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

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

Mr. Speaker, I would like to congratulate my hon. colleague on her remarks. She mentioned that the United Kingdom, Australia, New Zealand and other countries have decided to change their summary trial process.

That begs the question. We are debating Bill C-15. Why did the government wait so long before coming back to these issues?

[Paulina Ayala, NDP, Honoré-Mercier, QC]

Mr. Speaker, we wonder the same thing, and I also wonder about something else. Why did no one listen to the very important recommendations made by criminal law experts working in the military? They know the members of the armed forces. Of course, these young people need discipline, since we are preparing them to defend our country. But that does not mean they should be punished for any reason whatsoever, using any method whatsoever.

In that context, why are we lagging behind, when other countries have been able to move forward and eliminate some internal problems at the legislative level? I believe we should be able to say, when we see these other countries, that although we are behind now, we too have what it takes to go forward and bring justice to our young soldiers.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, the Conservatives really have trouble with happy mediums and balanced approaches. One place where this is obvious is in the area of foreign policy, but we also see it in legislation. Just this week, we have again been presented with a mammoth bill that covers pretty much everything but the kitchen sink. And yet on a subject as important as military justice and the rights of the men and women who defend our country, the Conservatives have brought forth a mouse. I think there is room, somewhere between the mammoth and the mouse, for legislation that is a little more worthwhile.

In 2003, as we know, Justice Lamer submitted his report on the independent review of the National Defence Act. He made 88 recommendations relating to military justice, the Complaints Commission, the grievance procedure and the Canadian Forces provost marshal. We are talking about 88 recommendations. And here we are with a bill that covers only 28 of those recommendations. Once again, this is the approach the Conservatives always take: to pick and choose only the things and the testimony that suit them.

A lot of things are missing in this bill and I will not address them all, since that would take too long. However, I am going to focus on one aspect in particular where the bill does not go far enough: summary trials and the mark they leave on the lives of soldiers, in the form of a criminal record, even after they return to civilian life.

We know that a summary trial can be debatable. It is a judgment dealing with matters that can be as trivial as a quarrel or absence without leave. It may relate to misconduct, insubordination, and so on. But the point is this: someone can be convicted of a relatively minor offence and end up with a criminal record for the rest of their life. This is particularly troubling when the accused in a summary trial cannot be represented by counsel and cannot appeal. There is no transcript and the judge is too often, and very often, the accused’s commanding officer. In other words, the people who defend our rights and freedoms are not entitled to the protections under the Charter of Rights and Freedoms at summary trials. If this were merely a question of internal military discipline, we could always debate it, but the problem is that summary trials leave indelible marks on people’s lives in the form of criminal records.

We recognize that the bill makes a vague attempt to remedy the situation. However, it really does not go far enough. It proposes that five offences be considered minor and not result in a criminal record. That is all well and good for the offences in question—and I will not continue to harp on it—but much more could be done. In fact, Bill C-41, Bill C-15's predecessor in the last Parliament, was debated in committee and amended to expand the list of offences and the types of sentences that would not result in a criminal record. I do not know why the Conservatives did not keep this amendment.

What we want is to expand the list of offences from 5 to 27, and the committee already agreed to this. It is so important. As retired Colonel Michel Drapeau, an expert on military justice, said:

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 we, 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.

We must stand up for and respect our soldiers. As Colonel Drapeau went on to say, “From where I stand, 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.”

Why should the consequences of relatively minor offences related to military discipline extend into the civilian lives of our men and women in uniform? Once again, we are not the ones saying this. I would like to quote the British Columbia Civil Liberties Association.

“Presiding officers in summary trials...are military officers...and their primary concern is likely to be unit discipline and deterring future violations, not the effect the sentence they impose will have on an accused in the civilian world.”

In short, we have a system that is not working and that needs to be reformed. This bill clearly does not go far enough to do that. Furthermore, in terms of reforming the system, our greatest allies—Great Britain, Australia and New Zealand—have changed their systems.

Our soldiers often participate in joint missions with the soldiers from those countries and are able to see first-hand the injustice that is being done to them, an injustice that this Parliament must agree to remedy today.

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

Mr. Speaker, I have two questions for my honourable friend. First, does she agree that Justice Dickson and Justice Lamer, former chief justices of the Supreme Court of Canada, have said the Canadian Forces' current summary trial system manages to protect charter rights as well as the principles of natural justice?

Second, given we all agree on the need to modernize the system, does she agree that the best way to reduce the number of convictions leading to a criminal record is to send the bill to committee and pass it? We have even offered to remove 27 offences that can lead to a criminal record upon summary conviction, which is quite a lot.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, I sincerely thank my honourable colleague for the question.

Fundamentally, as several observers have pointed out, the issue here is that the military's internal disciplinary system has repercussions on civilian life. The rules that apply in that system are not the same as the rules that apply in regular civilian life.

The B.C. Civil Liberties Association has also stated that fundamental fairness requires that systems that impose serious penalties on individuals provide better procedural protection. Having a criminal record for the rest of one's life is a serious penalty in itself. Yet, the system that allows such criminal records to exist is lacking procedural protections.

The government is always talking about efficiency, saying we should cut debate short and move things along. This bill has been studied in committee and some perfectly adequate recommendations were made, but the government ignored them.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I thank the member for her speech. I want to touch on what the member just said about committees. When we look at the former version of the bill, Bill C-41, we can see that a number of amendments were not only proposed, but were also passed by the committee representing members from all parties.

Although there was no legal obligation to retain these amendments once the bill died on the order paper as a result of the election, the government retained some amendments and got rid of others. I wonder why. Did the government change its mind all of a sudden? Did it decide to make fewer changes to the system because it now has a majority? Was it just appeasing the opposition at the time? We have a hard time understanding why the government would do this, especially since almost all of these amendments were in the report.

I would like my colleague to speak more to this lack of respect for the importance of committees.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, I thank my colleague for his important question.

This is not the first time that the government has introduced a bill that ignores lengthy discussions in committee—a committee that heard from witnesses and whose members agreed to amend a bill. But the government does not respect that. We have to wonder whether the government respects the institution of Parliament, since committees are an essential part of that.

When we see something like this, combined with the fact that the government tries to muzzle us and accuses of requesting silly emergency debates, it raises some big questions.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I am very pleased to rise today to discuss Bill C-15.

By way of introduction, it is worth noting that, as members of the House of Commons, we not only have the great honour of representing Canadians, we also have the opportunity to learn a little more about matters under federal jurisdiction that were perhaps addressed in previous parliaments, but that, for one reason or another, we are not familiar with.

For me, military justice is one such matter. I am no expert when it comes to this issue. However, since I now have the opportunity to discuss it, I did my research. I tried to look at what other Parliaments have done. It became clear to me, when reading the 2003 Lamer report, that reform is necessary. Anyone who has studied the recommendations therein can see that a lot of work was done and that much progress was made in the context of the previous Bill C-41. It is apparent now, however, when considering Bill C-15, that a lot of work was unfortunately done for nought. There is no other way of putting it.

I will speak about this work and the reason why a lot of it has gone by the wayside. To begin with, one of the best opportunities for a member of Parliament to speak about a bill or an issue is to take part in the work of committees. It gives us an opportunity to discuss issues with witnesses, who are often experts in their respective subject areas. At the end of the day, we cannot be experts in everything. Asking witnesses questions and listening to their testimony is an extremely important exercise in our legislative and democratic process. We also have the opportunity to carry out clause-by-clause consideration of different bills and to propose amendments.

Clearly, the party in power enjoys a majority in the House. When there was a minority government, however, the work of committees held more sway. That is certainly what we are increasingly witnessing today as we see the government attempt to take away committees’ power. But that is another debate for another day.

Having said that, several amendments were proposed at the time—in February 2011, unless I am mistaken—at the Standing Committee on National Defence. These amendments were passed by all parties. It must be understood that committees represent all elected representatives and parties. The committee, therefore, made amendments that were in line with the most important recommendations in the Lamer report. This was done in an effort to reform the military justice system.

Some of the amendments to Bill C-15, which is before us today, have been scrapped and others retained. I am asking myself the same question that I just asked of my colleague, the member for Laurier-Sainte-Marie. Unfortunately, given the dearth of speakers on the government side, I will not have an opportunity to ask the government this question. I nevertheless wonder why—after being proposed democratically in committee, where the bulk of the work in our parliament was done on this—certain amendments to the bill were retained and others scrapped.

After a bill legally dies on the order paper, there is no obligation to keep the previously adopted amendments when the same bill is presented in another form. Nevertheless, as a democratic and moral principle, and as matter of principle in general, one wonders why the government did not decide to keep these amendments in place, especially since they were not of a partisan nature, and were in line with the ideas put forward in the recommendations of the 2003 Lamer report.

Allow me to speak to a number of these recommendations. After all, the amendments that were not included in the bill in its current form are, unfortunately, reason enough for the NDP to oppose this bill. One of the most important questions concerns summary trials. All citizens of law-based societies such as ours want a balanced system of justice that affords citizens protection.

That said, it is important to understand that the system that exists within the military is not exactly the same. That is precisely why the necessary reforms are meant to bring the military justice system more in line with the civilian justice system. We want to bring these systems more in line with one another to ensure that the members of our armed forces enjoy adequate legal protection, since they deserve our utmost respect, for reasons that I do not need to repeat here. We know the importance of the sacrifices they make. They do incredible work for our society. It is important that they have adequate legal protection.

When we look at summary trials, one particular aspect is extremely problematic. A number of my colleagues have talked about this aspect, the fact that people can be saddled with a criminal record for violating military regulations. In normal proceedings, such behaviour, while certainly unacceptable, would not be sufficient reason to burden someone with a criminal record.

It is important to maintain discipline within the armed forces. We understand that it is important for commanders who make the decisions in these cases to maintain discipline. We are not saying that any of the regulations themselves should change. The penalties must be strict enough to ensure that offenders understand the seriousness of their mistakes. At the same time, however, we must not saddle them with judicial baggage that will stay with them for the rest of their lives.

All of the members of this House understand how careful we need to be about burdening people with a criminal record, because it will stay with them forever. It will follow them everywhere—when looking for a job, when signing a lease, basically, it affects all aspects of everyday life. Such measures could force someone into a precarious situation.

I am being very careful. I really want to be clear that we are talking about minor transgressions. We know that people who commit serious crimes deserve a criminal record. We realize this and we obey the laws of our society. We respect the fact that the punishment should fit the crime. However, we really are talking about transgressions that do not warrant a criminal record. When we take a look at this process, what is really problematic is that summary trials are often overseen by a commanding officer who, for understandable reasons that I mentioned earlier, wants to instil discipline in the armed forces. This sense of discipline is so very important in our traditions and also in the work of the men and women of our Canadian Forces.

When we realize that the commanding officer, understandably, may not really be interested in the concerns pertaining to criminal records, we have to bring clarity to the regulations. I believe that this must be one of the reforms we have to make. One of the amendments that we proposed was establishing a more complete list of the circumstances where a criminal record is, or is not, warranted.

In closing, I would like to make one last very important point. One thing dropped from this bill is the composition of the grievance committee.

I would like to make a comparison. In the United States, the founding fathers ensured that the commander in chief, or the U.S. president, is a civilian, not a member of the army. The objective was to balance the importance of a hierarchy within the armed forces and also within civilian society. Another recommendation we hoped would be adopted was that civilians make up 60% of the committee membership. That is another important measure that is unfortunately not in this bill.

Unfortunately, my time has expired and I will not be able to go through the list. However, I am certain that I will have the opportunity to do so during questions and comments.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Mr. Speaker, my young colleague seems to have understood that members of the military are people who volunteer to go into war zones to defend political decisions that Parliament makes. They do not deserve a bit less justice than everyone else; they deserve a bit more.

Can my colleague say who benefits from the authoritarianism and lack of transparency? I get the impression that a number of experts on the other side could answer that question. I also get the impression that secrecy and incompetence are coming into play here.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I think that my colleague raised a very important point. Since we expect service from our armed forces, we owe them a proper system in exchange. As we saw in the 2003 report, the system needs some reforms.

Even now, eight years later, we unfortunately have yet to take the necessary action. We thought this was achieved with Bill C-41, but we unfortunately took another step backwards.

When my colleague talks about transparency, he is referring to all of the very important principles of a justice system. These principles are no less important in the military justice system. I think that is the crux of this debate.

I would hate to make judgments about anyone's competence, but I think that we owe members of our military a transparent and rigorous system, so we can ensure that people are well represented and that we punish the people who deserve to be punished. However, we must do so fairly and equitably. The system must have more respect for the principles that society has adopted for everyone.

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

Mr. Speaker, members opposite are praising our soldiers, but their words are empty, because every day we can see that the opposition is prepared to deny the Canadian Forces the equipment they need. It is opposed to the Canadian Forces participating in overseas missions, and now it is opposing the modernization of the military justice system.

The government is committed to reducing the number of convictions resulting in criminal records in 27 cases. The minister said so yesterday and I am saying so today. We want to repeat what happened with Bill C-41, but that can only be done in committee. We want to refer this legislation to committee as soon as possible.

Why is the member for Chambly—Borduas opposed to speeding up the passage of a bill that is necessary and that would modernize the military justice system?

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, those comments are far from being empty words. The reason we oppose this measure is because we think we need to do more. The choices made by the government are not choices that, in our opinion, are in the best interests of the armed forces.

The hon. member's comments raise a number of issues, and I thank him for his questions. I may not be able to deal with each point.

He talked about referring the bill to committee and duplicating the process followed with Bill C-41. Why do we need to repeat this process? Why did the government not include these points from the outset? That work has already been done. Why redo it when there already seemed to be a consensus?

We are not opposed to modernizing the military justice system. We are opposed to the bill in its current form. We find it deplorable to redo something that has already been done. I cannot say it enough.

A parliamentary committee is supposed to be a crucial element of the legislative process. During the last Parliament, all parties and all members did an excellent job. Now, the government wants to redo that work when it could easily have included these measures in the bill.

I will close by repeating that the reason why we will vote against these measures is because they are not appropriate for our Canadian Forces. We do not have to justify ourselves in that respect. Our work speaks for itself.

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

Mr. Speaker, it is a pleasure and an honour for me to rise in the House today to talk about Bill C-15.

In essence, the purpose of this bill is to enhance and reform the military justice system. Previous parliaments have attempted to come up with similar bills. Despite all of the work done in committee, where all parties agreed to amendments, here we have a bill that, unfortunately, does not go far enough and does not include all of the recommendations that were made. We must oppose it. The government is refusing to work with the opposition parties to come up with a bill that will really be good for the military justice system and, more importantly, military personnel.

As the representative for the riding of Brossard—La Prairie, I have had the honour of meeting many former members of the armed forces and current members who are making sacrifices for their country. I truly admire these people. Often, they are deployed to places where many of us would never dare to go. They do incredible work and make enormous sacrifices. We are asking the government to help them. But the government does not really seem interested in supporting veterans.

In the case of the government forcing veterans to live on less when it decided to claw back veterans' benefits, the veterans actually had to go to court and expend a lot in terms of money and stress when the government on its part could have acted.

We had to wait for the Federal Court to render a decision in favour of veterans saying that what the government did was unfair.

The government is talking out of both sides of its mouth. It says that it supports soldiers. It sends them on missions that Canadians do not always agree with, as we can clearly see in the case of Afghanistan. I am very proud to be a member of a party that is opposed to military intervention in that country.

Let us come back to Bill C-15. My colleagues have already mentioned that the way this bill is written poses a problem for the reform of the summary trial system. The members opposite have had a lot to say about it.

I would like to briefly explain what a summary trial is. When a soldier commits an offence, there is a summary trial. There is no legal counsel present and no transcript of the proceedings. The soldier may also end up with a criminal record. I will come back to that a little later.

Summary trials have no appeal mechanism. The judge is the accused's commanding officer, which is a significant conflict of interest. From a purely legal perspective, this type of trial is not valid. When soldiers undergo a summary trial, they do not have the right to receive legal counsel to defend themselves. They are therefore at a clear disadvantage, which is unacceptable.

A criminal record has fairly serious consequences. Soldiers can end up with criminal records as a result of reprimands. We understand that, in the military system, it is important that there be discipline and that soldiers follow certain rules. However, when soldiers become veterans and return to civil society with a criminal record, there are consequences for them. I think that is a problem. What are these reprimands for? Soldiers can be reprimanded for insubordination, misconduct, absence without leave and drunkenness.

We are also talking about disobeying an order. We can see that this goes too far in some of these cases. Think about this: an individual who has served Canada and who has sacrificed himself or herself would be given a criminal record. The Conservatives keep saying that we must trust and value our military members. However, if they truly believe that, then why give military members a criminal record when they return to civilian society? What does it mean to have a criminal record? It can prevent you from working, from travelling outside Canada, and it can cause you problems every day, when you try to sign a lease, for example. Some problems are really more serious. That is why we asked the government to pay attention to that.

The NDP made a number of specific proposals when this was studied by the Standing Committee on National Defence during the last Parliament. We suggested 27 “cases” in which a criminal record was unnecessary. A penalty might be necessary, no doubt a stiff penalty, but not a criminal record.

The Parliamentary Secretary to the Minister of National Defence will say that amendments were proposed by the government, but we do not understand why the government has not done its job. This was discussed during a previous Parliament. Does this mean that the government does not respect what was previously done, the discussions, the debates and the recommendations made by the Canadian Forces? Does that mean nothing because they suddenly won a majority? Does nothing that is in the best interests of Canadians and veterans count any more because they have a majority? What counts now is their take on things.

We in the NDP understand that the system must be reformed, but it is a problem when they do not listen to what has been proposed and debated. The former chief justice of the Supreme Court of Canada, the Right Hon. Antonio Lamer, made recommendations in his report. Of his 88 recommendations, only 28 were retained. Why does this Conservative government always refuse to listen to what people have to say when solutions are proposed?

I have previously discussed the government's truly unacceptable attitude toward what veterans and the Canadian Forces request. This government does what it wants and does not listen to what people have to say. And we in the official opposition have a duty to promote these discussions. That is why we are debating this bill, which is imperfect. We understand the government's intention: it wants to reform the system. We agree with the government, but we believe this does not go far enough.

Let us look at the conflicts of interest in the grievance system. This is the situation if you have a grievance. The grievance review committee consists of retired members of the Canadian Forces. However, there may be some doubt about the impartiality and objectivity of certain committee members. Members may include commanders, for example. What we are seeking, and what the NDP proposed, in the way of specific solutions that could improve the system and that were proposed during a previous Parliament, is a slightly more civilian system, one in which 60% of committee members are civilians.

In that way we ensure that, when a grievance arises, the individual who says he or she has a problem is not punished, the process is a little more transparent, and there is less of a conflict of interest, which makes it possible to consider the matter.

Once again, our aim is really to help military members, those people who, in certain cases, must forge ahead. We respect that, but the government must respect what the opposition requests, but especially what veterans, the Canadian forces and the public request.

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

Mr. Speaker, my question is very simple. Why does the opposition not do its own work?

In all these debates, it shows an incredible lack of rigour. It wants to reduce the number of criminal records, and now the number of summary trials, such as in the case of insubordination, disturbance, absence without leave or drunkenness. Those are the types of convictions members opposite are rather familiar with.

By prolonging the debate and preventing the bill from being referred to committee, the member shows that he does not want to accelerate these reforms. The NDP and the opposition asked for these reforms, but with each speech they make, they delay the implementation of necessary reforms that everyone wants. How can the member justify that?

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

Mr. Speaker, I thank the Parliamentary Secretary to the Minister of National Defence for his question.

The purpose of the debate is precisely to look at the content of this bill and to identify issues. If the government had really done its homework, it would have realized that when this work was done in the previous Parliament by the Standing Committee on National Defence, some proposals—which we still approve—were approved by the committee. However, it seems as if these proposals were forgotten, as if the government did not do its homework and that these proposals will now be added on.

If we are debating this issue today, it is because of the government's incompetence and ad hockery.

I am very proud to hear the hon. member say that the proposals put forward by the NDP will be accepted, but there are also other ones regarding summary trials. We think that, in some cases, resorting to summary trials is unfair. How are grievances dealt with? We still do not have answers to many questions.

If the government had done its homework, perhaps we would not be debating this issue today.