they do day after day. My respect for their work is why I feel a duty to rise today to speak to Bill C-15. Our men and women in uniform protect our lives, so I have a duty to protect their interests in the House of Commons.

I would like to give some background about the legislation we currently call Bill C-15, which has had many past iterations. On October 7, 2011, the Minister of National Defence introduced An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 will strengthen military justice. It is a direct response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, in May 2009, work done by the Standing Senate Committee on Legal and Constitutional Affairs.

The NDP believes the bill is a step in the right direction to harmonize military justice and civilian justice. It has gone off course, however, just like a defective submarine. There will be a few colourful expressions in my speech. I sometimes enjoy expressing myself that way. Our summary trial and grievance systems are in urgent need of an overhaul, and the Military Police Complaints Commission needs to be strengthened.

I would like to delve into the background a little to better illustrate the need for reform. In 2003, the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, submitted his report on the National Defence Act. It contained 88 recommendations aimed at demining various areas, including military justice, the Military Police Complaints Commission and the grievance process. Only some of the mines were cleared, however, as only 28 recommendations have been implemented. I think we would all agree that a partly demined field remains quite hazardous.

Bill C-15 has donned many types of camouflage. First off, Bills C-7 and C-45 both died honourably in combat because of prorogation in 2007 and the elections in 2008. It is our contention that we would not be here debating this bill right now if the government did not have a nasty habit of hitting the panic button and proroguing Parliament.

Later, Bill C-60 was sent to the front lines wearing slightly different camo. It simplified the court martial structure, bringing it more in line with the civilian justice system. In its report, the Standing Senate Committee on Legal and Constitutional Affairs made nine recommendations regarding potential amendments to the National Defence Act.

In 2010, Bill C-41—we have amassed a number of bills, making things somewhat complicated, and I hope everyone is able to keep track of the numbers—was sent out to the front lines in response to the Lamer report and the Senate committee. Bill C-41 proposed reforms to sentencing, military judges and commissions, and summary trials, among other things. We could say that Bill C-15 is the brother-in-arms of C-41. The amendments brought forward cover the composition of the court martial panel and the appointment of military judges with security of tenure to a fixed retirement age.

However, some basic amendments made at committee at the end of the last session of Parliament were not included in Bill C-15, and that poses a problem for us. Is it by chance that three amendments that were very important to the NDP are not included in today's version, Bill C-15?

The three amendments relate to: the chief of Defence Staff's authority in the grievance process, which was a direct response to one of the Lamer report recommendations; changes to the composition of the grievance committee to include a 60% civilian membership, as discussed earlier today; and the provision ensuring that a person convicted for an offence during a summary trial is not subjected to a criminal record, which we also discussed earlier. I will talk about these three amendments, which—we do not know why—are not included in Bill C-15, the bill we are debating today.

Bill C-15 does not deal effectively with the unfairness of summary trials.

Right now, a conviction during a summary trial in the Canadian Forces results in a criminal record. What is sad for our troops is that those who are accused are not able to consult with counsel. There is no right of appeal and no transcript of the trial. Everything is off the record. What is more, the judge is the accused's commanding officer. So much for an impartial hearing.

An expert in military law, retired Colonel Michel Drapeau, said the following in February 2011:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year....As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

A soldier slips up because of ongoing stress. We are not talking here about major offences but about misconduct, absence without leave or disobedience of a lawful command. We recognize that a soldier's code of ethics and code of conduct are the fundamental pillars that have become the pride of the Canadian army, but first and foremost, soldiers are human beings. They go through things that few people in our society experience. They live in a state of perpetual stress. We are not asking for military immunity but simply to put into perspective these acts of misconduct, which do not in any way warrant a criminal record and everything that goes along with that.

In committee in March, we proposed to expand the list of offences that could be considered minor and not worthy of a criminal record from 5 to 27 in order to give soldiers more latitude. This amendment was abandoned and we want it to be restored. We do not want this amendment to become the unknown soldier of the bill. We want it to be acknowledged. When soldiers who have a criminal record as a result of a minor misconduct finish their military service, they will find it difficult to find a new job or even to rent an apartment.

While our soldiers ought to be held to the very highest standard of behaviour, the reality is that soldiers are human and thus imperfect. Soldiers are also entitled to a fair and equitable justice system, just like all other Canadians. It is a constitutional right to be represented and to have access to a fair trial.

The second amendment concerns the reform of the grievance system. The current grievance board does not allow for external review. Are we still living in the fearful cold war era when everything must be hidden? Retired Canadian Forces personnel serve on that board. In fact, almost everyone on that board is from some kind of military background. We think that is not at all reasonable. The Canadian Forces Grievance Board should be seen as a civilian, external, independent body. That is why we proposed that 60% of the board or committee’s members should be neither officers nor enlisted personnel in the Canadian Forces. That amendment was approved for Bill C-41, but it is not included in Bill C-15 before us today. We wonder why not.

The third amendment that had been included in the previous bill, C-41, and that we would have liked to see in this bill is the strengthening of the Military Police Complaints Commission. The idea of giving this commission more powers so that it could act as a watchdog has been almost ignored. Its scope of action must be broadened so that it can legitimately investigate and report to Parliament.

The question must be asked: why have the Conservatives not kept the amendments proposed by the NDP and adopted by the committee in 2010 when Bill C-41 was studied? These amendments were good soldiers that could have protected the interests of our military personnel. The Conservatives are continuing to undermine the progress made by all members of the Standing Committee on National Defence and the recommendations made by the representatives of the Canadian Forces.

Such good soldiers as those amendments must not be abandoned. Even our allies—the United Kingdom, Australia, New Zealand and Ireland—have decided to modernize the summary trial process. Why has Canada—having dithered so long on the issue—not got down to the task of finding the necessary tools to ensure that our military personnel are properly represented and judged?

As we have said many times, we are opposed to Bill C-15, because we see it as a tank without any firepower and without armour, one that makes it impossible for our soldiers to get a fair and impartial trial.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, it is an honour to rise in the House today to speak to Bill C-15.

First, I would like to congratulate our national defence critic, the hon. member for St. John's East, who is doing an amazing and remarkable job on a file that can be difficult, given that we are dealing with a government that would rather act like G.I. Joe than seriously examine the country's national defence needs, analyze the cost to Canadian taxpayers and have a comprehensive view of Canada's defence role as it relates to the deployment of military personnel in our country and abroad.

I have tremendous respect for the Canadians who work for our Canadian Forces. I have met many of them, since there are obviously a number in my riding, it being in the national capital region. In my riding, it is not unusual for people to frequently come across Canadian Forces members. I really admire the work that they do, here, inside our borders, and around the world, especially in light of what has been going on. It takes a special person to put his or her life in danger to protect our values, rights and what we stand for every day.

That is why we cannot afford to let the government take so many years to introduce this bill. I said “so many years”, because in 2003, retired Chief Justice Lamer was asked to produce a report on the situation and to make recommendations regarding the bill.

The summary of Bill C-15, which was produced and which I will give a little background on shortly, states the following:

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.

As I said a moment ago, I believe this quite lengthy bill has been long due since 2003. However, “long due” does not mean we should hand out blank cheques, even though the bill concerns national defence and our men and women working for the Canadian Forces. The NDP is not in the habit of handing out blank cheques.

This bill has previously appeared in a number of forms, as bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and when the election was called in 2008. In July 2008, Bill C-60 was introduced and it came back with a vengeance. Bill C-60 simplified the structure of courts martial and established the method for selecting the type of court martial that would harmonize best with the civilian justice system. In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined the bill and recommended nine amendments to the National Defence Act.

This happened after 2003, when the Right Honourable Antonio Lamer tabled a report on his review of the National Defence Act, a report that contained 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces provost marshal.

Looking at Bill C-15 as it currently stands—because that is the one we have to consider—we realize that it is supposed to be a legislative response to those recommendations. However, only 28 recommendations have been included in the bill.

I will say it right away—and the critic said this—we will not support this bill at second reading because, in any case, the government will be referring it to committee. However, there are so many flaws, serious flaws, in this bill, and it is not because it should have been introduced so long ago that we should adopt any such poorly constructed legislation. That is our position on the matter.

In 2010, Bill C-41 was introduced in response to the 2003 Lamer report and to the Senate committee's 2009 report. It contained the military justice-related provisions respecting, for example, sentencing reform, judges, military panels, summary trials, the court martial panel, the Canadian Forces provost marshal and certain provisions respecting the Military Police Complaints Commission.

It can nevertheless be said, for those who were here at that time—I was not—that bills C-41 and C-15 resemble each other and are similar to what was introduced by the Senate committee during the last Parliament.

The amendments stood included those concerning the composition of a court martial panel, and security of tenure for military judges until retirement.

However, other important amendments—and I want to emphasize this—adopted at the committee stage at the end of the last parliamentary session were not included in Bill C-15. That includes the NDP's amendments respecting the authority of the Chief of Defence Staff in the grievance process—a direct response to a Lamer report recommendation—changes in the composition of the grievance committee so that 60 % of members would be civilians and the provision to ensure that a person guilty of an offence on summary conviction would not unfairly be given a criminal record. That is the amendment under clause 75 of Bill C-41.

We have been in favour of bringing the military justice system up to date for a long time now. There is no doubt about that and I do not want to hear anybody say otherwise in this House. Members of the Canadian Forces are known to be subject to extremely strict rules of discipline and they deserve a justice system that is subject to comparable rules.

I remember when I first started out as a lawyer, doing criminal law, that there was a judge in the Outaouais district—he is still there–near Gatineau, where I am a member of Parliament, who used to tell us, because he had a military background, that nothing could be as secret and closed as military justice. This is understandable, because it operates in accordance with a very closed system of discipline. It is understandable. I think that members of the Canadian forces voluntarily submit to these extremely strict rules of discipline.

They often have absolutely critical work to do, and the chain of command is not very tolerant of exceptions. All of that is understandable and yet, sometimes there are certain types of behaviour problems—I repeat, “behaviour problems”. And those who are not accustomed to this environment can be completely flabbergasted at what can lead to a criminal record for a member of the Canadian Forces. Anyone practising criminal law in civil society, or dealing with labour rights or grievances, will find provisions in these bills that are rather surprising.

To begin with, they mention reform. For us, the problem is that the reform under discussion is of the summary trials system. The amendments in bill C-15 do not adequately address the injustice of summary trials. At the moment, a summary trial conviction in the Canadian Forces means a criminal record. Some might say, “good for them”. However, summary trials are held without the accused being allowed to seek legal or other counsel. They have no recourse and there are no transcripts of the trial. Moreover, the judge is the accused's commanding officer. This is too harsh for some members of the Canadian Forces who are convicted for minor offences. Once again, some may say that there is no room for exceptions, but there are times when it is completely ridiculous.

I have had people come and consult me, but the problem was that everything had already been taken care of.

Let us put ourselves in the place of a member of the Canadian Forces who has committed an offence, for example, absence without leave or a quarrel with another member. The member’s own commanding officer tells him he will have a summary trial. We cannot seriously think that a member of the Canadian Forces is going to go against what his own commanding officer suggests. We cannot really call this transparency. That may be too harsh for some members of the Canadian Forces who are convicted of minor offences. I will say it again, because it is important to know what we are talking about. These minor offences include insubordination, quarrels, misconduct, absence without leave, drunkenness, disobeying a command, and so on. This is certainly very important for military discipline, and I am not saying otherwise, but does it call for giving someone a criminal record? It is important that we ask ourselves that question.

Having a record will have an effect when the member leaves the Canadian Forces. He may have trouble finding a job once he rejoins the civilian world. Bill C-15 does provide an exemption so that if there is a minor sentence handed down under the act or a fine of less than $500, certain offences are not entered on the person’s record. This is one of the positive aspects of the bill, but we think it does not go far enough. We hope the committee will do its job. I do not know whether the Standing Committee on National Defence is as extraordinary as the justice committee. At the Standing Committee on National Defence, even when self-evident amendments are moved, they are not adopted.

Last March, at committee stage, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and so would not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased to 27 from five. The amendment also adds to the list of sentences that a tribunal may impose without them being entered on the record: for example, a severe reprimand, a fine equivalent to a month’s salary and other minor sentences.

This was an important step forward for summary trials. However, the amendment to Bill C-15 was not accepted. It is therefore entirely to be expected that we would want to include it again. A criminal record can make life after a person’s military career very difficult. It can mean losing a job, being refused housing, having trouble travelling, and so on. If Canadians knew that members of the military who served our country so courageously are being treated this way for the kinds of misconduct I have referred to, I think some of them would be in shock, as I was when I read the bill and what had gone on over the last 10 years in this regard.

There is also the question of reforming the grievance system. As a labour lawyer, I have always advocated the greatest possible transparency and independent arbitrators, because it affects the labour relations between the parties. The same is true when we talk about a Military Grievances External Review Committee. At this time, the Canadian Forces Grievance Board does not allow for external review. The people who sit on the Military Grievances External Review Committee are retired Canadian Forces employees and some very recent retirees. So if the Canadian Forces Grievance Board is to be seen as an external, independent civilian body, as it should, the appointment process definitely needs to be amended to reflect that. The committee should therefore be composed, in part, of civilian members.

The amendment that the NDP suggested, and that it will certainly suggest again when the bill is examined in committee, is that at least 60% of the grievance committee members never have been officers or members of the Canadian Forces. I repeat: it is the Military Grievances External Review Committee. The amendment was adopted in March 2011, for Bill C-41, but it was not incorporated into Bill C-15.

It is extremely important that people from the outside be part of the external review committee, and I am persuaded that my colleagues will agree with me. It is therefore important that the amendment be included again.

There is the whole question of the authority of the Chief of the Defence Staff in the grievance resolution process. There is a major weakness in the military grievance system. The Lamer report contained a recommendation concerning the fact that the Chief of the Defence Staff does not have the power to settle financial claims in grievances. In spite of the fact that the Minister of National Defence approved the recommendation, no concrete action has been taken in the last eight years to implement it.

The ministers responsible for certain portfolios who come before our committees need to agree to the amendments we recommend. When it comes time to amend legislation, those ministers need to remember what they have said.

During committee examination, the NDP proposed an amendment, which was adopted in March 2011. Nonetheless, the amendment was not incorporated into Bill C-15. If this bill is referred to committee, the NDP, under the leadership of the official opposition’s national defence critic, the member for St. John's East, will continue to fight for this.

There is also the question of strengthening the Military Police Complaints Commission. Very little has been said about granting that commission greater powers so that it acts as an oversight body. The commission’s powers must be expanded by legislation so that it is able to investigate legitimately and report to Parliament.

The NDP is not alone in making the case for the need to amend Bill C-15. A number of organizations support our positions, including the British Columbia Civil Liberties Association, which has said that fundamental fairness requires that systems that impose serious penalties on individuals provide better procedural protection.

In R. v. Wigglesworth, the Supreme Court of Canada, an arm of our democracy, confirmed that, if an individual is to be subject to penal consequences such as imprisonment, he or she should be entitled to the highest procedural protection known to our law. I believe that will come as a shock to no one.

That is often where the problem lies. Military justice is often opaque or not very transparent. No one knows exactly what goes on, except those curious individuals who want to know more. It is important that justice indeed be done. That is even more important for the members of our Canadian Forces who dedicate themselves body and soul to each and every one of us, to all the Canadians we represent. They go to other countries to promote fundamental values and rights, democracy, the right to a fair trial and so on. And yet, once back in Canada, those members, for all kinds of reasons, are sentenced without receiving the advice of counsel or being able to obtain a transcript. When a former Canadian Forces member consults a civilian lawyer, that lawyer has trouble representing the member because the member’s file contains absolutely nothing other than what he or she has said.

I would not go as far as my colleague from Scarborough—Guildwood, who spoke before me, but I believe that is a small step. Many years have elapsed since the Lamer report, and I believe the members of the Canadian Forces deserve a lot better than Bill C-15.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, as my father would say, they are speaking through their hat. It is true that they are playing two halves against the middle most of the time. They like to talk about due process and they like to hector us and all Canadians around process in this place, yet they subvert it and play tricks with it on a constant basis.

I will double back to the beginning of my little speech tonight to say that had the government not prorogued Parliament in 2007, we might have had a decent bill then. Had the Conservatives not broken their own fixed election laws in 2008, we would have had something then. Had they not been in contempt of Parliament in 2011 we might have had something then. They could right some of their sins of the past by actually looking at this thing in a sensible way, looking at what they had in Bill C-41 and listening to some of the good advice and wise counsel from our side and from others across Canada.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, I could not agree with my hon. colleague more.

The government shows a lack of respect for Parliament far too often. We have members working in good faith, and I think that most of the members, even on the other side, would agree that at the committee stage members try to come to the best possible solutions around important matters.

We can battle our partisan battles till the Speaker tells us to stop, but what I think Canadians want to see is good legislation that is fair and balanced. What we are arguing for tonight and what we have been working on since this was Bill C-41 and before, is something that does not just come from our side. There are experts and studies that support our position, especially around the issues we raised tonight.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, it is an honour for me to rise this evening and speak to this bill, but I have to say that I am really getting tired. It has nothing to do with the hour of the evening, but rather listening to the lobotomized government on the other side talking to us about process.

Let us talk about process. In its previous iteration in 2007, this bill died on the order paper. Why was that? The government prorogued this place. That is why it died on the order paper. If the government wants to continue talking about process, then let us talk about process. In 2008 it died again. Why did it die again? The government closed the shutters on this place. It broke its own fixed election laws in 2008 and that is why it died then.

What about 2011 and Bill C-41? That died too because the government fell, in part due to contempt of Parliament. At such a late hour of the evening, clearly I have woken up the sleeping hyenas. It is too bad that the Conservatives cannot actually defend their government in a fulsome way. What do they do? They throw out these pithy remarks about process.

However, we ask a lot of our soldiers, our men and women in uniform. I would like to ask the members on the other side if they think that the kind of remarks and the questions that they are bringing forward tonight are suitable within the context of the conversation we are having. What we are talking about tonight is how we support our men and women in uniform and how we project the image of Canada to the world through our men and women in uniform. If we cannot guarantee for them the kinds of rights in terms of due process that we expect for everyday, ordinary Canadians, then we are doing them a disservice.

Too often, we hear the government using our men and women in uniform as cover for the egregious decisions and laws that it is foisting upon the Canadian public in the guise of a majority in the last election. Thirty-eight percent is not a majority. It has a parliamentary majority here, but we will leave that aside. I may need it a little later in my 20 minutes.

We have a situation here where the government has let down our men and women in uniform far too often. For example, in my hometown in Toronto we have homeless veterans. How can we ask the men and women in the Canadian Forces to do the most extraordinary things on behalf of the rest of us when the government refuses to properly look after our veterans when they are finished their service?

We have a tax on veterans' benefits. There is an inability for many men and women veterans to get the kind of treatment they need for post-traumatic stress disorder. We have a government that tables legislation that strips out of the legislation some of the wise counsel, the wisdom and the compromises that were hashed out in previous Parliaments.

I would like to echo my colleague from Saint-Jean's comment earlier in this debate where he questioned the government's wisdom and decisions in this regard as a waste of taxpayer money because we have debated and put together some very sensible amendments.

Members opposite say to bring it to committee and we will study the amendments. I sat on the committee looking into the copyright legislation, Bill C-11, where a member on the opposite side said, “I'll bet you $10,000 we're going to move amendments”. Every single amendment that we brought forward was rejected, including an amendment that would have enabled those with perceptual disabilities, those who are deaf, those who have vision impairments, to access works that they otherwise would not be able to access. Even an amendment like that was voted down.

Therefore we have no trust in the government's interest in looking at reasoned amendments from our side.

The issue of process is really a concerning question for us here on this side because we see, time and time again, the government playing games with the process, in fact gaming the process, actually.

Tonight is a perfect example. We have seen the government go through time allocation, limiting debate throughout this year that we have been here in this Parliament, time and time again. In fact, with its pooled pension Ponzi scheme, the debate was limited to an hour or two. Then it says, “Okay, we've limited debate. Now, we're going to extend Parliament because we're going to ram all this stuff through in the last minute”.

That is the kind of respect the government has for process in this place.

Now I will go back to Bill C-15.

We believe there are elements of Bill C-15 that are a step in the right direction. However, unlike the member from the corner party there who asked us, “If there are some things that you agree with, why don't you just vote for them?” I think he wanted to go home early, which is the kind of culture to which his party subscribes. We cannot swallow that.

As my hon. and esteemed colleague, the member for Windsor—Tecumseh, commented earlier, we are not going to vote for a bill that does not support the men and women in our armed forces.

I have sat and listened to the debate, and it is an honour to do that, I have to say. It really is, because I have a chance to listen to some of the acquired wisdom of some of the members here. I started to think, as I was listening to the debate tonight, about some young people I had the good fortune to interview many years ago in Toronto. These were high school students who had decided to sign up for a high school co-op course. The co-op course was, essentially, to join the reserves. That was part of the course. Now, these were young kids. They were 16- and 17-year-olds. They told me they had decided to join this co-op program to get into the reserves, for a variety of reasons. Some of them just did not like school. Some of them had a tough time at home. Some of them were from families where the socio-economic situation was such that they could not see where the future was going to lead them. They thought that maybe the military was an option, and so they joined. They were young kids.

We have a situation where, not too much further down the road, these individuals, 20 years old, 21 years old, could be full members of the Canadian Forces. Maybe they get into a dust-up one night and they get a reprimand or they go before their commanding officer in a summary trial and end up with some kind of criminal record for which, depending on the infraction, it could take them 10 years down the road to clear their name.

The fact is that they would have no recourse to representation. There would not even be transcripts of the procedure. On our side, we see this as a huge problem. It is a judicial issue, but it is also an issue of morale, and we take this issue of morale seriously. That is why we advocate tirelessly on behalf of veterans of the forces, because if we do not do that, then we set up a culture where we are saying that we want the forces to do all this stuff, but then when we are done with them, we do not want to hear from them again.

We adamantly oppose the creation of that kind of culture within the military, and we believe that it is paramount, as parliamentarians, to ensure that kind of culture does not creep in.

We see that time and time again with the government. The Conservatives like to wrap themselves in the flag, but when veterans come to them in need of help, too often there are roadblocks put up in their way.

When I start to think about these kids I interviewed, they were fresh-faced but a little confused. They were young, and one could see that, depending on how luck went, they could get into trouble. We want to make sure that, in those situations, they are accorded the same rights, the same access that any other Canadian citizen would expect. It is amazing that many Canadians, and we heard tonight that many members of the military and lawyers, are surprised to know that members of the forces do not and cannot access some of these.

We have heard as well that the bill has gone through several different iterations and that some of these amendments have been kept in, and there are some that we can support, but like so many bills that the government puts before this House, we cannot swallow this bill whole. We simply cannot.

It needs to be noted that over the last year the government has, as a way of excusing this anti-democratic practice of serial use of time allocation to shut down debate in this place, tried to say that since we have debated some of these issues in previous Parliaments, we do not need to give them full airing here, yet this is a case where the Conservatives had a bill ready to go, and as my colleague earlier attested, they could have passed it in March if they had wanted to, but they chose to let it fly, and here we are again.

People must be wondering why the Conservatives would strip out some of these amendments. Why would they reduce the numbers of minor infractions that would potentially lead to criminal records?

We have heard overheated rhetoric from that side too often that they want to use the issue of crime and criminality as something with which to beat people over the head. One has to wonder when we look at the bill whether this is part of a piece of the government. This is about locking things down. This is about crime and about punishment. That is what we are seeing here.

It is really hard to understand why the government would not have retained the amendments proposed by the NDP, which passed at the committee stage last spring after long hours of debate and seemed to have resulted in positive steps forward. By failing to include those amendments in Bill C-15, the Conservatives are undermining the important work of all members in the national defence committee and the recommendations of Canadian Forces representatives during the last session of Parliament.

In other words, the government is not building on the work of past Parliaments. It is not taking best practices or wise counsel. It is not looking at the ways in which parliamentarians have come to mutual consensus. That is what Canadians want to see from this Parliament. They want to see mutual consensus, not dictatorial edicts from a parliamentary majority masquerading as a majority of Canadians who support it, which as we know, is not the case.

Retired Colonel Michel Drapeau has been quoted before in this debate, but I am going to quote him again:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year.

That is very interesting, because he particularly calls out those of us in Parliament. Nothing is more important than for Parliament to focus on fixing a broken system as opposed to breaking it even further. This is what we are called on to do in Parliament. This is our job.

In fact, Canadians do not understand the amount of time that has been spent stripping away and undermining the work of Parliament in order to push flawed legislation through. There was an example earlier this year of a piece of legislation on which the government refused to acknowledge any amendments, but then it realized at the final minute that maybe it had better introduce some of the amendments. It missed the deadline and the Speaker ruled that the amendments were inadmissible. This is the kind of government we in the House and Canadians are faced with.

Unfortunately those in the military are also faced with a government that does not like to listen. It is the government's way or the highway, even if the highway is a highway to hell. That is the problem with the government. It is obstinate in its refusal to listen to wise counsel. It would rather drive the bus over the cliff than gear down, look at the map and maybe even ask someone it is driving with if there is a better way forward. That is what New Democrats are saying.

Members on this side of the House have spent years engaged in issues of Canadian justice and fairness within the military. It is fair to say and I think members on the government side would acknowledge that we are reasonable in our issues and our demands. What we are asking the government to do and what all Canadians are expecting is for the government to be reasonable too. That is the Canadian way, and we would like the government behave the way Canadians expect it to behave and Parliament to work.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, it is a pleasure to speak today against the second reading stage of Bill C-15. Before my colleagues across the way start saying that I do not like the military and all of those things, I will stress that it is because I so strongly support the men and women in our military who sacrifice so much to serve our country and put themselves on the line that I find it very difficult to support this legislation. Surely, our men and women who serve us at home and overseas in unimaginable circumstances deserve due process, and that is what this is all about. It is about transparency, accountability, t doing the right thing and natural justice.

When I look at Bill C-15, I do acknowledge that the government has taken a baby step in the right direction. However, it is only a baby step and does not go far enough.

As I look at the legislation, I experience déjà vu. Not too many days ago I stood in the House and talked about another bill, Bill C-11, the Balanced Refugee Reform Act, which was legislation that the Minister of Citizenship, Immigration and Multiculturalism praised as being a miracle. It was legislation that all political parties worked on and together they included elements that would address human smuggling, put processes in place that would speed up processing times and short-term detention for people who did not have identification verification, all of those things. I want to acknowledge my colleague from Trinity—Spadina who did such an amazing job on that file. The government side and the other opposition party also praised that legislation.

Then, lo and behold, out of the blue we then had legislation that went backward and undid so much of the work that was done. Bill C-11 was the Balanced Refugee Reform Act and we ended up with Bill C-31 in its place, which undid all the work that was accomplished in Bill C-11. That is exactly the déjà vu I am experiencing now.

Once again we had legislation that was in Parliament, Bill C-11, which had been acclaimed but was still not fully implemented, and then it was undone. On the other hand, Bill C-15 undoes the amendments that were accepted in Bill C-41. Once again, we need to look at what the drive is behind this. The drive behind it seems to be the majority my colleagues are experiencing across the way. I was really hoping that after a year of being a majority government it would have gotten over that and gone on to do the work of Parliament in a way that respects the role of the opposition and, of course, the contributions the opposition has to make when it comes to legislation.

As I was saying, I was experiencing déjà vu. Here we are with this iteration of Bill C-15, and none of the compromises, amendments that were made in Bill C-41 are in it. Why? It is so tiring to hear about how the Conservatives are all about the military and how the opposition does not care about the military.

When I look at this legislation, I wonder how much my colleagues sitting across the aisle really care about the men and women who serve in our military and put their lives at risk and why the Conservatives have chosen to ignore key recommendations from a critical report written by Antonio Lamer, which was issued in 2003. There were 88 recommendations in that report. Out of those 88 recommendations, only 28 have been dealt with to date.

I am not fully blaming my colleagues across the aisle. The other opposition party also had an opportunity to implement the recommendations that were made in the Lamer report and it chose to sit on them. I do not know why, maybe it was dealing with a lot of other issues. Surely, no other issue can be as important as ensuring that the men and women who serve in our military get justice and get treated fairly.

We have all of these things going on. One good thing that I suppose we could say, as could my colleagues across the aisle, is that Bill C-41 was never acclaimed.

My colleague who spoke just before me is such an eloquent speaker. I just hope that one day in the future I can emulate even 10% of what he is able to express so clearly and so succinctly.

As my colleague said, the government had the opportunity, because the bill was at the report stage, to deal with it before Parliament was shut down for the last election. However, it chose not to.

Here we are a few days before Parliament closes and, again, through bullying tactics, we will sit until midnight every night this week. Why was the legislation not introduced earlier so we could have dealt with it? It could have gone through all the stages.

Here we are at 10:50 p.m. on the Tuesday night, before Parliament recesses on Friday, debating the treatment of our men and women who serve in the military to give them the kind of fairness that we expect as civilians. Where are the priorities of the government? Certainly not with the men and women in the military. The government seems to have other priorities.

When I looked at all of this, and I will go through this in detail, I was struck by a quote from the Minister of National Defence in February 2011, when he appeared before the Standing Committee on National Defence, the same defence minister who occupies the seat today. This is what he said when he endorsed the summary trial system:

—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....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.

Does the minister still believe in those words? If he does believe them, why is the minister not accepting the fact that the summary trial system is tainted with undue harshness? Sentences are resulting in criminal records for minor offences. Why is the minister ignoring the need for greater reform than the baby step that is being proposed in this legislation?

When we look at all of this, we really begin to question the motives and what drives the government.

In the previous iteration last year, the NDP put forward some amendments. Quite a few were accepted. Other important amendments that were passed at committee stage at the end of the last parliamentary session are not in Bill C-15, although a couple are. The ones that are not there include the following.

First, the authority of the Chief of Defence Staff in the grievance process, responding directly to Justice Lamer's recommendation, is not included in the bill. Second, changes to the composition of the grievance committee to include a 60% civilian membership is once again not included in the bill. Third, a provision ensuring that a person who is convicted for an offence during a summary trial is not unfairly subjected to a criminal record. Once again, that is not included.

What would address some of our concerns with this legislation? We absolutely need further amendments and we need to ensure that the summary trial system is fixed. Summary trials are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the trial. The bit that I find very hard, maybe because of the background I have had, where I have always believed that if people are accused of something, they have the right to representation. Then they have the right to go before a person who is fairly neutral. In this case, people end up having to go in front of one of their commanding officers. If they go before one of their commanding officers, I am not sure how independent that is and what kind of pressure that puts individuals who are there to advocate for themselves without legal counsel. This absolutely puts undue pressure on our armed forces when they can be convicted for very minor service offences.

I am sure that some members previously had employers somewhere, other than the Canadian people. Perhaps they had some kind of an accusation against them, or maybe they came to work late or whatever and before they knew it, there was a grievance. They then had to defend themselves, in other words, put their case forward. First, they could not get representation. Second, they had to go before their employers. Imagine the kind of depressing effect that has on people when they have to go in front of someone who has that much power and authority over them? That actually has a chilling effect on even the accused's desire for justice because they are afraid of the kind of impact that could have on their career and so on.

The kind of minor offences we are talking about, and I think I could often be accused of these, are: insubordination, and I think I was born with that one; normal quarrel and disturbances, almost everyone in the House would have to be charged at some time or other; absence without leave, imagine all those young people at school ending up with criminal records because they were away without leave; drunkenness and disobeying an officer's command.

This is a very serious business. I really do not want to make light of it because it actually affects our military. However, at the same time, when I am reading some of these trivial things, I am thinking that we are going to give our men and women who serve our country, without holding anything back, a criminal record for these. If they end up with a criminal record, once they are out of the army, crossing that border could become almost impossible.

I deal with cases of people who were stopped, had charges of drinking and driving even 10 years ago and were still finding it difficult to cross the border.

Is that the way we want to treat our men and women when they go looking for certain jobs? As members know, there are jobs where people deal with the public and there is a requirement for criminal record checks. If we did any of these things, as long as we were not too far out there, we would not end up with a criminal record. Military members are already held up to such high standards, so why are we, in the idea of criminality, stooping so low as to give them a criminal record? We really need to pay attention to this.

It is not easy living with a criminal record, but I will not get into that. The members know that anyway. If they have not experienced it themselves, I am sure they have had constituents who have come and talked to them about it.

Regarding reform of the grievance system, I absolutely understand grievances and I also understand accountability and transparency. Whenever we have professionals, whether the RCMP, teachers or any other profession that we hold to account, one of the key things is that civil society has engagement. Once again, this bill fails to address that. It is really critical when grievances are under review, there be a representation from civil society on the panel. This would give it that authenticity that we often talk about, and the accountability.

At this stage, I will read a quote from the Lamer report. It is quite amazing. I did not know this gentleman, but he is very learned obviously, because he gets to the heart of the matter. He writes:

Grievances involve matters such as benefits, personnel evaluation reports, postings, release from the Canadian Forces...all matters affecting the rights, privileges and other interests of CF members...unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances...

I want to stress this. He says:

It is essential to the morale of CF members that their grievances be addressed in a fair, transparent and prompt manner.

That becomes really critical when we take a look at reforming the grievance system.

I will read a quote from Colonel Michel Drapeau, a retired colonel from the Canadian Forces and military law expert. In February 2011, before the committee, he said:

—I find it...odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I plead with my colleagues across the way to see the light of day and please address and give fairness to our military men and women who serve us so unselfishly.

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

Mr. Speaker, I must admit that I was a bit uncertain but that is certainly the most logical interpretation to make of the comments of Mr. Justice LeSage, that even those 15 to 18 sections that BillC-41 had amended and had been added by the committee at that time were still too narrow. There were still too many low level inconsequential charges and convictions under the summary trials and that in fact that list should be expanded even greater. That is the most logical interpretation.

I have to say that there is a possibility that he may have been referring to Bill C-41 before it was amended, the original government version which had much fewer sections. However, he clearly had looked at Bill C-41 by the time it had come back to the House for its final report at that stage, so I think he was saying that even the 15 to 18 sections were too narrow.