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

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

Mr. Speaker, I want to thank my hon. friend, the member for St. John's East for his very learned speech on this important issue.

The member asked for a signal from our side. I am not sure, but I think Signal Hill is in his riding. I am not absolutely sure of that. It is close to it, so I am not surprised by the request. The signal is given that we on this side are looking forward to consideration of this bill in committee, consideration of his arguments, and we hope to see him there as we have seen him in previous Parliaments on these important issues.

My question for the hon. member is the following. Given the urgency of this bill, given the fact that some of these changes have been pending since the Lamer report in 2003, given the fact that this Parliament and previous Parliaments have considered this bill in different forms three times, Bill C-7 in the 39th Parliament, Bill C-45 in the 38th Parliament, Bill C-41 in the 40th Parliament, and now Bill C-15, would the member not agree with us, and this is really an appeal to his common sense and his sense of duty to do right by our men and women in uniform, that the best place to discuss the details he has proposed, the very technical aspects of this bill that deserve discussion, is in committee and that we as members of Parliament have a duty to get it to committee as soon as possible?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I was very proud to represent the district of Signal Hill-Quidi Vidi in the Newfoundland and Labrador House of Assembly for many years. Signal Hill itself used to be part of St. John's East. It is not now and may be again after the new boundary changes. The signal I am looking for is the signal that the government is prepared to respect the fundamental rights of military personnel.

If that were the case, I would have expected to see that we would get the bill back this time, that the improvements that had already been made would still be there and that they would be willing to seek more improvements. Not all the things New Democrats wanted in committee in the last Parliament were taken. Yes, some things are technical, but the real issue that should be debated in the House is whether the government is going to respect that the men and women in the uniform of this country are entitled to the protection of the Charter of Rights and Freedoms, the fundamental rights we are asking them to serve and fight for.

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, since the Bagotville military base is located in my riding, I am well aware that the brave men and women who are serving their country in the Canadian Forces must comply with extremely high standards of discipline. In return, they deserve a justice system that also meets similar standards.

We know that a criminal record can make post-military life very difficult. Criminal records complicate everything when the time comes to find a job, to rent an apartment and to travel.

I wonder if my colleague could tell us what the NDP has found lacking in this bill that would otherwise have allowed our party to support it?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, one of the concerns we have is that when service men and women actually leave the service, they have the challenge of adjusting to civilian life and getting jobs. We do not want them to have the baggage of a criminal record. We are talking about 2,600 a year and if we add that up year over year, we see that a large percentage of members get involved in some sort of disciplinary matters, which make it more difficult to integrate into civilian life. We want to remove that barrier. They are entitled to have the service record, yes, but the service record can be dealt with as an administrative thing. Criminal law is something employers look at to see whether people have criminal records, which are barriers to employment. If they do not have the rights and protections, it is going to make it a lot harder after they leave the military.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Speaker, the member opposite does not want soldiers who go before military tribunals to have criminal records. The member knows full well that there are incidents that occur on military bases that involve domestic violence. These incidents can be brought before military tribunals. My question is this. Why does the member opposite not want soldiers who have been convicted of beating their spouses to have criminal records?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, the member is bringing up something that is one of the details that my colleague opposite was talking about. Not every offence under the act would fall into that category. We are talking about summary conviction offences. There is a protocol and this was discussed with the Judge Advocate General. There are certain cases that in fact should not be dealt with under military tribunals and should be dealt with by civilian courts. A sexual assault on a spouse, or circumstances like that, is one of them. That is not a military offence. It does not involve their job but may be incidental and, therefore, should be dealt with by a civilian court. In a civilian court, military personnel would have all of the protections, civilian laws and the Charter of Rights and Freedoms. We are talking about two different things, but I understand the member's point.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I commend the hon. member for St. John's East for explaining our party's concerns about this legislation so clearly and in such detail.

Summary trials are among the issues that I am very concerned about. Indeed, and unfortunately for Canadian Forces members, a large number of minor offences result in a criminal record. This is very important because it is a well-known fact that, in a way, members of the Canadian armed forces are marginalized. Indeed, when they quit the forces they must reintegrate into society, and this can be a major challenge.

Given the incredibly long list of minor offences that can result in a criminal record, can the hon. member tell us whether, instead of introducing this bill in such a hurry, it would have been better to introduce it in a much improved fashion after consulting with the other parties?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, obviously this issue is extremely important, but we would have hoped that the bill as it was passed the last time would have been presented and then we could seek to make improvements to that.

The reality is that more than 90%, I think some 97%, of offences are tried in the summary conviction manner, and the military tribunal that the previous speaker talked about is actually the court martial, which is a different place. In the court martial, individuals have all the protections of right to counsel, full answer and defence and a criminal record attaching to that. We do not have a problem with that.

It is the summary trials, which do not have the legal protections that are available if one is before a provincial court in any of the provinces of Canada and one is a civilian. This is the area we need to work on and fix, and I do not hear at this point yet the signal from the government that it is prepared to fully explore that and try to find out what is the best way of achieving that goal and still maintain the importance of military justice for the purposes of efficiency, operational efficiency, morale and discipline that is essential to a military force of any kind.

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, the NDP believes that the bill is a step in the right direction to bring the military justice system more in line with the civilian justice system. However, the bill does not at all answer the key questions about reforming the summary trial and grievance systems and about strengthening the Military Police Complaints Commission.

My NDP colleague asked the hon. member for St. John's East to provide specifics about summary trials. I would ask him to also tell us more about what the NDP did not see regarding the complaints commission and to talk about the mistakes related to the grievance system.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I understand I have a short time to respond.

There are a number of problems with the grievance system, the principal one being the length of time it would take to have grievances processed. Some work has been done on it and it has been shortened, but it has become militarized to a large extent. This is not the case with other countries.

We have a grievance system. Most of the grievances actually have to do with the terms and conditions of employment, with benefits and entitlements and that sort of thing, human resources matters.

We believe there should be civilian predominance in the grievance system. In fact, I think 60-40 was what was passed in the committee in the last Parliament. That has been stripped out of the bill and we do not have that, so we have to make all those arguments again, bring all those witnesses again and have that discussion again. It is a bit unfortunate, but it has to be done.

[Wayne Easter, Liberal, Malpeque, PE]

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

I understand that members' minds do not seem to be on this bill at the moment. The budget will be tabled in 10 minutes, and I understand where people are coming from.

My colleague, the hon. member for Scarborough—Guildwood, has outlined in previous debate in quite a comprehensive way the Liberal Party's thoughts on this bill. There are three key messages that I would leave with members.

The Liberal Party understands the need to reform the Canadian court martial system to ensure that it remains effective, fair and transparent. We believe that Canadian citizens who decide to join the Canadian Forces should not thereby lose part of their rights before the courts. In part this bill is about ensuring there is some balance between the military courts and the criminal justice courts.

As well, the Liberal Party believes that the addition of new sentences, including absolute discharge, intermittent sentence, and restitution, are important if we are to have that fair system I talked about a moment ago.

There are a number of disparities between the military and civilian justice systems that should be narrowed as much as possible. Bill C-15 has been introduced as a way of addressing these differences.

As it currently stands, sentencing in military law is much harsher than in the civil justice system, and it is very much less flexible. Provisions in Bill C-15 that would amend the National Defence Act are critical to ensuring that our military justice system is fair, efficient, transparent and consistent with Canadian values and legal standards.

My colleague, the hon. member for St. John's East, spoke a moment ago about how important it is that it should be under the Canadian Charter of Rights and Freedoms. We certainly agree with his point.

However, there are a few minor provisions within this legislation that we have substantial concerns with. One would be proposed subsection 18.5(3). We are very concerned about this subsection. It really concerns the ability of the Vice Chief of the Defence Staff to issue instructions or guidelines in writing in respect of a particular investigation. There have been a number of witnesses and a number of submissions before the committee on this particular issue. I will refer to a couple of them.

This clause is very problematic because it goes above and beyond the ability of the Vice Chief of the Defence Staff to provide general supervision, instructions or guidelines to the Canadian Forces Provost Marshal, and potentially challenges to the validity and integrity of investigations by giving a very high-ranking member of the military explicit statutory powers to interfere with a police investigation.

As members well know, personalities become involved. If there is interference in a police investigation, it becomes a very serious matter. For that reason, the Liberal Party would like to see that proposed subsection removed.

I want to emphasize what others have to say about that proposed subsection. Mr. Glenn Stannard, the chair of the Military Police Complaints Commission, MPCC, had this to say on this proposed subsection:

In summary, in the view of the MPCC, the proposed authority in s. 18.5(3) for directions by the VCDS, in particular MP [military police] law enforcement investigations should be deleted from Bill C-41 for the following reasons.

It was Bill C-41 then; it is Bill C-15 now.

It is contrary to Canadian law and traditions on the independence of police investigations from the executive, which is an underpinning of the rule of law.

It is without precedent in Canadian policing legislation.

It is based on an erroneous analogy by the drafters between the relationship of the VCDS and CFPM with that of the JAG and the Director of Military Prosecutions.

It represents a significant step back from efforts since the 1990s to enhance and safeguard the independence of military police investigations....

It does not respond to any recommendation of the Lamer Report or to any other public study on military justice or military policing.

Those are the complaints outlined by the chairperson of the Military Police Complaints Commission. We would certainly hope when this bill gets to committee that that subsection would be removed.

To add further evidence, Professor Kent Roach of the University of Toronto prepared a report on police independence relating to the military police, in which it is stated:

The author concludes that s. 18.5(1) and (2)...recognizing the Vice Chief of Defence Staff's (VCDS's) general supervision of the Canadian Forces Provost Marshal (CFPM) and allowing the former to issue general and public instructions or guidelines to the latter which is consistent with the balance that must be struck between military police independence and accountability, policy guidance and the management responsibilities of the general command. At the same time, however, the author concludes that s. 18.5(3) violates core concepts of police independence as recognized in Campbell and Shirose by allowing the VCDS to issue instructions and guidelines in specific cases that can interfere with military police investigations. He also notes that this section would be inconsistent with the 1998 accountability framework between the VCDS and the CFPM and if enacted might result in various legal challenges.

To sum up, the bill has a lot of good points. It needs to be moved forward. It needs to go to committee. However, there is a major problem backed by fairly substantive evidence that subsection 18.5(3) violates the principles of police investigations, and as a member said previously, could be in violation of the Charter of Rights and Freedoms.

We support the bill moving forward to committee. We recommend that the proposed subsection be removed.

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

Mr. Speaker, on this important matter of military justice, there is obvious urgency given that four successive Parliaments now have considered this issue and the bill in different forms.

Would the member opposite agree it is absolutely high time the bill be moved to committee? Then we could discuss the amendments he has proposed. We could discuss the composition of courts martial, limitations on sentencing and other issues addressed by this bill. Would the hon. member agree that moving this bill to committee expeditiously would be the best course of action?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I certainly pointed that out in my remarks. It is absolutely essential to get this bill to committee to deal with it and implement it into law.

The member said there were three previous incarnations of the bill, but I would remind him that the bill has never gotten as far as we would like it to go, partly because of the actions of the previous minority government and the proroguing of Parliament. Otherwise, this legislation may have been implemented long ago.

The other point I would like to make is the same point the member for St. John's East made, which is that in the drafting of this bill, some of the recommendations that were agreed to previously at committee were not incorporated into this bill. They should be.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, since the hon. member from Prince Edward Island raised the issue of prorogation, I wonder if he could elaborate a bit more for all of us in the House and those who are listening across the country as to why, when the Conservatives seem so interested in this bill, they themselves would try to defeat it through the act of prorogation?

[The Speaker, Conservative, Andrew Scheer]

It being 4 p.m., the House will now proceed to the consideration of Ways and Means Proceedings No. 7, concerning the budget presentation.