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

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

Mr. Speaker, I would like to ask my colleague a question in regard to what the B.C. Civil Liberties Association told this Parliament in February. Basically that was that military officers who give out sentences in summary trials are concerned with showing unit discipline and deferring future violations, not the effect imposed on an accused in the civilian world with a criminal record.

I wonder if the member agrees that there must be discipline at all costs is perhaps one of the things that creates a situation where criminal charges are laid and that it does indeed impede the future of that individual who has been charged.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I agree with my colleague from London—Fanshawe that there is a balance that we need to achieve within the ability to swiftly, in the case of a summary trial, create unit discipline and deter future violations.

There is no question about the need for that ability. No one is disagreeing that it is a special aspect of the military that needs to be maintained.

What does not need to be maintained is the future effect that those actions have on that individual. That is the issue here. It is not whether or not discipline needs to be maintained or whether the commander has the right to discipline as he sees fit. The issue is that it should not carry consequences that are outside the norm of consequences for those same actions in the real world, when in the future that person ultimately leaves the military as most Canadian soldiers eventually do.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I want to focus again on the fact that the NDP is opposed to the bill in principle because it is so lacking in amendments that should have been a part of this bill.

I want to agree with the member when he said there is a level of arrogance from the government, in that it would bypass very important amendments that were included in the previous bill. I wonder if he would comment on that.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I agree that is what we are seeing here. We have seen this in other bills that have come before this Parliament where there was all-party agreement in the past. In one case, the refugee bill, the government chose to turf it out. It was already enacted, and the government chose to turf it out and go backwards.

We in the NDP do not wish to take Canada backwards.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, like many Canadians, if not all of them, I am always curious to see what happens to reports that successive governments ask from very honourable people, from experts who are often non-partisan and credible in their field of expertise. Some of these reports are shelved, others are partially followed, while others spur the government into moving forward. The intelligent use of these reports is often a good indication of a government's will to act.

In the case before us, the results are rather disappointing. When the Right Honourable Antonio Lamer, a former Supreme Court justice and an expert on today's issues, tabled his report in the fall of 2003, we had before us 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces Provost Marshal.

After many attempts, Bill C-15 was expected to be an answer to the many recommendations of the Lamer report. However, once again, we are disappointed with the Conservatives' reluctance to solve the issue completely. The Conservatives are not, as their name indicates, progressive but, rather, conservative. Therefore, in order to move forward, it is better to rely on our side of the House.

So we are disappointed, because only 28 recommendations have been incorporated into the bill. What is most unfortunate is that important previous amendments that were adopted at the end of the last parliamentary session have not been included in Bill C-15. Allow me to point out here that for a government that so often proclaims itself to be the champion red tape reduction, this seems to be a contradiction. The work had been done. There was an agreement. But oops, into the recycling bin with it; well, at least I hope it is the recycling bin, for all this work. They are starting the process over again, but they are putting even less on the table this time. This is a strange way of advocating efficiency and optimization of the work within our own institution.

This brings us to the heart of this bill, and since time is short, I will focus on the issues relating to summary trials, because in my opinion, these are probably the issues that most affect the clients I served for 25 years. I am talking about young students who, for all sorts of reasons in their lives, choose a military career, whether because it is suited to their innate personal tastes, or they wish to pursue their education or to acquire some specialized skills. But the one thing that all of these young people have in common is that they are young. I am by no means persuaded that at the time of their enlistment, they are familiar with all the ins and outs of the commitment they are making.

The NDP has long been in favour of a much-needed overhaul of the military justice system. The military justice system in our country today is still a draconian system. It is a legacy from a military tradition that is no longer suited to our times. Changes are long overdue.

The bill that is before us, however, has to enable us to tackle the problems head-on. In spite of everything, this is a unique opportunity to examine our military justice system. So let us not shy away from the debate, and let us try, if possible, to improve this system again.

The members of the Canadian Forces have to meet high disciplinary standards, and it is easy to understand why. However, we are asking in return that the justice system that is applied to them be just as precise and exacting. That is the least we should offer our soldiers. This is a matter of the relationship of trust between the armed forces and the justice system they are subject to. That is why the NDP is disappointed with the result we see in this bill.

Bill C-15 does not adequately address the injustice created by summary trials. I will cite a few of the incongruities found in this bill. Do we think it reasonable that, in the military of a country that recognizes the rule of law and a democracy as advanced as ours, summary trials are held where the accused cannot consult counsel? Do we think it is acceptable for accused persons to be unable to read transcripts of their trials, for the simple reason that there is no trial?

I am well aware that the government is battling red tape, but even so, in matters as sensitive as justice, whether military or civilian, I think a trial transcript is a guarantee against errors and abuses.

I would like to quote retired Canadian Forces Colonel Michel W. Drapeau, who is an expert on military law. He was outraged about the legal consequences of a conviction in summary trial. He said:

...it is almost impossible for the court to address any challenge [by a convicted soldier], since no appeal of a summary trial verdict or sentence is permitted.

That is another incongruity in our system.

Colonel Drapeau went on to say:

As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

That is another incongruity if ever there was one.

Again, is it acceptable for the judge to be the accused person's commanding officer? If that is not a conflict of interest, it sure looks like one.

In my opinion, all these provisions are much too severe in many cases. Yes, there is misconduct within our armed forces and this must be sanctioned. We understand that, but often these are minor offences that do not merit a criminal record.

I took a quick look at what could be considered minor offences. These include things such as quarrels, misconduct, absence without leave, drunkenness or disobedience. I taught teenagers and witnessed, identified, confronted, and dealt with all of these characteristics time and time again. It is often between the ages of 16 to 18 that a person thinks about enrolling in the army. These are very common—and temporary—characteristics among teenagers who are trying to adjust to the adult world. Every one of these behaviours taken independently in civilian life would likely not have serious consequences. But in military life it is a whole other story.

Let us remember that our armed forces must be disciplined and exemplary at all times, of course. Therefore, any improper behaviour or flouting of the rules, discipline or code of conduct that govern the armed forces must be fairly punished. But we also have to remember that our soldiers must not lose confidence in their own justice system.

Within the military justice system, the summary trial is the most common kind of tribunal, with 96% of all cases being determined by summary trial. Many soldiers experience this particular kind of military justice at some time in their career. It is a disciplinary method for dealing with infractions committed by Canada’s military personnel. The other 4% of cases are the exception, the court martial. It is a good thing that this is the proportion. It proves that lack of discipline in our armed forces is a rather rare phenomenon. Summary trials are available to deal rapidly with small infractions of the military sort. It can be done rapidly, within the unit, to maintain discipline.

The issue I want to raise concerns the legal consequences of these summary trials. Are all Canadians aware that a minor conviction in a summary trial leads to a criminal record? That is a fundamental problem.

I will repeat the example given by a Liberal colleague about someone who dropped a cigarette butt in a garbage can rather than an ashtray, where it belonged according to regulations. I can easily understand that in the military world, especially if one is near a munitions depot, it could be considered a serious risk. Still, there is an enormous difference between the treatment this offence would get in the military system and in the civilian one.

I will get straight to my conclusion. It is sad to see that the broad agreement on Bill C-41 has disappeared from discussions of C-15.

Thus, we may ask the government why it is content to do so little when we already had an agreement to do more.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I would like to address the issue of the amendments that were made during the 40th Parliament.

One explanation as to why the Conservatives withdrew these amendments is that they so fervently hate the idea that the opposition might have good ideas that they withdraw any of its amendments to the bill.

Does my colleague have any comments about this?

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, first of all, I would say that I agree fully with the part of the question about the good ideas put forward by members on this side of the House. I would add that there are so many good ideas that in a few years, we will be on the other side of the House. I believe that the people of Canada will be able to recognize this.

It seems clear to me that rather than concentrating on what amendments need to be made to the bill, we are still mired in partisan politics. This government, which was elected with a majority of seats but a minority of votes, is using its majority to show disdain for consensuses that had been largely developed, which is altogether regrettable.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I entirely agree with my colleague when he points out that this has been very much a history of partisan politics.

This issue goes back to 2003, as he pointed out, when the former chief justice of the Supreme Court brought forward his report. This bill, in various machinations, has been hanging around now for a number of years. I find it very perplexing that the NDP, in good faith and in a constructive way, brought forward amendments. These have now been dropped from the bill.

A number of us are raising these questions in the House today because we hear the government saying all the time that we should work with it and asking why we are not supporting this. Here was an opportunity to bring forward some work that was very constructive, yet suddenly the government dropped the ball on it.

I very much appreciate the member's comments about the partisan nature of what took place and the fact that we see a government that is very arrogant in the way it operates in the House.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, I thank my hon. colleague for his comments. Needless to say, I can do no more than repeat what was said previously.

One might well ask why they are behaving in that way. Who has anything to gain from partisan politics when what is involved is a bill as important as this one? The bill has major repercussions on the lives of all soldiers, when for a perfectly minor—I repeat truly minor—misdemeanour, they can end up with a criminal record. When this happens, it has an impact on them throughout their lives, something that soldiers are not necessarily fully aware of when they sign up.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, in addition to the fact that a number of the amendments that we put forward in Bill C-41, that were accepted by the Conservatives and have now been taken out, I note there were 88 recommendations in Justice Lamer's report. If we stretch, we can find that 28 or so of them have been adopted in this bill.

Would the member like to comment on the lack of thoroughness by the government in implementing the reports?

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. speaker, it is difficult to find an explanation, because there is nothing rational behind this.

Not accepting every one of the recommendations in Justice Lamer's report is one thing. It would be unusual to have any report accepted absolutely in full.

But how can we drop from 88 to 23 recommendations, and completely forget the median number that had been agreed upon by both parties. I say “we” very modestly, because I was not in the previous Parliament. However, the work was the same. Parliamentarians had done an enormous amount of work to ensure that the resulting legislation would be the best possible piece of legislation and that it would meet the desired objectives.

The Conservatives claim that half the objectives are being met and we should support them, but why settle for less when it has already been demonstrated that we can do much more?

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

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

There are three Royal Canadian Legions in my riding. I am proud that these legions help our veterans and active military service people. I have met with many Canadian veterans who tell me about the issues that are important to them. Bill C-15 is about military justice, which is an important issue.

I am happy to raise my concerns today with the House over a misguided policy that would ultimately hurt members of the Canadian Forces. Bill C-15 proposes some solutions to ongoing problems with military justice, but this is also not the first attempt to deal with such problems.

I will start by noting that our country's military service men and women are held to a very high standard when defending Canadian values abroad, values of democracy, justice and peace. The Canadian Forces deserve a military justice system that respects these values in all instances, including the grievance system and complaints commissions. The Conservative government chose not to do that.

The government has decided to go against an amendment already passed at committee, which would allow changes to the composition of the grievance board to include a 60% civilian membership, amended clause 11 in Bill C-41. The parliamentary committee's recommendation was simple, and that was that some members of the Canadian Forces Grievance Board should be drawn from civil society.

Why did the Conservatives not retain the amendments proposed by the NDP that passed during the study of Bill C-41 last spring? By failing to include these amendments in Bill C-15, the Conservatives undermine the recommendations of the Canadian Forces representatives during the last session of Parliament.

When defining the grievance process and highlighting its importance, the Lamer report in 2003 stated:

—unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances...It is essential to the morale of CF members that their grievances be addressed in a fair, transparent, and prompt manner.

That is one of the primary reasons we cannot understand why the NDP's proposed amendments to Bill C-41 have been dropped. I will continue to speak about the reasons why we will unfortunately not be able to vote in favour of this bill.

This bill was introduced after a series of bills that were passed in the House of Commons over the past 10 years. First there were bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and the election was held in 2008. In July 2008, the government introduced Bill C-60, which came back stronger and simplified the structure, but it too died on the order paper. In 2009, the Senate Standing Committee on Legal and Constitutional Affairs studied this bill and recommended nine amendments, but it went no further.

In 2010, Bill C-41 was introduced, and it reached committee stage, where amendments were proposed. Unfortunately, it too died on the order paper. That brings us to Bill C-15. As my colleagues have mentioned, amendments had been proposed in committee and accepted, but they are now being dropped.

I would like to comment on what my colleague just said about the arrogance of the government. It repeatedly tells us that we do not want to work with it, that we vote against its bills and that we are opposed to all kinds of things. Then it comes and tells us that we are opposing a better bill on military justice for veterans.

This bill contains many things that we cannot accept. Furthermore, we had proposed some amendments that I believe were very appropriate. We had recommended changes to the composition of the grievance board to have it consist of 60% civilians. We had recommended that authority be given to the Chief of Defence Staff in the grievance process, in direct response to a recommendation made in the Lamer report.

We had proposed that a person convicted of an offence in a summary trial ought not to be unfairly subjected to a criminal record.

I would like to return to the criminal record. At the moment, the Canadian Forces system is very strict and discipline is very important. These people represent our country. They have to be upright, fair and, as it were, highly disciplined.

At the moment, five of the offences considered minor do not lead to a criminal record. This means that out of 27 such offences, 22 can lead to a criminal record.

I have not looked at my list, but my colleague from Trois-Rivières just mentioned that one of the offences was being absent without leave. I find it ridiculous that being absent without leave can result in a criminal record.

I am going to tell you about a personal experience. Before coming to this place, I taught adults at two schools, in Sherbrooke and Quebec City. Unfortunately, a lot of young adults in my courses had criminal records. They told me how much that restricted their lives and complicated their efforts to look for work, for example. They always had to answer the question about whether they had a criminal record. They obviously had to tell the truth. Those people told the truth. They said they had a criminal record. Naturally, that can scare an employer. If you are more knowledgeable and you know what sort of behaviour resulted in a criminal record, that can change things.

Having a criminal record can also prevent you from travelling. It is harder to go to the United States, for example. Someone who has completed his military career and saved up money to go to the United States and spend a weekend with his children at Disneyland could be denied entry to the United States because he has a criminal record. This can take on grotesque proportions.

I feel we have an opportunity to change that. Some things are abnormal and disproportionate. You can have a criminal record for being absent without leave. These are things that we can change, and we should seize the opportunity to do so since we are studying the bill.

The government tells us that the wheels of bureaucracy grind slowly and that moving things forward takes a long time. I agree: sometimes it does take a long time and that is why we have been studying the bill for 10 years.

We do not want this bill to die on the order paper. We want it to be passed, but passed logically and responsibly so as to move things forward.

We can decide that some offences that are considered minor will not result in a criminal record. This is the opportunity to do so now, and we must not miss it.

I wanted to add to what the British Columbia Civil Liberties Association says, that military officers who impose sentences at summary trials want to maintain unit discipline and discourage future offences—everything is fine to that point—not to inflict on the accused consequences consistent with having a criminal record in the civilian world.

The British Columbia Civil Liberties Association thus emphasizes the fact that a criminal record has consequences in the civilian world. We would not want to go too far.

As I mentioned earlier in my speech, it is very important for the military world to be highly disciplined, but this goes a little too far.

We are definitely in favour of reforming the legislation concerning the military system.

The bill does not go far enough. Only 28 of Justice Lamer's 88 recommendations were adopted, not even half. None of the amendments put forward by the NDP was adopted either. In our view, this bill does not go far enough, and we will vote against it in the next vote for that reason.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I first congratulate the member for her excellent speech, particularly as she talked about her own personal experience in dealing with young people and what it means to have a criminal record. That is very pertinent and relevant to the debate today.

We often hear the Conservatives say they support the Canadian Forces and military personnel, which they seem to use as a point of rhetoric in the debate. However, when it really comes down it and we are actually examining the military justice system and the changes that need to be made, it is very disturbing that they have left out some very serious questions around the summary trials that can lead to criminal records.

I appreciate the member making this point because people do not like to talk about criminal records. It is like one of those taboo subjects. The government always brings in legislation that makes things more difficult. For example, I received a letter from a constituent who was trying to get a pardon and because of legislation that has been passed, it is now almost impossible to get a pardon even though a person may have had a clean record for years.

I do think this issue is very important and so I wonder if the member could tell us anything more about the summary trial system. I know there are a lot of cases involved. It seems that it is something that we need to move away from, which is exactly what the NDP amendment passed in committee would have done.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

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

I thought it was important to talk about the students I taught, because the purpose of the NDP's proposed amendment concerning summary trials was to make life easier for our military personnel. I cannot think of many jobs in which a minor offence can result in a criminal record. If I may say so, some members of this House have committed much more serious offences, but they are still MPs. I have to wonder why we expect our soldiers to be perfect.

As MPs, we are also expected to act as role models for society. Some MPs are being allowed to commit criminal acts without any sanctions. Yet, we expect military personnel to be perfect. If they do break the law, they are burdened with a criminal record.

The NDP's amendment was crucial. It acknowledged that people do make mistakes, such as an unjustified absence. Many MPs have had unjustified absences at a job over the years. I do not see why that should result in a criminal record.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, I do not know if my question is serious or if I am being tongue in cheek. We know how much this government loves Great Britain and the monarchy. Why is it that Great Britain has updated its laws on summary trials, but Canada is still dragging its feet?