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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, what I would like to pick up on from the previous question is this. I, too, was a member of the Canadian Forces. The last thing one thinks about when joining the forces is what kind of court system they have or what kind of disciplinary action they take. If accepted, one is quite honoured and privileged. I enjoyed the experience.

At this point, I would like to emphasize just how small the percentage is of members of the force who actually find themselves in the position of having to go through a military court proceeding. Somewhere in the neighbourhood of 40 to 60 cases in any given year is a guesstimate.

The principle of the bill is to try to narrow the difference between civil and military courts. The Liberal Party supports that principle. That is one of the reasons why we have no problem with it going to committee.

Would the leader of the Green Party provide her thoughts with respect to the importance of where we can ensure there are civil court procedures that would be afforded in the same fashion to military courts and how we can narrow that difference?

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

Mr. Speaker, the court martial proceedings on battlegrounds are a very specific set of circumstances which apply themselves poorly to a civilian context. As has been pointed out, we have civilian workers in Afghanistan who happen to work at Tim Hortons and who fall under military justice.

We need to ensure that the men and women of the Canadian Forces have a system of justice that is no less protective of their rights, no less clear in ensuring access to counsel and that the charges against them are completely clear. There really is no reason to have a completely separate class of justice for members of our military.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I stand here with my colleagues sharing our position as the official opposition in opposing Bill C-15 at second reading. My colleague from St. John's East and others have been involved with the content of the bill for some time. What I find disconcerting is that here we are rehashing the debate when so much good work took place at committee, where recommendations and changes were made to the legislation.

Yes, there was an election, so all of that work fell off the table. But when the government had the chance to put forward a bill that truly reflected the discussion that took place at committee, the kinds of testimony heard from top witnesses, it chose to discount the critical amendments to truly make the legislation what it could be, a piece of legislation that seeks to make military justice in Canada fair and truly just to the utmost extent.

The NDP has been clear in recognizing that, while Bill C-15 is a step in the right direction to bring the military justice system more in line with the civilian justice system, it falls short on key issues: reforming the summary trial system, reforming the grievance system and strengthening the Military Complaints Commission. It is really about two fundamental values that we hold dear as Canadians: the concepts of fairness and justice.

The reality is that we in the NDP believe that members of the Canadian Forces are held to an extremely high standard of discipline. It is something we all hold as such in our society. However, the members who put their lives on the line for our country deserve a judicial system that is held to that comparable high standard as well, something that is currently not the case and certainly will not be achieved by Bill C-15.

Many Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a system that lacks the due process usually required in civilian criminal courts. For us, it is critical to fight for more fairness in the Canadian military justice system for the women and men in uniform who put their lives on the line for service to our country.

I know a number of my colleagues have referenced the summary trial system and the importance of making sure we are moving forward in that respect. I would note that countries we often look to, Britain, Australia, New Zealand and Ireland, have seen fit to change their own summary trial processes. The question is: Why is Canada lagging behind? We have the opportunity to follow in the steps of these countries, but also to set a leadership standard on our own and to clearly state as a priority that the military justice system stand for fairness and justice for people working in the military, something we civilians know to be the case when it comes to our system.

In terms of the summary trial system, 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 are held without the ability of the accused to consult counsel, there are no appeals or transcripts of the trial and the judge is the accused person's commanding officer. This causes an undue harshness on certain members of the Canadian Forces who are convicted of very minor service offences.

For example, some of the minor service offences include insubordination, quarrels, disturbances, absence without leave and disobeying a lawful command. These could be matters that are extremely important to military discipline, as we know, but they are not worthy of a criminal record. As we know, it remains a struggle for military personnel, once they leave the military, to get on and get settled with their life outside the military. Obviously a criminal record would be debilitating and further exacerbate the challenges many former military personnel face as they go on to pursue employment opportunities outside the military.

What better role could the Government of Canada play than to ensure that military personnel both have the justice they deserve while they are providing military service and also are not unduly penalized because of that unfair system once they leave the service?

We noted that there needs to be reform of the grievance system. At present, the grievance system does not provide a means of external review. Currently it is staffed entirely by 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 amendments have provided that at least 60% of the grievance committee members must never have been officers or non-commissioned members of the Canadian Forces. This is one of the amendments that was passed in March 2011 in Bill C-41 but was not retained in Bill C-15, before us in the House today.

The third point is about strengthening the Military Police Complaints Commission. Bill C-15 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 protect complainants from being penalized for submitting a complaint in good faith. Although this is a step forward, we in the NDP believe that more needs to be done to empower the commission. For example, 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. The commission must be empowered by a legislative provision that would allow it to rightfully investigate and report to Parliament.

On that note, on the need to strengthen the Military Police Complaints Commission to ensure that those in the military have access to the kind of justice all Canadians would expect, the concept of ensuring the independence of complaints commissions and the ability to review and investigate what is currently taking place is something to which we need to see a greater commitment from the government side in a whole host of areas. One of the areas that has also been discussed is the RCMP.

Despite the rhetoric we have heard from the government in favour of greater fairness for those working in the RCMP, the complaints commission there requires greater support. Canadians require greater assurance that the complaints commission of the RCMP will be independent. The reason I raise this is that we have heard about some serious allegations, some tragic stories around sexual harassment in the RCMP. That is something I am very concerned about, as the status of women critic for the NDP. There needs to be a policy when it comes to sexual harassment in the RCMP, but there also needs to be an assurance and clear legislative commitment to strengthen the independence and the role of the complaints commission. It is very much the same scenario in the case of the military. When we are talking about ensuring that members of the forces have access to justice and a fair system for recourse, we need to be looking at strengthening the Military Police Complaints Commission.

Finally, what we are asking of the government, and certainly what we would have hoped for, is that it would have taken the deliberations of the committee and the final amendments made by the committee in hand and, rather than reinvent the wheel, recognize that the work has already been done and the template is already there to ensure that whatever we do with regard to strengthening military justice in Canada be done with access to justice and fairness for military personnel as a foremost priority. It is a priority for us in the NDP. We hope to see that same kind of reciprocation from the government at some point soon.

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

Mr. Speaker, what we regret on this side is that we are having to endure repetitive, often ill-informed speeches today about this important issue by the opposition. The recommendations of Justice Lamer have been pending for nine years. This bill has been before the House for a year, and yet we hear the member for Saanich—Gulf Islands asking us why the name of the grievance board is being changed and who proposed it. It was the Canadian Forces grievance board itself. If members have not taken the occasion to inform themselves about this bill, they would do well to make their remarks elsewhere.

On this side of the House, we are committed to moving this bill forward to make sure that many summary trial convictions no longer result in criminal records. The only thing standing between the current situation where that happens and a reformed system where it will not happen is the speech by the member for Churchill, which is literally preventing us from implementing a reform we all want to see. We too want the reforms she outlined. Let us move to committee and get them implemented.

My real question for her is this. Why have a quota on non-military members of the grievance board? Does the member for Churchill not have faith in Canadians with military experience to take an oath and serve with pride and integrity on that board? Why a quota?

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, it is truly disappointing that we have to resort to Conservative talking points instead of having a truthful debate in the House about how we could make the National Defence Act and military justice a true reality.

I know the member across the way is newly elected—I guess it has been some months now—but I would ask him to look at the records of the defence committee that, in March 2011, passed NDP amendments and others to strengthen Bill C-15 that simply are not in the bill we are talking about today. Why did the government not include changes with respect to strengthening the Military Police Complaints Commission or the kinds of changes the committee asked for with regard to summary trials? That is the question I would like answered by the government, and why are Conservatives so keen on reinventing the wheel instead of going back to amendments they themselves allowed to be passed?

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

Mr. Speaker, it is funny to hear that speeches made during a debate are obstructing a bill. The fact that we were elected as members of Parliament and our very presence in the House are not an obstruction in and of themselves, but that is a whole other issue.

The situation is interesting. I would like to ask Conservative members why they did not include all the amendments in the bill. However, I cannot ask them that question, unfortunately, since none of them deemed that issue important to present a speech on it today. The one exception is the Parliamentary Secretary to the Minister of National Defence, who always asks the same questions and says we lack a good understanding of the issue. Based on what I know, some amendments were adopted at committee, a committee composed of members from all parties. Unfortunately, it is obvious today that the Conservatives will do anything to keep committees from doing their work. There was a time when committees were able to do that work.

Although my colleague cannot answer that question, I would like her to speculate on why the Conservatives did not keep bill C-41 just the way it was.

[Niki Ashton, NDP, Churchill, MB]

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

I totally agree with his remark. The government seems to be quite allergic to any recommendations coming from committees. Instead of recognizing the work that was done to improve this bill, the Conservatives have chosen to waste our time by introducing a bill that lacks foundation. It is disturbing to see that the government is trying to go back in time and does not recognize how important it is for Canadian Forces members to be offered not partial justice, but full justice.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Mr. Speaker, I appreciate the opportunity to speak to this particular subject, particularly so close to Remembrance Day. It is particularly fitting, apropos, if I may say, that we have this debate today.

I would like to give a bit of background for those who are perhaps not familiar with the bill and are watching at home. I am continually amazed at how many people in my riding watch CPAC and watch it carefully.

In October of last year, the Minister of National Defence introduced Bill C-15. The bill is called an act to amend the National Defence Act and to make consequential amendments to other acts. Its short title is the strengthening military justice in the defence of Canada act.

The bill would amend the National Defence Act to strengthen 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 Standing Senate Committee on Legal and Constitutional Affairs.

It is important for my friends across the way to listen carefully, because they need to know that the NDP believes that this legislation is a step in the right direction. The bill is not entirely out in left field. I am sure that some members will agree with me that the Conservatives have had bills that have been out in left field—

[James Bezan, Conservative, Selkirk—Interlake, MB]

It is right field.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

They are the Cardinals to our San Francisco Giants, I guess, Mr. Speaker. That is the way I look at it.

Among other things, the bill provides greater flexibility in the sentencing process. It provides additional sentencing options, including absolute discharges, intermittent sentences, and restitution. It modifies the composition of a court martial panel according to the rank of the accused person. It modifies the limitation period applicable for summary trials. It allows an accused person to waive the limitation periods and clarifies the responsibilities of the Canadian Forces Provost Marshal. It makes amendments to the delegation of the Chief of the Defence Staff's powers as a final authority in the grievance process.

I do not want people watching at home to think that there are not some good things in the bill as it moves forward. The bill is a step in the right direction. It is a step in the right direction toward bringing the military justice system more in line with the civilian justice system. However, Bill C-15 falls short on key issues when it comes to reforming the summary trial system, reforming the grievance system, and strengthening the military complaints commission.

In 2003, the Right Hon. Antonio Lamer, who is the former chief justice of the Supreme Court, presented his report on the independent review of the National Defence Act. It contained 88 recommendations. Bill C-15 is the legislative response to those recommendations, but to only 28 of those recommendations. Sixty are missing. Only 28 of those recommendations have been implemented by this legislation through regulations or by way of a change in practice.

This legislation has also appeared here in earlier forms, first as Bill C-7and then as Bill C-45, which died on the order paper due to prorogation in 2007 and the election in 2008. In July 2008, Bill C-60 came into force, and some changes were made at that time.

In 2010, Bill C-41 was introduced to respond to the Lamer report. It outlined provisions related to military justice, such as the things we are talking about today: sentencing reform, military judges and committees, summary trials, court martial panels, the provost marshal, and limited provisions related to the grievance and military police complaints process.

In essence, Bill C-15 is similar to the version that came out of committee in a previous Parliament. The amendments carried over include court martial composition and military judges' security of tenure, meaning appointments and age.

However, other important amendments passed at the committee stage at the end of the last parliamentary session were not included in Bill C-15. These included, not surprisingly, NDP amendments that we felt were and are important. One was the authority of the Chief of the Defence Staff in the grievance process, which responds directly to Justice Lamer's recommendation. Another was a change to the composition of the grievance committee to include 60% civilian membership. Third was a provision ensuring that a person convicted of an offence during a summary trial is not unfairly subject to a criminal record, and that is no small thing.

Let me say again, because I know that my friend across the way will be asking me a question, that there are many important reforms in the bill. We support the long overdue update of 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.

However, there are some shortcomings in the bill, and we hope that they will be addressed at committee stage if the bill passes second reading.

The first is the reform of the summary trial system. The amendments in the bill do not adequately address the unfairness of summary trials. Currently, a conviction for a service offence in a summary trial in the Canadian Forces may result in a criminal record. Summary trials are held without the ability of the accused to consult counsel. There are no appeals and no transcripts of the trial, and the judge is the accused person's commanding officer. This causes undue harshness for certain members of the Canadian Forces who are convicted of very minor offences.

Some of these minor service offences could include, for example, insubordination, quarrels, disturbances, absence without leave, and disobeying a lawful command. These are matters that could be extremely important to military discipline but that I do not feel are worthy of a criminal record.

Bill C-15 makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine of less than $500 so that they no longer result in a criminal record. This is one of the positive aspects of the bill, but it does not, in my opinion and in the opinion of the NDP, go far enough.

At committee stage last March, NDP amendments to the previous bill, Bill C-41, were carried. They expanded this list of offences that could be considered minor and not worthy of a criminal record if the offence in question received a minor punishment.

A criminal record could make life in the military very difficult and could make life after the military very difficult. Criminal records could make getting a job, renting an apartment, and travelling difficult. Many Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a system that lacks the due process usually required in civilian criminal courts.

The second amendment we talked about was a reform of the grievance system. I know that my friend across the way will probably have a question about that. At present, the grievance committee does not provide a means of external review. I think that is important. Our amendment provides that at least 60% of the grievance committee members must never have been officers or non-commissioned members of the Canadian Forces. The amendment was passed but was not retained in the bill as it stands today.

The third amendment concerns strengthening the Military Police Complaints Commission. I do not think care has been taken to provide the Military Police Complaints Commission with the required legislative provisions that empower it to act as an oversight body.

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

Mr. Speaker, indeed, the member for Thunder Bay—Rainy River anticipated my question, because it still has not been answered, and I have put it several times today.

There are 27 categories of infraction under the summary trial system that can result in a criminal record that we agree, as a government, need no longer result in a criminal record. The minister confirmed that yesterday. We want the draft to go back to what Bill C-41 reflected in the last Parliament. We think it is timely but also urgent that this happen, given that this bill has been before the House for a year and that the recommendations, of which we have accepted 83 out of 88, have been before this country in one way or another for nine years.

Why does the member opposite insist on joining all of his colleagues in holding up the work of the committee, which really should be making sure that these reforms are enacted as quickly as possible? Instead, the member is repeating the same requests and criticisms we have already heard from dozens of his colleagues today. Why not move to action, if he really believes that the members of the Canadian armed forces deserve our respect, our support, and the very best military justice system for these times? Why do we not move on to action in committee, when we agree on the outcome we all want?

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Mr. Speaker, the committee will be looking at this.

Let me clarify that this is a step forward. This is a bill that moves in the right direction. However, the reason I stand up here and talk about these other things is that the committee will soon be doing its work on this bill after second reading. The members of the committee need to know where the official opposition stands on this bill so that there can be a good, decent discussion in committee about the amendments we think need to move forward and some conciliation and give and take. That is what Canadians expect us to do. We will continue to hammer away at these points, because we feel that they are important.

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

Mr. Speaker, I would like to read a quote from Colonel Drapeau's testimony to the committee studying the bill. This is what he had to say:

I strongly believe that 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...

I would like to know the member's thoughts on this.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Mr. Speaker, that is the crux of the matter. We believe that all Canadians should be treated fairly and equally, whether they are in the armed forces or not.

I said earlier that the Canadian Forces are held to a very high standard of discipline and that in turn, they deserve a judicial system that holds a comparable standard. A criminal record can make life very difficult for people in the military and after their time in the military. I know that the parliamentary secretary and the other people on the committee will work hard to ensure that the things we are talking about today will be incorporated into this bill. I would like nothing better than to support a revised bill at third reading.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I listened with interest as the Parliamentary Secretary to the Minister of National Defence stood up repeatedly and criticized members for standing up and representing their constituents in the House.

It is a peculiar kind of attitude coming from the other side, saying that we should be very democratic but when we actually try to stand up and talk about things important to our constituents then they accuse us of wasting the time of the House.

I wonder if the hon. member has any reflections on those interventions from the parliamentary secretary?