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.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

In your opening statement you indicated that your office remains neutral and is an objective sounding board. For obvious reasons we've talked a lot about shortcomings, perhaps, in Bill C-15. Do you have examples of where the grievance process is being improved in this new legislation, or can you not provide those?

From your perspective, is there any good in what the government is doing with Bill C-15 and the grievance process?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

I have some questions on women, specifically.

Should Bill C-15 have put in place measures to protect women, particularly victims of sexual harassment? For instance, are there measures that prevent the perpetrator from being assigned to the same base or unit as the victim? Men, too, can be victims of this type of harassment.

Does the bill include measures of that nature?

[Jean-François Larose, NDP, Repentigny, QC]

The Report of the Second Independent Review Authority recommended a certain number of amendments to the National Defence Act.

Do you think the committee should amend Bill C-15 in accordance with the recommendations made by former justice LeSage in his report?

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you for that.

We are going to continue to try to improve the system. Part of the reform of the grievance system is part of Bill C-15 in response to recommendations made by Chief Justice Lamer.

As ombudsman, you undertook a study on the grievance system and you've spoken publicly a number of times about it. Can you tell us, sir, the role that the ombudsman plays in the grievance system? Perhaps you can also outline some of the other types of complaints and investigations you undertake and if the proposed legislative changes would assist in resolving some of those complaints.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Chair.

Thank you both for coming in. We appreciate it.

Just going back on this thing, I've seen a number of case summaries. One person lost $76,000; another person claimed $101,500; another person claimed $53,000, another claimed $53,000; another person claimed $29,000, and another claimed $45,000. These are pretty unhappy people, and it doesn't really much matter that 98% of the people who moved are not making any claim. What matters is the pool. The pool is the people who don't feel they've been properly compensated.

I have a letter from somebody in Bracebridge whose son-in-law was moved from Petawawa to Afghanistan and back to Petawawa, then to Borden, then to Edmonton, and then to Halifax, all within —well they don't actually say the period of time—and then they just got blown away. They are not happy campers.

It is no answer to say there are ex gratia payments if the person making the ex gratia payment can't actually write the cheque. That seems to me to be the issue.

You have limitations on your ex gratia payment, which you've articulated well. Treasury Board has this policy, which the government wishes to argue is a good first step, but it strikes me as no step at all. If the CDS, during the period of time since the June guidelines have been out, hasn't actually written one cheque, then this is not a step; it is the appearance of a step.

You can't sue. The government has presented Bill C-15 as a piece of legislation in which they could have rectified it. This appears to be going in circles for a bunch of people—maybe not a huge bunch of people, but a bunch of people—who have taken significant hits on their family situations. I'm sure you're pretty frustrated at this point.

What's the cheap and cheerful solution here? Do we simply allocate an authority to the CDS and be done with it?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair. It's good to be back to discuss Bill C-15, or Bill C-41, C-45, or C-7, whatever it is in the latest iteration.

[Pierre Daigle, Ombudsman, Office of the Ombudsman, National Defence and Canadian Forces Ombudsman]

Mr. Chair, I would like to begin by thanking the committee for inviting us to testify today in its study of Bill C-15. As you mentioned, Alain Gauthier is my director general of operations.

Although not cited in the National Defence Act, the office of the ombudsman was established in June 1998 to help increase transparency in the Canadian Forces and the Department of National Defence and to ensure fair treatment of concerns raised by members of Canada’s defence community. This community includes members of the Canadian Forces, both regular force and reserve force, civilian DND employees, family members, and anyone in the recruitment process.

The ombudsman draws upon his or her powers from a ministerial directive and reports directly to the Minister of National Defence. The ombudsman operates independently of both the Department of National Defence administration and the Canadian Forces chain of command. The office of the ombudsman remains neutral and is an objective sounding board, often acting as both mediator and investigator.

Stated simply, the office has a mandate to investigate and make recommendations to improve the overall well-being and quality of life of the members of the defence community. While our investigators attempt to resolve complaints informally and at the lowest level possible, some complaints require thorough investigation leading to a formal report with findings and recommendations that are made public.

Over the past 15 years the ombudsman’s office has helped more than 21,000 individuals navigate existing channels of assistance or redress when they have had a complaint or concern.

In February 2011, I appeared before this committee to discuss the findings of my 2010 report entitled, “The Canadian Forces Grievance Process: Making It Right for Those Who Serve”. The report highlighted deficiencies in the grievance process that are causing further hardship for Canadian Forces members who have already been wronged.

At that time I testified that we found the redress of grievance process to be flawed and unfair. It is supposed to provide soldiers, sailors, airmen, and airwomen with a quick and informal mechanism to challenge Canadian Forces actions and resolve matters without the need for courts or other processes. Specifically, we determined that the chief of the defence staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness.

Moreover, when claims are rejected—which is often the case—Canadian Forces members are informed that they must initiate legal action against the Government of Canada in order to obtain compensation. However, unbeknownst to most men and women in uniform, legal action will rarely be heard by a court because previous courts have ruled that there is no legally enforceable employment contract between the Crown and Canadian Forces members.

Our findings were consistent with those of both former Chief Justice Lamer, who in 2003 recommended that the chief of the defence staff be given financial authority to settle financial claims in grievances, and former Justice LeSage, who indicated in 2012 that the issue should be addressed in legislation.

The Minister of National Defence expressed his commitment to providing the chief of the defence staff with the financial authority to resolve grievances and was looking at mechanisms to achieve the result. Short of Justice LeSage’s recommendation to address this issue in legislation, a resolution is not obvious.

The minister advised me in a letter on July 26, 2012, that Treasury Board approved the authority for the chief of the defence staff to make ex gratia payments in the grievance process. Minister MacKay said this was an initial basis from which to address my recommendations.

Ex gratia payments have significant limitations in that they are prohibited by Treasury Board policy from being used to fill perceived gaps or limitations in existing acts, policies, or other governing instruments.

In closing, I would reiterate what I said when I testified before this committee in 2011. The Canadian Forces redress of grievance process will remain flawed and unfair as long as the final decision-maker in the Canadian Forces grievance process, the chief of the defence staff, lacks the authority to provide financial compensation to resolve unfairnesses.

Mr. Chairman, I’m happy to answer any questions you may have at this stage.

[The Chair, Conservative, James Bezan]

Good afternoon, everyone. We're going to start meeting number 63 and continue with our order of reference from Wednesday, December, 12, to study Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

Witnesses joining us for the first hour are, from the Office of the National Defence and Canadian Forces Ombudsman, Pierre Daigle, who is the ombudsman, and his acting director general, Alain Gauthier.

Mr. Daigle, you have the floor for your opening comments. Then we'll move right into questions and answers.

[Peter MacKay, Conservative, Central Nova, NS]

Sure.

The Lamer report does make recommendations with respect to the review period for the military justice system and the Canadian Forces grievance process that can be specifically required and entrenched within the act, within the bill. Bill C-15, to answer your question directly, would accomplish that. As well, it would improve the current system and mechanism for review by moving the review process and provisions into the defence act so that it becomes codified, specifying the scope of the review, the thematic basis—that is, the military justice system, the grievance, the Canadian Forces military policy complaints schedule. All of this would increase the utility of reviews by changing the review cycle from five to seven years. To do this, I would suggest, accords a sufficient period of time to provide the adequate track record upon which to base subsequent assessments of the operations of provisions.

We find ourselves today in this place where there was a review called for in earlier iterations of this bill, and because of the fact that this particular legislation has been unable to move forward for a number of reasons, the time has essentially passed.

Putting this bill in place and then allowing seven years to pass will allow us to sufficiently study the impacts of these amendments and then respond appropriately at the next review period. We've had two reviews. We've incorporated reviews into this legislation, and we'll do the same in future legislation.

[Peter MacKay, Conservative, Minister of National Defence]

Thank you very much, Mr. Chair.

Colleagues, I'm pleased to be with you again. I note that this is my 32nd appearance before the committee as a government member. I recognize that we're here for the important examination of Bill C-15.

I should also note that I'm joined by Major-General Blaise Cathcart, who is our Judge Advocate General, as well as by Vice-Admiral Bruce Donaldson, who is the Vice Chief of the Defence Staff.

The proposed amendments to the National Defence Act found in this bill will ensure that Canada's military justice system remains one that the Canadian armed forces, and I suggest Canadians at large, can trust. These amendments will also clarify the roles and responsibilities of the Canadian provost marshal and will enhance the military police complaints process and the military grievance system, among other amendments.

The need for a military justice system to maintain the discipline, efficiency and morale of the Canadian Forces, one that is separate from the civilian system, has been endorsed by Parliament, as well as the Supreme Court of Canada in the 1992 Généreux decision. The existence of a separate military justice system is also expressly referred to in the Charter of Rights and Freedoms.

Mr. Chair, colleagues, this system, the existence of a separate military justice system, in addition to being endorsed by both Parliament and the Supreme Court of Canada, is also expressly referred to in the Charter of Rights and Freedoms. As members here will know, the strength of Canada's military justice system was confirmed as well in two independent reviews, material that I know you have reviewed.

The first independent review, conducted by Chief Justice Lamer in 2003, for example, found that Canadians would continue, and could continue, to have confidence in Canada's military justice framework, a framework that meets the disciplinary needs of the military, whether in times of peace or conflict and whether in Canada or abroad. That said, Chief Justice Lamer also recognized that there were opportunities for improvement, and he made recommendations to strengthen our system.

His assessment was supported by the findings of the second independent review of the military justice system, conducted by Chief Justice LeSage and tabled in the House last June, following the introduction of this bill, Bill C-15.

The bill before you today is required to implement those recommendations from the Lamer report that are still outstanding, and it maintains the essence of the government's previous legislative efforts to address this report, mainly through Bills C-7, C-45, and C-41. It is a bill that clearly identifies the objectives, purposes, and principles of sentencing in the military justice system. It sets out a wider and more flexible range of sentencing options. It enhances the treatment of victims by introducing victim impact statements at courts martial.

I view this, Mr. Chair, as someone who spent a bit of time in the courts prior to my career in politics, as extremely important. This is a modernization of many of the basic principles we've had in our criminal justice system, going back almost 20 years, that we are trying now to bring forward for victims who would be affected within the military justice system.

All of this is in line with amendments set out in Bill C-41. The bill also clarifies the process and the timelines for future independent reviews of the military justice system.

Now, since this bill was introduced, the government has worked hard to respond to concerns and certain misconceptions regarding the state of Canada's military justice system. It might surprise some to know that a relatively small number of Canadians even realize that we have a separate military justice system. So I'd like to take this opportunity to briefly, Mr. Chair, speak to some of these issues and clarify any lingering misunderstandings that might exist.

I want to begin by first addressing the summary trial system. This system has been validated by both the first and second independent reviews of Bill C-25. The 2012 most recent independent review confirmed that the summary trial system is both vital to the maintenance of military discipline and essential to the life and death work the men and women of the Canadian Forces are asked to do each day. Moreover, this review concluded that the current system is constitutionally sound.

The 2012 LeSage review made several helpful recommendations for improving summary trials, and the government will certainly pursue them following the passage of this bill. That is to say that the LeSage report, and there may be questions on this, was actually tabled after this bill was presented to Parliament.

Speaking specifically to clause 75, there's also been confusion over the matter of criminal records flowing from convictions of service offences in this particular clause of the bill. To be clear, under clause 75, service members would no longer be required to apply for a criminal record suspension, formerly known as a pardon, for convictions that would be deemed to not constitute an offence for the purposes of the Criminal Records Act.

Some members have expressed concern over the scope of these exemptions that will be created by this clause. I've listened carefully to these concerns. As I've indicated, and as I've previously indicated during second reading, the government will submit an amendment that will expand the list of exemptions to mirror those amendments made by the committee during its consideration of Bill C-41.

We hope this will help facilitate a quick progress through the committee of this important legislation, as it is now in its fourth iteration and has appeared before the House of Commons for debate now, by my estimation, in five different parliaments.

Some members have expressed concerns over the scope of the exemptions that will be created by this clause. I have listened carefully to those concerns. And as I indicated during second reading, the government will submit an amendment that will expand the list of exemptions to mirror the amendment made by the committee during its consideration of Bill C-41. We hope that this will help facilitate the quick progress of this legislation through committee.

Mr. Chair, colleagues, over the last 10 years a number of changes have already been made to the Canadian Forces Grievance Board. These changes have reinforced the responsibilities of the chain of command to address grievances quickly and directly, and they have simplified the review process to make the grievance system more responsive to the needs of military members. The amendments proposed in Bill C-15 will further enhance the effectiveness of the grievance system.

This bill allows the Chief of the Defence Staff to delegate his power as the final grievance authority when appropriate. This measure allows grievances to be resolved more swiftly and efficiently, while allowing the Chief of the Defence Staff to focus on those grievances with strategic consequences.

The bill will also formally change the name of the Canadian Forces Grievance Board—at its own request—to the Military Grievances External Review Committee. The new name will better reflect the board's independent status and increase the confidence of our military members in its impartiality.

Mr. Chair, let me conclude by saying a few quick words about the military police complaints and the provost marshal. For any complaint dealing with the conduct of military police, the bill requires the Canadian Forces provost marshal to resolve the issue within 12 months—this, I suggest, is a move to expedite cases in that system and to prevent long delays of justice—and protects those making complaints in good faith from being penalized for doing so. The provisions of the bill regarding the Military Police Complaints Commission are consistent with the recommendations of both the Lamer and the LeSage reports.

With regard to the position of the provost marshal itself, this bill specifies its roles and duties and clarifies the relationship with the provost marshal and the chain of command and increases transparency by requiring the officer to submit an annual report to the Chief of the Defence Staff.

Finally, Mr. Chair, I think we can all agree that a sound and fair justice system for our military is key to maintaining the discipline and effectiveness and the morale and justice for members of the Canadian armed forces and their families, and to protect the public and project public confidence. That is precisely what the government is working toward through the delivery of Bill C-15.

I'm also proud to be here, along with officers from the Canadian Forces, to respond to any questions the committee has on this important legislation, and I look forward to seeing the committee's support and work on this bill.

Thank you. Merci.

[The Chair, Conservative, James Bezan]

Good afternoon, everyone.

Sorry for the delay because of the bells and the vote. We know there is another vote coming at us, so we are going to have a limited amount of time with the witnesses today.

We are starting off with our study of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, which is pursuant to the order of reference to this committee on Wednesday, December 12, 2012.

We're going to welcome as our key witness today the Honourable Peter Gordon MacKay, the Minister of National Defence. He's no stranger to this committee.

In the interest of time, Minister, I'm going to ask if you can bring your opening comments. My hope is that before bells start ringing, we'll get around to each party for their one round of questioning.

With that, Minister, you have the floor.

Strengthening Military Justice in the Defence of Canada Act

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the previous question at the second reading stage of Bill C-15.

The House resumed from December 11 consideration of the motion that Bill C-15, 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, and of the motion that the question be now put.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, Bill C-15 is trying to bring the military justice system more in line with the civilian justice system. I have already said that it is a step in the right direction, but it does not go far enough, which is why we are opposing it. If it passes, of course we will make the amendments at committee.

However, it does not address the key elements that I said very specifically: that the authority of the Chief of the Defence Staff in a grievance process must respond directly to Justice Lamer's recommendation; we have to change the composition of the grievance committee to include 60% civilian membership; and that there has to be a provision to make sure the person who is convicted of an offence during a summary trial is not unfairly subjected to a criminal record. Those are the key elements that I believe need to be in place for justice to be served.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, it is my pleasure to speak to Bill C-15 on the military justice system, which is long overdue.

This discussion of a person's collective and individual rights is fascinating. On the one hand, in the military it is critically important to have discipline and an efficient process for that, while keeping morale high. That why there is a different system of justice in the military.

We understand that it is important to ensure that everyone respects the law and that the military maintains a just, peaceful and safe society, its top priority. That is why a military justice system needs to be fast, flexible and portable.

Presently, 96% of the disciplinary cases result in a summary trial, with the other 4% being courts martial. I am mostly interested in talking about the summary trials and the individual rights of soldiers and fairness.

The amendments in Bill C-15 do not adequately address the unfairness of the summary trials. Right now, for a minor offence, a soldier could end up having a criminal record. However, in a summary trial, a soldier does not have access to counsel, there is no appeal process, there is no transcript of the trial and the judge is the accused person's commanding officer.

Very minor offences, whether a quarrel, small disturbance or absence without leave, could be matters important to military discipline, but I am not sure they are worthy of a criminal record. A criminal record for a soldier leaving the military could mean that he or she would have difficulty getting credit from a bank, buying a house, or being hired in any number of jobs.

Bill C-15 proposes exemptions from a criminal record for a number of offences carrying minor punishments or fines of less than $500, as defined in the act. We support these exemptions, but the list does not go far enough. There is another list of very minor offences that should be exempt from a criminal record.

As for the grievance process, there is a grievance committee but no external review. Presently, it is staffed entirely by retired Canadian Forces officers. We believe that the grievance committee should be external and have independent civilian oversight. Soldiers do not have the right of appeal, but they do have a grievance process. Therefore, it is important that the grievance process be fair and independent so there is no chance of a miscarriage of justice.

We believe that at least 60% of the grievance committee's members should be civilians, with a fresh eye on the situations before them. However, even though an amendment to the previous Bill C-41 was passed, unfortunately it was not retained in Bill C-15.

The other flaw in the military grievance process is that the Chief of Defence Staff right now has no authority to resolve any financial aspect arising from a grievance. We know there was a report by Brian Dickson and Chief Justice Antonio Lamer saying that it was important to give the Chief of Defence Staff the authority to resolve any financial aspect. At the time, the Minister of National Defence agreed with this recommendation. Yet after eight years, there have been no concrete steps to make sure this becomes part of the law. We moved an amendment passed at report stage of the old bill, but unfortunately it is not included in this new bill.

The other aspect is that we have to give the Military Police Complaints Commission the framework and ability to rightfully investigate and report to Parliament. Right now there is no legislative provision empowering it as an oversight body. We believe that also needs to be part of this bill.

At the moment the National Defence Act, through Bill C-15, has a timeline in which a complaint can be resolved through the Canadian Forces Provost Marshal. It protects complainants from being penalized for submitting a complaint in good faith. That is important, because whistle-blower protection needs to be in place for everyone, including soldiers.

In summary, 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, there have to be some key amendments to reform the grievance and summary trial systems and to strengthen the Military Police Complaints Commission.

As members know, this bill has been in front of us, first through Bill C-7 and then through then Bill C-45, which died because of prorogation in 2007 and the election in 2008. We are eager to see Bill C-15 become law, with substantial amendments. If not, then we cannot support this bill. I hope that when this bill goes to committee there will be more discussion of it.

Finally, I want to quote Michel Drapeau, who said:

—the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

That was an open statement by a retired Canadian Forces colonel and expert in military law on February 28, 2011. I hope we listen carefully to these experts who are experienced in military justice, and that we move forward to make sure there is discipline, efficiency and high morale while also respecting the individual rights of all soldiers and all Canadians.