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

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

Mr. Speaker, I am very happy to put a question to my colleague, who asked me one just a little while ago.

The United Kingdom, Australia, New Zealand and Ireland have decided to change the summary trial process. Why is Canada lagging behind on this issue?

Does she think, as I do, that the process needs to be improved? If so, does she hold out hope of seeing those amendments adopted by the government, which had agreed to them at the Standing Committee on Defence when it was in a minority in the previous Parliament? Does she hold out hope that these three amendments, including the one concerning the judicial process for summary trials, will be adopted by the government, or does she hold out little or absolutely no hope of seeing them adopted?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, the issue about hope is not for the members of the opposition, but for the members of the armed forces. Can they possibly have hope that this time the government will do the right thing? This time, in the sixth iteration of reforms to this legislation, why in heaven's name have the Conservatives not simply taken it upon themselves to listen to the testimony, including by military personnel, and brought forward a full, encompassing reform package to the military justice system?

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

Mr. Speaker, my colleague from Edmonton—Strathcona spoke about the fact that we want a summary trial process that is fairer and more just.

We want the military process, which may lead to a criminal record in the civilian world, to be just and fair in the military world as well. That is not the case at present.

I would also like her to speak to another aspect: this process must be not only just and fair, but also comparable in the military justice system, because the military process has consequences when it comes to a civilian criminal record, for offences that would not themselves be offences in the civilian context.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, essentially, as many of the members in the House have been remonstrating, we are finding it hard to see why we cannot apply the same kind of system, to which we as civilians in this country have the right and privilege, to the members of our armed forces, who put their lives on the line and are actually sent to other nations to try to protect democratic institutions struggling to have a rule of law and a fair, just process. We have yet to hear any genuine defence from the Conservatives as to why they think that members of our armed forces should be made second-class citizens in access to due process. Surely they deserve and merit the same judicial processes, definitely in summary conviction, that we do as civilians.

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

Mr. Speaker, there is another very interesting aspect. Other Commonwealth countries have changed their summary trial legislation. That is the case for England, which was mentioned earlier, and for Ireland and a number of other Commonwealth countries.

The reason is that the Court of Justice of the European Union had ruled that the manner in which summary trials were conducted at present in the United Kingdom did not comply with rights legislation in Europe.

Given that Australia and New Zealand, which are not bound by European law, have changed their legislation to make it consistent with the demands of the Court of Justice of the European Union, then why is Canada not doing so?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I appreciate the hon. member's question. He provides really difficult questions. Surely it is obvious. We simply look at the recent military mission in Afghanistan, where our armed forces are serving alongside soldiers from many other countries. Surely it makes sense when they are in the field of war that they be subject to the same kind of regime and processes for justice. Frankly, I cannot present any rationale for why we would be out of step with most of the democracies of the western world. I guess we have to put that question to the government.

[Jasbir Sandhu, NDP, Surrey North, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The amendments in Bill C-15 do not adequately address the unfairness of summary trials. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Summary trials are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the trial and the judge is the accused person's commanding officer. This causes an undue harshness on certain members of the Canadian Forces who are convicted for minor service offences.

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

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

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

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

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

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

[Peter MacKay, Conservative, Minister of National Defence]

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

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

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

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

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

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

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

[The Acting Speaker, Conservative, Bruce Stanton]

Order. I will allow the hon. member to have time to respond. The hon. member for Surrey North.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, I welcome the comments by the Minister of National Defence.

There was not really a question in there but he was talking about the previous versions of the bill. I was not part of the last Parliament, but it is my understanding that the bill was passed with a number of amendments from different parties and that the bill was left on the table either because Parliament was prorogued or the election was called at that time.

The minister is right. There are a couple of amendments that were brought in from the last bill, however, the majority of the concerns that were addressed in the last bill have still been left off the table. Here we have other governments, Australia, Ireland and New Zealand, that have reformed the summary trial process, and yet we have a government and a minister who have been ignoring the issue for a very long time.

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

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

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

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

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, we have a high standard for members of the military when it comes to discipline, their duties and justice. It is only fair that we give them a grievance process, a comparable process, so that the process we have will serve them. Clearly, the process that we have in place now is not working.

The member for Sherbrooke is absolutely correct. Most of the grievances, 96% in fact, are resolved by summary trial. The other 4% are through court martial.

The men and women in uniform deserve a process that is fair and effective and accountable to them.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I am pleased to rise in the debate on Bill C-15. It appears that there are many shortcomings and problems with this bill. I believe the issue of criminal records is one of the main problems.

There are many others. I will begin with the others, but I will come back to criminal records shortly. We find the system of grievances and the Military Police Complaints Commission very worrisome.

This bill has been before the House many times in various forms. It was introduced in 2006 and died on the order paper in 2007-2008 because of the election.

We must not forget that this is a new version of the same bill that was passed by the previous Parliament in March 2011. The new version—the one before us today—implies that the will of the House, expressed only a few months ago, is being totally ignored.

In the opinion of the official opposition, one of the criteria is very troubling. We want 60% of the members of the Military Grievances External Review Committee to be neither officers nor enlisted personnel. We want civilians to have oversight over military procedures in Canada. We have often heard this opinion expressed by our constituents. The military must be subject to the will of the people and not the opposite; it is just common sense.

The NDP is adamant that 60% of the members of the Military Grievances External Review Committee should be civilians. Passing Bill C-15 without this element is unacceptable.

The part of this bill that worries me the most is the one dealing with criminal records. The people who defend our country deserve better than to have a criminal record based on ordinary behaviour.

Clause 75 of the bill, recently mentioned by a government member, lists the cases in which a person might acquire a criminal record. A new section will be created in the law, section 249.27. In it we see that a person who commits an offence under sections 85, 86, 90, 97,129 and 130 of the Contraventions Act may have a criminal record. This aspect that might give a person a criminal record must be carefully studied.

Clause 85 deals with an act of insubordination, such as a threat or verbal insult to a superior. This means that someone could have a criminal record for nothing more than a verbal insult. Having a criminal record is a big deal. It can hinder a person's access to employment. That person could be forced to live in poverty their entire life because they threatened or verbally insulted a superior. Frankly, it is a little much.

The legislation talks about quarrels and disturbances. Anyone who quarrels or fights with another member of the military—unfortunately it can happen—or uses provoking speeches or gestures toward a person so subject that tend to cause a quarrel or disturbance is guilty of an offence.

This includes not only quarrels or fights that do happen, but also the risk of quarrels or disturbances. This could all lead to a criminal record. Once again, this goes too far.

Absence without leave could lead to a criminal record. The same is true for drunkenness and conduct to the prejudice of good order and discipline.

Working in the military field is a very risky and very stressful job. It would therefore not be surprising if military personnel shouted insults at one another, especially if they were drunk.

In my opinion, those are not reasons to potentially subject someone to a criminal record. It is important to remember that only summary trials carry that risk. We agree that, if a real trial were held before a judge, at least people would have a chance to defend themselves. They would be judged by someone who knows the law and who is trained to be fair and equitable.

“The Code of Service Discipline and Me: A guide to the military justice system for Canadian Forces members” is posted on the Department of National Defence's website. It explains what a summary trial is. I would like to quote from it briefly.

Summary trials are designed to deal with relatively minor service offences that are important for the maintenance of military discipline and efficiency at the unit level. Summary trials allow a unit CO, delegated officer, or superior commander to effectively administer discipline and return the member to duty as soon as possible.

The important thing to remember from this is that the purpose of a summary trial is not to punish people by giving them a criminal record. The guide says so. According to the Canadian Forces, it is very clear that the reason for a summary trial is to have a fast and effective justice process designed to reintegrate the person into his military unit. A criminal record has nothing to do with that purpose. If the summary trial were to be used for that purpose from now on, then such use would contradict the information on the Canadian Forces website.

The website also indicates the following:

Courts martial are formal military courts established under the National Defence Act that are presided over by military judges. A military prosecutor is assigned to prosecute each case and the accused is represented by defence counsel, either military or civilian.

In the case of a court martial, there is a person who is defending himself, a prosecutor, a judge, lawyers and a full defence. The problem with the summary trial is that it is the commanding officer himself or herself who will decide what punishment to impose on the person who broke the rules. And let us not forget that a verbal insult is one of the offences.

Clause 75 of Bill C-15 goes much too far. It is not just a matter of possibly amending it. This goes beyond the very purpose of summary trials. It completely disregards their purpose. We might as well abolish summary trials and go directly to court martial if we are going to give such serious penalties.

I want to say that in the past, the NDP requested that the list of offences that could be considered minor be expanded, so that in summary trial cases without a criminal record, offenders would have a better chance of being reintegrated, as the directives state on the website.

When people enlist in the forces, they will see what to expect. They will see what the Department of National Defence itself says and what new recruits can expect. Now the government is misleading them about what could happen to them once they join the forces. They are the ones who defend our country and who put their lives on the line to defend our freedoms. That is not a respectful way to treat our armed forces.

I urge the government to withdraw this bill and to rewrite it so that it better reflects Canadian values.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I have listened intently to some of the input put forward by the official opposition members with regard to the bill before us and some of the inferences that members of the military do not have recourse in their grievance procedure. We have a grievance board, the Military Police Complaints Commission and the Military Ombudsman. Further, I notice that several of the members of the official opposition have questioned the soundness of our military justice system.

How does the member reconcile this misguided notion with the fact that in the First Independent Review Authority, former Chief Justice Lamer, stated, “Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence”.

Further, another chief justice, Chief Justice LeSage, stated in another independent review, “Although there are some areas where the military justice system and the grievance system can benefit from improvements, overall the system is operating well”.

Two chief justices of our country say that our system is functioning well although it could stand some minor improvements, and that is what this bill would do? How do the members opposite reconcile that?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I thank the member for the question. In 2003, Justice Lamer produced a very interesting report. It contained 88 recommendations, and the government has acted on only 28 of them. I suggest that the members opposite read the report to see what it says; they would be surprised. By keeping only one-quarter of the recommendations, the government is not showing military personnel the respect they deserve.

The Right Honourable Chief Justice Lamer made 88 recommendations and only 28 were accepted. Justice Lamer did his job and made his recommendations after giving much thought to the issues. Once again, the government has hastily put forward an ill-considered bill that seeks to punish people. The Conservatives believe that if they continually hammer away at people, those people may vote Conservative later on.

That is not at all what I want in a bill. I want a bill to be well-thought-out and useful. The objective must be to return our military personnel to their units, not to alienate them.