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

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, our role and our obligation as members of Parliament in the House is to seize every available opportunity to try to make a positive contribution, which is precisely what we are doing today.

It is simply too important to be, in my view, tangled up in procedural wrangling. This is an appeal to the Government of Canada, and particularly the Minister of Justice and Attorney General of Canada, who as I alluded to earlier I believe is in breach of his own code of ethics, his own responsibilities as a member of the bar.

We are saying that we can get this better on behalf of the men and women in the Canadian Forces. We owe it to them.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I too am pleased to speak on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. As with most bills, there are some good points and some problems with some of the clauses in this particular bill. I will spend most of my time on concerns with changes to the military justice system. I want to outline a few good points that are to the government's credit, but overall the bill does not have the balance that is needed.

Providing for security of tenure for military judges until their retirement is a good proposal. Permitting the appointment of part-time military judges to conclude cases in a timely manner is fine, and specifying the purposes, objectives and principles of the sentencing process makes a lot of sense.

However, the area of concern is that the bill makes amendments to the delegation of the power of the Chief of the Defence Staff as the final authority in the grievance process, and it makes consequential amendments to other acts to make that possible.

The Liberal Party does not believe that introducing a criminal record for Canadian Forces members for certain service offences is fair and just, since the means for pardoning offences has been recently removed by the Conservatives. What Bill C-15 would do is enshrine in law a list of military offences that would carry a criminal record, some of which are hardly appropriate for a criminal record, and others before me have spoken about the seriousness of this measure.

I expect many offices, both on the government side and this side of the House, have dealt with people who have applied for pardons, have found the period has been extended for a longer period of time and as a result have found themselves in an employment category that is probably not as good as they otherwise would have had if they had been able to receive their pardons in a timely fashion. In fact, I have talked to a quite a number of people who said that obtaining a pardon used to carry a reasonable cost but is now very expensive and difficult to afford.

There is an attack by the Government of Canada on people who have, yes, done wrong in life, but punishment is everything on the government side, it seems. Yes, a lot of these people got into trouble, but they can be productive players in Canadian society, and the ability for people to be productive players in Canadian society has been diminished by what the government has done on the pardoning provisions alone, and that hurts us all. It hurts society and it hurts the economy.

Under the new rules, Canadian Forces members would be left haunted by a record, would be unable to find employment upon release and would face greater difficulties in getting a pardon.

Michel Drapeau, who is a retired colonel, noted the following in his committee testimony:

—[an] 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.

That is a serious matter in terms of the list of military offences, some of which should not be criminal charges, that would affect individuals and individuals' families. As I said, tougher rules to obtain pardons even diminish the ability for folks to contribute to the Canadian economy.

The other very serious matter in the bill that we find extremely problematic is that the Vice Chief of the Defence Staff can intervene and give direction in military and police investigations. The Vice Chief of the Defence Staff is certainly subject to the code of service discipline, but the ability to intervene in a case and maybe deny a case or have more authority in a case is a concern.

I am personally worried by the lack of separation we are seeing in the military justice system. I am worried about the balance of justice, the fairness aspect and in this case, the ability of the command structure to influence and control. As well, as I said earlier when the Parliamentary Secretary to the Minister of National Defence was on his feet and laughed at this, thinking it was not possible, I am also worried that the situation in the military of superior authorities influencing decision-making down the line is starting to creep its way into the criminal justice system.

Let me spell out what I mean in that regard. This weekend we found out about the decision of the Conservative government to forbid any RCMP official from meeting with members of Parliament without prior approval from the office of the Minister of Public Safety.That decision carries with it all the implications of the government transforming the RCMP into a Conservative Party security service.

I say that in relation to this bill because we are seeing influence higher up in the chain, whether it is through the military system or now, seemingly, through the civil justice system by the Minister of Public Safety imposing rules that the RCMP is not allowed to talk to members of Parliament unless the minister's office is first notified. It is political influence on the day-to-day policing carried out by Canada's national police force. That is absolutely wrong.

The Minister of Public Safety with the Department of Justice and cabinet designed the law, and that is good and appropriate, but for a minister to be involved practically in the day-to-day affairs of policing is way beyond the pale.

As a former solicitor general, I was well aware that one of the principal obligations was to ensure that there was never a hint of direct political interference in the activities, obligations and duties of the RCMP. That standard of professionalism no longer exists under the current Prime Minister and Minister of Public Safety. We found out about that this weekend.

What will this mean? I see what is outlined in Bill C-15 creeping into the civil justice system under the authority of the Minister of Public Safety.

It would mean that before approval of any requests by members of Parliament to meet with members of the RCMP to discuss what at times could be sensitive security issues related to constituents, the political staff within the minister's office will have access to the request and, of serious concern, the reasons for the request. This, in short, will give Conservative Party operatives sensitive information related to individuals, information that should only be shared with law enforcement personnel who have the training and the mandate to have access to that information. That is a serious matter.

Being compelled to inform the political staff in a minister's office about a simple meeting, maybe just over law enforcement in my riding, could jeopardize individuals or investigations. I make that statement in relation to Bill C-15 because it is a recent issue that has not been talked about: the creeping aspect of the authority of the Vice Chief of the Defence Staff in all things related to the military justice system.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I listened to my hon. colleague's dissertation, and his tinfoil hat may be on just a bit tight.

He talked to Bill C-15, which has been debated through three different bills in three different Parliaments. I really think it is time that we moved on. It may not be perfect in every aspect, but it makes great progress on an issue that is important to the Canadian Forces and it is important to the men and women in the Canadian Forces, who understand it far better than my hon. colleague does.

The members rambled off into other issues that have nothing to do with Bill C-15, other than the aforementioned headpiece. I believe I heard the member say that members of Parliament are being denied the ability to be involved in day-to-day policing. Unless I misheard him, is he saying that members of Parliament should be involved in day-to-day policing discussions with the RCMP?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, the member, for whom I have a lot of respect, could not have gotten what I said more backwards than he did.

I raised the issue because of the directive of the Minister of Public Safety to the RCMP, as announced by the Commissioner of the RCMP, to the effect that members of Parliament are not allowed to talk to commanding officers or whomever in the RCMP unless the minister's office is first informed. That is not getting into day-to-day issues of the RCMP from the perspective of the member of Parliament; that is doing our jobs as members of Parliament by talking to commanding officers about policing in a region, talking about what is needed if we see a problem in one area and more personnel are needed on the ground, et cetera.

However, what is terribly wrong about it is that the Minister of Public Safety now is involving himself in day-to-day policing and that operatives, political staff in that minister's office, are going to have to be informed on issues that could be serious concerns that would be better left with the police that are involved.

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

Mr. Speaker, I have a question for my colleague, but first, I would like to say something about the committee's study of Bill C-15.

The study in committee lasted longer than normal, about four hours. If you look at the committee transcript of those four hours, not one Liberal member spoke. During a four-hour meeting, the Liberals did not speak at all.

I would like to know why they thought it was a good idea not to participate in the four-hour debate in committee and why they are raising these issues now.

Why did his colleague not bring this up in committee when it was studying Bill C-15?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I hate to remind my hon. colleague, but that is what this place is for. It is for debate by those members who do not have the opportunity to sit on that particular committee. It is for us to raise our concerns as individual members. I do not know if it is the same in the NDP as it is in the Conservative Party, where individual members really do not stand in their own right and have their own fair say; however, in the case of our party, our member at the committee basically supported the amendments of the NDP—not quite all, as a few were a little bizarre, but most were supported by our colleague.

The government asked where our amendments were. The fact that no sensible amendments supported by both the NDP and the Liberals got through committee just shows how undemocratic and dictatorial the government side has become.

Members who sit on that committee who are not members of the executive council take their orders from the Prime Minister's Office. They shut down debate and do not allow amendments, and that is why we are getting so much bad legislation in this House, and it is why I am on my feet. This is bad legislation. It sets a bad example in a lot of categories because it would give the Vice Chief of the Defence Staff too much power, and it needs to be changed.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I would like to talk about one of the points that my colleague just raised. He spoke about the role of the House of Commons within our Canadian democracy. It is a place where anyone can bring up ideas related to the topic of debate.

I am not a member of the Standing Committee on National Defence. We have an extremely competent critic who is a member of the committee. I was therefore not fully aware of the issue raised by Bill C-15. I had heard about this bill and I had heard that it left a lot to be desired. However, I was not able to examine the issue before the bill made it to the House and we had a chance to examine it more closely.

This once again highlights what an important role the House of Commons plays in our country's democracy. I congratulate our dear colleague who just spoke for bringing up that point.

I would also like to say something about my colleague from Winnipeg North.

I remember when the member for Winnipeg North joined the House of Commons not long ago after a very exciting by-election win in Winnipeg. He brought tremendous experience as a provincial legislator to that race and then to Parliament. I remember being very impressed by his oratorical skills, his ability to speak in Parliament and to get right to the core of an issue so that we could better understand what was at stake in any debate. When I learned that he had been a member of the armed forces I doubly appreciated his public service and what he has done for this country. He joins two eminent Canadians, one of whom is sitting to my left, the member of Parliament for Westmount—Ville-Marie, who also was a member of the military. Not only was he Canada's first astronaut in space, but he was also a member of the naval forces and used his skills and knowledge as an engineer to support that arm of the armed forces. In the Senate we have Senator Roméo Dallaire, a great military man, a great Canadian, a great internationalist, and of course a great Liberal. We have on this side of the House a fair amount of depth when it comes to discussing military issues. I am proud to say that I belong to this caucus.

The government has for years disparaged the opposition by saying that it does not support the military. In any crisis or any situation where the military was discussed with a certain amount of intensity, the government never missed a beat in questioning the esteem with which all members of the House, including members of the opposition, hold members of our military, not only veterans but currently serving members.

I ask members to look south of the border for one minute. I wonder if they can recall a time when, in a crisis or in any other situation, the military has been used as a partisan weapon by one party to attack another. In a crisis, have we heard presidents say members of the other party do not respect the military, do not believe in the military, do not have the best interests of the military at heart? I do not hear that from south of the border, yet that is supposed to be a society so much more divided than ours, so much more polarized than ours.

Government members talk a good game when they talk about supporting the military, but when it comes time to give charter rights to members of the military, they do not talk about such things but rather gloss over them.

I would remind hon. members that two weeks ago was the 31st anniversary of the Charter of Rights and Freedoms. That anniversary day coincided with the day that the new Liberal leader, Justin Trudeau, met with--

[Some hon. members]

Oh, oh!

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

--his caucus for the first time, as leader of the party. That was a fine day.

[The Acting Speaker, Barry Devolin]

Order, please.

I would just remind the hon. member, and all others, not to use the names of their colleagues.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I apologize. I should have known better. I have been in this House long enough to know that.

There was a time when soldiers held a very different position in society. I know that the hon. member for Ajax—Pickering, who no doubt studied history, understands that the role of the military in society has evolved over time. There was probably a time, and he probably knows better than I, when the military was considered somehow on the bottom rungs of society, perhaps there were slaves in the military, and they did not enjoy the same rights as those who governed society or as those who practised other trades.

However, society has evolved and now members of the military, to quote another individual, are equals in society. They are citizens who wear the uniform and show a great deal of commitment to the values upon which this country is based, a commitment so strong that they are prepared to put their lives on the line to promote and to defend those values around the world.

Members of the military are equal members of society. They have a right to the same protections under the Charter of Rights and Freedoms and we owe them a great deal.

Let us talk a bit about changing attitudes and about morale.

We know that if we want our men and women in the military, who are volunteers, who put themselves in harm's harm, to do their best for our country, if we want them to protect us with the commitment that they show every day, it is important that they feel respected by society, that they feel they are respected by us, that they are respected under the Charter of Rights and Freedoms.

In this sense, we are talking about enlightened self-interest. It is in our enlightened self-interest to ensure that members of the military have the morale, that they feel the respect that will allow them to do the best job they can on our behalf.

I will get a bit more into the detail of the bill, and it is not all bad. Not every part of the bill is bad. I would remind the House that the bill came out of a process that involved the House of Commons and the Senate. I would like to touch a little on the background of the bill.

The bill originated from recommendations made in a report by the Right Hon. Antonio Lamer, the late former Chief Justice of the Supreme Court, as well as from recommendations contained in a report by the Senate Standing Committee on Legal and Constitutional Affairs, entitled, “Equal Justice: Reforming Canada's System of Court Martials”.

I would like to underscore the word “equal”, equal justice, in the title of the Senate report. I think this is very important in the context of today's debate because this is really what we are standing up for today, on this side of the House. We are standing up for equality and fair treatment of those like the hon. member for Winnipeg North, like the hon. member for Westmount—Ville-Marie, like the hon. Senator Roméo Dallaire, who have committed themselves to protecting this country from what is obviously a very dangerous world, at times.

I think I will end on that note.

The House resumed consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as reported (with amendment) from the committee, and of the motions in Group No. 1.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Mr. Speaker, it gives me great pleasure to speak to the bill, I guess, in part, because I spent my first career in the military. I always took particular interest in the justice system within the military, realizing it was somewhat different. I am glad to say that I did not have too many encounters with that justice system during my time in the navy.

However, let me summarize some of the key points the Liberal Party feels are important to talk about with respect to Bill C-15.

The Liberal Party certainly understands the need to reform the Canadian court martial system to ensure that it remains effective, fair and transparent. At the same time, our party believes that Canadian citizens who decide to join the Canadian Forces, as I did, should not, thereby, lose part of their rights before the courts.

The Liberal Party understands that rights and equality are universal. Without an effective means for appeal and no recorded proceedings, the current summary trial system is unbalanced and does not respect the basic rights of the Canadian Forces members. The Liberal Party of Canada does not believe that introducing a criminal record for Canadian Forces members for certain service offences is fair and just, as the means for pardoning offences has been recently removed by the current government.

Finally, the Liberal Party of Canada finds it problematic that the VCDS, the Vice Chief of the Defence Staff, can intervene and give direction in military police investigations. The VCDS is also subject to the Code of Service Discipline.

I will provide some background.

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 criminal justice system must be made, the government is missing a real opportunity to make these changes properly.

Many aspects of the military justice system would inexplicably remain unimproved or would provide unnecessary powers. For example, Bill C-15 would enshrine in law a list of military offences that would now carry a criminal record, some of which are hardly necessary. Without the pardon system recently revoked by the Conservative government and with the summary trial being set up as it is, with no record and no means of meaningful appeal, Canadian Forces members would be left haunted by a record and unable to find employment upon release.

As Colonel Michel Drapeau noted in his committee testimony:

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

Further quoting him:

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, such as Senator Patrick Brazeau, enjoys all of these rights. So does someone appearing in a small claims court or traffic court.

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 those charter rights when facing a quasi-criminal law process with the possibility of loss of liberty through detention in military barracks.

I would like to also quote from former Justice Gilles Létourneau, who provided further criticism of the summary trial system which remains largely unaddressed by the modernized version of the current bill:

This form of trial has been found to be unconstitutional in 1997 by the European Court of Human Rights because it did not meet the requirements of independence and impartiality set out in Article 6 of the European Convention on Human Rights.

As a result of this decision and others, the British Parliament enacted legislation which now provides guarantees to an accused soldier. These provisions include the following

(a) the accused may be represented by counsel;

(b) the accused is entitled to an Appeal to the newly created Summary Appeal Court;

(c) the Summary Appeal Court is presided by a civilian judge, assisted by two military members who are officers or warrant officers; and

(d) as a general rule, imprisonment or service detention cannot be imposed where the offender is not legally represented in that court or in a court martial.

To further quote Judge Létourneau:

As a result, the British Parliament has gone a long way to ensure a fair treatment of soldiers facing summary trials. Similar changes have taken place in Ireland, Australia, New Zealand as well as France, Belgium, Austria, Czech Republic, Germany, Lithuania and Netherlands, to name a few. However, despite the fact the requirements of independence, impartiality, fairness and justice are the same in Canada, and if anything they are more compelling because, in Canada, they are entrenched in the Constitution, our men and women in uniform are still denied fair treatment at a summary trial.

Furthermore, Bill C-15 gives the Vice Chief of the Defence Staff power to intervene and give direction in investigations. This is troubling, considering that he is also subject to the code of service discipline and could technically intervene on his own behalf.

Colonel Drapeau notes:

The proposed new paragraph 18.5(3) in C-15 would, in my estimation, make the current lack of independence worse by now granting authority to the Vice Chief of the Defence Staff (VCDS) to issue “instructions or guidelines in respect of a particular investigation”.

This is very troubling indeed.

Quoting again from Colonel Drapeau:

Keep in mind that already the CDS and the VCDS has the power to call in the NIS to conduct an investigation on any issue which is of concern to them—and, frankly, under the existing command arrangements it is most unlikely that the NIS would ignore such a request. Also, the CDS does not feel inhibited to comment publicly on an open NIS investigation.

To now give the VCDS the authority to issue instructions or guidelines in respect of a particular military police investigation will remove any pretense that the Military Police is independent from the chain of command. Lest we forget, the CDS, the VCDS and, for that matter, the JAG, are each subject to the Code of Service Discipline. None of them should have the power to direct or influence either the initiation, the suspension or the conduct of a particular police investigation let alone to issue instructions or guidelines as to the conduct of a specific investigation.

Soldiers are citizens and should enjoy the same Constitutional and charter rights as every other citizen. As Judge Létourneau so eloquently puts it:

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?

The answer, of course, for all of us must be a resounding “yes”.

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

Mr. Speaker, I agree with every part of the presentation of the member for Westmount—Ville-Marie. That is why I have put forward amendments to deal with the very issue raised by the hon. member, amendments to ensure that we do not allow the Vice Chief of the Defence Staff to be able to issue instructions for an investigation, something that Michel Drapeau pointed out in his testimony:

Would the mayor be able to issue a direction to the chief of the Ottawa police, even if it's in writing, about a particular investigation? The answer is “no”. Would the prime minister be able to do that with the RCMP? The answer is “absolutely not”. So why would it be here?

We would have a chance this evening to put this to a recorded vote instead of a division if only there were four other members of this place on the opposition benches who would vote for my amendments there before them and were willing to stand up and insist on the vote.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Mr. Speaker, I thank my hon. colleague for her comment, and I agree with a lot of what she has expressed.

Let me remind everybody of what is particularly troubling about allowing the Vice Chief of the Defence Staff to intervene in an investigation. We all remember what happened with Somalia, and we all remember the fact that, if it had not been for media investigation, there would have been the very serious possibility of a cover-up.

We want to make sure that kind of thing does not happen in the future. Therefore, what is being suggested in terms of changes, even at this late report stage, are eminently sensible changes that we would be glad we made for the future.