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.

Motions in Amendment

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

Mr. Speaker, I rise on a point of order. The member for St. John's East knows that, as chair of the committee, I am quite a stickler on rules and procedures. I know you are aware, Mr. Speaker, but I also want to ensure the member is aware of this. When we are debating at report stage and dealing with an amendment, it states quite clearly in House of Commons Procedure and Practice, chapter 13, rules of decorum, on page 626:

To avoid excessive repetition of debate, the Speaker has the power to select and to combine motions in amendment.

You have done this with Motions Nos. 1 and 2, Mr. Speaker.

It goes on to say:

The Speaker can also control debate through the use of the relevance rule as applied to debate on clauses of a bill. Despite the similarities between debate at report stage to that at committee stage, there is no allowance for a wide-ranging discussion of a bill as occurs in committee during study of Clause 1. Indeed, once the Order of the Day for the consideration of a bill at report stage is called, discussion is limited to “any amendment of which notice has been given”.

We are debating at report stage, under Standing Orders 76.6 and 76.1(6). These are the standing orders that are relevant. We are to be dealing strictly with the amendments proposed by the member for Saanich—Gulf Islands.

I ask the member stay on topic and talk about the specific clauses and not a wide-ranging repetition that has already taken place at committee and at second reading. We need to be very specific and get back to the focus here.

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

Mr. Speaker, I do not know what that point of order is about other than maybe to use up the 10 minutes I have to speak about it. I hope it will be taken out of that.

However, when someone is talking about report stage of a bill, it does not seem to be irrelevant to talk about the fact that we are in report stage of the bill, that we had a committee hearing and that there are a number of amendments, including this one, to which I was about talk.

It has not been the practice of the House to be as ruthless in the application of a relevancy rule as the hon. member suggests. It certainly was not applied when the parliamentary secretary and others were speaking in the last half hour, and there is no reason it should apply now.

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

Mr. Speaker, I generally applaud efforts to make points in speeches in this place relevant.

I raised a point of order when my amendments on Bill C-38 were being completely ignored by virtually every set speech of the Conservative members of Parliament. At the point where one member was talking about the economy of Greece, I rose and asked for the relevance to the amendments before us. I was told that they were generally on point because the subject of the bill was economic growth and development.

Therefore, certainly the member for St. John's East was in the ballpark of discussing my amendments, and many previous speeches on other bills have been way out of left field.

[The Acting Speaker, Barry Devolin]

The Chair thanks the hon. member for Selkirk—Interlake for his intervention and the members for St. John's East and Saanich—Gulf Islands for their subsequent interventions.

In terms of general context, the hon. member for Selkirk—Interlake is correct that the Standing Orders state that when members rise to speak to a matter before the House, their comments ought to be relevant to that matter.

It is also fair to say that historically and consistently the Chair has granted what some would consider significant latitude to members in the points they make in their presentations. From time to time, members take very indirect ways to come to their point. It is a good reminder for all members that they need to keep their comments relevant to the matter before the House.

On the second point, the hon. member is technically correct in that the parameters or leeway granted ought to be narrower when the House is considering amendments as opposed to general legislation potentially during second reading or third reading. However, once again I would suggest the Chair recognizes that in the course of a 10- or 20-minute speech, hon. members need to provide context to the comments they wish to make that are relevant to a matter before the House.

As an editorial comment, there are certainly times when members wander far afield from the matter before the House and are possibly beyond the grey area. However, in this case, I would suggest that has not happened. The hon. member for St. John's East is certainly talking in the context of the bill. I trust that before his 10 minutes expires, he will make all of the context relevant to the points that have to do with the amendments currently being debated.

The hon. member for St. John's East.

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

Mr. Speaker, I want to assure the Speaker and the hon. member for Selkirk—Interlake that I have no intention to talk about ranching in western Canada or any other matters extraneous to the bill and the legislation before us, which would clearly be irrelevant.

I said that there were a number of amendments, 22 amendments, proposed by us in committee. One of them was very much related to what we have here in the House.

I will say that not a single one of the amendments was accepted by the government members, showing a total lack of flexibility in terms of trying to make a better military justice system.

However, one of our amendments was to remove this power because, as was pointed out, it was a backward step. The accountability framework was put in place as a result of recommendations from the Somali inquiry to ensure that the relationship between the military police and the understanding of its role was in fact spelled out. That is where this came from, and it has been in place for 15 years. No one before our committee, whether they were government officials, the Judge Advocate General representatives or anybody else, indicated that there was any problem with it, that it did not work.

The parliamentary secretary says that the change has been brought to give effect to the accountability framework in legislation because he says it could be gotten rid of at any time. Well, this is taking away one of the most significant parts of this, which would guarantee the independence of the military police, which I think is the important principle at work here.

There is, and there was, as the parliamentary secretary said in his intervention, a long history of trying to seek to change this. We have been part of that. We have been trying to make the bill better and have spoken quite at length in this Parliament, and in the last Parliament, and in committees in both Parliaments, to seek to make this better.

One of the focuses, of course, has been on the criminal records. My colleague opposite referred to the urgency of that because of people getting criminal records. I do not disagree with that, although I would note that provision would be retroactive: it says not only those who have committed particular offences but also those who have been convicted of those offences. I think my colleague would agree that the provision would be retroactive, so if we pass it today or if we pass it tomorrow or next week, anybody who may be convicted of an offence during that period would not get a criminal record because the legislation would have looked after that. We are not certain that it is given effect to properly and we made amendments to see that. However, we will be watching that extremely carefully to ensure that the military men and women who ought not to have criminal records do not in fact have a record lying around somewhere, on some computer, that might affect their future. We are very attuned to that and have paid great attention to it in committee.

The positive aspects of this legislation do include spelling out the role of the Provost Marshal and do include spelling out the principles of sentencing and military justice, which is quite appropriate to do. The positive aspects of this include the possibility of having an absolute discharge, which was not there before, and allowing an intermittent sentence if someone is confined to detention.

There are a number of positive aspects to this legislation that move the bar somewhat forward, but not to where it ought to be.

One thing that came through during the hearings at committee was an overwhelming confidence by the witnesses on behalf of the government. The government witnesses were extremely certain that all the measures that were being proposed were constitutional and were within the Charter of Rights and Freedoms—charter-proof, in fact.

However, that has not been the experience of the military justice system since 1990, when the Court Martial Appeal Court determined that the standing court martial was unconstitutional, that the procedure for selection of mode of trial was unconstitutional and that the general court martial was unconstitutional. These are things that have happened despite the fact that the government took the position that everything was within the Constitution and charter-proof.

We have a concern about that. There is a need for an overall review. This, however, is a backward step and ought not to happen.

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

Mr. Speaker, obviously we have never taken the position that there were not improvements required to ensure the constitutionality of this legislation.

That is why, in addition to the four failed attempts we have had to amend this legislation, there have also been Bill C-60 and Bill C-16. That means six pieces of legislation for this House, over four parliaments, without a full, thorough-going modernization, update, taking place yet.

Could I ask the hon. member to return to the issue at hand today? Why is it that he is speaking, after all our consideration in committee of this issue, in favour of a reprised amendment, essentially, that goes against the testimony of the Provost Marshal of the Canadian Forces on March 2, when he said that the safeguards in place are robust, and goes against the testimony of the Vice Chief of the Defence Staff, who says that this provision is required to potentially save lives on the battlefield, using the example of a live fire exercise?

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

Mr. Speaker, the testimony at committee is somewhat belied by the accountability framework itself, signed by Vice Admiral Garnett, the Vice Chief of the Defence Staff, and the colonel, then the Canadian Forces Provost Marshal in 1998, who put that very provision in an accountability framework developed as a result of the recommendations made out of the Somali inquiry.

We may have different opinions, but I accept the testimony of someone who is experienced in the field who says that military police officers do not walk into the line of fire to conduct an interview with somebody during a police investigation. They are not stupid people. Not only that, they would certainly take advice from the commanding officer in the field if he said, by the way, it was not a good idea to go over there or to that place.

This is not about somebody in the field telling what is going on. This is about the Vice Chief of the Defence Staff sitting in Ottawa issuing written instructions to somebody anywhere, maybe even in Ottawa, that they shall not do a particular investigation. That is what we are trying to avoid.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I am directing the hon. member's attention to the impugned section, which says that the Vice Chief of the Defence Staff may issue instructions or guidelines in respect of a particular investigation.

Would the hon. member care to comment on whether that is only guidelines, which are restricted to live fire exercises, zones of conflict or any other variety of things where Canadian Forces might find themselves?

In my judgment, and I am assuming he would agree with me, this is a wide open field. At any point, at any time, the VCDS could issue instructions to a Provost Marshal and guide the instructions of the police to investigate in a particular way or not in a particular way.

I would be interested in his observations with respect to the drafting of subsection 3.

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

Mr. Speaker, I am afraid the member for Scarborough—Guildwood is precisely right, that there is no qualification, and that the qualification we are hearing here is essentially a justification for a possible particular circumstance, whereas the actual rule is very general in nature.

As I just said, we are not talking about the person in charge of a particular operation; we are talking about the Vice Chief of the Defence Staff, who is part of the chain of command that the Provost Marshal reports to, and it is precisely because of that relationship that the accountability framework was put in place to ensure that, while there was a right to give instructions to maintain professional standards, et cetera—and it says, as “other police” forces would have—that the operational investigations could not be interfered with by the VCDS. I think that is a good rule.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, may I say at the outset that we are generally supportive of this bill? It is a wonderful opportunity to move military justice from the 19th century into the 21st century.

Regrettably, for some reason or another, the government stopped at the 20th century. The debate that has been going on for the better part of an hour is somewhat typical of the government's resistance to, in effect, moving a military system all the way up into the 21st century, so that a soldier, sailor or airman or airwoman is entitled to the same rights and protections as those to which we, as civilians, are entitled. As one witness said, just because they put on a uniform, it does not mean they lose their rights as Canadians.

The parliamentary secretary is quite correct to say that this bill has seen a lot of reiterations prior to its arrival here on the floor of the House. Some of the reasons it is here at this very late stage are good, and some of the reasons it is here now are not so good. However, I am not going to spend my time criticizing who actually controls the pace of legislation in this House.

It is not very often that we get an opportunity to reform our military justice system, and it is kind of disappointing on the part of the government to reach for mediocrity. In the words of Winston Churchill, it is “The Tory fault--a yearning for mediocrity”.

It is a bit of a shame, because we expect so much of our men and women in uniform. I think they should have every right to expect from us an attitude where we give them the best possible justice system. They should be entitled to equal treatment before the law. If we said that to people out on Wellington Street, they would reply that of course they are entitled to equal treatment before the law.

In fact, men and women in uniform have a higher burden. It is kind of ironic that we ask them to risk their lives, and they have an unlimited liability, yet we do not give them the same basic procedural fairness that we, ourselves, expect when we go before a judge in certain circumstances.

The additional burden that men and women in uniform bear is with respect to service offences. I do commend the government for actually having moved on this. The core issue was that service offences, which run all the way from wearing the military uniform in an improper manner right through to treason, are difficult offences, additional burdens that civilians do not bear.

At both ends of the spectrum, the most serious and the least serious, the treatment is probably appropriate. It is the stuff that is in between that is somewhat problematic.

All investigations start with a police investigation of some kind or another. Members would take the view that police investigations should be free from political interference.

Mr. Speaker, I know you are from the beautiful town of Haliburton. We know that is one of the most beautiful places in all of Ontario, if not all of Canada. You and I share that view. Nevertheless, it would be improper for the mayor of that community to phone up the local police chief and say that the chief can do this investigation but not that one, or that if the chief does the investigation, it should only go here and not there. We would rightly regard that as interference in a police investigation.

However, the clause we have been talking about here actually retains that power. The Vice Chief of the Defence Staff may issue instructions or guidelines in writing. We would never allow a bylaw or a law in civil justice to say that the mayor or the premier, or the Prime Minister for that matter, may issue instructions or guidelines in respect of a particular investigation.

This, of course, caught the attention of the current ombudsman and the former one. The former ombudsman said:

My very brief summary submission is that if Bill C-15 is passed into law in its present form, inclusive of the new [subsection] authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada at late as 1999...I can tell you internationally in developed countries, which recognize the importance of police independence [they] prohibit police service boards or similar executive bodies from giving directions [or instructions].... It would also effectively contradict, even repudiate, the notion of improper interference by the chain of command as established in the oversight jurisdiction of the Military Police Complaints Commission and thereby effectively eliminate oversight by statutory authorization.....

This is not merely a speculative issue. We have heard references previously made to Somalia. Somalia was an accident. It was a grotesque accident that did not reflect well on the military. The only reason that it got any kind of investigation at all, which ultimately resulted in an inquiry, was by happenstance. The happenstance was that there were reporters present at the time doing what reporters normally do. Otherwise it never would have seen the light of day.

What made that investigation quite problematic was the interference of the chain of command who did not want it to occur. If it was going to occur, they wanted it to occur in a particular way and they certainly did not want any kind of inquiry. That is what drove this issue and ultimately resulted in a protocol. The protocol essentially said that one cannot interfere in a police investigation. This has been the protocol that has been in existence since the Somalia inquiry.

However, the government seems to want to appropriate back to itself the right of the Vice Chief of the Defence Staff, Chief of the Defence Staff, the minister or the Prime Minister the opportunity to give instructions and guidelines with respect to a particular investigation on any particular situation. Reference has been made as to whether this is charter proof or not. Certainly the government's line is that it is charter proof because it says it is charter proof, which is inadequate. There certainly is no proof that it is.

I had suggested to witnesses that this is similar to the government painting a big target on its forehead and saying: “Sue me. Challenge us in court”. However, the problem is that the investigation on which it will be launched, which I think is a certainty, will be a horrible fact situation. It will be on an awful fact situation that some defence lawyer will challenge this section, and if it is overturned, then the whole investigation will go sideways and justice may not be done.

We have suggested on the opposition side that the government stay with the current protocol. “If it ain't broke, don't fix it”. Currently, it is working. The military police feel perfectly free to conduct investigations as and when it sees fit.

The government has made this crazy argument that this is for operational requirements and all that sort of stuff. That is just nonsense. Most military police do not go into live fire zones to conduct an investigation. They do not interfere with exercises and all of the other things that our men and women in uniform do for us. Therefore, the government's arguments are thin indeed.

Unfortunately, I have not been able to talk about several other elements of the testimony. I regret that we were not able to get into the basic concept that we should treat our men and women in uniform in exactly the same manner as we expect to be treated, absent of compelling reasons to the contrary. On the absence of a compelling reason to the contrary, the burden is on the military, i.e., the government, to justify either interference in a police investigation or interference in a solider's or sailor's rights.

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

Mr. Speaker, in the interests of giving my hon. colleague for Scarborough—Guildwood as much time as possible, given his hard work on the committee, I would like to provide an opportunity for him to tell us more about the witnesses whose testimony he did not have sufficient time to further elaborate on or share with us the concerns of those who believe that the bill, as currently drafted, is taking us in the wrong direction.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, the one area that struck me as quite compelling was the issue of summary trials, particularly Col. Drapeau, who stated, “[an] accused before a summary trial has no right to appeal either the verdict or the sentence”. Then he went on to talk about the limitations on transcripts, evidence and access to counsel, all of which could potentially result in either a Criminal Code conviction or detention. Access to counsel, transcripts, rules of evidence and a right to rebut, these are all things that we as civilians would rightly expect and all of those things are absent. That is an area where the government could have done better. However, in its reach for mediocrity, it achieved it.

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

Mr. Speaker, it is extraordinary that the member for Scarborough—Guildwood would begin his speech by calling on us to bring the military justice system into the 21st century and then cite, as the only reason for supporting these amendments, a case that is quite far back in the 20th century. However, that is typical and it is typical of the stalling tactics by the opposition. In three years under a Liberal government, there was a failure to implement the Lamer recommendations, and in four Parliaments the opposition has conspired to hold back the amendments embodied in the bill.

The member for St. John's East talked about the military police being able to avoid walking into the wrong place at the wrong time because they are not stupid. What if these amendments passed and the ability of the Vice Chief of the Defence Staff to provide instructions was not in the bill? Then the VCDS stupidly obeyed the law, which is that police investigations in this country are independent, and military investigators, not knowing on a battlefield that an operation was taking place or a live fire exercise was taking place, went to the place where something like that was in fact happening? Who would be stupid in that case? Would the member—

[Some hon. members]

Oh, oh!

[The Acting Speaker, Barry Devolin]

Order, please. The hon. member for Scarborough—Guildwood.