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

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, I would like to start with a story to illustrate the kind of men and women we are talking about here today when we talk about military justice. Often in this place we forget that these are living, breathing men and women who give a lot to their country.

When I was 14 and trying to figure out what I was going to do with my life, the cadets were very active in my town and I had Canadian Forces brochures, and for a second I thought that serving in the military might suit me, giving me structure and discipline to my life, and I could serve my country in an honourable way at the same time.

Of course, I did not take that path. I took a different path, and I am now serving my country in a different way, as many members of this House are, including the parliamentary secretary across the way, who has offered many years of service to this country in the Canadian foreign service.

I would like to underline that the men and women who give their lives to us by serving in our military are good, upstanding men and women. I have known many of them. Although I did not take that path, a lot of people I grew up with did take the military path. Sometimes they were from military families, having fathers and grandfathers who had served and whom they followed in that long lineage of service in the Canadian military.

There was another type of person who would serve in the military, the guys in the town who were maybe a bit more disadvantaged and who looked to the military to give them structure and discipline and a more honourable way to live than the path they were currently on. They saw the military as a way of improving their lives. They served Canada to improve their lot.

Basically these men and women give a lot to their country, and it is our duty as representatives in this country to take care of them and to treat them with respect and dignity. I think all of the decisions we make in this place should take that into account.

Some of these men and women have served in theatres of war. I know guys in my community who served in Bosnia and Afghanistan. We all know, and I think we should all know, that serving in the Canadian military, and certainly in places like Bosnia and Afghanistan, is a highly stressful job. It is very stressful to the men and women who serve.

I have spent time with the Royal Montreal Regiment. I visited the barracks on St. Catherine Street West in Montreal. I have spoken to these guys. I want members in this place to remember that these men and women have made a great sacrifice, and they give quite a lot.

I can think of a couple of guys in my community, Colin Robinson, who served in Bosnia, or Megal Johnson, who served in Afghanistan. They have told me about their experiences, which has allowed me to understand what it is like to serve in Canada's military.

As for Bill C-15, we are glad that the government has finally acted on this. It has been nine years since Justice Lamer's report came out, so it has been quite a while. We know that when the report came out in 2003, the Liberals sat on it for two years. I do not know exactly why they did not act more swiftly to implement some of the recommendations in the Lamer report. That is for them to answer. However, I am glad to see that the Liberal members have come around to seeing the New Democrats' position and seem to be supporting the amendments we are putting forward. We are very happy to see that.

I do not just want to negative here, as there are good things in Bill C-15. It does provide a greater flexibility in the sentencing process, which is important. We believe that is a step in the right direction, bringing military justice more in line with the civilian justice system, but the bill falls short on key issues when it comes to reforming the summary trial system, reforming the grievance system and strengthening the military complaints commission.

For the people watching who might not understand a summary trial, I would point out that in the civilian system it tends to be a trial that is set up and the process is gone through. The whole point of a summary trial is to look at where a judgment would go and to make the parties come to an agreement after the summary trial has been completed, so they can settle the trial without going through the whole process of an actual trial with sentencing.

The way the system currently works is that people come out of the summary trial system with a criminal record. In the civilian system, that is not the purpose of the summary trial system, but to try to get the parties to settle things without burdening them with a criminal record. Members who are more versed in the law that I am could maybe add to this during questioning. I would certainly welcome that. However, that is my understanding of the purpose of a summary trial.

The background to Bill C-15 is the recommendations developed by Justice Lamer to change the military justice system to bring it in line with the civilian justice system. My understanding is that Bill C-15 is the legislative response to these recommendations. There were 88 recommendations made, but only 28 of them have been implemented, so we see some 60 recommendations left that have not yet been addressed in legislation. That is part of the reason we feel that Bill C-15 does not go far enough.

On a positive note, Bill C-15 would make an exemption for a select number of offences if they carry a minor punishment, defined in the act as “a fine of $500 or less”, so that they no longer result in a criminal record. This would be a positive thing.

As I said before, these people sacrifice a lot in serving in our military. In particular, we should enable the disadvantaged people I mentioned to transition back to civilian life when they leave the military, especially after they have taken on this role and the stress of serving in Canada's military and given their years of service. A criminal record makes it very difficult for them to reintegrate into society. Given that these people are serving in theatres such as Bosnia or Afghanistan, if they return and are marginalized in society, a whole range of things can happen to these poor men and women. This ends up costing us money in terms of services that we then have to provide. Therefore, it is in our best interest to transition them in a way that they can re-adapt to Canadian society. All members would agree that a criminal record complicates that process, especially if the person gets a criminal record for things that would be considered minor and not worthy of a criminal record for civilians. I want all members of the House to consider that.

The fact that this bill does not go far enough is why we are opposing it strongly at second reading. We want to deliver a message to the government that changes have to be made, that this bill has to go further, that we would like to see the Conservatives reformulate the bill to include more of Justice Lamer's recommendations and to note that we should be promoting the re-transitioning of service members back into Canadian society. People who have committed small offences such as insubordination or drunkenness, things that would usually be forgiven of civilians, should not carry a criminal record. We should not burden our men and women in the military with a criminal record for small offences like that.

The New Democrats believe that members of the Canadian Forces are held to an extremely high standard of discipline and that they in turn deserve a judicial system that is held to a comparable standard. They should not be treated poorly through a sham process where they end up being saddled with a criminal record. As I said, a criminal record after military life makes those people's lives more difficult. It marginalizes them. Criminal records can make it very difficult to get a job and an apartment and to travel. A lot of 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 New Democrats will fight to bring more fairness to the Canadian military justice system for the men and women in uniform who put their lives on the line in the service of Canada.

People make different decisions in their lives. Some people choose the military to serve their country; some choose the foreign service, as the parliamentary secretary has; and some choose to represent the people of Canada, as everyone in the House has.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, we are obviously happy that the government has finally tabled Justice LeSage's report. This report supports a number of the NDP's concerns about Bill C-15.

I will answer the member's question more directly by saying that we have faith in Canada's military system. However, we also believe that soldiers must have ways of defending themselves other than what is available to them in the military justice system, which is a blunt instrument.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I would like to begin by thanking my colleagues for having so brilliantly stated their stance on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to another act. This bill has appeared in several forms.

First of all, bills C-7 and C-45 died on the order paper because of the 2007 prorogation of Parliament and the 2008 election. In July 2008, Bill C-60 charged back, simplifying the court martial structure and establishing a method for determining which type of court martial would be most consistent with the civilian justice system. In 2009, the Senate Standing Committee on Legal and Constitutional Affairs studied Bill C-60 and made nine recommendations to amend the National Defence Act.

Before moving on, it is very interesting to note that there is nothing new about how the Conservatives go about their business when they want to push through more complex bills. Bill C-60, which was the version studied in the Senate report, was introduced in Parliament by the Hon. Minister of National Defence on June 6, 2008, towards the end of the second session of the 39th Parliament, and passed on June 18, 2008.

Bill C-60 was intended among other things to make the National Defence Act consistent with the decision of the Court Martial Appeal Court of Canada in R. v. Trépanier. In this decision, the court acknowledged that some provisions of the National Defence Act and the Queen’s Regulations and Orders contravened section 7 and paragraph 11(d) of the Canadian Charter of Rights and Freedoms.

These provisions were declared unconstitutional. They enabled the director military prosecutions to decide, when charges were being laid, on the kind of court martial that would try the accused, and for the court martial administrator to convene the court martial in accordance with the decision of the director of military prosecutions. This court decision became effective immediately, and led to some uncertainty about the possibility of being able to continue to convene courts martial under the National Defence Act unless Bill C-60 could be passed quickly.

However, this view was dismissed at hearings of the Senate committee on the evidence of Michel Drapeau, a retired colonel, who maintained that this view was inaccurate. He said that the Court Martial Appeal Court of Canada, in R. v. Trépanier, had come up with a straightforward and useful approach to getting rid of the clause that was violating the accused’s rights.

Nevertheless, there is also a practical interim solution that could easily be implemented. For charges laid under section 130, the accused could be given the option to choose his or her trier of facts. There is no legal obstacle to this approach because section 165.14, which gives this right to the prosecution, does not apply to these offences.

We would like to clarify that there is no danger of creating a legal void during the interim period that would result in failure to apply the law for want of prosecution. Offences under section 130 of the National Defence Act can also be prosecuted in civilian courts even if they were committed outside of Canada. That is covered in section 273 of the National Defence Act.

Why did the government rush passage of this bill? Even members of the Senate committee could not help but point this out:

Given the speed with which Bill C-60 was studied in both the House of Commons and the Senate, concern was expressed that it was difficult to thoroughly assess the potential impact of this legislation. Consequently, the bill was amended by the House of Commons Standing Committee on National Defence to add a review clause.

Under false pretences, the government succeeded in pressuring opposition parliamentarians to pass this bill even though, according to the court ruling, it had many years to amend the act but did nothing. In his ruling in Trépanier, Justice Létourneau said:

The unanimous concern of this Court in Nystrom about the fairness of section 165.14 was expressed more than two years ago, i.e. on December 20, 2005. Since then, there have been five new constitutional challenges to that provision and appeals before this Court are pending. Retired Chief Justice Lamer made a recommendation as early as September 3, 2003 that section 165.14 be amended to give the accused the option to choose his or her trier of facts. As previously mentioned, he also made a recommendation that a working group reviewed the reorganization of the courts martial with a view to improving the fairness of the trial, at the center of which, as an important element of that reorganization, is the right for an accused to choose the trier of facts. Yet, Bill C-45 has been tabled before Parliament and it contains no remedial provision. The authorities have been given more than four and a half (4½) years to address the problem.

This bill contains many important reforms. The NDP has supported the much-needed overhaul of the military justice system for a long time. Members of the Canadian Forces are subject to extremely high standards of discipline and deserve a judicial system with comparable standards.

However, the NDP will oppose Bill C-15 at second reading stage. This bill has a number of flaws that we hope will be discussed in committee, if passed at second reading. The NDP does not oppose the substance of the bill. However, in its current form, the bill does not take into account all the recommendations of the Lamer report. Moreover, the Conservatives have ignored the amendments the NDP proposed to a virtually identical bill that was introduced in the previous Parliament. Those amendments were originally adopted because we had a minority government at the time. However, the amendments have again been removed from the bill.

In the previous Parliament, the Conservatives admitted that the recommendations had merit. This is no longer the case, now that they have a majority, and it makes us wonder if they are merely engaging in the lowest form of petty politics rather than putting the interests of our soldiers in civil society first.

The bottom line is that the NDP opposes the bill in its current form at this stage of the legislative process. We hope that these amendments will be made in committee.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I wish to thank my hon. colleague for her excellent speech, which clarified the NDP's position and explained the difference between the Canadian justice system and the military justice system.

Military personnel, like police officers, are authority figures in our society, as the parliamentary secretary said. Since we are talking about defending our country and our laws, these individuals need to have that authority in Canadians' eyes. That is why the NDP wants to make sure the bill is balanced.

I wonder if my colleague could elaborate on what is expected of this bill. I would also like her to try to explain why the amendments proposed during the previous Parliament were not included in Bill C-15. Lastly, I would like to know why the government seems to be ignoring the recommendations of the Lamer report.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

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

I will echo the question the hon. member just asked my colleague: what is the difference between when a civilian does not show up for work and when a member of the military does not show up for work?

The difference does not lie in the person or the action, but in the job. That is exactly why there is one justice system for civilians and another for the military. No one in the House is denying the fact that the military justice system exists because military life must have different rules than civilian life. And yet, the discipline, ethics and morals military personnel are expected to live up to should not have consequences outside the military framework. Consequently, the fact that a member of the military might have a criminal record in civilian life does not recognize the difference between civilians and the military.

It is entirely legitimate that the military wants a separate justice system that respects potentially different values. Still the fact that these consequences, that is, a criminal record, can be extended to a soldier's civilian life is not justifiable. For example, during a summary trial—a serious flaw in this bill—no lawyer is present. It is proper for any justice system to develop its own procedures. We do not contest the existence of summary trials. It is fine that military justice is different from civilian justice. But the consequences should also be different.

During a summary trial, the accused is not entitled to a lawyer and cannot consult counsel. There is no transcript of the trial. These procedures exist in a civilian trial, but not in a summary trial.

Even more important, this is not an independent trial. The person who acts as judge in the trial is usually a commanding officer who knows the accused, perhaps personally, who certainly knows the situation that led to the trial, and who knows all the circumstances. We understand that the definition of an independent tribunal is also different. During a civilian trial, the judge does not know the accused personally, and if the judge does know the accused, he or she must withdraw from the case to avoid a conflict of interest.

It is understandable that military justice will be different. Still, once again, the Conservatives ought to have respected the amendments we proposed to this bill, because that would have made it possible to respect the difference.

We do not wish to be unfair. There must be one justice system for civilians, with its own consequences and procedures, and another for the military, with its own consequences and procedures, and they will not be the same. That is clear and logical.

All members of the House should find it acceptable that a soldier, judged through different procedures, would not suffer consequences that have effects outside the military sphere. For example, a former member of the military with a criminal record will find it very hard to find work after he or she retires.

Everyone here knows that employers always ask potential employees to fill in a form that asks, "Do you have a criminal record?" Clearly, this can harm a person's chances of finding a job. For a government that wants to create jobs and help Canadians find work, this measure is rather hypocritical, since it pushes the military aside. That is just a little remark that occurred to me.

In a summary trial, the procedures are different. That is, the procedures are not like those in the House of Commons. They are rather invisible. Here in the House we often see that the procedures are strict and we must follow them. In a summary trial, on the other hand, regulations or procedures of that kind do not exist. Thus, a member of the military should not be considered a criminal after such a trial.

I will give an example. A member of the military can be found guilty of insubordination, quarrels and disturbances, misconduct, absence without leave and disobeying a lawful command. That is proper because, as I already said, military justice has its own morals and ethics. That is as it should be. However, these procedures should not create a criminal record, since they are minor convictions and not serious crimes. Moreover, only certain offences are included. I do not see why we should tell military personnel that in civilian life they will be considered criminals and have a criminal record, when that should not happen.

In my civilian life I cannot be accused of quarrelling or insubordination, except perhaps if I were in school and showed disrespect for my teacher. In such cases I would be sent to the principal's office, but I would not be found guilty of insubordination and wind up with a criminal record. We must see and understand the wall that exists and the difference between the civilian and military worlds. They must not be mixed together.

The NDP had proposed amendments that would make it possible to expand the list of offences that are exempt and could be considered minor offences. Under those amendments, a person who was found guilty would not have a criminal record. Once again, that amendment was rejected by the Conservatives.

We also proposed an amendment to expand the list of punishments that could be imposed by a tribunal without leading to a criminal record, for example, a severe reprimand. That amendment was not accepted either.

We have to admit that the criminal, military and civilian justice systems are different. No one here disputes that. We understand that the military has different ethics, morals and operating rules. But the consequences of such rules should not reach beyond the military sphere and should not have repercussions on the civilian life of a military member. We are simply asking the government to amend Bill C-15 to respect that difference.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, I have the privilege today to rise to speak to Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

I, along with my NDP colleagues, hold the utmost respect for the women and men serving our country under the Canadian flag in the Canadian uniform. It is this respect that drives the NDP to fight to bring more fairness to the Canadian military justice system for the men and women who serve in uniform and put their lives on the line for the service of our country. The NDP believes Bill C-15 is a step in the right direction to bring the military justice system more in line with the civilian justice system.

The Liberals were in power in 2003 when the Lamer report came out. They responded positively to the report, but then simply sat on it and failed to act upon the recommendations in Justice Lamer's report at that time.

Even though it is a step in the right direction, Bill C-15 falls short on key issues when it comes to reforming the summary trial and grievance systems and strengthening the Military Police Complaints Commission. For this reason, I stand today to raise my opposition to the bill and highlight some important shortcomings, which, should the bill pass second reading, I hope will be addressed in committee.

I will give a bit of background on the bill. The bill comes as a response to the report of former chief justice Antonio Lamer of the Supreme Court presented on the independent review of the National Defence Act in 2003. The report included 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the provost marshal. Thus far, however, only 28 of those recommendations have been implemented.

We have seen Bill C-15 before in various forms, first Bills C-7 and C-45, which died on the order paper due to prorogation in 2007 and the election in 2008. Then, in 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and a report by the Senate Standing Committee on Legal and Constitutional Affairs. It outlined provisions related to military justice, such as sentencing reform, military judges and committees, summary trials, court martial panels, the provost marshal unlimited provisions related to the grievance and military police complaints process.

Bill C-15 is quite similar to the version of Bill C-41 that came out of committee in the previous Parliament. However, sadly, regrettably, disappointingly, whatever adverb we want to use, what is important is that the amendments that were passed at committee stage at the end of the last Parliament are not included in the current version, Bill C-15. Important and necessary amendments that would alleviate some women and men of our armed forces of undue hardship in their lives after the military are excluded in this version.

These include the following NDP amendments concerning: the authority of the Chief of the Defence Staff in the grievance process, amended clause 6 in Bill C-41, responding directly to Justice Lamer's recommendation; changes to the composition of the grievance committee to include a 60% civilian membership, amended clause 11 in Bill C-41; and a provision ensuring that a person who is convicted of an offence during a summary trial is not unfairly subjected to a criminal record, amended clause 75 in Bill C-41. The NDP's position is that it supports the long overdue update to the military justice system.

While there are important reforms in this bill, it, however, does not go far enough and falls short on key issues. Members of the Canadian Forces are held to an extremely high standard of discipline and they, in return, deserve a judicial system that is held to a comparable standard. Should Bill C-15 pass second reading, I would hope to see the shortfalls fixed.

First, the amendments in Bill C-15 do not adequately address the unfairness of summary trials. I, for one, think that a lot of Canadians would be shocked to learn that the people who have bravely served our country can actually get a criminal record from a system that lacks the due process we see in civilian criminal courts. Currently, conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. While matters including subordination, disturbances and absences without leave may be extremely important to military discipline, they are certainly not worthy of a criminal offence.

Moreover, 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 actually the accused person's commanding officer. This causes an undue hardship on certain members of the Canadian Forces who are convicted for very minor service offences.

Bill C-15 does make an exemption for a select number of offences, if they carry a minor punishment, so they no longer result in a criminal record. While once again, a positive step, in our opinion it does not go far enough.

At committee stage last March, the NDP amendments to Bill C-41 were carried to address this issue by expanding the list of offences from 5 to 27 that could be considered minor and not worthy of a criminal record if the offence in question received a minor punishment. The amendment also extended the list of punishments that might be imposed by a tribunal without an offender incurring a criminal record. This was a major step forward for summary trials. However, this amendment was not retained by the Conservative government in Bill C-15. We believe it needs to be included.

A criminal record can make life after the military very difficult. Criminal records can make getting a job, renting an apartment and travelling very difficult. Britain, Australia, New Zealand and Ireland have all seen fit to change the summary trial process. Why is Canada lagging behind?

It is curious why the minister is not accepting the fact that the summary trial system is tainted with undue harshness, sentences that result in criminal records for minor offences, and ignoring the need for greater reform.

Another shortcoming in the bill is that the grievance committee would not provide a means of external review as it is staffed entirely by retired CF officers. If the CF Grievance Board is to be perceived as an external and independent oversight civilian body, as it was designed to be, then some members of the board should actually be drawn from civil society.

The NDP amendment provided that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. This amendment was passed in March 2011 in Bill C-41, but it also was not been retained in this version of Bill C-15. We believe it is important to see this amendment re-included in the bill.

Another major flaw in Bill C-15 is the military grievance system. The Chief of the Defence Staff lacks the authority to resolve financial aspects arising from a grievance, contrary to a recommendation in the Lamer report. Despite the fact that the Minister of National Defence at the time agreed to this recommendation, there has been no concrete steps over the past eight years to implement this recommendation.

The NDP proposed an amendment to this effect at the committee stage on Bill C-41. Although it had passed in March 2011, this amendment, once again, was not retained by the government in Bill C-15. We will fight to have it included yet once again.

Bill C-15 would amend 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 a step forward, the NDP believes more needs to be done to empower the commission.

The Military Police Complaints Commission needs the legislation to strengthen its ability to act as an oversight body. It must be empowered by a legislative provision that would allow it to rightfully investigate and report to Parliament. These amendments would bring more fairness to the Canadian military justice system.

Justice and fairness for the women and men in our uniform is essential. However, Bill C-15 just does not cut it. Our Canadian military justice system needs more fairness and the NDP will continue to stand and fight for it.

I would like to reaffirm my commitment and the New Democratic Party's commitment to work for justice and fairness.

Today, December 6, marks the National Day of Remembrance and Action on Violence Against Women. Today, we reflect on the loss of 14 young women who were killed on this day just because they were women. Sadly, the violence against women still continues. The end of violence against women is everybody's responsibility. Today, we remember and reflect and then speak out and pledge to turn this remembrance into action to end violence committed against women and girls in our communities, our country and around the world.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I truly appreciate this opportunity to speak to Bill C-15.

In October 2011, the Minister of National Defence introduced the bill, which amends the National Defence Act in order to strengthen military justice. This, of course, follows the 2003 report from former chief justice the Right Hon. Antonio Lamer and the report of the Standing Committee on Legal and Constitutional Affairs.

As members will know, Bill C-15 had earlier incarnations. We have spoken briefly of Bill C-7, which died on the order paper due to prorogation. Members will remember the prorogation, when the government saw fit to escape the House because there were certain allegations in regard to the appropriate behaviour of the government. Again, we saw Bill C-45, another earlier incarnation, disappear during the election of 2008.

In 2010, Bill C-41 was introduced, again in response to Justice Lamer's 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 and military police complaints process, which of course brings us to Bill C-15.

I believe it is important for me to speak to the bill, because justice is more than just a system of laws and regulations. It is also a fundamental value for me, for my NDP colleagues and certainly for the military and Canadians across this land.

The bill is a step in the right direction. We have heard that a number of times, but it does not address the key issues related to reforming the summary trial system, the grievance system and for strengthening the Military Police Complaints Commission. These are key objectives that cannot be ignored.

While the bill's primary objective is laudable, it does not satisfy our objectives. Much needs to be done to bring the military justice system more in line with the civilian justice system. We on this side of the House want a comprehensive bill that adequately addresses the problem. No justice system is perfect. We have seen that over the years. However, that should not stop us from trying to improve our system as much as possible. Key elements have been left out of Bill C-15: reforming the summary trial system, reforming the grievance system and strengthening the Military Police Complaints Commission.

In fact, the NDP included these three elements in amendments to the previous version of Bill C-15, which of course was Bill C-41. Oddly, and I do say oddly, these amendments are now absent. It is a strange coincidence.

As I said, the NDP is not opposed to the spirit of the bill. What we want is to work with the government to get it right, in order to ensure that the bill is relevant and that its scope is broad enough. I am at a loss to understand why the government did not include the three elements I referred to in Bill C-15. They are important for consistent military justice reform.

Let us look specifically at the grievance system. We will start with that one. We must understand it in order to appreciate the importance of the improvements proposed by the NDP. I would like to quote the directive on military grievances, which can be found on the Department of National Defence's website. It indicates that:

The DND and the [Canadian Forces] shall manage all grievances through the Canadian Forces Grievance System...and ensure that: all grievances are processed as efficiently and expeditiously as possible; a CF member is not penalized for submitting a grievance; and assistance is made available to a CF member in the preparation of a grievance.

The last point is very important. The Canadian Forces has the responsibility to help its members because they do not have a union-type association to defend them. This lack of counterbalance is another reason why it is important to ensure that we have an effective and impartial system.

The NDP proposed two improvements. First, we proposed that at least 60% of grievance board members be civilians who have never been officers or members of the Canadian Forces; and second, that the Chief of Defence Staff be given more authority to resolve the financial aspect of grievances.

The first improvement, namely that the grievance board strike a balance between military and civilian membership, is important to ensure that this process be perceived as external and independent. When it comes to the military, it is critical that everyone in the country is able to see that the system as independent and fair. Members of the military have a great deal of experience in managing such situations, so it is rather important that they be truly involved in the process. However, the presence of civilians is also essential to dispel any idea that members of the military are subject to a different kind of justice than ordinary Canadians.

It is also essential that Canadian Forces Grievance Board be effective and absolutely beyond reproach. The NDP believes that a significant civilian presence on the board would help maintain this perception. When we look at how to strengthen the Military Police Complaints Commission, the merit of this idea and our position is quite obvious. Police officers, as an example, are agents of social control and play a key role in our society based on the rule of law. They are effective not only because they have the equipment, the manpower and the authority, but also because they are perceived as legitimate by the public.

The military police is no exception. For a police force to operate properly, whether it be military or civilian, it must have the approval of those under its authority. A police force gains legitimacy through its perceived integrity. This perception is built on the actions of the police force and the perception of fairness and justice in its operations.

There is no better way to prove the integrity of a police force than by having a strong monitoring body. A Military Police Complaints Commission that is legitimate and reports to Parliament is the best way to ensure fairness in the actions of military police and, just as importantly, the perception of fairness and justice by Canadians.

We on this side of the House also recommended that the Chief of Defence Staff have more authority to resolve financial aspects related to grievances. This is a simple requirement to ensure that the grievance system is consistent. If the Chief of Defence Staff does not have the ability to resolve financial aspects, it calls into question the relevance of the grievance process.

I would point out that Canada is not the only country reviewing its military justice system. Australia, the United Kingdom, New Zealand and Ireland have recently done the same. We are in an excellent position to pass comprehensive and effective legislation while taking into account what has been done in other countries. Unfortunately, that is not the case with the bill as it stands. As I have already said, the NDP proposed amendments to the bill in its previous form, but those amendments are no longer part of the current bill. We would like to see these important and constructive changes incorporated.

We think that our Canadian Forces personnel deserve that. They put themselves on the line each and every day. They have been a source of great pride to this country in their behaviour and conduct in arenas around the world. We owe them a sense of security regarding the justice that is meted out within the military.

I would sincerely ask the government to reconsider the recommendations the NDP has made because we want to strengthen the bill. We want it to be fair and balanced. We want it to work.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I would like to thank the hon. member for Ajax—Pickering for pronouncing the name of my riding correctly, which rarely happens in the House.

Regarding the member's first intervention, I hope he does not want to take away the right of duly elected members on both sides of the House to speak, as is their right at second reading and as we are doing right now. Since the government has a majority, the member knows very well that the bill will go to committee and will be examined in committee.

Our point here is simply that we need to focus on the fact that the committee adopted some of the amendments proposed by the NDP—three, to be specific—yet those amendments did not survive Bill C-45. They were not included in the bill currently before us, Bill C-15. We really want to emphasize that point. We want the government to understand the importance of those issues.

With regard to summary trials, I would remind the hon. member that we heard testimony from retired Colonel Drapeau. We found his testimony to be very powerful. I would remind the House that in 2008-09, some 1,865 cases were dealt with by summary trial, and only 67 cases were tried through court martial. We think this is an extremely important issue. I hope the government will eventually take the NDP's arguments into account and consider our amendments.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, clearly, we are eventually going to vote at second reading. The bill is very important to the members of the official opposition, the NDP, here in the House. Many of them have expressed their desire to talk about their disappointment with regard to the fact that the amendments adopted by the committee were not included in the bill. That is why we will oppose the bill when we vote on it at second reading.

I would like to point out that, if this bill were important to the government, then it would have been discussed in the House a long time ago. I would like to remind hon. members that right now we are talking about Bill C-15, and we just voted on Bill C-45. It therefore seems that certain issues are more important to the government than others. Unfortunately, this bill does not seem to be one of the government's priorities, since the government waited so long to bring it forward for us to discuss.

Eventually, we will vote on this bill, but I would not want to see the official opposition deprived of their opportunity to speak about it at second reading, because that is their right.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I had the privilege of serving in the Canadian Forces. I was posted to Lancaster Park, just north of Edmonton. The military jail was out there. Periodically we would get into discussions about military justice. There are different needs for one who is in the service that sometimes go a bit beyond the needs of a civilian, if I may put it that way.

I had the opportunity to speak to Bill C-15 previously. From the Liberal Party of Canada's perspective there is always room for improvement. We see the merit in trying to improve the legislation. We would also like to see the bill ultimately get through the system.

Could my colleague tell me if the NDP is going to accommodate the passage of the legislation this year, so that it could go to committee where we could hear from some of the stakeholders? Maybe he could shed a bit of light on that point.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I would appreciate it if you could let me know when I have one minute left.

I am pleased to rise in this House to speak to Bill C-15. We have to make sure, first and foremost, that the men and women who work to defend us are able to represent us in the armed forces and have the tools to avoid putting their lives at risk unnecessarily. We also have a responsibility to provide them with an operational framework that is appropriate and fair.

And that is what Bill C-15 on the military justice system, which is now before us, claims to do. This bill originates in the responsibility of the Minister of National Defence to arrange for an independent review of the amendments to the National Defence Act every five years. That requirement is set out in clause 96 of Bill C-25 which was assented to in 1998.

In 2003, Justice Antonio Lamer was instructed to examine the provisions and application of Bill C-25. He concluded that “Canada's military justice system generally works very well, subject to a few changes”. Justice Lamer proposed those few changes in the form of 88 recommendations, some of which were addressed in Bill C-7, which became Bill C-45, and then C-60.

After Bill C-60 was passed and assented to, it too was the subject of a review, this time by the Standing Senate Committee on Legal and Constitutional Affairs of the House of Commons. That report was released in 2009 and is entitled “Equal Justice: Reforming Canada’s System of Courts Martial”. Bill C-41, which is now Bill C-15, was to act upon the nine recommendations in that report, which addressed both the Lamer report and Bill C-60.

The justification for having a separate justice system for the armed forces has been repeatedly demonstrated, and in 1992 the Supreme Court of Canada did so very eloquently in R. v. Généreux. One piece of tangible evidence of the importance of having a system that is specific to the military, as Justice Lamer himself admitted, is the fact that certain offences in the Code of Service Discipline do not have the same importance in the civilian justice system, and sometimes there is no equivalent for those offences: for example, disobeying an order of a superior officer.

The Minister of National Defence referred in committee to the old adage that our justice system is a living tree, meaning that the military justice system has to evolve. The Senate committee summarized that very well when it said that “the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general”.

However, we must be careful not to fall into the other extreme, and make sure that, notwithstanding this overriding disciplinary aspect, people who work in the armed forces do not lose their rights that are guaranteed by the Canadian Charter of Rights and Freedoms.

The Senate committee also stated that “with the exception of section 11(f) of the Charter, the rights enumerated in the Charter do not distinguish between proceedings under the military and civilian justice systems”.

As well, the Supreme Court of Canada has held that this separate justice system does not violate the individual’s rights since it is still able to guarantee the individual “the right to equality before the law and to be tried by an independent and impartial tribunal”. It is therefore essential to ensure that the actors in the military system are effective, independent and impartial.

Let us now come back to the crux of this bill, which, I must say, has become weaker with every version. Although, according to a Supreme Court justice, Bill C-45 did not resolve the problem it was created to address, Bill C-15, which we are currently discussing, does not take into account all the work done in committee during the examination of the previous version of the bill, Bill C-41.

In fact, some amendments that were adopted in the past were not included in this new version of the bill. Yet, these amendments changed practices that did not fit with the desired evolution of the military justice framework.

I hope I have enough time left to talk about the three main amendments proposed by the NDP, which were adopted in the past but excluded from Bill C-15.

The first is the reform of the summary trial system, so that a conviction at a summary trial in the Canadian Forces no longer automatically results in a criminal record. During hearings before the Senate committee, many witnesses expressed their disagreement with this practice. There is even more cause for concern given that most offences are dealt with in this manner.

Michel Drapeau, one of the witnesses, 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....

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.

In committee last March, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased from five to 27. The amendment also adds to the list of penalties a tribunal may impose without them being entered on the record, for example, a severe reprimand, a reprimand, a fine equal to one month's salary and other minor sentences. That was significant progress in terms of summary trials, but since that amendment was not included in Bill C-15, we want it to be included now.

The second amendment concerns the military grievances external review committee. Currently, the grievance board does not allow reviews by people outside of the military system. It is made up of retired members of the Canadian Forces. We would like the committee to be perceived as an independent, external civilian body. There is a problem with the makeup of the committee and the appointment process if the armed forces want to maintain that reputation. Committee membership should therefore include individuals from civilian society.

The NDP's amendment suggested that at least 60% of the members of the grievance committee should never have been a Canadian Forces member or officer. This amendment was agreed to in March 2011 for Bill C-41, but it was not included in Bill C-15. It must be put back in the bill.

One major flaw in the current military grievance system is the fact that the Chief of Defence Staff can resolve certain financial matters arising from grievances. That goes against a recommendation in the Lamer report. Despite the fact that the Minister of National Defence supported the recommendation, the government has failed to act on it for the past eight years. The NDP proposed an amendment to do with this at committee stage of Bill C-41. Even though it was agreed to in March 2011, it was not included in Bill C-15, and the NDP will fight to put it back in the bill.

The third amendment that I would like to talk about would strengthen the Military Police Complaints Commission. Bill C-15 amends the National Defence Act to establish the time required for the Canadian Forces Provost Marshal to resolve complaints and protect complainants from being penalized for having filed a complaint in good faith.

Giving the Military Police Complaints Commission more power, effectively turning it into a watchdog, was virtually ignored. There should be a legislative provision to give the commission more power so that it can be authorized to investigate and report to Parliament.

In conclusion, the fact that the Conservatives deliberately botched the bill and removed some of the key elements that resulted from the hard work done by the members of the House of Commons committee and all parliamentarians in this House is further proof of this government's lack of respect and consideration for the parliamentary process.

Why did the Conservatives not keep the amendments proposed by the NDP and adopted at committee stage last spring, when Bill C-41 was studied, after long hours of debate that seemed to have moved the bill in the right direction?

By not including these amendments in Bill C-15, the Conservatives are undermining the important work done by all members of the Standing Committee on National Defence and also the recommendations made by Canadian Forces representatives during the last session of Parliament. The Parliamentary Secretary to the Minister of National Defence rose in the House to give the first speech at second reading. He said:

...the government, the Supreme Court of Canada and even the Constitution recognized the importance of maintaining a robust military justice system.

This government also recognizes, as did Chief Justice Lamer in his 2003 report, that there is room for improvement.

If the parliamentary secretary really meant what he said, why did he ignore all the improvements made by this Parliament in committee? Although truly unfortunate, that is the Conservative government's approach. Not only has it dropped the amendments agreed to in committee, but it has ignored a number of recommendations, picked the ones it wants and rejected the rest.

The official opposition will oppose the bill at second reading, knowing that the bill will be referred to committee. And we truly hope that the amendments agreed to when the committee studied the issue will be included in order to make this a more balanced bill.

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

Mr. Speaker, in her speech on this bill, the hon. member linked it to a number of initiatives this government has been taking and that all Canadians want us to take to improve the justice system in many areas. These include improving protection for victims, preventing them from becoming victims in the first place, which is at the core of our justice agenda, and above all dealing with the very urgent problem of violence against women, which we are thinking deeply about this week because of today's anniversary and the scale of the challenge it presents, which we know is still too great in this country.

However, Bill C-15 is about improving the justice system for military members of the Canadian Forces to ensure that the punishments handed down at summary trials and courts martial are appropriate to the gravity and type of offence, and to make the sentences broadly comparable to those existing in the civil system.

Does the member opposite agree that these are important measures that should be implemented? Does she also agree that it is time to move this bill to committee where witnesses can be called and these measures and others can be debated at length, so that we can implement these modernizing proposals for the military justice system, which have, to be very frank, been before this House in successive Parliaments for far too long?

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I am very pleased to rise on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

I do want to take just a moment to acknowledge that today, being December 6, is our National Day of Remembrance and Action on Violence Against Women. It is a day etched in Canadian history because of the shooting deaths of 14 women in 1989 in Montreal. They were shot by a man who deliberately targeted them on that day, on a busy Montreal campus.

It is a day when we remember those women, but we also recommit to taking action to end violence against women and girls in Canada. It is a very important day for us today.

I also want to deal with the bill at hand. As my colleague, the previous speaker, just reported, we acknowledge that this bill does take some steps forward, but it falls far short of where it needs to go. It is a bill that amends the National Defence Act to strengthen military justice. It is something that has been a long time coming. We remember the 2003 report of the Chief Justice of the Supreme Court, the Right Hon. Antonio Lamer, and his recommendations.

Basically what we are dealing with is the right to basic fairness, for those who serve in our military, when it comes to their rights in a judicial system within the military. Certainly on this side of the House, in the NDP, we believe in bringing more fairness to the Canadian military justice system, for men and women who put on a uniform and therefore put their lives at risk for the people of Canada. We believe they need to be treated fairly.

I trust a lot of Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a justice system that lacks the basic due process that is required in Canadian civilian criminal courts. That is what we are dealing with here today.

We believe that the Canadian Forces are held to an extremely high standard of discipline. That is as it should be, but they in turn deserve a judicial system that is held to a comparable standard.

I will talk for a moment about the ease with which military personnel can get a criminal record, which makes life very difficult for them after their military service. It can affect everything from getting a job to renting an apartment to making travel very difficult. We recognize the serious challenges this can provide.

While we recognize that Bill C-15 does provide greater flexibility in sentencing, greater sentencing options, and this is a positive step in the right direction, this bill falls far short in reforming the summary trial system, in reforming the grievance system and in strengthening the Military Police Complaints Commission.

I want to say that an earlier version of this bill, in the last Parliament, had similar problems, but the government at the time was willing to accept a number of amendments from the NDP. The government adopted those amendments and the committee recommended the amended bill. It strengthened the bill and made it acceptable.

Yet, when the government brought in this bill in this new Parliament, it is back to the old provisions. The government has abandoned addressing many of the recommendations pertaining to military justice that the Lamer report proposed, and it has not included in this bill many of the substantive amendments that New Democrats had proposed.

I want to just go over these briefly for those who are not familiar with this system.

First, I will address the summary trial system, where the vast majority of charges that come forward are dealt with. It is meant to deal less formally with problems, and it deals usually with minor offences. That includes such offences as insubordination, absence without leave, quarrels, frictions that happen in daily life. These are matters that can be important to military discipline, so we understand that it is important they be dealt with, but through the current system they can result in a criminal record. Through this complaints procedure, military personnel are held without the ability to consult with counsel, there are no appeals or transcripts and often the person who is the “judge” is the person's commanding officer. So personnel can be found guilty of some very minor offence and that can result in a criminal record, which can follow them in post-military life. The government was willing to accept an amendment on this in March 2011, and now it has seemingly abandoned that openness.

Next, I will talk about the grievance system. At present, the grievance committee does not provide a means of external review. It is usually staffed by retired Canadian Forces officers. It is our belief that members of this board should be drawn from civil society and not exclusively be military personnel. Our proposal is that 60% of the members of this grievance system be people who are not and have never been non-commissioned members of the Canadian Forces. Again, the government did accept this in the former Bill C-41 and now is refusing to do that. In terms of resolutions of complaints, another problem we have with the grievance process is that the Chief of the Defence Staff lacks the ability and authority to resolve any financial settlements or aspects arising and resulting from a grievance. We believe this is also a problem. It was a recommendation of the Lamer report to include this. We did have an amendment accepted earlier and we would like to see that back in here. We will fight to have this included again.

The last point is on strengthening the Military Police Complaints Commission. Bill C-15 would amend 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. This would be a step forward, but we think more needs to be done to empower the commission. This commission is not provided with the necessary powers to act as an oversight body. The Military Police Complaints Commission must be empowered by a legislative provision that would allow it to rightfully investigate and report to Parliament.

The concerns we are raising have been raised by civil liberties organizations and by members and retired members of the armed forces, and I could cite at length from their statements about this bill. However, we believe there are serious concerns that should be addressed, and we will work to defend the rights of our armed forces to a fair judicial system.

The House resumed from October 23 consideration of the motion that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee, and of the motion that the question be now put.

Justice and Human Rights

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I must say that I have to agree with my colleague, the Parliamentary Secretary to the Minister of National Defence. What we are seeing here this morning is a continuation of a one-man filibuster from the member for St. John's East. He does not want to continue debate on Bill C-15, strengthening military justice in the defence of Canada act and does want to send it to committee. I do not know why. It is beyond the grasp of most of us in this House.

Therefore, regrettably, I must move, seconded by the member for Kitchener—Conestoga:

That the debate be now adjourned.