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

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I find it amusing, actually, that the member opposite is using words like “radical” and “extreme” for a proposition the Liberals are making that in fact was applied by the British Parliament, and we have a Conservative government in Britain. The British government did actually go a long way to ensuring the fair treatment of soldiers facing summary trials. In Britain, I would claim that the requirements of independence, impartiality, fairness and equality are very similar to those in Canada.

If we are proposing that this law, before becoming law, should incorporate those kinds of changes that have been incorporated in Britain and so many other places, I fail to understand how these can be considered radical and extreme proposals.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I rise in reference to the member saying that the Liberal caucus was on the ball. I have to say it is a little late to come to be on the ball. When the bill was at second reading and report stage, only one Liberal member spoke at each of those stages. Furthermore, the Liberal Party never made any recommendations for amendments at committee. Now the member is saying these changes should be incorporated into the legislation before it is adopted. The place to actually make proposals is in committee, which the NDP did. We made recommendations for amendments at committee to make the bill better.

I would like to ask the member why more Liberal members did not speak on previous stages of this bill; why they did not recommend these changes or any changes to the bill at committee; and why they did not support the NDP amendments.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, clearly the NDP member prefers process over principle. This is about principle. Is the member saying that committees are an absolutely ironclad place to do great public policy? Do amendments actually happen in committee these days? Does the member feels that committee is a place that he and his party can get great public policy to happen? I would posit that is not the case. To rest a decision on the process in committee rather than the fundamental principle of human rights and equality is not something with which I agree.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, my question is related to the comment that was just made by the member from the official opposition. We still have time to amend this legislation. I put forward amendments that would preserve the independence of investigations and prevent senior military officials from interfering in the scope of an investigation. It is exactly the opportunity to pass those amendments today. I would be very grateful if the official opposition and the Liberal Party would change their current position of allowing this bill to pass on division and, instead, support a vote on the amendments to improve Bill C-15.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I am glad to hear the member ask a question of process to support a principle rather than a question of process to undermine a principle, as we heard from the NDP.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, it is a great pleasure to join in the debate. It has been informative. Being neither a lawyer with a legal background or a member of the Canadian Armed Forces with a military background, I have certainly learned quite a bit from the debate here today. It has been worthwhile.

That being said, our caucus is blessed with a great depth of legal knowledge. My colleague, the member for Mount Royal, and my colleague from down the road in Halifax West have addressed many of the rights issues woven throughout this piece of legislation. I am certainly respectful of their opinion on it.

As well, our caucus boasts a number of people who have served our country in military service. The member for Winnipeg North is a former member of the Canadian air force. He was posted in Edmonton for a number of years. Our colleague, the member for Westmount—Ville-Marie, is a former naval officer, a colonel, in the Canadian navy. He went on to become involved in the space program and was Canada's first astronaut. He is a man whose opinion is widely respected across the country.

Then, of course, from the red chamber, there is Senator Romeo Dallaire. His vast experience and understanding of all issues military has a great deal of equity in his opinion. When people of that calibre bring forward concerns on a particular piece of legislation, such as Bill C-15, obviously it is worth taking note.

One of the key provisions brought forward today is the provision for security of tenure for military justices until they reach the retirement age of 60, resign or are removed for cause on the recommendation of an inquiry committee. The outlining of sentences, objectives and principles is another provision. The legislation would also amend the composition of a court martial panel according to the rank of the accused. The bill also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee. One of the other key components is that it allows certain service offences to carry a criminal record.

In our party, we understand the need to reform the Canadian court martial system and to ensure that it remains effective, fair and transparent. However, we also believe that Canadian citizens who make that career decision, that life choice, to join the Canadian Forces should not lose some of their rights before the courts.

We believe and understand that rights and equality are universal. Without an effective means for appeal, and no recorded proceedings, which was mentioned by my colleague from Halifax West, the current summary trial system is unbalanced and does not respect the basic rights of Canadian Forces members. Our party does not believe that introducing a criminal record for Canadian Forces members for certain service offences is fair and just, as the means of pardoning offences has been recently removed by the government.

Finally, we 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.

Obviously, there are a number of disparities between the military and civil justice systems that should be narrowed as much as possible. While we recognize that updates to the military justice system must be made, the government is missing an opportunity to make these changes properly.

Many aspects of the MJS inexplicably remain unimproved or provide unnecessary powers. For example, Bill C-15 enshrines in law a list of military offences that will now carry a criminal record, and some are hardly necessary. Without a pardon system, which was recently revoked by the Conservatives, and summary trials set up with no records and no meaningful appeal, a Canadian Forces member would be left haunted by a record and unable to find employment upon release.

I would think it would have twigged on the government that many Canadians, after they finish their military service, have challenges securing that first job out of the service. Many times, the skills an individual acquires, even the technical skills, do not align with accepted or traditional construction trade skills.

The Helmets to Hardhats program, which works with members who try to seek employment after having left the military, is recognition of that. The Conservatives take a great deal of credit for it, but they have put only $150,000 into the program. The program is really run by Canadian building trades and a number of corporate sponsors. That being said, it is a program that recognizes some of the challenges members of the Canadian Forces face upon release. It would be nice if the government would play a more significant role.

That being said, if the Conservatives were attuned to the challenges of departing members, one would think they would understand that coming out of the military with a criminal record because of an offence that in our own court system would not be recognized as a criminal act becomes a burden in itself. That is yet another challenge that has to be overcome by an individual. It is truly unfortunate and unnecessary.

My colleague from Ajax—Pickering said that the testimony given by a couple of witnesses was somewhat extreme. Retired Colonel Michel Drapeau is a respected Canadian with a very distinguished military career. I will read into the record his quote from the testimony presented:

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 military barracks.

We cannot dismiss testimony from individuals whose opinions we greatly respect. We should take that into consideration. Certainly the testimony of both Retired Colonel Drapeau and M. Létourneau was very compelling and should be reflected going forward.

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

Mr. Speaker, to clarify, the Liberal Party in the past, like us, has accepted the authority of former senior members of the judiciary, such as Justice Dickson, Justice Lamer and Justice LeSage, who have served at the highest levels with either the Supreme Court of Canada or the Superior Court of Justice in Ontario. None of them have recommended that the summary trial system be dispensed with. None of them have said that it is unconstitutional or contrary to or at odds with the Charter of Rights and Freedoms. We now have the Liberal Party suddenly claiming support for the charter while ignoring the advice of these eminent jurists, who are great champions of the charter itself. It seems to me that the Liberal Party on this issue, as on so many, no longer has a position.

We just heard the member for Cape Breton—Canso say that Bill C-15 would strengthen the role of the grievance board. It would give it more independence and give it a new name. The member for Vancouver Quadra said that there was no such change in the bill.

It is clear that the Liberals are improvising. They are making up these changes that were never spoken about in committee. Why is that? Why delay the modernization of our military justice system and disregard the sage advice of eminent—

[The Acting Speaker, Barry Devolin]

Order, please. The hon. member for Cape Breton—Canso.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, I thank the parliamentary secretary for his opinion.

As we know, in every piece of legislation, a number of items will be impacted and a number of items will be changed. Our caucus, and I am sure the House, can agree that probably two-thirds of this bill are worthwhile and well founded.

As a matter of fact, we have seen other aspects of this bill brought before the House in the past. Bill C-7 was here in 2006, and Bill C-41 was in 2008. Both died on the order paper, but many of the components of this bill were brought forward at that time.

There are aspects of this bill we have absolutely no problem with. However, the concerns we have raised through the debate today are real, and I hope that the government is taking note.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, the Liberals seem to be a little confused this morning, but I will let it slide, since it is Monday morning.

In committee, they had the opportunity to oppose the bill. When they had the chance to move amendments, they did nothing. They also opposed all the amendments proposed by the NDP.

Could the Liberal member name one amendment proposed by the NDP and explain why he is opposed to it?

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, I will host a party back at my office if anybody ever gets an amendment passed in committee, because we are being force-fed. I know that the member is a new member, but unlike anything I have seen in my 13 years, the impact of amendments now being brought forward at committee is, for the most part, laughable.

When there is testimony on the record, presented by such respected Canadians, I think it is worthwhile. It is never too late to bring it forward.

My colleague from Saanich—Gulf Islands is bringing forward amendments. We will certainly look at those and take them into consideration to see if they can improve the legislation.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, it is an important debate we are having today. This is about the men and women in the Canadian Forces, full stop. It is about whether they will be treated like every other Canadian citizen. It is about whether the government is manifesting what I would describe as stubborn pigheadedness when it comes to improving the military justice system that is in place.

It is impossible for me to speak about this criminal justice bill without being reminded of the typical conduct of the government under the Conservative Party. It is a government that consistently has refused to be bound by its responsibilities under section 4(1) of the Department of Justice Act. For Canadians watching, the Minister of Justice and Attorney General of Canada, a lawyer, went to the bar when he was sworn in and pledged an oath to uphold the law. When he was sworn in to the role as a lawyer in the province of Ontario, he was sworn in to uphold the law for his entire legal career.

I would argue that since the arrival of the Conservative government, in some quarters described as a regime, it has seen fit to consistently leave aside its responsibilities in this regard. I think the Minister of Justice and Attorney General of Canada may, for example, be in breach of his own code of conduct and his code of ethics as a lawyer. However, that is not what we are debating today.

I am reminded of the words of David Daubney. Mr. Daubney, for my colleagues in the Conservative caucus who do not know, was a member of Parliament with the Progressive Conservative Party. He then went on to a very distinguished career as a lawyer in the Department of Justice, where he served in his last post as director of the criminal law policy unit.

Two day after retiring from his distinguished career, he lashed out at the Conservative government in terms of its conduct with respect to the use of evidence, analysis, research, things that we would rely on as parliamentarians to make the right calls for everyday Canadians, in this case, everyday members in our Canadian Forces.

Mr. Daubney went on to say that he was extremely disappointed and that was one of the reasons why he left his career. Despite the fact that with his team he delivered hard evidence and good analysis to the government, particularly in areas like mandatory minimums, the government would not hear them. It was more than tone deaf; it simply shut it off.

Here we have another example of a bill. I would like to go back to some words spoken earlier by the MP for Ajax—Pickering, who stood up and boasted that Canada was the envy of the world. He is right. I could not be in more agreement with my colleague, but he knows better. During his time serving as a young ambassador in Afghanistan, he knew that one of the foundational documents we were trying to inculcate into the Afghani system of criminal justice was to use the Canadian Charter of Rights and Freedoms as the baseline.

For Canadians who are watching or following, the Canadian Charter of Rights and Freedoms is now the number one document used in the world for strengthening the rule of law for helping to amend and strengthen constitutions all over the world. When I trained in the former Soviet Union after the wall fell in over 20 countries, I used the Charter of Rights. When I was in the Ukraine last fall, strengthening its legal system, I used the Charter of Rights. Many jurisdictions now look to Canada and look to our charter as the foundational document.

When my colleague for Vancouver Quadra rose to express her concern about the human rights implications in the bill, she was right. I know many members in the Conservative caucus know in their heart of hearts that the bill is incomplete, but it is capable of being, not perfected, but certainly improved, which is why the Liberal Party of Canada is raising these important foundational questions today.

This is about the average man and woman in the Canadian Forces. Should they make a mistake, should they make the wrong choice, as so many Canadian citizens do in their lives from time to time, we want to make absolutely categorically sure that these citizens have the same protections afforded to them as any other citizen living in Canada and walking our streets today possess.

This was why I raised questions this morning around why, for example, the government of the United Kingdom, the British government, had ensured that the requirements for independence and impartiality were woven into its domestic criminal justice system so it was in compliance with the European Convention on Human Rights. That is a powerful precedent for Canada and for this Parliament, and I think the Minister of Justice and Attorney General of Canada knows that.

In the U.K. context, the British government has ensured that the accused may be represented by counsel and entitled to an appeal under a newly created summary appeal court. It has ensured that the summary appeal court would be presided over by a civilian judge, yet assisted by two military members who were officers or warrant officers to ensure adequate military representation. Also, as a general rule, it has moved to ensure that imprisonment or service detention cannot be imposed where the offender is not legally represented in court or in a court martial. This sounds to me to be an important and powerful precedent that we should look to weave into our amendments to the criminal justice system.

Comparatively, beyond our common law founding mother ship United Kingdom, why have countries like Ireland, Australia, New Zealand, France, Belgium, Austria, the Czech Republic, Germany, Lithuania, the Netherlands and dozens more all moved to ensure that independence, impartiality, fairness and justice are hallmarks of their amendments and improvements to the criminal justice system?

Why only here are we seeing, as I described earlier, the stubborn pigheadedness that seems to find its way into every justice bill the Conservative government brings forward? When in the face of so much evidence, in the face of the opportunity to get it better, why is the government not seizing the opportunity and doing right by Canadian citizens, and more important, doing right by the men and women in our Canadian Forces?

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

Mr. Speaker, I would note that the world continues to be inspired by the Universal Declaration of Human Rights as well as the Canadian Bill of Rights enacted by Mr. Diefenbaker. Those too are anchors of our judicial system, just like the Charter of Rights and Freedoms.

However, the real question is this. Why is the Liberal Party changing its position, or is without a position?

On the one hand, the Liberals are saying that the summary trial system is incompatible with the charter. On the other hand, for 15 years, when they governed under the charter, they did nothing to change the situation.

Second, some of the speeches today seem to imply very ambitious amendments, which were either not made by the Liberal Party or not supported by Liberals in committee. Why are they coming at this late date?

Third, when did the Liberal Party stop being inspired by and guided by Canadian legal excellence and start being guided by Lithuania?

Former Chief Justice Lamer, former Chief Justice Dickson, former Chief Justice Lesage have all agreed that the summary trial system, as updated in this bill, would serve Canadian men and women in uniform extremely well. Why does the Liberal Party not think so?

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I will try to take those in order.

First, if the Parliamentary Secretary to the Minister of National Defence is now saying that the Liberal Party's amendments would pass in the committee, we should have that discussion. However, given the actual behaviour of the government in the last several years, amendments in committee never see the light of day because, with all due respect to my good colleague from Ajax—Pickering, he has no authority here. All the shots are being called by the Prime Minister's office.

Second, with respect to looking to other judicial traditions, the member is either not a lawyer or is disparaging of the Baltic States, of a 1,000-year-old legal tradition. I am not prepared to disparage Lithuanian legal jurisprudence.

Of course we stand on our own two feet. Of course Canada is a wonderful contributor. However, we look to other jurisdictions because we admit our limitations and we know there are really good valuable lessons to be had in other jurisdictions.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, as to what the Liberal member has said about making amendments in committee, we realize is difficult. We realize the Conservatives have a majority on committee and they are not inclined to make any amendments.

However, we on this side of the House, the NDP, the official opposition, are not willing to sit on our hands. We will make proposals. We will try to make amendments in committee. We will let the Conservatives vote against the amendments. They have the majority.

Why will the Liberal Party not join us in making amendments at the committee?