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.

Justice and Human Rights

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

Mr. Speaker, none of us on this side of the House would dispute the vital importance of tackling the issue of organized crime, especially when it brings higher murder rates to cities like Winnipeg, which the member for St. John's East just mentioned, and Halifax and Edmonton. We all regret that those rates are higher than elsewhere in Canada and higher than they should be.

The member and I worked together on the national defence committee. He well knows there are almost 100,000 regular force members and reserve members who are waiting for their justice system to be updated and brought into the 21st century on the basis of recommendations made by former chief justice Antonio Lamer.

We were scheduled to discuss Bill C-15 in this House this morning. We, on this side, hope to get back to that debate.

Will the hon. member not agree with me that, in light of the importance of our justice system and the importance of keeping it modern, after 18 months of waiting for that bill to get to committee, now is the time to get it there where it can be amended?

We have discussed and agreed on some amendments that can be made but those amendments are best made in committee. It would be expeditious, wise and in the spirit of the points he has just made for the bill to be sent to committee at the earliest possible date, preferably today.

[Alain Gauthier]

That would be totally outside of my realm. One of the things we don't do is necessarily look at the discipline piece of the military. Most of the issues the office looks at are the administrative pieces—finance, posting, harassment pieces, all this stuff. As soon as it becomes disciplinary and in court, it's outside of our mandate and outside of our box. We deal with very few, if any, of those cases. I have no visibility on that specific clause and Bill C-15 for that effect.

[Wai Young, Conservative, Vancouver South, BC]

I'm talking about clause 50 and the amendment that it includes of Bill C-15. It's amending the military court to better align or be more in line with the civil courts. I'm just asking you how this is being integrated or changed within the system as you know it.

[Wai Young, Conservative, Vancouver South, BC]

Thank you so much for coming in and for providing us with so much more detail on the differences.

One of the things I wanted to ask you about was Bill C-15. It appears that we're trying to better align the criminal court with the civil court. Therefore, can you explain that to us a bit more? What are the objectives and how are they being implemented through your system?

[Alain Gauthier]

Without a doubt, the fear is there. The fear is there when we receive the call. I'd say at least one-third of the people want to remain anonymous. They just want the information. They want to understand their ability to move forward, but we know that because of fear, they're not doing it.

You talk about Bill C-15. I'm not sure if there's a way to make the case that people have the right to complain without fear of reprisal. I think that would be a huge step.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will first wish my former Liberal counterpart, the hon. member for Westmount—Ville-Marie, well on his newest mission.

Yesterday was probably an auspicious day for the former astronaut to launch a Liberal leadership campaign. A member of my staff has told me that November 28 was Red Planet Day. While the member's ideas and proposals will no doubt be well suited for the red party, it is yet to be determined whether they will actually be better suited for Mars or for Earth. We will wait and see.

The hon. member for Papineau might want to be aware of the House leader bump. My first NDP counterpart after the election now resides in Stornoway. Meanwhile, I want to welcome and congratulate the new Liberal House leader, the hon. member for Beauséjour. I look forward to continuing the very positive relationship that I enjoyed working together with his predecessor. I genuinely and sincerely wish his predecessor the best of luck.

I am sure that the new House leader will be keen to hear that we will resume the report stage debate on Bill C-45, the jobs and growth act, 2012, this afternoon.

After almost 4,600 votes in the House and committee on our 2012 economic action plan, I am pleased to say that we are in the home stretch of implementing our budget for this year.

Canadians will soon see important measures such the hiring credit for small business extended, greater tax relief for investing in clean energy, and strengthened registered disability savings plan rules.

To the great chagrin of the New Democrats no doubt, Canadians will still not see within that budget a $21.5 billion job killing carbon tax or the $6 billion GST tax grab that I know they wish to see implemented. It does not matter how many hundreds of amendments they put forward, we simply will not accede to their tax and spend initiatives.

The House will consider Bill C-45 on Monday, Tuesday and Wednesday next week.

We will resume second reading debate on Bill S-9, the Nuclear Terrorism Act, tomorrow. We will get back to second reading of Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, if we have time.

On Thursday and Friday next week, we will work through a number of bills before the House, including: Bill C-43, the Faster Removal of Foreign Criminals Act, which was reported back from committee this morning; Bill C-37, the Increasing Offenders' Accountability for Victims Act; Bill S-7, the Combating Terrorism Act, should it be reported back from committee; and the other bills I have mentioned, if we have not had a chance to wrap up those debates.

Finally, for the benefit of the House and particularly committees meeting on the supplementary estimates, I am planning for the last supply day of this fall to be on Monday, December 10. I expect that I will get back to the House next week at some point to designate that date formally.

[Judy Sgro, Liberal, York West, ON]

It sounds like all of the policies and everything are put in place; it's just that this is human behaviour, and we always have to accept that we are humans. You can put down all the rules—we've been hearing about all kinds of great policies and rules and regulations—but it is human behaviour that is there, without question.

I think a change in the culture, which is what I think we're talking about in the RCMP, is about leadership in so many different areas of establishing what is acceptable and what isn't. I'm pleased to know that you're working on trying to ensure that happens, always recognizing that we are human and that none of us is perfect, any more than any of your men and women who work in your service are.

I had some questions for the ombudsman last week, but we left him, and now he isn't here this week. If I could, I'll ask you. My understanding is he had some recommendations that he felt would strengthen Bill C-15. Is anyone aware of what some of those recommendations might be that would strengthen Bill C-15?

Strengthening Military Justice in the Defence of Canada Act

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I was quite happy a while ago to see a Conservative member finally get up and ask a question on the bill. The Conservative member wants to get the bill to committee.

My question for my colleague from Ottawa Centre is: Considering the fact that the House has passed dozens of bills, maybe hundreds, since the government became a majority and we have been able to make amendments to one bill, maybe two, can the hon. member tell me what the chances are of our making good amendments to Bill C-15, or are we not going to be able to do that?

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, first, I would like to welcome the Minister of National Defence to the debate today. It is good to see him in the House.

If he is familiar with the history of the bill, then he will know that its previous versions did not go forward because of prorogation. Now who was responsible for that?

We acted in good faith on this bill in terms of amendments that were put forward at committee under Bill C-41, so I have a question for the Minister of National Defence. We have been trying to find out all day why the government dropped the key amendments that were agreed to in committee. Why are they now not in Bill C-15?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in principle, Bill C-15 attempts to narrow the gap, as I referred to earlier, between civil court and military court. The principle of what it attempts to do is something which we in the Liberal Party do support and ultimately would like to see passed to committee.

We have a number of concerns. We, too, would like to see amendments. I am somewhat surprised that the New Democrats have decided not to allow it to go to committee. If the choice were theirs, they would defeat the bill.

To what degree does the member support the principle of what the bill tries to accomplish? Even if it does not receive amendments, would the New Democrats support it in a third reading, for example? At the very least, would the member not acknowledge that it is best to see the bill go to committee where she might get her amendments through? Could the member just focus in on the principle of the bill itself?

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am happy to rise on the bill after asking so many questions.

First, as I am following the member for Scarborough Southwest, I would like to congratulate him on his engagement. I met his lovely fiancé and it is wonderful to know that they will be married soon.

I would like to begin my remarks by saying that over quite a few years in this House I have debated many bills. However, it is very unusual and rare to hold a debate in which there is basically one party participating. There is something going on here that we will have to get to the bottom of.

I appreciate that so many members of the NDP caucus, the official opposition, have taken the time today to get up in their place and debate this very important bill. They have given some substance and historical background on where this bill came from and what the problems are with the bill today.

In fact, I remember you, Mr. Speaker, debating the bill in the last Parliament. It was Bill C-41 then, a forerunner of this bill and very similar in its provisions. I have to say that we certainly miss you in the House debating bills, but we are very happy to see you in the chair as Deputy Speaker.

Bill C-15 has a long history and it is about a very important matter that is long overdue for reform, that being our system of military justice. As the member for Scarborough Southwest just pointed out, there are other countries that have dealt with this issue in a proper and adequate way, yet we are lagging far behind.

The original report by the Right Hon. Antonio Lamer, the former Chief Justice of the Supreme Court, was presented in 2003. That is quite a few years ago and it worries me that it has taken this length of time to bring forward a bill, which will presumably go to committee. We hope that it will come back from committee in a form that includes the amendments the NDP proposed so long ago.

Military justice is a very important issue, particularly the principle that members of the Canadian Forces have access to a system that is fair, balanced and that protects their rights. In fact, after reading through the bill to see what it would and would not do, there are a lot of fundamental questions about why the members of the Canadian Forces have been living under a system where their rights have basically been disregarded for so long.

Even though we support many elements of the bill and think it is a step in the right direction, there are three key issues that we have been hammering away at today because they are not in the bill. The bill does not go far enough on the need to reform the summary trial system and the grievance system and to strengthen the Military Police Complaints Commission. I would like to focus on these three elements.

Regarding the summary trial system, what immediately jumps out at one when reading the bill is that it does not adequately address the unfairness of it. As noted by my colleagues, members of the armed forces can be drawn into some of these summary trials, as we are told, on issues that are meant to be of a minor nature. However, the fact is that they can end up with a criminal record.

They have no right to consult counsel, there are no appeals or transcripts of the so-called trial, and the judge is the accused person's commanding officer. This has to be the most fundamental injustice. It is very disturbing that it has continued for so long.

Dealing with the issue of the summary trial system and bringing in reforms is something that I think is imperative for members of the armed forces and for anyone in this country who has a notion of the justice, balance and fairness that need to be afforded to people.

We are very concerned that the bill does not address this fundamental question. Some of the so-called minor service offences could include things like insubordination, quarrels, disturbances, absent without leave, drunkenness and disobeying a lawful command. In a civil system, people could be charged with those things and if they actually went to court, they would have a lawyer, a hearing, a judge and may even have a jury. However, in this system, the summary trial system, none of those things would happen, but people could end up with a criminal offence. This is a serious problem that we face in the bill. We want to see it corrected.

As many of my colleagues have pointed out, when the bill came forward in its last form, Bill C-41, the NDP worked very hard to get the bill changed. In fact, when it was at committee last March, we wanted to expand the list of offences that could be considered as not worthy of a criminal record from 5 to 22.

We worked very hard at the committee. I was not on the committee, but I am sure there were witnesses who were heard. We know there were a number of major witnesses and organizations that sent in information, like the BC Civil Liberties Association, which put forward the concerns and fundamental flaws with the bill.

Therefore, we brought forward those amendments and they were approved at the committee. That is an example of committee work that was doing something. It was constructive. Amendments were proposed that would improve the bill, which is what is meant to be done at the committee level.

Lo and behold, we come back to the House, a new bill comes forward, Bill C-15, and those amendments are not present in the bill. That is a serious problem.

As a matter of principle, we are opposing this bill at second reading. I guess it is a form of protest to say that the process here has been seriously undermined and that the government should have acted in a responsible way, looked at the constructive work that was done on earlier versions of the bill and ensured that it came back in a way that reflected the will of the House.

It is very unfortunate that none of the members on the government side have been willing to answer that question today. We have raised it repeatedly in the House. It is a very straightforward question. We have asked each other those questions, because the government members will not answer. We have asked why the Conservative members and the Conservative government did not include those amendments.

We do not know for sure. We can only suppose that it is some level of unilateralism, some level of arrogance that the government thinks it can ditch that and does not need to pay attention to it. If that is not the case, we sure wish the government members would get up and explain why these amendments are not in Bill C-15.

The second key item that we wish to raise is the reform of the grievance review committee. Again, this is a very fundamental process system that has to do with military justice. In this instance, we had amendments and things we had worked on to strengthen the bill. It is really a very straightforward principle.

It is the idea that there needs to be some sort of external, independent component. In fact, the NDP amendment that had been put forward in committee previously had specified that at least 60% of the grievance committee could not be an officer or non-commissioned member of the Canadian Forces. Again, this amendment was passed under Bill C-41, but is not been retained in Bill C-15. Having some independence, some broader scope on a grievance review committee seems, to us, to be a pretty important thing. It begs the question why it is not there.

Finally, our third concern is about strengthening the Military Police Complaints Commission. We believe, and again there was an amendment to this effect, that it should be seen as an oversight body. There has to be somebody who looks at the system overall and has some independence and must be empowered to actually investigate and report back to Parliament. On that too, it is silent. It is absent.

For those three reasons, we are not supporting this bill at this time.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, before I begin, I, too, would like to congratulate the member for Scarborough Southwest for his commitment. I listened intently to his speech, as I did the speeches of all my NDP colleagues, which stand in stark contrast to the hollow speeches emanating from the other side.

Let me reassure my colleague: I think it is a relatively new practice in the House to speak without saying a single word. That is not why we were elected, however, and the NDP intends to do its job.

I see that we have dealt with many different iterations of Bill C-15, namely Bill C-7, Bill C-45, Bill C-60 and Bill C-41.

I know that in the last session of Parliament, the NDP brought forward several amendments, including amendments to increase the Chief of the Defence Staff's authority in the grievance process, to change the grievance board's membership so that 60% of its members are civilians and to ensure that anyone summarily convicted of an offence not be unfairly burdened with a criminal record.

I would like my colleague to tell us how people, especially Canadians, will react when they find out that their military men and women, who have so bravely served our country, could end up with a criminal record because of flaws in our military justice system.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, to get an answer why it is not in Bill C-15, a member of the government would actually have to rise in the House and defend this bill.

I would like to tell the member that flattery will get him absolutely everywhere, and I thank him for his congratulations on my upcoming nuptials, which will be taking place next year.

That is one of the main confusions with this bill, as with many others. The government strips away well thought out, reasoned amendments from bills and then no one on that side will get up to defend why the government did so. That is absolutely transparent on the part of government; it is as if the government were not even there.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I want to thank my colleague for such a good speech, even though he is getting comments from the other side, and congratulate the people of his riding for electing a brilliant young man. I also congratulate him because I heard that he recently got engaged.

I have a question for the hon. member about an amendment to Bill C-41, about which it was said:

[A] key New Democrat amendment to Bill C-41 was the provision ensuring military personnel convicted of offences during a summary trial would not be subject to a criminal record. We believed then, and we still believe, that those who bravely serve our country should not be deprived of the rights and protections that other Canadians enjoy.

Can the hon. member tell me why this amendment is not in Bill C-15?

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I am a little disappointed to be rising in the House today. I would have been much happier rising if this were Bill C-41, from the last Parliament, and to be speaking to and supporting that very important piece of legislation. However, what the government has done with Bill C-15 is turn it into what I would have to call a prequel, which is what is there before one gets to a final bill. This should be what we had before we got to something like Bill C-41, in the last Parliament, when all of the parties participated, had a debate, and agreed to bring the bill forward in a way the parties would all have been able to support. However, that is really not what the government is interested in.

There are many important reforms in the bill, and the NDP supports the long overdue update of the military justice system.

Members of the Canadian Forces are held to an extremely high standard of discipline. They, in turn, deserve a judicial system that is held to a comparable standard. While this is not an issue at the forefront of most people's minds, 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 way the system of justice in the military is set up right now, a soldier can receive a criminal record for very minor offences, such as insubordination, quarrels, disturbances, absence without leave and even drunkenness. These matters could be extremely important to military discipline, and we would probably all agree on that, but they are not worthy of a criminal record.

A criminal record can make life after the military very difficult. Getting a job, renting an apartment and travelling abroad are all made far more difficult when someone has a criminal record. Our brave men and women have enough challenges re-entering civil society without a criminal record on their backs.

The NDP will fight to bring more fairness to the Canadian military justice system for the men and women in uniform who have put their lives on the line in the service of Canada.

The issues addressed in the bill are not new and date back, as we have heard many times today, at least to the independent review of the National Defence Act, released in 2003, by the Rt. Hon. Antonio Lamer, former chief justice of the Supreme Court.

The issues contained in Bill C-15 have indeed appeared in earlier forms. There was Bill C-7, which died on the order paper due to prorogation in 2007. We all remember that wonderful time. Then there was Bill C-45, which died on the order paper after the current government was found in contempt of Parliament.

In July 2008, Bill C-60 came into force, simplifying the structure of the courts marshal and establishing a method for choosing a type of court marshal more closely aligned with the civilian system.

In 2009, the Senate Committee on Legal and Constitutional Affairs considered Bill C-60 and provided nine recommendations for amendments to the National Defence Act.

In 2010, Bill C-41 was introduced to respond to the 2003 report and to the Senate committee's report. It outlined provisions related to military justice, such as sentencing reform, military judges in committees, summary trials, court marshal 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 of Bill C-41 that came out of committee in the previous Parliament, minus all of those amendments.

The amendments carried over include courts marshal composition and military judges' security of tenure. However, other important amendments passed at committee stage at the end of the last parliamentary session were not included in Bill C-15. These include the following NDP amendments: the authority of the Chief of the Defence Staff in the grievance process, responding directly to Justice Lamer's recommendation; changes to the composition of the grievance committee to include 60% civilian membership; and a provision ensuring that a person convicted of an offence during summary trial is not unfairly subjected to a criminal record.

If one member of the government would get up at this point, I would ask what in those amendments was so scary and offensive that the government would pull them out of the bill before reintroducing it. However, I doubt that I will have that chance.

I am opposing Bill C-15, as it contains shortcomings that need to be re-addressed because the amendments I mentioned were pulled from the previous version of the bill. Far too often the government takes bills that were fixed and then breaks them again before bringing them to Parliament. It is a trend that we are seeing again and again. In the next two and a half years before the next election, I wonder how many other things Conservatives are going to break anew before bringing them before Parliament.

The amendments in Bill C-15 do not adequately the unfairness of summary trials and the conviction of service offences from those trials in the Canadian Forces, which result in a criminal record. Summary trials are held without the accused being able to consult counsel; there are no appeals or transcripts of the trial; and the judge is the accused person's commanding officer. I wonder how many of us in civilian life would ever want to be tried by our boss.

These trials are unduly harsh for certain members of the Canadian Forces who are convicted of very minor service offences. Bill C-15 does make an exception for a select number of offences if they carry a minor punishment defined in the act, or a fine of less than $500, so they will no longer result in a criminal record. This is one of the positive aspects of the bill, but it does not go far enough.

At committee during the last Parliament, NDP amendments to Bill C-41 were carried to expand the list of offences that could be considered minor and not worthy of a criminal record from 5 such offences to 27. If the offences in question received a minor punishment, one the NDP amendments also extended the list of punishments that might be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a reprimand or a fine equal to one month's basic pay, or another minor punishment. This was a major step for summary trials. However, this amendment was not retained in Bill C-15. We want to see it included.

Another matter that needs to be amended relates to the external military grievances review committee. At present the grievance committee does not provide a means for external review. Currently it is staffed entirely by retired Canadian Forces officers, some only recently retired. If the Canadian Forces grievance board is to be perceived as an external and independent oversight civilian body, as it is designed to be, then the appointments process needs to be amended to reflect that reality. Thus, some members of the board should be drawn from civil society.

The NDP would like to see a provision that at least 60% of the grievance committee members never have been officers or non-commissioned members of the Canadian Forces. This amendment to Bill C-41 was passed in March 2011, but again it was not retained in Bill C-15. There seems to be no good amendment that the Conservatives do not want to see gone. It is important that this amendment also be put back in the bill.

Another major flaw in the military grievance system is that the Chief of the Defence Staff presently lacks the authority to resolve any and all 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 have been no concrete steps taken over the past eight years to implement this recommendation. The NDP proposed an amendment to this effect to Bill C-41 at committee. Although the amendment passed in March 2011, once again this amendment is nowhere to be found in Bill C-15. It should be included.

Another aspect of the bill that needs to be addressed is the need to strengthen the Military Police Complaints Commission. Bill C-15 amends it to establish a timeline in which the Canadian Forces provost marshal will be required to resolve and conduct complaints as well as protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, the NDP believes that more needs to be done to empower the commission. Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions that would empower it to act as an oversight body.

I will be happy to answer some questions. I hear disappointment from the other side of the room, but I will be more than happy to include you in the conversation.