Bill C-15 (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

[Chris Alexander, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, once again we have a speech from the Liberal Party in which it is not clear what proposals and specific changes to the bill the Liberals would be looking for at this stage, after literally 10 years of consideration of many of these proposals, after exhaustive consideration in committee, where the Liberal Party is still represented, and after exhaustive consideration in this House.

My question for the hon. member is this: why continue this debate, which is in fact delaying the day on which Canadian Forces members who now face a criminal record for minor offences might no longer carry that criminal record into civilian life? Why is the hon. member delaying that?

Second, why is the hon. member challenging the whole summary trial system? It is a cornerstone of the military justice system, and its constitutionality has been accepted, even with the different rules of evidence and the lack of appeal to which he has referred. Is he proposing at this late stage to demolish the whole military justice system?

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I thank my hon. friend for the question, but I have the feeling that he did not listen to my speech.

For instance, I talked about the fact that there ought to be a record kept. People ought to have access to a record of the trial in which they are convicted. That is one obvious change. As well, there ought to be an appeal.

Those are two pretty basic things. To suggest that I was not calling for any particular changes and did not put any forward for consideration and discussion by this House does not make any sense. I thought he was listening to what I had to say, but apparently I was mistaken.

I do not think he was listening either to the previous speaker, my hon. colleague for Winnipeg North, who quoted some of the judges and other experts who have expressed grave concern about provisions in the bill and the ways in which they do not comply with fundamental justice.

I hope my hon. colleague will listen to other speeches from members on this side of the House, because I think he would benefit from doing so.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am extremely worried about the proposal that the government has on the books, and my colleague mentioned his concerns as well. There is this whole problem of the balance of justice, and I wonder whether the proposal for the military justice system whereby people may be denied their rights in terms of fairness under the law is actually creeping into our civil justice system.

We heard the announcement on the weekend that if a member of Parliament wants to talk to a commanding officer in the RCMP, the minister's office will have to be notified. This goes against everything in terms of the separation between the political process and policing in this country. It is just pure wrong.

I ask my colleague whether we are seeing that creeping in from the military system. Is everything going to be politically influenced, whether it is in the civil justice system or the military justice system?

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I appreciate the question from my hon. colleague for Malpeque. Of course, he has some experience in relation not only to the RCMP but also in relation to the justice system. As a former Solicitor General of Canada, he dealt with issues like this.

However, I can assure members that he would not have been interfering and trying to tell the RCMP how to conduct an investigation, which is the kind of thing we are talking about here in relation to the Vice Chief of the Defence Staff, who, under these rules, would be able to call a halt to a session like that. Like my hon. colleague, I am concerned about this idea.

We know that members of Parliament cannot talk directly to members of the RCMP to seek information on what is happening in their area and get information that they need to do their jobs. We know how little the Conservative government enjoys the idea of allowing members of Parliament to have access to information about what is happening in government. We know the problems that the Parliamentary Budget Officer has had in extracting budgetary information from the government, to the point that just the other day the Prime Minister had the gall to suggest that the PBO was being partisan by asking for information on behalf of members of Parliament generally. That is outrageous and inappropriate.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I am pleased to get up and to follow my colleague today in raising some of the concerns we have with Bill C-15.

It seems the longer we are here in the House, the more we see a variety of things happening. My colleague from Malpeque mentioned that now, in order to speak to members of the RCMP, MPs must have permission from the minister. I have had many conversations with the RCMP on the issue of sexual assault and harassment in the RCMP in the last year or so. That announcement just helps to bring forward more of these issues about a balance of justice and fairness in the system for everybody, whether they are in the military or a private citizen. We all need to be very much concerned when the politics get too far into the issues of policing or justice. Hence, the reason that I am on my feet and commenting on Bill C-15, which is an act to amend the National Defence Act.

I will read a bit of the information, so that we and anybody who is watching will know why we are raising some issues on something that we are not 100% against and at one point we may have even supported. It will put this in the context of so many other things that seem to be heading in a direction where we are going to politicize the police force the same way that everything that the Government of Canada puts its hands on is politicized. We need to flag these issues, so that we all are thinking them through very carefully. Therefore, I offer a bit of a summary on Bill C-15 and what it is about.

Bill C-15 would “(a) provide for security of tenure for military judges until [they reach the age of 60];...”, which is the retirement age for military judges, contrary to all other Canadian citizens who would have to wait until they are 67 to get their pensions. They could be removed for cause on the recommendations of an inquiry committee, or through resignation. It would also “(b) [allow for] the appointment of part-time military judges;” and outlining sentencing “...objectives and principles;”.... The bill would “(d) provide for [new] sentencing options, including absolute discharges, intermittent sentences and restitution [orders];...”.

As my colleague across the hall mentioned, there are some things in here that are supportable. Unfortunately, the question is whether there would be a true balance of justice in all aspects of it. Like many things that are introduced into this House, it does not necessarily qualify on many avenues. There are some parts of it that would be good, but there are always so many other parts in legislation brought forward by the government that are not good. We do not just adapt something because, while it has three good parts in it, the rest of it is no good. Because of that we have to support it? No. If it is not good in the overall 10 points that need to be examined, then we should not be supporting it.

Bill C-15 would look “...at amending composition of a court martial panel [selections] according to the rank of the accused...”, and it would change “...the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee”.

That raises another issue. In the RCMP or the military, when the members have a serious grievance, where do they go? In the RCMP, from what we have heard in the sexual harassment hearings, they have to go to their own supervisors. Many times that is the person causing the problem. Or they go to another person above that person, but it is always within the same confines of that same family. For the RCMP in particular, there needs to be an external review board that is 100 yards away from anything to do with the RCMP, that is truly independent and can hear a grievance from anyone who is working for the RCMP. Similarly for the military, there needs to be an arm's-length grievance committee, or a place where members can go and truly get a hearing on their issue. Complaining to their supervisor's friend who is going to keep everything within the same confines, and is not going to want to see anybody pay too big a price for a grievance, really jeopardizes justice in this country. Certainly, from what I have heard from the hearings, there is a need for a union to represent many of the officers.

If they want to do things right, then there has to be an arm's-length committee, as many of the police services across Canada have. It is an external body, where people can go with a serious complaint and get a true hearing. It is not just “passing the buck” from one to another; then people end up not getting true justice. One of the things that we hear a lot about in the Liberal Party, as I think all elected members of Parliament do, is justice. Justice does not only need to be done, it needs to be seen to be done. The perception out there is that is not way it is necessarily happening.

As Liberals, we understand the need to reform the Canadian court martial system to ensure that it remains effective, fair and transparent. Canada has been the leader in so many areas when it comes to human rights, when it comes to the charter, and when it comes to issues of fairness, of ensuring that what we do in Canada is balanced and fair and respectful of everybody's rights. More and more we are having to question whether that is exactly what is happening or not. We believe, as Canadian citizens and as Liberals, that people who decide to join the Canadian Forces should not thereby lose part of their rights before the courts.

Again, we are back into that system. We want to attract more and more young people to a career in the military. We see the men and women who are out there fighting for us and representing us, and we are grateful that they have the courage and the commitment to do this. We want to make sure that they are treated fairly.

Bill C-15 does not answer all those questions. It leaves a lot of questions unanswered. Before we pass Bill C-15, we should make sure we have perfected the bill so that those in the military are not losing their opportunities for a fair and just trial.

The Liberal Party also understands that rights and equality are universal. We talk a lot about that. That really means that it is for everybody. It does not matter who a person is, where they come from or what job they are doing, we would like to think that everybody in Canada is treated fairly and equitably. Without an effective means for an appeal and no recorded proceedings, the current summary trial system is unbalanced and does not represent the basic rights of a Canadian Forces member.

We also do not believe that introducing a criminal record for Canadian Forces members for certain offences is fair and just as a means for pardoning offences, which has recently been removed by the Conservatives. Again, we go back to trying to be fair and balanced, and treating people with respect, making sure that everybody has their role and that they do not violate that.

We also find it problematic that the VCDS can intervene and give direction in military police investigations. The VCDS is also subject to the code of service discipline.

Bill C-15 is in keeping with a lot of Bill C-42 and a lot of other things that continually try to give other people more power rather than making sure that we really have an equitable system that is going to be there to represent everyone, that we are not going to discourage people from joining the service, that we are not going to have people join the military and then leave, speaking very negatively about their experience.

Shifting the power around to different people rather than having an independent body do the review makes us question where we are going with this issue. I met yesterday with a group of people from Venezuela who were upset about the recent election. They were talking about how the government of the day controls everything. These things keep being raised.

I am really concerned that little by little we are losing the things that we value the most here in our own country, that there is an eroding of the power of parliamentarians, and that a real miscarriage of justice is happening.

[Lois Brown, Conservative, Parliamentary Secretary to the Minister of International Cooperation]

Mr. Speaker, I listened to my colleague speak, and she is talking about fairness and justice for all. Our government is very intent on seeing those things happen and making sure that there is fairness in the process.

If my colleague sees these things as not being fair, then they were unfair under her government as well. She was there for 13 years. Why did her government not fix it—

[Wayne Easter, Liberal, Malpeque, PE]

Thirteen long productive years.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Thirteen long forgotten years, the member is absolutely right.

Why did the Liberals not put fairness into the process to ensure that these people were treated equitably? Why did the member allow it to go on for so long?

[Judy Sgro, Liberal, York West, ON]

Thirteen long years, Mr. Speaker, and I am looking forward to being back in government for another 13 years. We will make sure that we have a lot of time to undo all of the miscarriages that the Conservatives have produced.

I want to go back to the minister's comments on Friday about my colleagues and I continuing to work on issues like the RCMP and justice in general. I really and truly am very worried about the road that we are heading on where there will be no justice any longer. We are going to end up like those very countries that we are so critical of when it comes to people being able to speak out. The government has been muzzling RCMP officers and its own members, but it is not going to muzzle any of us.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I would like to put two ideas to my colleague for her response.

First, why would Colonel Michel Drapeau, perhaps Canada's most experienced military lawyer, a long serving member of the Canadian Forces and now a veteran, be opposing this legislation as aggressively as he is?

Second, if we look at other countries, which is a good thing to do when new legislation is being brought in particularly in an area as sensitive as this, we understand that the United Kingdom, Ireland, Australia, New Zealand, France, Belgium, Austria, the Czech Republic, Germany, Lithuania and Netherlands, to name a few, have improved their very legislation in this area by adopting the kinds of ideas we have been putting forward as an opposition party. Why would the government not want to do that to be in concert with so many other nations?

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, that is one of the shortcomings of the current government. The Conservative government is focused on our own boundaries, as if we live in a world by ourselves.

Canada has brought forward model legislation in many areas. We learn from things that happen in other countries. I want to quote Justice Létourneau who said so eloquently:

We as a society have forgotten, with harsh consequences for the members of the armed forces, that a soldier is before all a Canadian citizen, a Canadian citizen in uniform. So is a police officer; he is a Canadian citizen in uniform, but he’s not deprived of his right to a jury trial. Is that what we mean by “equality of all before the law”? Is not the soldier who risks his life for us entitled to at least the same rights and equality before the law as his fellow citizens when he is facing criminal prosecutions?

Justice Létourneau and the others are clearly very experienced people. Colonel Drapeau indicated similar concerns. It means we should take a step back and see how we can improve this legislation so it would achieve for all what is necessary as true Canadians and encourage people to join the military and continue with a great career.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I am happy to join my colleagues who have spoken so eloquently for equality for those individuals in the military who serve Canadians. This particular legislation purports to update our military criminal justice system, but in fact has some significant gaps.

It is always good to review our laws to make sure that they reflect present realities and that they are equitable, appropriate and consistent with our Constitution. The military criminal justice system is no exception. This legislation has been worked on for a long time but the Liberal Party of Canada believes it is not where it needs to be in order to get our support. The members for Winnipeg North, Halifax West and York West made that case in quite a specific and compelling way. We are being asked to support something that still has so many flaws; that is politics.

Clearly, many aspects of the military justice system remain inexplicably unchanged or give unnecessary powers in this bill. For instance, the bill enshrines in law a list of military offences that will carry a criminal record in the future, which is not necessary in many cases.

Given that the pardon system was recently revoked and that summary trials are what they are—with no record and no means of meaningful appeal—the members of the Armed Forces will find themselves with criminal records and unable to find employment upon release.

Clearly there are some flaws in the bill. The one I want to focus on in particular is the issue of human rights and equality. It really boils down to what kind of society we want to have in Canada, and I think Canadians are clear. The Charter of Rights and Freedoms in Canada is widely supported right across the country and is a very proud part of our framework for protecting rights but also for enshrining responsibilities in our country, to make sure those who are vulnerable have the law on their side to protect their right to equality.

It has been shameful and disappointing that the Conservative Party of Canada has chosen to minimize the importance of this very important part of our Constitution, the Charter of Rights and Freedoms, essentially dismissing and not celebrating its great anniversaries. Last year was the 30th anniversary, and there was not much of a murmur from the government, but hundreds of millions of dollars went into celebrating the anniversary of a war.

That goes down to what kind of society we want to have. Do we want to have one that protects rights and freedoms, or do we want to have one that is all about punishment? We see changes to immigration. We see in Bill C-10, that grab bag of bad public policy, that the Conservative government is much more focused on punishment than on equality. That is reflected in this bill as well.

In his testimony before committee, retired Colonel Michel Drapeau noted:

...someone accused before a summary trial has no right to appeal either the verdict or the sentence. This is despite the fact that the verdict and sentence are imposed without any regard to the minimum standards of procedural rights in criminal proceedings, such as the right to counsel, the presence of rules of evidence, and the right to appeal.

In Canada, these rights do not exist in summary trials, not even for a decorated veteran, yet a Canadian charged with a summary conviction offence in civilian court... enjoys all of these rights. So does someone appearing in a small claims court or in a traffic court.

He goes on to say:

I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of these charter rights when facing a quasi-criminal process with the possibility of loss of liberty through detention in a military barracks.

Clear questions of inequality have arisen here. There are problems with the bill that are fundamental to the kind of society we want to have, not just a few tweaks that we could have put into the bill and that the government has not done. This does go down to fundamentally what kind of society we want to have. This kind of inequality is being unfortunately cemented into other bills and other laws brought forward by the Conservative government.

I want to refer to some comments made by my colleague from Mount Royal recently on the occasion of the 31st anniversary of our Charter of Rights and Freedoms.

According to Justice Létourneau, soldiers are citizens and they should enjoy the same constitutional rights guaranteed by the charter as any other citizen.

This is what he said:

“We as a society have forgotten, with harsh consequences for the members of the armed forces, that a soldier is before all a Canadian citizen, a Canadian citizen in uniform.”

In other words, they should be able to count on all of the rights and protections that citizens enjoy in our country.

Referring to our Charter of Rights and Freedoms, the member for Mount Royal raised a question of privilege in the House this past March and expressed concern that the government is failing to live up to its own statutory obligation, which is expressed in section 4.1 of the Department of Justice Act.

In law, this is requiring that the government, that the Minister of Justice, examine each and every government bill introduced in the House to ensure it is consistent with the charter. That would seem like a simple step to respect our fundamental constitutional obligations as parliamentarians and as government in law-making and public policy-making.

How often has the government actually done that? How often has the government checked and done a review to ensure that its bills introduced in the House are consistent with the charter and receive the constitutional seal of approval? How often has the government reported any inconsistencies, or otherwise, to the House?

Does anybody have an answer to that question?

[Some hon. members]

Never.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

That is right. My colleagues are on the ball. No such report has ever been tabled by the Minister of Justice.

This is not just a procedural rule. This is actually fundamental to protecting our rights and freedoms that are engraved in our country's framework for justice.

Why has the government never actually done that kind of review, and what is the consequence of that?

Actually, the consequence is very expensive, because that means the government continually comes forward with bills that are then contested, either at the provincial level or through other organizations. That ties up court time. That ties up resources. For example, there are challenges now to other government bills. I think there is very likely to be a challenge to the bill we are debating today because this government omitted an important part of our equality framework from the bill, disadvantaging our troops, our Canadian Armed Forces, whom we all respect and would want to see treated equally. I think there may well be a challenge to the bill, because it is flawed, and it will then go through the hoops of being contested and found failing.

Let us avoid that. Let us pull the bill back. Let us fix it before it goes forward, on behalf of Canadians, on behalf of rights and equality and on behalf of our Armed Forces.

[Chris Alexander, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I have to begin by saying that many of us on this side of the House, on the government benches, are taken aback by the member's speech and the other speeches we have heard today from the Liberal Party members. While the member for Vancouver Quadra may have prided herself on running a leadership campaign that was pretty far to the left, many of her proposals today are actually more extreme than those proposed by the NDP in committee or at any other stage of this debate.

My question is: If she thinks the summary trial system is unconstitutional, does not cohere with the charter, then why did the Liberal Party not do something about that during the 15 years it was in government under the charter and with this military justice system?

Second, why were these points not raised in committee by the Liberal Party? Why are we suddenly, at report stage, hearing these radical musings from Liberal members about our military justice system, which never came up in committee?

Also, why are they relying on only two witnesses—two witnesses who took extreme positions?

Why are they delaying necessary changes, modernization updating in the military justice?

Finally, why do they not take pride in a military justice system that, as part of our larger justice system, is the envy of the world?