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

[Gordon O'Connor, Conservative, Carleton—Mississippi Mills, ON]

moved that Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and sent to a committee.

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

Mr. Speaker, I am pleased to support this bill to amend the National Defence Act. This bill will ensure that Canadians can maintain their trust in our military justice system. This bill will improve the speed and fairness of the military police complaints process. Furthermore, this bill will give members of our armed forces access to a faster, fairer and more flexible grievance process.

In 1998, Bill C-25 made significant amendments to the National Defence Act. One of the amendments was the requirement for an independent review of those portions of the National Defence Act amended by Bill C-25.

The late right hon. Tony Lamer, former chief justice of the Supreme Court of Canada, was appointed to conduct the first independent review, and his report was tabled in Parliament in November 2003. In his report, former Chief Justice Lamer made 88 recommendations: 57 pertaining to the military justice system; 14 regarding the Canadian Forces provost marshal and the military police complaints process; and 17 concerning the Canadian Forces grievance process.

The bill that we are debating today is the Government of Canada's proposed legislative response to recommendations made in the Lamer report. Implementing the proposed response will require changes to the National Defence Act, the Queen's Regulations and Orders to the Canadian Forces and some administrative practices.

A similar bill, Bill C-7, was introduced in April 2006 but it died on the order paper when Parliament was prorogued. A successor bill, Bill C-45, was introduced in March 2008 but that bill also died on the order paper.

While the bill before us today largely mirrors the contents of previous bills, some changes have been made, and I will discuss those changes in a few moments. It should also be noted that some amendments to the National Defence Act related to changes suggested in the Lamer report were made in June 2008 by Bill C-60. Bill C-60 was required to respond to the judgment of the Court Martial Appeal Court in the case of R. v. Trépanier.

Further, during consideration of Bill C-60, the minister requested members of the Senate Standing Committee on Legal and Constitutional Affairs to consider studying the provisions and operation of Bill C-60 and to provide a report on their findings and recommendations, which the committee did in May 2009.

In October 2009, the Minister of National Defence responded to the Senate committee members thanking them for their recommendations and indicating that all of their recommendations were either accepted or accepted in principle by the government.

Thus, in a nutshell, the present bill replicates most of the provisions of Bill C-45, minus some provisions implementing Lamer report recommendations, which have now already been enacted in Bill C-60, plus some additional elements arising from the recent recommendations made by the Senate committee.

I would now like to discuss the amendments we are proposing for the National Defence Act in the current bill.

In his report, former Chief Justice Lamer wrote that, as a result of the changes made in 1998 by Bill C-25, “...Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.” He added that observers from other countries see this system as one their country might wish to learn from. However, he also pointed out that there remain areas for improvement in the military justice system.

The Department of National Defence analyzed the recommendations in the Lamer report very carefully. It undertook extensive policy analysis and consultation to determine the appropriate legislative response to the recommendations. This response is reflected in the legislative amendments we are considering today. These amendments deal with the military justice system, the Canadian Forces provost marshal and the military police complaints process, and the Canadian Forces grievance process.

I would like to look at each of these areas in turn, beginning with the military justice system.

The Canadian military justice system has been developed to deal expeditiously and fairly with service offences, while respecting the Canadian Charter of Rights and Freedoms and meeting the expectations of Canadians. It is a system designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale. It must also ensure that members of the Canadian Forces who are subject to this process are dealt with fairly.

The proposed amendments to the military justice system would make improvements both in process and in substantive law. They would also ensure that the military justice system keeps pace with evolving legal standards in Canadian criminal law.

Simply put, the bill before us today would reinforce the continued compliance of the military justice system with the Canadian Charter of Rights and Freedoms, while preserving the system's capacity to meet essential military requirements.

I will now go over the main military justice amendments proposed in the bill.

The bill would strengthen the provisions of the National Defence Act regarding the independence of military judges. More specifically, the bill would ensure that judges are appointed until retirement.

The bill would increase the timeliness and flexibility of the system by providing for the appointment of part-time military judges to a reserve force judges panel.

The bill would modernize and enhance sentencing provisions of the Code of Service Discipline.

It would provide more flexibility in the sentencing process, including absolute discharges, intermittent sentences and restitution orders, providing summary trial presiding officers and military judges at courts martial with a greater ability to tailor a sentence having regard to the particular circumstances of the offence and the offender, replicating many of the options available in the sentencing regime of the civilian justice system.

As well, a greater voice would also be given to victims by providing the introduction of victim impact statements at courts martial.

The bill will set out the sentencing goals and principles that will apply to military tribunals, promote the operational effectiveness of the Canadian Forces and uphold a system that supports a fair, peaceful and safe society.

This codification of sentencing principles and objectives in the National Defence Act would provide an important statutory articulation of the fundamental principles underpinning Canada's military justice system, as well as providing guidance concerning sentencing to all actors in the military justice system, including presiding officers at summary trials, military judges at courts martial and the appellate judges of the Court Martial Appeal Court and the Supreme Court of Canada. This statutory guidance would parallel that already provided in the civilian criminal justice system in the Criminal Code, with the additional specification of factors unique to the distinct military justice system.

I will now explain the key elements of the bill as they relate to the Canadian Forces provost marshal and the military police complaints process.

Although the National Defence Act establishes specific responsibilities for the Canadian Forces provost marshal in relation to the military police complaints process, neither the actual position of the provost marshal nor the full scope of its responsibilities are found in the current act.

Establishing the Canadian Forces provost marshal in the National Defence Act would bring greater clarity to the role and responsibilities of that position and to the military police in general.

We cannot forget that military police are different from all the other police entities in Canada. They can be called upon to undertake both traditional police duties, such as investigating offences, and what I would call purely military duties, such as providing security for airfields and other defence establishments or facilitating movement of troops in a theatre of operations. Bill C-41 reflects the dual nature of the Canadian Forces provost marshal's responsibilities.

It would also ensure that the provost marshal has the independence necessary to ensure the integrity of military police investigations and promote professional standards.

At the same time, the bill recognizes that the provost marshal will be directly responsible to the senior Canadian Forces chain of command regarding the military functions of the military police.

Bill C-41 would also enhance the timeliness and fairness of the military police complaints process by requiring the Canadian Forces provost marshal to resolve complaints within one year of receiving them in normal circumstances, and by protecting individuals who submit complaints in good faith from penalty.

I will now turn to the Canadian Forces grievance process.

In his report, former Chief Justice Lamer indicated that there was a clear need to improve the process for dealing with grievances submitted by members of the Canadian Forces. The proposed changes to the National Defence Act would help ensure that grievances are addressed in a fair, transparent and prompt manner.

For example, the bill provides for an amendment to the National Defence Act requiring the Chief of the Defence Staff or those he authorizes, where circumstances permit, to informally and expeditiously deal with any issues that arise.

At the same time, the bill allows for an expansion of the Chief of the Defence Staff's responsibilities as the final authority in grievance procedures.

These changes would enhance the efficiency of the process and ensure that a backlog of grievances, such as that which existed at the time of the Lamer report, does not recur.

Before concluding, I will discuss the differences between the bill we have before us today and previous Bill C-45. While the content of Bill C-41 is largely the same as that of the previous Bill C-45, some modifications have been made.

Principally, the differences between the two bills reflect the deletion of issues that have already been dealt with in the interim in Bill C-60, such as the requirement for unanimity of the panel to convict or acquit an accused person at a general court martial, the reduction of the number of types of courts martial from four to two, and the enhancement of the powers of military judges to deal with pretrial matters such as disclosure.

Other differences are related to the recent recommendations of the Senate committee. These include reducing distinctions based on rank and the composition of panels for general courts martial, amending the limitation period for summary trials to provide that a charge must be laid within six months after the day on which the service offence is alleged to have been committed, and allowing an accused person to waive the application of a limitation period for summary trials in certain circumstances.

A further point to note relates to the independent review provision. As recommended in the Lamer report, a provision will be added to the National Defence Act requiring that portions of the act relating to the military justice system, the military police complaints process and the grievance process be reviewed and updated on a regular basis.

In the current bill, as was done in Bill C-45, the timeline for conducting future reviews has been modified to seven years. This would allow for more comprehensive and useful reviews to be conducted by ensuring sufficient time to work with and assess amendments to the National Defence Act after they come into force before a review is conducted.

Finally, this bill would propose that the name of the Canadian Forces Grievance Board be changed to the military grievances external review committee. The Canadian Forces Grievance Board plays a vital role in the process established under the National Defence Act for members of the Canadian Forces to seek redress of grievances. The impartial findings and recommendations of the Canadian Forces Grievance Board buttressed by that organization's institutional independence from the Canadian Forces and the Department of National Defence helped to increase the confidence of Canadian Forces members in the grievance process.

The proposed change in name would assist in communicating the Canadian Forces Grievance Board's current role, in particular its institutional independence and mandate to all stakeholders. It should be emphasized that the bill merely proposes a change in the organization's name, at its own request, to assist in this regard, not in its mandate, which will remain unchanged.

To conclude, reforming the military justice system is just one step in a process of continuous improvement.

As Canadians, we are privileged to have a military justice system that reflects our values and respects the rule of law.

These proposals to amend the National Defence Act would ensure Canada's military justice system remains one in which Canadians can have trust and confidence. They would clarify the roles and responsibilities of the Canadian Forces provost marshal and bring greater timeliness and fairness to the military police complaints process. They would ensure that a more responsive, timely and fair grievance process is available. I am confident that these amendments would serve to further strengthen the Canadian Forces as a vital national institution.

This is a very technical bill and for that reason it would be appropriate to pass this bill quickly at second reading and get it to committee where we can hear various expert witnesses to drill down into the details that many will want to do. It is more appropriate that it be done in that setting where we time can take time to reflect fully on all the implications and suggestions that may be come up.

I request that hon. members pass this bill quickly at second reading and move it on to committee for further consideration.

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

Mr. Speaker, Bill C-41 seems to be a result of a very long and torturous process involving a number of prior bills.

Does the parliamentary secretary have any statistics as to how the system worked before in terms of the number of people charged under the old system versus projections under the new one? Because we are making some changes to the system, I would like to know the number of complaints being dealt with.

There are reasons for wanting it to be updated, and I know the Charter of Rights and Freedoms is a big part of that, but what was wrong with the old system that would not allow us to leave it the way it was? How many people have been charged, how many have been processed through the system and how many complaints are usually dealt with?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, with respect to the specific number of charges, those past and those projected, previous charges would be a matter of record, and I could get those numbers if he wishes.

The main point is there was a requirement after the Lamer Commission to modernize the Canadian Forces military justice system to bring it more in line with some of the aspects of the civilian justice system with respect to the Criminal Code.

Recommendations were made to make the provisions for judges more clear, to ensure their independence was maintained, to pay more attention to the rights of victims, in conformity with the Charter of Rights and Freedoms, and to ensure changes as recommended by Justice Lamer, 88 in all, were actioned. Most have been actioned and others are in the process of being actioned.

The purpose behind this is to bring us in line with all of those recommendations, which the government of the day accepted all of them in fact or in principle. It has been a long and torturous process. As a result of several minority Parliaments, bills such as this have gone forward only to be stopped by elections and so on.

Some of the aims of the Lamer Commission have been achieved through Bill C-60 and through other changes to regulations and policies. Not all of them have to be legislated. A lot has been accomplished.

A couple of things still need to be done, even after we pass Bill C-41. More complex issues are being worked on as we speak. Again, this is another try, hopefully a successful one this time, to get the provisions of the Lamer Commission actioned and into law.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Mr. Speaker, Bill C-41 provides important opportunities to update the military justice system in the armed forces. Could the parliamentary secretary also elaborate on the opportunities that the bill brings to further improve operational effectiveness within the armed forces?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, one of the prime reasons for a military justice system is the normal rule of law. It also is to enhance the operational effectiveness for the Canadian Forces. We do that by providing maintenance of discipline, maintenance of efficiency and morale and to contribute to the respect for law and maintenance of it in a just, peaceful and safe society.

A lot of it is about maintaining the Canadian Forces in a state of readiness, because we have to be in a position to enforce internal military justice or internal discipline. Canadian Forces members are often tasked, as we know all too well today, to operate around the world, sometimes in very difficult circumstances.

It is absolutely vital to operational effectiveness and operational readiness that we have a system of discipline and a system of military justice. In certain circumstances, one person can jeopardize the safety and survival of an entire unit.

We need a justice system that can try offences against both the ordinary law of Canada and those that are unique to the military, such as mutiny or being absent without leave, that kind of thing. We have to address breaches of discipline in a prompt and fair manner, with the aim of returning the individual to service as quickly as possible.

It needs to be portable to be able to function wherever the Canadian Forces are deployed around the world, in places like Afghanistan, Haiti or wherever.

It is a complement to the civilian system of justice. It is one that is very necessary for the unique requirements that the Canadian Forces is asked to have and the unique situations they find themselves in around the world. To date, they have done an incredibly good job in all those regards. The aim of this is to ensure that the military justice system keeps pace and can to do that in the future.

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

Mr. Speaker, in all of the notes I read on this issue, I never did get any information to indicate how many judges we had in the system and how many people were involved in the system.

Usually in background information there is the technical information, which we certainly have a lot of here, but there is usually some information as to the size of the problem, how many people are involved in the system, how many judges there are, how many people are charged with different offences and so on. That was the basis of my original question.

Another part of the bill that I find rather positive is the review we would have every five years. I do not know how realistic that is, given how long it has taken us to get this far. I would like to see that in as many bills as possible, so we can take a look and see how the legislation actually performs in the real world.

Could the member get me some information as to how many judges are involved and the size and scope of the current military justice system?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, we can get him a short resumé of that kind of information.

It starts with the Minister of National Defence. There is a Judge Advocate General who has statutory responsibilities to superintend the administration, to conduct regular reviews, to report annually, that kind of thing.

A chief military judge assigns military judges to preside at the courts martial. The military judges are all officers within the Canadian Forces.

However, I would like to talk about the review process because that is very important. In fact, one of the changes under the bill, and which has been proposed in other ones, is to change that review period from five years to seven years. That is primarily to allow a fuller period of experience to build up some knowledge base based on changes that may have come since the last review.

The current review is overdue and that is for a variety of reasons. A lot of them are related to the minority Parliaments, bills dying on the order paper. We are conducting a review at the moment and the minister has committed to reporting that at the earliest opportunity.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Mr. Speaker, it is clear that our government very much believes in the importance of giving victims a voice. Could the parliamentary secretary please elaborate on how Bill C-41 proposes to give a greater voice to the victims of offences within the military justice system?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, my hon. colleague is quite right. Victims do need voice. One of the major changes would be the introduction of victim impact statements similar to what we see now in civilian courts. That will allow victims to give details, people who have experienced significant physical, emotional or financial harm, and to express themselves in the sentencing process at the courts martial. It is meant to give greater voice to victims in the trial process.

As I said, it is similar to provisions in the Criminal Code and will allow the court to consider that statement when determining a sentence imposed on an offender.

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

Mr. Speaker, it is a pleasure to speak to Bill C-41, particularly since I serve the men and women on the Canadian Forces Base Esquimalt who do an extraordinary job serving our country. I pay homage and give thanks to them and their families for all that they do, have done and will do in the future.

On June 16, the Minister of National Defence introduced Bill C-41, which is designed to strengthen military justice in defence of the Canada Act. It was given first reading in the House of Commons. The bill would amend the National Defence Act to strengthen military justice following the 2003 report of the former chief justice of the Supreme Court, the Right Hon. Antonio Lamer, and the May 2009 report of the Standing Committee on Legal and Constitutional Affairs.

Among other things, the proposed bill provides for security of tenure for military judges until their retirement and permits the appointment of part-time military judges. It specifies the purposes, objectives and principles of the sentencing process. It provides for additional sentencing options, including absolute discharges, intermittent sentences and restitution. It modifies the composition of a court martial panel according to the rank of the accused person. It modifies the limitation period applicable to summary trials. It allows the accused person to waive the limitation periods. It 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. It makes amendments to the delegation of the Chief of Defence Staff's powers as the final authority in the grievance process.

The Liberal Party understands the need to reform the Canadian court martial system to ensure that it remains effective, fair and transparent. The Liberal Party also believes that Canadian citizens who decide to join the Canadian Forces should not thereby lose their rights before the courts. As well, the addition of new penalties, in particular, absolute discharge intermittent sentencing and compensation, is important if we are to have an equitable system.

The rationale for our position is as follows.

There is a significant disparity between the military justice system and the civil system. This disparity must be eliminated as much as possible. It is also worth noting that this disparity does not represent an advantage, but rather a disadvantage, in being subjected to military law, which imposes harsher sentences and applies a less flexible system than the civil system.

It is for that reason the Liberal Party is supporting this bill. We would certainly would like it to be moved forward to the next stage.

Part of this comes out of Chief Justice Lamer's report. I want to read a quote from him as I think it is instructive in terms of illustrating why we need to change the status quo. Justice Lamer said the following:

To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.

I have no argument there. He goes on to say:

Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.

The Liberal Party has a problem with that. Individuals who are giving of themselves in the Canadian Forces should not be treated more harshly under a military system than a civilian system. We do not think this is very fair at all.

Let us bore down into some of the specifics, and a little history is important.

The government's legislative process in response to Justice Lamer's report was first introduced in the House of Commons back in April 27, 2006. It was Bill C-7. Bill C-7 died on the order paper when the government prorogued Parliament in September 2007. A successor bill, Bill C-45, was introduced in March 2008, but it met a similar fate as Bill C-7. It too died on the order paper in the 39th Parliament because of a federal election.

Therefore, it is not true that the government wants to move this speedily along. It has had two kicks at the can already and, through its own hand, has ensured that bills like this died on the order paper.

Let us take a look at some of the more specific aspects of the bill, which could be quite instructive. One deals with military judges. The bill actually provides that military judges have security to tenure to retirement age and would serve to enhance the independence and effectiveness of military judges in their role in the military justice system in part by creating a reserve force military judges panel. It is important, though, that these individuals have experience of being in the forces, in the field and in the theatre, as our forces members do.

One of the ongoing challenges in dealing with veterans is that there are not enough people on the Veterans Review and Appeal Board who understand what military folk and their families have to go through and what military members are confronted with in the field, which is completely different from the lives that we are privileged to share in our country. As a result of that absence of understanding, in my experience, justice is not being provided to our veterans when they go before the Veterans Review and Appeal Board. The people on the board are frequently individuals who are appointed for partisan reasons. That has always happened, to be sure, but we need an element of competence on the board. One of the problems we have is an absence of competence and knowledge with respect to what our military men and women endure in the field.

The government would be well served to make sure that individuals who are on this review board and other review boards such as we have for our veterans must have the competence and understanding of what our forces members see and do within the context of being a member of the forces and what they are confronted with in the field.

Also with respect to the Veterans Review and Appeal Board, a number of the members of that board should have experience in health care, in medicine. It is crucially important because many of our veterans are suffering from medical problems and need people who have medical knowledge with respect to what they have to endure and can assess them.

The other thing is on sentencing reforms with respect to the bill. The Lamer report recommended a comprehensive review of the sentencing provisions in the National Defence Act with a view to providing a more flexible range of punishments and sanctions.

On the purposes and principles of sentencing, these changes would ensure that we articulate the purposes, objectives and principles of sentencing in a military justice world. That is really important for everybody to understand and to have clarity into why things have been done.

The proposed amendments would provide for additional sentencing options in the form of absolute discharges, intermittent sentences and restitution orders. The amendments would also provide for the use of victim impact statements, as we have heard before.

I would like to speak to the summary trial limitation period. The National Defence Act provides that an accused person cannot be tried by summary trial unless it commences within one year after the day on which the service offence is alleged to have been committed. These amendments would add an additional limitation period for summary trials that would require that the relevant charge be laid within six months of the commission of the alleged offence.

One question we have is whether this would result in more court martials for less serious matters. In other words, although we are trying to make sure that the system is more balanced, in the end would our military folk be confronted with a system that is more punitive than what need be for minor offences?

I want to address a couple of issues with respect to justice for our veterans in particular. The pension reform issue is a very big one for many of our veterans. The current situation is that spouses of veterans who are married after the age of 60 cannot share equitably in their pensions. This must change. The world is a different place now and the rules as written have been around for many, many decades. For the sake of our veterans, and I believe it applies to RCMP officers too, for those who marry after the age of 60, there must be fair and equitable treatment under the law for their spouses with respect to their pensions.

In my riding of Esquimalt—Juan de Fuca, we have a very extraordinary program. It is Cockrell House. It is named after World War II veteran Jack Cockrell. This house, quite remarkably, is meant to deal with a situation that many Canadians would be appalled to find out occurs in our midst, and that is to deal with homeless veterans.

Cockrell House provides housing for homeless veterans, and due to the leadership of a very remarkable developer named Russ Ridley in my riding, as well as the Mayor of Colwood, Dave Saunders, who have come together with veterans such as Dave Munro, Angus Stanfield and others to create this house, our veterans actually can go this house and live there for up to two years while they receive treatment for their mental health issues such as post-traumatic stress disorder, operational stress injuries and socio-economic problems that they may find themselves in.

I was visiting there recently with our critic for veterans affairs and it was heartbreaking but inspiring to see these men and women who were there in the house. It was heartbreaking in the sense that some veterans had been living in the bush for years. Can we imagine, veterans who have served our country, living in the bush for years on end? That is the situation we have today, and this is not a problem isolated to Vancouver Island, but rather, this is a national problem.

We do not know how many veterans are actually living out in the bush, who are homeless, but we know there are probably more than 1,000. There should not be one veteran in a homeless situation in Canada. They gave to our country and make an enormous sacrifice for us. We have a reciprocal duty to take care of them.

I commend retired General Hillier for his work in trying to deal with this, but I would ask communities from coast to coast to please take a look at the model of Cockrell House on Vancouver Island, because it can help. It is a partnership between the private sector, the developer, the local community and our veterans to ensure that we have a home for our veterans who have fallen under hard times. I would ask the Minister of Veterans Affairs to please take a look at this, because it is an issue of fundamental justice for our veterans and for their care.

We are seeing younger and younger veterans who have been traumatized and are seeking justice for what they have endured. They are seeking care for what they have endured.

For them on the issue of Afghanistan, I have to say that while our troops are doing an extraordinary job in Afghanistan, that mission has not been backed up by the diplomatic work that has to be done. In order to support them, what is missing are huge pieces of the puzzle that will enable the Afghan people, the Afghan government and us to be able to see some semblance of security and stability in the country. In particular, we have failed to see the government, with our partners in ISAF, put together a plan with our Afghan partners to have an on-the-ground diplomatic initiative to flip elements of the insurgency.

It is very sad to hear in this House when members of the government refer to the fact that we are battling “terrorists” in Afghanistan. The fact of the matter is that we are battling an insurgency. It is a complex insurgency made up of different groups with different motivations. There are people involved in the drug trade and common criminals. There is the Taliban, individuals who have a vicious view of the world and are absolutely brutal. Negotiating with those elements of the Taliban will probably not work out, but there are parts of the Taliban that actually can work in terms of bringing them into the power structures in the country.

The other issue is corruption. The ongoing corruption of Mr. Karzai's government and our support of him is a message to the Afghan people that we support his actions. By being seen to be almost blindly supporting what Mr. Karzai does and not demonstrating to the Afghan people that our support for him is absolutely conditional, we are seen as part of the problem, which means that our troops are being seen, in too many cases, as part of the problem, because they do not differentiate one from the other.

In the support of our troops and the extraordinary work that they are doing, it is crucial to ensure that we have an on-the-ground diplomatic effort to be able to hive off and negotiate and flip elements of the insurgency. Only by doing this will security come to Afghanistan. Only by doing this will the training option that we are engaging in now, to train the Afghan national army and the Afghan national police, be successful.

If the training element is all we do and if the other elements of the mission are simply going to be runts in what we do within the country, then Afghanistan five years from now will be little better than it is today, because we are not going to beat an insurgency by virtue of throwing more troops into the situation. The kind of war being fought requires very few people. It is done by stealth to create havoc in a country. It takes very little effort to do that and that is what we are seeing now.

The other aspect is that there has been very little effort to get India and Pakistan on the same page. India will support Mr. Karzai in a non-Pashtun government, and Pakistan will support the Taliban and Pashtun within Afghanistan. As we see, these two countries are playing a proxy war within Afghanistan. Unless India and Pakistan get on the same page, working in lockstep towards the security and development of the country, we are never going to see security in that country.

Why do we not have a regional working group? We are not alone there, but due to the extraordinary commitment and cost in terms of the blood of our troops and with respect to the treasury of Canada, surely we have the cachet to put our foot down and demand a number of things for the success of this mission.

To my knowledge, we have not done that. What we tend to hear in Canada are discussions on the military option with respect to Afghanistan, which is certainly a part of it, but we know that we are ultimately not going to be able to address an insurgency unless we deal with the diplomatic initiatives that are required.

On the development side, I met with the medical officers at the Mirwais Hospital in Kandahar city, as well as in a hospital in Kabul. These hospitals do not even have the ability to secure an airway, intubate and ventilate people. They do not have the ability to provide general anesthesia.

The levels of trauma they see within Kandahar city and Kandahar in general, as well as in Kabul, are atrocious. Yet we have been in the country nine years and there has been billions of dollars in aid spent within the country, and the Mirwais general hospital in Kandahar city and hospital in Kabul do not even have the ability to provide general anesthesia and are operating with local anesthesia. How horrific is that? That is absolutely cruel and inhumane punishment. It should not happen.

I beseech the government, through CIDA, to engage the Mirwais general hospital. I know we have given money to the Red Cross. I certainly understand doing that, but there has been a failure in that mission. There has been a failure in implementing the Red Cross' actions within the Mirwais general hospital and these people desperately need access to basic services.

I actually have the ability now to provide the equipment they need. I have a needs list for them. I have tried to engage CIDA to help. I have tried to get DND to help. All that is needed, quite frankly, is a very small area within a C-17 aircraft, smaller than two desks here. A space that size in a C-17 aircraft would provide lifesaving tools for people to use at the Mirwais general hospital. Increase the space to an area the size of eight seats here and there would be enough equipment for two hospitals.

I beseech the government. I would be happy to work with it so that our troops can deliver this equipment to both the Mirwais general hospital in Kandahar city and the general Hospital in Kabul. We can work together to enable those people to have access to the medical equipment that will save people's lives within the country. I am happy to work with the government to do this and I hope it sees this as a non-political endeavour but one that will certainly help our provincial reconstruction teams working within the country.

In closing, I know I added a few extra things that may be outside the realm of this bill, but I did it to provide information to the government that there are some options that we could work together on to help the mission, our troops and the Afghan people. I certainly hope that the government takes a look at some of those options, and I know my party would be very willing to work with it to implement these things for the good of our troops, the good of the mission and the good of our country.

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

Mr. Speaker, my hon. colleague had very wide-ranging and comprehensive remarks. I think somewhere in there he actually touched on the topic of military justice. I have a simple question for him.

I would like to confirm that he and his party will actually be supporting this bill.

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

The answer to that, Mr. Speaker, is yes.

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

Mr. Speaker, two days ago the member's former leader, the member for Saint-Laurent—Cartierville, who still sits on the front bench, made a statement that the Afghans do not need any training because they managed to beat the Russians a number of years ago in the war. Now the current leader of the Liberal Party and the member for Toronto Centre support the Conservatives in their efforts to continue the process of war through a training mission and all this without informing their caucus or getting their own caucus involved in the decision.

Where does the member and his party actually sit on this issue?

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

Mr. Speaker, when the Liberal Party and the Government of Canada dealt with where we ought to go on the mission, and whether or not to extend it, we agreed that we would extend the mission to 2011 with respect to the combat aspect. The combat aspect would terminate at that time. That is what the government and the Liberal Party have agreed to.

There was nothing in that agreement that said we would not maintain a presence. We were quite explicit in saying that we would remain and have a presence within Afghanistan. That presence would be a non-combat role, but it would enable the Afghan people to provide for their own security. It would be irresponsible if we walked away right now and did not enable the Afghan national police and Afghan national army to scale up their training.

Our troops do a phenomenal job in training. That is what our party and the government have said that we would support. It is a fair and reasonable thing in combination with the development aspects. The member certainly knows there cannot be development without security. It would be absolutely irresponsible to have development without security because we would be leaving people to the ravages of individuals who would kill or torture them.

I am sure the member understands that our party and the government have chosen a balanced approach between development and security. That development is a fair and reasonable approach to what obviously is a very complex situation. We certainly hope other aspects including the diplomatic ones I mentioned will be part of the ongoing discussions and actions of Canada with respect to the mission.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

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

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

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

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

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

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

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

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

[Paul Dewar, NDP, Ottawa Centre, ON]

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

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

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

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

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

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

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

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

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

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

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

[The Speaker, Liberal, Peter Milliken]

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

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

[The Deputy Speaker, Conservative, Andrew Scheer]

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

[Paul Dewar, NDP, Ottawa Centre, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Paul Dewar, NDP, Ottawa Centre, ON]

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

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

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

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

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

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

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

[Paul Dewar, NDP, Ottawa Centre, ON]

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

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

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

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

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

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

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

[Paul Dewar, NDP, Ottawa Centre, ON]

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

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

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

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

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

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

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

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

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

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

[Paul Dewar, NDP, Ottawa Centre, ON]

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

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

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am pleased to speak on behalf of the Bloc Québécois to Bill C-41. This bill was introduced on June 16, 2010, to amend provisions of the National Defence Act governing the military justice system.

The amendments, among other things, provide for security of tenure for military judges until their retirement; permit the appointment of part-time military judges; specify the objectives and principles of the sentencing process; provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution; modify the composition of a court martial panel according to the rank of the accused person; and modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.

The text of this bill, beyond what I just listed on military justice, 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.

The Bloc Québécois wants Bill C-41 to be studied in committee. It is true that the purpose of this bill is to improve the military justice system by enhancing judicial independence, but we lean heavily in favour of the healthy administration of justice. Accordingly, we are in favour of any initiative to enhance impartiality and the quality of judges and courts. However, this bill is long and complex and it contains a number of other measures. That is why we are calling for it to be studied in committee, in order to have witnesses inform our decisions.

I will try to put this into context. Military justice reform dates back to 1997 and stems from two reviews. First, a special advisory group received a mandate to study the code of service discipline set out in the National Defence Act. Then, the commission of inquiry into the deployment of Canadian forces to Somalia was asked to review how to handle the actions of certain soldiers sent to that country.

The two resulting reports led the government to introduce Bill C-25, which went into effect in 1998. This bill amended the National Defence Act by abolishing the death penalty in the military justice system; incorporating civilian parole ineligibility provisions; creating the Canadian Forces Grievance Board; creating the Military Police Complaints Commission; strengthening the independence of military judges by making changes to the terms of their appointment, their qualifications and their tenure; and creating new positions within the military justice system in order to separate the investigative function from the prosecution and defence functions.

Clause 96 of Bill C-25 provided for an independent review every five years in order to examine the amendments to the National Defence Act. That was in 1997. With this in mind, the federal government appointed a former Supreme Court justice, Antonio Lamer, to conduct the first review. He presented his report to Parliament in March 2003.

In this report, Justice Lamer observed that “Canada's military justice system generally works very well, subject to a few changes.” Consequently, he made 88 recommendations to improve military justice, especially in the areas of arrest procedures and pre-trial detention, procedures for proceeding by indictment, the structure of the court and sentencing. He recommended that the rights of the accused be more in line with those in a civil court so they could choose the type of court martial, and that the finding of court martial panels be arrived at by unanimous vote. The purpose of another recommendation was to strengthen the independence of the principal intervenors in the military justice system and to improve the grievance and military police complaints processes.

In order to implement the recommendations of Justice Lamer and amend the National Defence Act, the government introduced Bill C-45 on August 27, 2006, but it died on the order paper.

So the government introduced Bill C-7, which was identical to Bill C-45, on March 3, 2008, and it died on the order paper when the election was called in the fall of 2008. Of course Bill C-45, which had been introduced on August 27, 2006, died on the order paper when the election was called in December 2006.

In April 2008, the Court Martial Appeal Court of Canada handed down a decision in the case of R. v. Trépanier. At issue was the possibility of choosing the type of court martial. The Court Martial Appeal Court of Canada ruled that a provision of the National Defence Act that gave the court martial administrator exclusive authority to select the type of court martial was unconstitutional. The Court Martial Appeal Court of Canada found that it was unacceptable that the accused could not chose the kind of court martial that would judge him or her.

Following that ruling, the federal government introduced Bill C-60 to accomplish the following: to more closely align the manner in which the mode of trial by courts martial is determined with the approach in the civilian criminal justice system, while still satisfying the unique needs of the military justice system; to reduce the types of courts martial from four to two; to allow military judges to deal with certain pre-trial matters at any time after a charge has been preferred; and to require court martial panels to make key decisions on the basis of a unanimous vote.

Bill C-60 passed in the House on June 18, 2008.

Bill C-41 is a new version of Bill C-45 and therefore fits into the notion of general reform with a view to implementing Justice Lamer's recommendations.

Bill C-41 before us here today is a new version of Bill C-45 and, once again, aims to implement Justice Lamer's recommendations. A closer look at Bill C-41 reveals that it fits into the broad military justice reform that began in 1998, as I mentioned. It contains several provisions.

First, it contains a number of provisions concerning military judges, which I will list. It provides judges with tenure until their retirement, grants judges immunity from liability as granted to a judge of a superior court of criminal jurisdiction, grants the chief military judge the authority to establish rules of practice and procedure with the Governor in Council's approval, improves the system's flexibility by appointing part-time military judges from a panel of reserve force military judges, and stipulates that in order to be appointed as a judge, the member must have served as an officer for at least 10 years.

There are provisions in Bill C-41 concerning summary trials. For one, in terms of the limitation period, charges must be laid within six months after the offence is alleged to have been committed, and the trial must commence within one year after the offence was committed. The accused person may waive the limitation period established for summary trials.

There are other provisions related to the court martial panel. In the majority of cases, the rank required in order to sit as the senior member of a panel would be lowered from colonel to lieutenant-colonel. As well, the pool of Canadian Forces members eligible to sit on a General Court Martial panel would be enlarged, and the number of non-commissioned members would increase from two to three for the trial of a non-commissioned member.

In addition to these provisions, Bill C-41 would reform military justice by putting additional restrictions on the power to arrest without warrant, by extending the limitation period from six months to two years in terms of civil responsibility, by granting the Chief of the Defence Staff the authority to cancel an improper release or transfer if the member consents, by indicating that the role of Canadian Forces provost marshal is provided for in the National Defence Act as well as by setting out his responsibilities and ties to the Canadian Forces chain of command and by requiring the provost marshal to provide the Chief of the Defence Staff with an annual report on his activities and those of the military police.

Lastly, Bill C-41 would protect individuals who file any type of complaint with the Military Police Complaints Commission and would require the provost marshal to resolve conduct complaints or to close cases within 12 months.

This is clearly an impressive and important bill. Once again, that is why the Bloc Québécois wants to discuss it in more detail in committee and wants to bring in witnesses with expertise in military justice so that they can provide some insight.

There are other arguments. The Bloc Québécois is not opposed to keeping military justice separate from civilian justice. It makes sense for the Canadian armed forces to have its own justice system, in light of the particularities of military life and military requirements. It is absolutely necessary to have discipline within an army. Without that discipline, we would lose any sense of structure and effectiveness.

Since the primary goal of our armed forces is to protect the safety of Canadians, this issue is vitally important. The Supreme Court of Canada recognized this principle in 1992, in the Généreux decision, which I will quote:

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 [and Quebeckers] 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. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.

I repeat, that was a quote from the 1992 Supreme Court ruling in the Généreux case. The Bloc Québécois subscribes to the principle of keeping military justice separate from civilian justice.

There are also offences in the Code of Service Discipline that have no equivalents in civilian justice. I am thinking of offences such as disobeying a command or a superior officer. Military justice applies to three categories of people: military personnel in the regular forces, reservists and civilians who work with military personnel on missions. But although military justice is necessary, people who join the Canadian Forces do not lose their rights, including their Charter rights.

For 12 years, a great deal of thought was given to modernizing military justice to bring it more in line with civilian justice. In its May 2009 report, the Standing Senate Committee on Legal and Constitutional Affairs wrote the following:

...the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general.

The Bloc Québécois feels it is useful and necessary to reform military justice. Obviously, we have some fears and also some suggestions. As I said, the Bloc Québécois wants this bill to be sent to committee so that we can call the appropriate expert witnesses. But we feel that justice must prevail at all levels of society, and justice often depends on police work. We are afraid that because the provost marshal can be reappointed, he will not want to delve too deeply into something that could ruffle feathers among the defence staff. The Bloc Québécois will ensure that this does not happen, and we will introduce amendments to correct this situation.

Once again, when we have a complex bill before us, we need to take the time to do the necessary analyses and studies. This is the case with this bill. The provost marshal, who is the person who will ultimately be in charge of military justice within the armed forces, will have a renewable term. We need to look at that.

Why must this mandate be renewable when judges are appointed until they retire? We must then consider how this would affect the provost marshal's work. Would he give the defence staff less firm direction because his mandate is renewable? Would he be more sensitive when a case involves defence staff? It would be to our advantage to ask these questions in committee.

It is important that the listening public understands how this works. Committee work is of the utmost importance to the operation of any parliament, whether it be the British model or any other parliament in the world. Witnesses may appear before the House of Commons only in very exceptional circumstances. Generally speaking, with only a few exceptions, witnesses appear before committees.

It is therefore important that the national defence committee take all the time required to analyze Bill C-41 and examine all of its ins and outs. It is true that military justice must become more like civilian justice, simply so that citizens can understand how military justice works and relate to it. If the military justice system is completely different from the civilian justice system, citizens will not understand it and might question all the work done by our military personnel. Thus, this is a very important issue.

This work began in 1998. Some bills were deferred or came to an abrupt halt when an election was called. We must now—and I hope we will have time—deal with this issue before the next election campaign.

I am interested in responding to the questions of my fellow members. Once again, the Bloc Québécois supports sending this bill to committee for improvement. We hope to convince members of other parties of the benefits of the improvements we would like to make to it.

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

Mr. Speaker, sending it to committee in this particular case would certainly create a great deal of analysis, I would hope, especially regarding the judges, providing for security of tenure for military judges until their retirements, permitting the appointment of part-time military judges. Certainly the amendments to be made give it its independence over its own jurisdiction but, at the same time, make sure it adheres to all the principles of the Charter of Rights and Freedoms. The bill also deals with increasing eligibility in court martial panel selection by allowing any officer, or non-commissioned member with at least three years of service in the Canadian Forces, to serve on a panel, indeed, and deals with amending panel composition in courts martial involving non-commissioned members. There we see that the marriage of the two certainly is desirable not only by the Canadian Forces but by all of us certainly.

The hon. member made a couple of comments that justice must reign on all levels. The government is certainly eager to send this to committee to do the appropriate analysis and amendments to correct things, starting with the analysis. I commend him on that. He gave some good illustrations as to what needs to be addressed.

One of the items he mentioned was the situation with the provost marshal. There is an amendment in place that sets out the duties and functions of the Canadian Forces provost, and it certainly is a good thing to be doing, but he mentions that the term of the provost must be renewable. The government seems to have questions about that.

I was wondering if he could delve into that a little further as to the appropriate reasons why having this renewable term, which I believe he says lacks expertise, is necessary in this particular piece of legislation.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am pleased with my colleague's question because it will allow me to clarify things. I hope that my speech was not misunderstood. We see an issue with a renewable mandate for the provost marshal. If judges are irremovable, why is the provost marshal not? That is the kind of question that needs to be studied in committee.

We believe we will have a chance to hear from military justice experts. There is some inconsistency with having military judges be irremovable—they are appointed until they retire—but having the provost marshal be removable and replaceable. Will the fact that he must be reappointed, that he is not irremovable, prevent him from doing his work? Under certain conditions, in certain cases, could he push the Chief of the Defence Staff to reappoint him?

Those are the kinds of questions that need to be asked in committee and of the Department of National Defence officials who made this recommendation. They are the ones who made the recommendations to the minister, and he approved them. I hope that the minister asked the right questions. In any event, if he did not, the Bloc Québécois will be able to ask the right questions in committee.

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

Mr. Speaker, the April 2008-09 annual report, which the parliamentary secretary provided in the last hour or two, indicates that in terms of summary trials there has been a fivefold increase in the last 10 years. In 1999-2000 there were 426 summary trials and in 2008-09 there were 2,035. The parliamentary secretary indicated that it probably had something to do with the Afghanistan theatre but he has not been any more specific than that.

I am wondering whether the member has any more information about the types of trials and why there would be a fivefold increase in summary trials.

While I am up, I would like to get the member's views on what is a positive in this bill, and that is giving victims a voice. The bill would allow victim impact statements similar to what is in the Criminal Code. There is also a provision for a review.

The parliamentary secretary clarified this morning that the review will now be every seven years. The problem with the review, though, is that it is an internal review sponsored by the Minister of National Defence and will be carried out every seven years. The question is whether it will be reported back to Parliament. Whether we will be updated as to what is going on with the review is, in my mind, an open question because it is not necessarily specified.

I would ask the member if he has any comments about any of those three points.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, the Bloc Québécois is very much in favour of some parts of Bill C-41. That is why we wish to study it in detail in committee. The measure to protect persons who file a complaint with the Military Police Complaints Commission is a good one. A member of the Canadian Forces who files a complaint should not be subject to retribution. However, we must ensure that there is appropriate oversight for this measure.

With regard to the first question posed by my colleague, he is referring to a document given to him by the parliamentary secretary barely an hour ago. The study is off to a bad start. If some members or political parties have information that others do not, we are getting off to a bad start. I can understand that the Conservative Party has its own way of governing. We are trying to keep up with them. There may be a saying that goes like this: politics has its reasons, which reason knows nothing of.

When I see what the Conservatives are doing, there is surely no sense to it. They give documents to one party and not to the others. If it is true that my colleague received the documents from the Parliamentary Secretary to the Minister of National Defence an hour ago, it is difficult for me to comment on them at this point. I hope that the Conservatives, when they have documents available, will provide a copy to all parties. That would allow us to move forward on the issues. If they continue in this manner, I can understand why it is difficult for them to be respected by the other parties in the House of Commons.

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

Mr. Speaker, the member should not be offended here, because this is the annual report of the Judge Advocate General to the Minister of National Defence on the administration of military justice in the Canadian Forces. The review is from April 2008-09 and the report is available to anybody who wants it.

I asked the parliamentary secretary a question and he provided me with the answer through a copy of the report. Out of the report, I took the information that 426 summary trials were reported in 1999-2000. Within 10 years, that number went up fivefold to 2,035. Why was there a fivefold increase? In a later question, the minister said that it made sense because we are in Afghanistan, which is why we have more discipline problems. However, he has not gone beyond that statement to indicate why we have such a huge increase in activity—

[The Deputy Speaker, Conservative, Andrew Scheer]

I will need to stop the member there to allow the member for Argenteuil—Papineau—Mirabel a chance to answer.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I see that this report is probably available and it is possible that my colleagues who sit on the Standing Committee on National Defence already have it. I am not a member of that committee.

For the rest, and as far as increasing sentences is concerned, these are questions that could be asked of the government in committee. If sentences are increased, we will have to consider why and see how, through this bill, we could influence later decisions.

One thing is clear: the Bloc Québécois wants military justice to look more and more like civilian justice while remaining independent, something the Supreme Court recognized in 1992.

The members of the Bloc Québécois are great democrats. We are always prepared to respect court rulings. Again, we support the 1992 Supreme Court ruling and we hope we will have enough time to call on expert witnesses to improve this bill—

[The Deputy Speaker, Conservative, Andrew Scheer]

Resuming debate.

The hon. member for Scarborough—Rouge River.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am pleased for more than one reason to participate in this debate dealing with amendments to the National Defence Act.

First, the statute is in need of updating and there have been significant studies done for the purpose of preparing us for this sequence of amendments.

Second, I had a period in my legal training where I worked for the Judge Advocate General for a couple of years and I have very vivid recollections of the applications of the National Defence Act and the complexity of it at that time.

The engagement by Canada in Afghanistan for close to 10 years now has put the National Defence Act, at least the older parts and its weaknesses, under some stress and has brought out the evident need for change and reform. It is not like we just happened to notice that it needed change. Former Chief Justice Lamer looked at this area of the military justice system a few years ago. He studied it very well and made some great recommendations, many of which are contained here.

We should have no doubt here in the House as to the importance of getting these changes. This is not only a modernization, but it is also an adaptation to our modern standards of justice and, in that context, it is influenced by the more recent engagement of our military forces in some real war operation scenarios.

One of the things I will keep repeating in my remarks is the complexity of the military justice system, which everyone in the armed forces will appreciate, but most Canadians on the street do not. It is complex because people who are in the armed forces are subject, of course, to the Criminal Code, but they are also subject to standing orders, special orders and discipline type rules, and the military justice system is there to enforce all of those rules.

What kind of judge makes decisions about discipline, rules in other countries and the Criminal Code in Canada and elsewhere?

Fortunately, those people who end up making decisions about the conduct, good or bad, of Canadian Forces personnel are all well-trained. However, we need to remember that within the military justice system there are problems and incidents that range from homicides to driving a military vehicle recklessly, or not wearing one's uniform correctly or being rude to a senior officer in a conspicuous way. That is quite a range and those are not all Criminal Code offences. It is not a Criminal Code offence to be rude to a senior officer but it is an offence. However, the people who make the decisions on many of those things, we believe, are reasonably well trained. In every case, it is at least a military officer and, in some cases, it is a dedicated military judge making the decisions.

Most of this military justice system is contained within the National Defence Act. That by itself is very complex legislation, but the components of it that deal with the military justice system are also complex. If we wanted to look back 100 years ago, justice within the military forces was probably very summary, very quick and in some cases brutal. It was handled by officers who, in the whole history of our military, had that authority to police and discipline those people over which they had command.

Some of those incidents, if we look back in time, are pretty rough and rugged. We can look back to the whole history of Canada and the British history and the military justice was very tough. Even in the first world war, there are some very compelling stories of the application of the Canadian military justice system with respect to our serving men and women. There are some very sad stories about very tough application of justice and summary decisions, executions and a very firm hand.

By the time we entered the second world war, there had been some refinements, but generally the decisions made on Criminal Code and discipline matters were made by generals, colonels and people in the higher echelons of the service. It was still pretty rough but, over time, the legal judging of military personnel became more stratified and there were scenarios where officers made disciplinary decisions and provided for punishment at an appropriate level. Then there was the concept for certain types of offences of importing a judge from outside of the unit and having a fair trial of the service member.

We can imagine how complex things can be. In Canada, under the National Defence Act, we have the two concepts of the disciplinary decision making, which involves penalties and applications of penalties and convictions, and we have the Criminal Code, where similar persons make similar types of judgments about the conduct of military personnel here.

If there is a military person in service on a base, the National Defence Act has the authority that the person sometimes can be charged with an offence under the National Defence Act, which is really an offence under the Criminal Code. That jurisdiction was always there. When the military person was off the military base, the police outside of the base would normally take care of it. However, there were always instances where the military police on the base would come in contact with civilian police off the base and the offence itself straddled the base and civilian territory. Therefore, in Canada the enforcement of the Criminal Code and the National Defence Act has been and perhaps continues to be potentially complex.

Imagine how much more complex it is when we have personnel serving outside Canada. They can be in a foreign country on a Canadian base where there will be an agreement between Canada and that other country. They can be in a foreign country where Canada does not have an agreement with that country. They might not be on a military base. The Canadian can be serving on a ship in a port in another country. The Canadian can be serving on a ship, but be off the ship in the port in or out of uniform when a disciplinary offence or a Criminal Code offence takes place. Or the personnel could be in an aircraft.

There are all kinds of scenarios that develop. I do not want to give the impression that Canada and the other countries have not found a way to manage all of this complexity. They have and there are treaties and agreements that deal with the complexities of who is responsible for prosecuting and whose jurisdictions prevail over which personnel.

This bill goes some distance in further clarifying when there is a prosecution under the National Defence Act. It provides a better statutory underpinning for the military police and the Canadian Forces provost marshal administration. This certainly helps those whose job it is to provide the policing and investigatory functions with a better focus and better statutory footing.

When prosecutions take place under the National Defence Act, the person who is accused of a disciplinary offence, if I could put it this way, can be tried and convicted by an officer. It has always been that way in the military.

Fortunately now, though there did not used to be many years ago, there is an appeal process. People can appeal it up the chain of command if they think they have been dealt with too harshly. The bill makes it statutorily clear that the Chief of Defence Staff's powers are the final authority for such grievances.

It is good to know there is a grievance system. As I recalled military history, there did not used to be a grievance system. Once a commanding officer issued a penalty, it had to be delivered on, that was the end of it and some of those penalties were quite harsh.

Other types of offences under the National Defence Act are dealt with by the highest-ranking officer. There is another category where someone is actually appointed as a judge under the National Defence Act. Most of the time these are highly-trained military personnel who are trained as lawyers and become military judges. The Judge Advocate General's department was the home of those military judges.

This statute provides for part-time military judges. It envisages, either because of a requirement for special expertise or a shortage of personnel, the bringing in of a judge from the civilian sector who would be a judge under the National Defence Act. That is a very positive thing. I am sure the core of judges with the Judge Advocate General do not mind that at all. It might help to lighten the workload.

The experience of the Judge Advocate General's department is very complex, keeping in mind all of the complexity I described before. I have mentioned the problem of someone in the forces being a prosecutor, someone else in the forces being a judge and decision maker and then another person in the forces being the person accused. There is an in-house set of relationships which seems to have worked reasonably well, but we can also envisage scenarios where there might have been problems in the relationships between the prosecutor and the judge, between the defence counsel, who is usually a military person, and the accused person who is a military person.

Keep in mind that the military is a lot smaller than the rest of Canadian society, so there could be situations where there might have been some relationship anomalies between the parties that might have or could be seen to have an effect on the disposition of the military justice decision making.

In all fairness, the military has been fairly adjusting to this and avoiding these kind of problems. However, once in a while there can be a difficulty and the accused can feel quite aggrieved.

Again, I go back to the complexity. We can have scenarios where the military persons accused of bringing disrespect upon the forces here or abroad. We can have misuse of military equipment, and we know how much military equipment is out there. People do make mistakes. People in the forces are not allowed to make a mistake. They have to use equipment properly, whether it is a computer, a motor vehicle, a piece of armament, a ship or an aircraft. In those types of scenarios, while they are usually not criminal, they can be.

I recall a case many years ago involving the crash of a Canadian Forces helicopter. The circumstances lying behind it gave rise to suspicions of criminal negligence. Therefore, the matter was not just one of conduct, not just one of possible carelessness or poor planning, it actually became criminal. What looks like just an accident to many people, in the military justice system it can be levered up into something much more serious. It was so long ago that I cannot recall the disposition. However, I do recall the many competing values that were brought to bear on that incident. There was loss of life, loss of a valuable piece of equipment, damage and it was off a military base.

The bill would go a long distance to clarifying some of these relationships for the benefit of the military justice system. It would bring better security of tenure for military judges.

Recalling my comments about the complexity of the relationships, someone who, as a military officer, makes a decision about a disciplinary offence, even a Criminal Code offence, is still in the forces with the individual in relation to whom made the decision. It is not like in our civilian system where we really only get to see the judge during a trial. These men and women serve together in the forces. They can bump into someone for whom he or she may have made a military discipline decision or a Criminal Code summary conviction decision. They can bump into that person a year later on a military base somewhere else.

It has been decided, quite properly, that just as we give security of tenure to our civilian judges who work to age 75, we will do the same for our military judges to ensure they have the independence from the forces, independence that they must have to do their job.

The National Defence Act will import the principles of sentencing that currently exist in the Criminal Code. About 15 years ago we spent a lot of time developing those principles. They are in the code. As I say, the National Defence Act amendment has been delayed for so long that it has taken us now 10 or 15 years to put those principles into the National Defence Act. That is all for the better.

There are several other objectives. I am fairly confident that after the committee has a look at the bill, the House will want to give its approval.

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

Mr. Speaker, this will actually be in the form of a comment. I do have to clarify a couple of things that were previously brought up.

First, in response to the number of summary convictions, in the first example that was given, it was actually only for half a year, because that is when the legislation came into force.

The Bloc member confused the role and identity of the Canadian Forces provost marshal when he was referring to the ability to renew appointments. The Canadian Forces provost marshal is not a judge; the Canadian Forces provost marshal is a police officer. So that is why there is a difference.

Second, with respect to the JAG report, the Bloc intimated that the Minister of National Defence was not performing his duties. In fact, the Minister of National Defence did table the JAG report in question on June 7, 2010. It is a public document and it is available to anybody who wishes it.

Third, with respect to the independent review, that is covered under clause 101, section 273(601)(1) of the new bill, and also under the next section of the bill it is specified very clearly that the minister shall cause the report of the review to be tabled in each House of Parliament.

I just wanted to clarify those points.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I thank the parliamentary secretary for making the clarifications with respect to the earlier remarks of colleagues. I do not think he was referring to my comments.

I cannot disagree with anything the parliamentary secretary said. In the absence of a question, I will just repeat what I said earlier at the end of my remarks.

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

Mr. Speaker, I want to thank the parliamentary secretary.

I was planning to acknowledge that that is for half a year; however even if we took those numbers, we would be looking at a figure of around 800 summary trials. We would still have an increase, not by a factor of five but a factor of two and a half times from 1999-2000 to 2008.

The member has explained that that two-and-half-times increase from 800 to 2,000 summary trials a year would have to do with Somalia and our involvement in Afghanistan. We still need more information as to the types of incidents involved in these trials.

I would like to ask the member if he would comment on the portions of the act that deal with giving victims of crime status in this bill through the introduction of victim impact statements. I think this is something that would be seen as a positive.

In terms of the reports, I appreciate the parliamentary secretary's information that the report will be tabled. I was just interested in the process.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, it is great to have these flashbacks on the remarks that took place previously.

The member asks a good question. I had personally thought that the sentencing guidelines and the provisions making reference to victims were already part of the military justice system. I was not aware that they were not. My recollection is that the whole Criminal Code was subsumed into the National Defence Act. Maybe it was just the offences under the Criminal Code that were subsumed into the National Defence Act and not all of the other procedural and sentencing portions.

The import of those is entirely appropriate. That is very consistent with modern-day sentencing principles used in Canada and around the world in all the developed countries. It is a very positive step forward. I kind of regret that those sentencing principles were not there before now. They are not there yet, of course, not until we pass the bill.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I would like to hear from the member, very briefly, on why he felt it was important for him to take part in this debate.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I try to be a contributor to the House. If everything I said did not fall perfectly within whatever everyone wanted to hear, it is not because I did not try.

My participation today, as I said, was partly related to my experience with the Judge Advocate General just a few years ago, and recognizing that the men and women of the Canadian Forces are entitled to a military justice system that is just as good as or better than the one we use for civilians.

[The Deputy Speaker, Conservative, Andrew Scheer]

It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

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

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I will begin by seeking unanimous consent to split my time with the hon. member for Markham—Unionville.

[The Acting Speaker, Conservative, Barry Devolin]

Does the hon. member have the unanimous consent to split his time?

[Some hon. members]

Agreed.

[Geoff Regan, Liberal, Halifax West, NS]

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

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

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

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

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

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

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

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

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

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

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

As an observer.

[Geoff Regan, Liberal, Halifax West, NS]

In fact it was an observer, as my hon. colleague from Newfoundland says. That is what it was.

The assistant deputy minister at the time of those occurrences at the turn of the millennium was Alan Williams. He said the reason for joining the JSF program was not the urgency of replacing the F-18s but the potential industrial opportunities that would come from being part of that proposal. Before the government ever made its decision that it would purchase the F-35s, 144 contracts were already awarded, supporting what Mr. Williams was saying.

In relation to the minister's and Prime Minister's claims of there being a past competition, this is what Mr. Williams said:

On October 26, 2001 Edward Aldridge, Under Secretary of Defense—

This is, of course, in the United States:

—announced that Lockheed Martin was the successful candidate over Boeing.

He went on to say:

[W]e were all glued to our TVs at National Defence headquarters awaiting the announcement.

How is it exactly that this was a Canadian competition? How is it there was a competition that Canada was not part of and we had no decision-making role in it whatsoever, but that is good enough for the government?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, on a point of order, this is all a very nice diatribe on revisionist history, as it may be, but I would like the member to stick to relevance. I would ask him what this has to do with military justice.

[The Acting Speaker, Conservative, Barry Devolin]

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

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I certainly will, but in this case I am talking about military justice. I am talking about what is conduct unbecoming the government, as a matter of fact, and what justice ought to be. Let us talk about the truth because the Conservatives are afraid of the truth.

The fact is that we had to wait and see what the U.S. announced in relation to the F-35s, but apparently that is good enough for the government even though we were not actually part of that competition. Really, there is no excuse for not having one.

Even the Chief of the Air Staff in 2001, General André Deschamps, was quoted in Canadian Defence Review at the same time he was asked about the JSF. He was asked, “Where is the next generation fighter on your list of priorities?” He said, “The next generation fighter is very high on my list”.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

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

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

[The Acting Speaker, Conservative, Barry Devolin]

I appreciate the assistance offered to the Chair by the parliamentary secretary.

I would remind all hon. members that it is the practice of the House that we speak about the matters before the House. I would also remind all hon. members that members are given significant latitude to make points that may be directly or at least partially related to the matters at hand.

The hon. member for Halifax West.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, you are right that members are given significant leeway. If we were all required to talk only about clauses in a bill that we are debating at any one time, a lot of the comments from both sides of the House would be cut short.

My hon. colleague seems to be upset. He should remember that I started off by saying that we are going to support this bill at second reading. We want it to go to committee to be studied. I am surprised he is so upset. I would think he would want me to finish what I have to say.

Let me finish by quoting what the Chief of the Air Staff said at the time:

The next generation fighter is very high on my list. We know government wants to get to that discussion soon, and we definitely need to get on with the process to get a new fighter. It sounds like a long time away, but as we know, it takes a lot to go through a contracting process and produce a new fighter.

He was clearly talking in future tense. Here was a case at the same time. For the member to say that there was a competition back then that Canada was part of is conduct unbecoming. I do not know if it falls under the military justice procedure, but it certainly ought to.

In June 2008, the Senate passed Bill C-60 in response to a ruling by the Court Martial Appeal Court of Canada in the Trépanier case. The bill addressed some of Justice Lamer's recommendations.

In 2009, the Standing Senate Committee on Legal and Constitutional Affairs released a report entitled Equal Justice: Reforming Canada’s System of Courts Martial. This report made nine recommendations.

Therefore, we can consider Bill C-41 to be more or less a combination of the Senate's report and Bill C-45, except for the recommendations already addressed by Parliament with Bill C-60.

My colleague from Markham—Unionville will have other comments on this matter, and I look forward to hearing what he has to say. For the time being, I await questions and comments.

[John McCallum, Liberal, Markham—Unionville, ON]

Mr. Speaker, I am very pleased to rise on this subject. As was the case for my colleague, I also support the bill. The Liberal Party will support sending it for second reading.

In particular, when I was defence minister, I had the privilege of dealing with the Rt. Hon. Antonio Lamer, whose report provided the foundation for this bill. I remember thinking he was an extremely fine and bright man with a keen sense of justice in what was right and fair. Knowing that he was the author of this bill, in many ways, reinforces my support for it, although not even Antonio Lamer was infallible. Therefore, there may be amendments at committee, but we certainly will vote to send it to committee.

That reminds me of another fine gentleman I knew when I was at defence, and that is Alan Williams, the former assistant deputy minister. While in a somewhat different category from Antonio Lamer, he was nevertheless a fine public servant and extremely able in the area of procurement.

In terms of the justice of the argument of the other side, Alan Williams, a very able man, has no axe to grind. He is retired. He is not a Liberal, to my knowledge. He is only speaking truth. Therefore, I think he is more credible than the current ADM, who is constrained by the powers that be. If he wants to hold his job, he has to say what his bosses want him to say, whereas Alan Williams, who is now entirely free from any constraint of that nature, said extremely clearly that we had absolutely no obligation to purchase this F-35. He said that we had absolutely no role in the American competition and we would be far better placed to go for a competitive bid. That way, according to Alan Williams, the taxpayers of Canada would likely save something in the order of $3 billion, which may not be a lot of money from the point of view of the government. However, from our point of view, that is a lot of taxpayer money which it is wasting through not going to a competition and insisting on going sole-source.

That is my brief reference both to Antonio Lamer, the father of this bill, and Alan Williams, the father of common sense when it comes to procurement.

However, let me now return more narrowly to the bill, as the parliamentary secretary has urged us to do. To ensure that the Canadian court martial system remains effective, fair and transparent, the military justice system must be reformed. Currently there are disparities between the military and the civil justice systems. Although we realize the need for the military and civil justice systems to be different in some respects, as they answer to different circumstances, both systems should be as similar as possible. One example of this is allowing for the security of tenure for military judges until their retirement. This is the case in the civil justice system and we believe it should also be the case in the military justice system.

As well, the addition of new sentences such as absolute discharge, intermittent sentences and restitution are positive steps toward developing a much fairer system.

We have concerns about clause 50 of the bill, which indicates that the size of the accommodations available will determine whether a hearing will be public or private. We do not believe that the size of a room should be the only determining factor.

Clause 101 refers to the review of this bill. We are in favour of a review; however, the review will not be conducted until seven years after the bill is passed. We are of the opinion that seven years may be too long in certain circumstances. If we consider Bill C-25, to which I referred earlier, the review took place five years after the bill was passed. However, we are still in the process of discussing the results of this review today, mainly because of the Conservatives' failure to act.

We certainly hope that, if additional changes were needed in this bill after it were passed, they would be made much more quickly and effectively than what we have seen to date.

As I said at the beginning of my comments, I have a profound respect for the late Rt. Hon. Antonio Lamer who was indeed the father of this bill. For that reason, I am particularly pleased to say that the Liberal party will vote in favour of sending this bill for second reading.

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

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

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

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

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

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

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

—the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.

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

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

The military justice system does not only exist to punish wrongdoers, it is a central part of command, discipline and morale. Ours is a voluntary military and if the military justice system is not seen as equitable and fair, we will not only have a justice problem, but we could also have an operational problem.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Speaker, I want to draw the member's attention to the sentencing options. I am not sure whether he responded to it in his speech but he may have. The sentencing options are being expanded under the bill to provide for additional options such as absolute discharges, intermittent sentences and restitution orders. It seems to me that this a major step in the right direction.

Would the member like to make some comments about the ramifications of this important move?

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

Mr. Speaker, as usual, being in the opposition we get caught up in the problems with legislation and do not often get a chance to expound on the good side.

In fact, flexibility in sentencing is one of the most positive things in this legislation. It is our view that military justice should be brought closer to civilian justice and, if there is not the kind of flexibility that they have in the civilian courts for someone who is going to serve detention that it be intermittent or if someone may have committed a crime but it was not deserving of a conviction that would result in a criminal record, which is the case in civilian courts, people can be found guilty but not convicted and that results in either an absolute discharge or a conditional discharge and that allows them to carry on without a criminal record. That should be available in the military as well.

That is one of the positive aspects of the bill and there are a number of positive aspects to the bill and we support it being brought to committee to deal with some of the problems.

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

Mr. Speaker, my hon. colleague talked about the summary trial process being unfair. Having been involved with some, I would disagree.

Could my colleague comment on the fact that the accused actually gets the right to trial by court martial where summary trial has jurisdiction? The accused can in fact make the choice. I am not sure how that translates into basic unfairness with the system.

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

Mr. Speaker, I hope the parliamentary secretary's involvement with the summary trial process was not as an accused but rather as a presiding officer or perhaps he was assisting the accused or was a witness. He can tell us that a little later.

I am aware that there are many cases where court martial is the choice. However, when the choice is given, court martial is rarely used because the sentencing provisions are different. Dealing with it and getting it over is important. I think that happens in civil court as well. Court martial is an option, which was a recent change in the act, but very few people take advantage of it. I actually have the numbers here and less than 20% use that option. Court martial is a more elaborate trial. My main point stands.

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

Mr. Speaker, I thank the parliamentary secretary for providing me with a copy of the report of the Judge Advocate General to the Minister of National Defence on the administration of military justice in the Canadian Forces. This review was done from April 1, 2008 to March 31, 2009.

I want to refer the member to page 14 of this report which shows the number of trials has increased 2.5 times since 1999-2000. The other day I asked why there would be an increase of 2.5 times and the answer was Somalia and Afghanistan. I was asking about the types of offences that would be involved. The report does talk about drug offences and so on.

As the member has been to Afghanistan and he is heavily involved in the issue, could he explain to us the reasons for the increase in these trials? Is it because of our involvement in Somalia and Afghanistan versus staying at home?

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

Mr. Speaker, that is what might be called a loaded question. I do not know if Somalia has anything to do with the kind of increases that we have seen in the last several years. That is ancient history.

However, I do think there may be some consequences of our engagement in Afghanistan. The pressures of that kind of engagement do lead to stress and strains. Many of the offences are minor. Many might involve alcohol or misbehaviour of one sort or another. Some of that comes with operational stress injuries. Some of it is quite common in people with post-traumatic stress disorder where behavioural issues have emerged as part of its symptoms.

I would not want to give any definitive answer to the question, but It is a marked change over a short number of years and it would take a serious study to figure that out. I would not want to jump to any conclusions. I would suggest that there is probably a great deal more stress and strain on our soldiers now than there was 10 years ago.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I have a couple of quick comments for clarification.

My hon. colleague was searching for the number of people who chose summary trial. Actually 93% chose summary trial. This suggests that the majority of people in the military are comfortable with that process and understand that it is not an unfair process.

The other connection to Somalia, which obviously was in 1999, but the attention paid to issues of discipline and so on before they became major issues, as was the case in Somalia, there was a stronger awareness and a much greater appreciation of the fact that small things can become big things. That is the Somalia effect on the number of charges and so on in recent years.

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

Mr. Speaker, that is probably a slight exaggeration. We were talking about an increase in the period of the last few years, not going back to 1992 and 1993. We see a 2.5% increase over a 10-year period. That is in recent years and is more related to the Afghanistan situation.

They chose that, not necessarily because they think it is fair, but because they can get the matter dealt with easily and quickly and get it out of the way, and probably dealt with in a less harsh manner than going through major courts martial that could keep them out of service for some time. The sense of fairness comes afterward, when they find out later that they have criminal records. That is the thing we would like to see removed and changed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Acting Speaker, Conservative, Barry Devolin]

The hon. member for Windsor—Tecumseh will have three minutes remaining when the House returns to this matter.

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

[The Speaker, Liberal, Peter Milliken]

When the matter was last before the House, the hon. member for Windsor—Tecumseh had the floor. There are three minutes remaining in the time allotted for his remarks followed by five minutes of questions and comments.

The hon. member for Windsor—Tecumseh.

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

Mr. Speaker, with regard to the bill, I was talking of how over the years we had moved in the civil criminal justice system to expanding the role at the lower levels of the courts. In effect, we are now seeing that mimicked in the military criminal justice system.

The number of cases coming before the summary trial procedure has increased by two and a half times since around 2000. There is a number of reasons for that, including one we heard from the parliamentary secretary, which is probably accurate. After the problems we ran into with our military in Somalia, our commanding officers are much more diligent in dealing with discipline problems at an early stage as a mechanism to forestall those from become more serious at a later stage. Because a number of troops in Afghanistan come from the reserves, which do not have the same amount of training or experience in a disciplinary mode as our regular troops, there are probably additional problems.

Whatever the reason, the reality is the summary courts are now much busier. If people are convicted under those summary trials, while in the military but also upon returning to private life, they end up with a criminal record. Therefore, we have to be very careful that we build in protection. The commanding officers responsible for conducting the summary trials generally do not have legal training and do not have training in due process to the same degree a lawyer or judge in the civil criminal justice system would have.

There are a couple points at which we are looking. In case there is abuse, in the sense of there being a great deal of discretion within the system even with these amendments we are proposing, is there some way of building in a relatively simple appeal process? That is one thing we are looking at when this gets to committee. The other possibility is to look at the individual charges and say that only those of a more serious nature will have a criminal record applied to them. We believe that may be another mechanism to reduce the potential unfairness that might arise in individual cases.

We are hoping, when this gets to committee, that we will hear evidence in this regard and that the government will be open to maximizing the system both in terms of its fairness and of its ability to control misbehaviour within the military.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As other speakers have mentioned, Chief Justice Lamer of the Supreme Court of Canada explained in Regina v. Généreux in 1992, the purpose of a separate system of military tribunals is to allow the armed forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the national security. To maintain the armed forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and frequently punished more severely than would be the case of a civilian engaged in similar conduct. As a result, the military has its own code of service discipline to allow it to meet its particular disciplinary needs.

In addition, special service tribunals rather than ordinary courts have been given jurisdiction to punish breaches of the code of service discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. We have to understand that the military not only operates within Canada but operates on a worldwide basis. Thus, there is a need for separate tribunals to enforce special disciplinary standards in the military itself.

The separate system of military justice has been developed to deal expeditiously and fairly with service offences while respecting the Canadian Charter of Rights and Freedoms and meeting the expectations of Canadians. Charter issues in many ways have served to propel the bill that we see in front of us now and in earlier bills to make the changes to bring the long-standing military justice system more in line with the civilian justice system to the extent that it is possible. It has been indicated that it is not possible to make it a mirror image of the civilian system.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Acting Speaker, Conservative, Barry Devolin]

Resuming debate. Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Conservative, Barry Devolin]

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

[Some hon. members]

Agreed.

[The Acting Speaker, Conservative, Barry Devolin]

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

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