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

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I will give my hon. colleague a memory lesson regarding Bill C-41, which was passed at committee, and how the government stripped the key recommendations from it.

Does my hon. colleague want to talk about the Veterans Review and Appeal Board and how it took out a veteran who spoke up, who was harassed, and whose internal documents were exposed in terms of his post-traumatic stress so that he had to take it to the Human Rights Commission and win a case of harassment? How does this member now have the nerve to stand up and talk about the good work of the board, when a man who stood and defended this country is talking about corruption on the Veterans Review and Appeal Board?

If this member cannot see the link between how our veterans are being harassed at the Veterans Review and Appeal Board and a failed system that is ignoring the key recommendations of the Lamer Commission and the key recommendations on Bill C-41, passed at committee in the Parliament I was in, then the hon. member needs a better sense of history.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr.Speaker, the principle of narrowing the gap between civil court and military court is something most people would support. It is something the Liberal Party sees great merit in. It is the essence of why we are okay and comfortable with this particular bill passing to committee.

The member made reference to minor offences. One example given at times is that of not showing up for work. It is quite significantly different in civil society as compared to the military community.

Can the member provide comment with regard to the difference in the obligation to show up for work when called to work and what he believes would be an appropriate way of dealing with this? Should civil and military be treated equally?

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I appreciate my hon. colleague's excellent question. Certainly within the military, we understand that the issue of not showing up for work can sometimes lead to catastrophic situations. For example, if individuals on a front line decide not to do their duty, people could be put at risk. We understand that there are times when there are charges. However, if the boys are out at the base one night and stay up drinking too much and do not show up in the morning, we do not believe that they should necessarily be faced with criminal convictions.

As my hon. colleague points out, there are extreme differences in attitude toward not showing up for work. For example, if a young soldier does not show up for work, he can face a criminal conviction. Dalton McGuinty can decide not to show up for four months, and it is called revitalizing the Liberal brand. Perhaps we need to reconsider where we put charges for this to ensure that people do show up for work.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I would like to commend my colleague on his speech and on the replies he gave.

My colleague was there previously when there was Bill C-41. Why is the government not working with the opposition parties? Why is the government not listening to what was done previously in the defence committee?

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, it is a fundamental problem in this Parliament. We have done the work. We had the committee work together. Yet we get a majority government that comes in and cherry picks and pulls out recommendations that were good recommendations that defended the needs and rights of our soldiers. For the life of me, I cannot understand why the Conservatives have such an adversarial attitude toward a basically fair and just process.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I rise to speak to Bill C-15, a bill that would change the nature of the National Defence Act and, in some ways, improve the military's system of criminal justice.

This legislation has been a part of ongoing debate in Parliament over a number of years. We have some serious concerns with this legislation and will be opposing it at second reading. Committee stage has not been all that fruitful over the last year and a half of the majority Conservative government, but I suppose that if we did get some amendments that brought the legislation back to the state it was in the previous parliament, then we could get onside with that. Here we are debating this legislation in the House of Commons, recognizing that committees have not been doing their due diligence on many of the bills that have gone forward. The government has been using its majority in committees to block many useful amendments. That problem, we all recognize, has been changing our ability to provide good legislation for Canadians.

I want to talk about the summary trial system and the fact that a conviction of a service offence in a summary trial of a Canadian Forces member may result in a criminal record. I am concerned about the vast number of Canadians who may end up with a criminal record for offences that are relatively minor and the fact that we do this at a higher rate than many other civilized countries in the world.

We have a system that puts a criminal record on the backs of Canadians for a variety of offences, including in some cases for very minor and victimless offences that really do not warrant the kind of long-term impediment to a convicted person's lifestyle that a criminal conviction entails. That impediment includes getting a job, getting a place to live or travelling to other countries. Having a criminal record in Canada seriously impedes the progress of someone's life, and we here in Parliament should take it seriously. A conviction becomes part of a citizen's history and affects his or her life going forward.

Now we have summary trials in the military tradition. The NDP worked hard on the previous bill to get an amendment that would strike off a great number of the offences under the National Defence Act that can result in criminal records. In the previous bill the government was going to remove five of those offences but we managed to get that number up to 27. I am not familiar with precisely which five offences still remain in this legislation.

When I look at the offences under the National Defence Act, such as disobedience of a lawful command, for instance, should that carry forward in every instance in a summary trial? Remember that we are talking about a summary trial where there is no obligation on the part of those conducting the trial to provide legal counsel to the people standing in front of them. We are dealing with a hierarchical system where the complainant in the military tradition has the upper hand over the defendant.

Providing prompt but fair justice in respect to minor service offences contributes to the maintenance of military discipline and efficiency. However, given that our military personnel are under great stress and have to deal with being away from home for long periods of time under a very strict command and control structure, they are likely to offend in some way if, under the command system, they are identified as a problem. That is the nature of military service.

We have to think about what we are doing with or creating for these people when they come out of the military into the general population. That is very important. It is a very serious situation for them if, from a summary trial, they have a criminal record for some minor service infraction. I think this goes on quite often In Canada. We give people a criminal record for a variety of small offences in the military, which I do not think is appropriate to do there or in the general justice system. We need to reform all of our justice systems so that we not too easily burden people with a criminal record designation.

Under the National Defence Act we have offences such as abuse of subordinates, connivance at desertion, absence without leave, cruel or disgraceful conduct, insubordinate behaviour, quarrels and disturbances. These are all part of life. They are things that happen to one degree or another. How is something like a quarrel or disturbance designated? I hate to think that by quarrelling with the government here over the bill that I could be up on a summary offence by some trial in the House of Commons. However, that is what happens in the military.

We must maintain military discipline and there are reasons to have summary trials, but the sentencing that goes along with that is what we are talking about here. That is at question. Should minor offences have a long-lasting impact on a person's life? This is why the NDP is taking a strong position here, because we do not want to see this happen. We did have good results in the last Parliament in getting 27 of these offences removed, and I think that would make the bill more palatable.

It is not every day that we discuss the nature of military justice. This is our last shot at it. Once the bill has gone through the process, it may not come before Parliament for another decade. There may be many instances where people end up with criminal records for relatively minor offences over the next decade, if the bill passes during the course of this session.

We have important work to do here and want to see this done right. We want to ensure that the kinds of penalties given for offences in this regard are well thought out and are not punishing Canadians unduly for things that may occur under the conditions of military service.

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

Mr. Speaker, it is absolutely essential that we get our facts straight in this debate.

I want a clear acknowledgement by the member opposite that he understands that Justice Lamer and all the other senior members of our judiciary who have reviewed the military justice system accept that the summary trial system is appropriate for the military justice system in Canada's armed forces.

Second, could the member set the record straight on behalf of his colleague from Timmins—James Bay who said that the idea there be 60% civilians on the grievance board had come from Justice Lamer. It did not come from Justice Lamer, nor did it come from Justice LeSage or the other senior members of our judiciary who painstakingly reviewed the military justice system. The idea actually comes from the NDP. It is not justified in our view and we will not be accepting it on the basis of the weak arguments put forward by the NDP.

Could the member set the record straight that this proposal does not come from a former chief justice of the Supreme Court of Canada but in fact from somewhere within bowels of his party?

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I thought I made it clear in my discourse that I agreed with the idea of summary trials. What we are concerned about here is the kind of sentence that is passed under those summary trials. That is why we want to see changes made, so that these types of summary trials have appropriate punishments attached to them and do not lead to many people ending up with criminal records in the country for relatively minor offences.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to begin by thanking my colleague for his speech.

As he pointed out, the NDP will be voting against the bill at second reading because of its many flaws. He specifically referenced the summary trial system.

I would like him to tell us a little more about the harmful consequences for individuals who wind up with a criminal record because of a minimum sentence.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, there are two things that go on there. For instance, having military service in one's background is normally a plus on a resumé. It really represents time that someone has invested in the country, perhaps putting one's life at risk and having agreed to serve in a diligent fashion under the orders of others. That person has made a contribution. Now he or she ends up with a criminal record for a relatively minor offence. That goes on the resumé as well, in a real sense. It is there as part of that person's life record.

However, when that person wants to get an apartment, a nice place, and have a good life in a good way and a criminal record check is done of them, the person checking will find that criminal record for a very minor offence, even though the ex-military member had served their country well. They would not be allowed to stay there. Perhaps that might upset their partner. Perhaps that might end up with their being less comfortable in their own lives. Those things happen and are the realities of life for someone with a criminal record.

If someone goes to the border to go to the United States, will they be turned back for a minor offence? I get phone calls in the middle of the night from guys from my riding who have driven down to the Alberta-Montana border to go across with their kids to take them to a hockey tournament and they are turned back. Imagine what that does to that family. Because someone had a minor criminal record from 30 or 40 years ago, they get turned back when taking their children to a hockey tournament. That is the kind of thing that happens to someone with a criminal record.

I do not want to see Canadians have criminal records unless they have really done something wrong and really stepped well past the boundaries of civilized society.

[Kevin Sorenson, Conservative, Crowfoot, AB]

Like broken the law, right?

[Dennis Bevington, NDP, Western Arctic, NT]

That does not mean creating a disturbance. We have all created a disturbance at one point or other in our lives.

Someone is creating a disturbance here in the House of Commons. I am not going to ask him for his criminal record check. I am willing to accept sometimes that people do not always act in the best possible way.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, on October 7, 2011, the Minister of National Defence introduced Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 amends the National Defence Act to strengthen and alter military justice following the 2003 report of the former chief justice of the Supreme Court, the right hon. Antonio Lamer, and the May 2009 report of the Senate Standing Committee on Legal and Constitutional Affairs.

Among other things, the bill would provide greater flexibility in the sentencing process and additional sentencing options, including absolute discharges, intermittent sentences and restitution. It would modify the composition of a court martial panel according to the rank of the accused person and modify the limitation period applicable to summary trials. It would also allow an accused person to waive the limitation periods. The bill would clarify the responsibilities of the Canadian Forces provost marshal and, finally, it would make amendments to the delegation of the Chief of Defence Staff powers as the final authority in the grievance process.

New Democrats 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 a number of required aspects of the military justice system, including the summary trial system, the grievance system and the Military Police Complaints Commission.

I will provide some background. In 2003, the right hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, presented his report to the independent review of the National Defence Act. The Lamer report contained 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, but thus far only 28 of those recommendations have been implemented in legislation, regulations or via changes in practice.

This bill has appeared in earlier forms. First, Bills C-7 and C-45 died on the order paper due to prorogation by the Conservative government in 2007 and an election in 2008. In July 2008, Bill C-60 came into force simplifying the structure of the court martial system and establishing a method, which was more closely aligned with the civilian system, for choosing the type of court martial. In 2009, the Senate committee consider Bill C-60 and provided nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and the Senate committee report. It outlined provisions related to military justice, such as sentencing reform, military judges and committees, summary trials, court martial panels, the provost marshal and limited provisions related to the grievance process and the Military Police Complaints Commission.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament. There are a number of amendments that carry over, which include the court martial composition, military judges' security of tenure and provisions relating to the appointment process and the age of judges. However, other important amendments that passed at committee stage at the end of the last parliamentary session are not included in Bill C-15. These include the following, which were also presented by the New Democrats as amendments to that piece of legislation.

What is missing from this bill is the authority of the Chief of Defence Staff in the grievance process, which responds directly to Justice Lamer's recommendation; changes to the composition of the grievance committee to include a 60% civilian membership; and finally, a provision to ensure that a person who is convicted of an offence during the summary trial is not unfairly subjected to a criminal record. It is this last point that causes particular concern to all Canadians who care about the justice system in this country.

There are many important reforms in this bill and the NDP supports the long overdue update to the military justice system. Members of the Canadian Forces are held to an extremely high standard of discipline and they, in turn, deserve a judicial system that is held to a comparable standard. The NDP will be opposing this bill at second reading. However, there are shortcomings in this bill that we hope can be addressed at the committee stage if, in fact, it gets that far. Here are some of the amendments that we hope to see passed.

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, though, are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the so-called trial, and the judge is the accused person's commanding officer. This causes undue harshness on certain members of the Canadian Forces who can be, and are, convicted of very minor service offences, offences that would not otherwise be criminal 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 necessarily worthy of a criminal record. Certainly drunkenness is not a criminal offence, and many members of the House would probably attest to that.

Bill C-15 also makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine 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, the NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not necessarily worthy of a criminal record. We would increase that number from five specified offences to 27, if the offence in question received a minor punishment.

The amendment 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 on its own, a fine equal up to one month's basic pay or another minor punishment.

This was a major step forward for summary trials. However, this amendment was not retained in Bill C-15, and we want to see it included here.

We also believe it is important to reform the grievance system because at present the grievance committee does not provide a means of external review. Currently it is staffed entirely of 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 provides that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. Again, this amendment was passed in March 2011 in Bill C-41 but was not retained in the bill before the House. We think it is important to see that amendment retained in the bill.

Finally, the NDP believes we must strengthen the Military Police Complaints Commission. The bill amends the National Defence Act to establish a timeline within which the Canadian Forces provost marshal would be required to resolve conduct complaints as well as to protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, the NDP believes that more needs to be done to empower this commission.

Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions empowering it to act as an oversight body. This commission must be empowered by a legislative provision that will allow it to rightfully investigate and report to Parliament.

Let us talk about what some independent people have said about the bill. I want to quote Colonel Michel Drapeau, a retired colonel from the Canadian Forces and a military law expert. Here is what he said in February 2011:

I strongly believe that the summary trial issue must be addressed.... 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.

Colonel Drapeau also said:

—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 summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I believe all members of the House want to see members of the Canadian Forces guaranteed the very charter rights that we send them into harm's way to fight for on our behalf. One part of those rights is that when people face potential criminal sanctions, they have a right to counsel. They have a right to a judge that is independent. They have a right to transcripts and a meaningful right to appeal. Bill C-15 does not allow this and I urge all members of the House to work on this bill to address those serious problems.

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

Mr. Speaker, the draft before us absolutely does guarantee those measures that the member for Vancouver Kingsway mentioned at the end of his speech, because it has been designed by Canada's leading judiciaries over decades. Of the 88 recommendations made by a former chief justice that are embodied in the bill, 83 have been accepted on this side of the House as much as on that side.

We have not heard anything new on the bill from the member opposite. We still have not heard an answer from him or his colleagues about a point on which they have been misleading the House.

The member for Timmins—James Bay, others among his colleagues and now the member for Vancouver Kingsway have implied that this requirement for 60% of the grievance board to be civilians comes from a recommendation of Justice Lamer. It does not. Will the member opposite acknowledge that it is not part of the 88 recommendations?

We, on this side, do accept that civilians should be eligible. However, we do not accept that there should be a quota of civilians on that board because military experience is relevant to the hearing of grievances for the Canadian Forces. Also, it has not been recommended by high judicial authorities.

Will the member for Vancouver Kingsway come clean about the origins of this proposal, which absolutely had no place in his party's position during the last Parliament?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, it is always interesting when the government pivots off to another issue instead of addressing what are really the square and central problems and issues of a particular piece of legislation.

I never heard the member provide the government's response to this. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Right now in the Canadian Forces, summary trials are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the trial. The judge is the accused person's commanding officer. Why will the hon. member not address those points?

We all know the serious implications of a criminal record. Why will the government not explain why a Canadian Forces member who is charged with an offence that could result in a criminal record would be deprived of the simple right to consult a lawyer, which is a charter right? Why will it not explain why it proposed legislation that does not allow a simple transcript to be kept of the proceeding so that if there were a wrongful conviction, there would be a basis from which to launch an appeal?

I am a lawyer by training and I know the importance of having due process. The real question is this. Why will the government not give due process to our men and women of the Canadian Forces to make sure they have the charter and constitutional rights that all Canadians deserve?