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

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I was part of the military justice system. I have conducted summary trials and fortunately have not been on the other side of a summary trial, but the member opposite complained about summary trials being unfair because they could produce criminal records. Is she aware that there are only two Criminal Code offences that can be heard at summary trial that would result in a criminal record? Those are assault and assault causing bodily harm. The vast majority of offences tried at summary trial do not result in a criminal record.

She mentioned that members have a choice in most cases of whether they select a summary trial or a trial by court martial. The fact is that 90% select summary trial. From my experience and from commanding men and women, they choose that because they think the system is fair and because they actually have faith in the system, something to which the member should listen.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I thank the hon. member for his question.

In fact, I researched this issue at length because my mother, up until quite recently, was coxswain in the navy. That was her main responsibility and we discussed her role at length. Even if there are only two situations that can result in a criminal record, it is still disconcerting that proceedings can take place without a lawyer present, and that the judge is the commanding officer of the accused.

The conflicts of interest that were originally a problem remain so. Members of the military may opt for a summary trial because the consequences of a court martial might be worse. The options open to the military are quite limited when it comes to the manner in which they are disciplined.

It is important to think through the issues. Despite my colleague's comments, the amendments proposed by the NDP are reasonable and should be adopted in committee.

[Sana Hassainia, NDP, Verchères—Les Patriotes, QC]

Mr. Speaker, I would first like to thank my colleague for her speech. I would like her to talk about the reform of the grievance system.

The NDP proposed an amendment that stipulates that at least 60% of the members of the grievance board must not be former officers or members of the Canadian Forces. This amendment was adopted in March 2011 as part of Bill C-41, but it was not retained in Bill C-15.

Could my colleague tell us why it is so important to include this new amendment?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

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

It is an important amendment, which affects the composition of the grievance board. Currently, retired or former members who left the Canadian Forces as recently as a couple of years ago, sit on the committee. This means that the door is still open to conflicts of interest and other problems.

Justice and fair procedures for all are a must. This is why the amendment was introduced. I would like to reiterate just how important it is that the work done in committee—were the bill to be adopted at report stage—include this type of amendment, which has already been approved by members of all stripes in this House. Work done in the past must not go by the wayside and should be taken into account in the committee's current work.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, the NDP members always work in good faith, but on the bill we tried hard at committee to bring forward reasonable amendments that would actually strengthen it in terms of military justice and that bill was thrown out. Now the new bill suddenly does not include the amendments that were made at committee.

It raises a lot of questions about how the government responds to other parties in the House. This high and mighty, arrogant attitude is very worrying. Would the member comment on that? Maybe she has had experiences in her own committee on that.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I thank my colleague very much.

Unfortunately, every opposition member has experienced this kind of situation, whether in committee or the House. We are all, unfortunately, familiar with the intransigence of a majority government, and that is not the way things should work.

Our experience today of Bill C-15 is a reminder of what has occurred previously in this House, whether in relation to omnibus bills or other problems that have warranted consideration in committee. For example, Quebec's centre for maritime research and rescue has been denied a voice in every forum it has sought one. What we are seeing here is symptomatic of what can be found in all Conservative bills: contempt for the opposition, nothing less.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I am obviously very honoured to be here in this House to discuss Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, which we are examining today.

On this side of the House, we believe that this bill is a step in the right direction, but it is unfortunately a small step. We believe that military justice must be a part of Canada's justice system as a whole. Military justice laws must be consistent with other laws in our justice system, particularly when it comes to the principles of fundamental rights. Military justice must be fair and equitable so that it does not negatively affect discipline and so that it helps maintain morale among our troops. Our soldiers volunteer to participate in our armed forces. They must always be entitled to fair treatment.

During the study on a bill that dealt with the same issue, we tried to ensure that the military justice system procedures were effective and consistent with the need for disciplinary issues to be resolved quickly. However, efficiency and speed should not trump the fundamental principles of justice. Just because they are members of the military does not mean that the fundamental principles of justice do not apply to them.

The origins of this bill date back to 2003. I would like to provide some background so hon. members understand its origin and scope. In 2003, the Right Hon. Justice Antonio Lamer, former Chief Justice of the Supreme Court of Canada, submitted a report on the independent review of the National Defence Act. This report contained 88 recommendations on various military justice issues.

The government introduced Bill C-15, in response to this report and its recommendations. I must point out that, of the 88 recommendations in the report, only 28 were included in this bill. The provisions in Bill C-15 appeared in other bills that were previously introduced in Parliament. There was Bill C-7 and Bill C-45, which both died on the order paper.

In July 2008, the government introduced Bill C-60 to simplify the court martial structure and establish a system for choosing the court martial format that would harmonize best with civilian justice. In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-60 and made nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and to the Senate committee's 2009 report.

When the committee studied the bill, it approved some of these amendments, which would have resolved some of the problems raised by the bill. Oddly enough, they are not included in Bill C-15, which has been introduced and is before us.

Some of these amendments had been proposed by the Judge Advocate General as compromises to correct the system in an acceptable manner. They removed certain offences from the list of those that would not result in a criminal record. However, the government simply deleted these amendments when drafting Bill C-15.

That is the extent of the Conservatives' respect for the work of Parliament. Unfortunately, they believe that they can do as they wish without regard for the previous work of Parliament because they have a majority. Basically, Bill C-15 is similar to the version of Bill C-41 introduced by the Senate committee in the last Parliament. However, that bill contained the provisions of bills C-7 and C-45, which died on the order paper, as I mentioned.

The provisions in the bill were not included in Bill C-60. The bill also implemented the recommendations made by Justice Lamer in 2003 and those made by the Senate committee in 2009. At committee stage of Bill C-41, my colleagues on the Standing Committee on National Defence proposed amendments to Bill C-41 to lengthen the list of offences that could be considered minor. My colleagues believed that these minor offences did not warrant a criminal record. The proposed amendments also would have lengthened the list of penalties that could be set by a tribunal without resulting in a criminal record.

However, many of the amendments proposed for Bill C-41 were, unfortunately, not included in Bill C-15. Although it contains some worthwhile provisions, Bill C-15 also has some shortcomings. If the bill makes it through second reading, we hope to be able to discuss those shortcomings and ensure that the bill will make the military justice system as fair and effective as possible.

I would like to focus on the provisions concerning summary trials, since some of them, as they are written, could have serious consequences for soldiers, particularly during their transition to civilian life.

A summary trial is one where the chain of command is allowed to judge subordinate soldiers. It is important to point out that these trials are held without lawyers, without a jury, without a system of evidence and without witnesses, unlike in the civilian justice system. Over 95% of military trials are summary trials. A conviction in a summary trial sometimes results in a criminal record. There is no recourse and no transcript of the proceedings. This is too severe for members of the Canadian Forces who are convicted of minor offences.

These minor offences include insubordination, quarrels, misconduct, absence without leave, drunkenness and disobedience of a lawful command. These offences are undoubtedly very important for military discipline, but do not necessarily call for a criminal record.

In committee last March, the NDP proposed amendments to Bill C-41 to increase from five to 27 the number of offences that could be considered minor and would not merit a criminal record if a minor sentence were imposed. The amendment also added to the list of penalties a tribunal may impose without giving the offender a criminal record, for example, a severe reprimand, a reprimand, a fine equal to one month's salary and any other minor sentences. These amendments were very important to us, and that is why we want them to be included in Bill C-15.

A criminal record can make soldiers' lives very difficult after they leave the military. A criminal record can make it hard for veterans to get a job, rent an apartment, travel or get insurance. Many Canadians would be shocked to learn that the soldiers who so bravely served our country could end up with a criminal record because of flaws in the military justice system.

I have seen first-hand the problems experienced by some veterans during their transition to civilian life and I know it has been extremely difficult for some. As I said, I am a member of the Standing Committee on Veterans Affairs. Veterans shared their concerns with us loudly and clearly and talked about the obstacles they face in their transition to the civilian world. It is hard for veterans, especially for injured veterans, to find work in the civilian world. Considering the number of veterans working in the public service, it is clear that priority hiring for veterans is not always respected.

The private sector, and especially the construction industry, is trying to do its part, but this private sector initiative is not available to all veterans, since it is not available in all provinces. Veterans therefore have to obtain educational equivalencies for the training they received during their service. If they are saddled with a criminal record on top of that and have to go through the commission to get a pardon, which costs $600, we are doing nothing to help them reintegrate properly into civilian life.

As I said earlier, we would like the bill to include these provisions.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, once again I listened with interest to the disinformation that my hon. colleague included in his remarks. The Minister of National Defence has indicated that he will bring the criminal record issue back to committee, so the member should calm down.

One of the other things he said was that the make-up of the grievance committee was not supported by the government in the committee. I was there and it was not supported, as were a bunch of others not supported. For the member to suggest that all of these things that had been previously supported by the government and are now is simply false. Bill C-41 died on the order paper because of the opposition calling an unnecessary election.

My colleague mentioned that only 29 recommendations have been implemented. Eighty-one of those recommendations were accepted, 29 were implemented and another 36 are in fact contained in Bill C-15. If he and his party want to make progress, because it was said earlier this is a step in the right direction, we should just get on with it and get it to committee where amendments that need to be made can be debated. Let us just get on with it, please.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I thank my hon. colleague for his observations and comments. Since we are on the subject, we would really like to see the amendments to the previous bill included in this one. We want to update all of those things. Bill C-15 is a step in the right direction. However, a lot more could be done to make the military justice system more consistent and more equitable for some people who have to face military justice, sometimes for offences that are more like insubordination. When that happens, as I said, they get stuck with a criminal record. In our opinion, the bill should go even further and include more summary offences that could be—

[The Acting Speaker, Conservative, Bruce Stanton]

Questions and comments.

The hon. member for Brome—Missisquoi.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank my colleague for his heartfelt speech.

Given that the United Kingdom, Australia, New Zealand and Ireland have already decided to change their summary trial processes, why is Canada lagging far behind on this important issue?

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I thank my colleague for his question. I especially thank him for pointing out that Canada is lagging behind other countries that have already updated their criminal justice systems.

Bill C-15 corrects some of the current shortcomings, but it does not go far enough, as I said earlier. We should be looking at the countries my colleague mentioned, as they went much further in reforming military justice. We obviously need to move in the same direction and follow their lead as we reform our military justice system.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I want to repeat something I mentioned to the previous speaker, because the allegation about criminal records is simply not true. The two Criminal Code offences that can be heard at summary trial that would result in a criminal record are assault and assault causing bodily harm. The vast majority of offences at summary trial do not result in a criminal record. The member should stop spreading inaccuracies.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, again, I want to thank my colleague for his question and remarks. I was under the impression that there were a few more offences that could result in a criminal record. That is something we need to look at. I believe that other offences can also lead to a criminal record. We must give this issue very serious consideration.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I am extremely pleased to rise, as my colleagues in the official opposition have done, to take part in the debate on Bill C-15.

Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, makes changes to the National Defence Act, in order to strengthen the military justice system. It provides for greater latitude in sentencing and in introducing new sentences, such as absolute discharge. It also sets out changes relating to intermittent sentences and restitution. It makes changes to the membership of the court martial panel according to the rank of the accused person, and to the summary trial limitation period, as well as making it possible to waive the one-year period at the request of the accused. It also sets out the responsibilities of the Canadian Forces provost marshal and the power of the Chief of Defence Staff as the final authority in the grievance resolution process.

The NDP believes these changes are a step in the right direction toward standardizing the military and civilian justice systems. In this regard, I would like to thank my colleague from Rimouski-Neigette—Témiscouata—Les Basques for his speech on this bill earlier in this House. He gave a very clear explanation of why standardization is necessary. He also provided some background for the bill which, we remember, results from the recommendations made by the Right Honourable Antonio Lamer, in his report—the “Lamer Report—on the independent review of the National Defence Act that was tabled in 2003, and the recommendations in another report, one by the Standing Senate Committee on Legal and Constitutional Affairs in 2009.

Essentially, Bill C-15 incorporates the provisions of Bill C-41 that was introduced in the last Parliament. However, not a single one of the NDP amendments that were adopted at committee stage late in the last parliamentary session is included in the bill before us today. There were three such amendments and they dealt with: the power of the Chief of Defence Staff in the grievance process set out in clause 6 as amended in Bill C-41, a measure deriving from one of the recommendations in the Lamer Report; changes to the membership of the grievance committee to ensure it is made up of at least 60% of civilians, as provided in clause 11 as amended in Bill C-41; and the provision ensuring that a person convicted of a service offence during a summary trial should not receive an unfair criminal record, as provided in clause 75 as amended in Bill C-41.

The NDP has called for amendments to be made to the military justice system for a long time now, but it is clear on reading this bill that this version is not satisfactory. It is for this reason that we will be voting against Bill C-15 at second reading. If the wording is passed at this stage, we hope that the debate in committee will allow for an in-depth analysis of the text and improvements to its content.

This bill has three major flaws: the reform of the existing summary process, the reform of the grievance system and the strengthening of the Military Police Complaints Commission.

I will discuss each of these points. First, the reform of the summary process system is unfair and too harsh towards the men and women of the Canadian Forces. If these individuals commit minor offences, they end up with a criminal record, which could be detrimental in a future civilian life.

I want to share an excerpt of a 2011 report by the British Columbia Civil Liberties Association regarding Bill C-41:

Presiding officers in summary trials may have a different focus. They are military officers, not judges, and their primary concern is likely to be unit discipline and deterring future violations, not the effect the sentence they impose will have on an accused in the civilian world.

We think that disciplinary action without a criminal record is more than enough in cases of insubordination, absence without leave or disobeying an order. One of the NDP's amendments proposed including in the list of minor offences all those that would not be placed on a criminal record. We want this proposal to be taken into consideration by the Standing Committee on National Defence.

As far as the reform of the grievance system is concerned, the NDP has already been critical of the composition of the grievance committees. One of the three amendments stated that civilians should make up at least 60% of the committee members, to ensure that there is an external review of grievances. This amendment was adopted and we hope it will be again during the study in committee.

The third amendment proposed by the NDP, as part of the study of Bill C-41, had to do with the authority of the Chief of Defence Staff regarding financial aspects of grievances. This amendment responded to one of the Lamer report recommendations. I should point out that the Minister of National Defence agreed with this one. He acknowledged that the Chief of Defence Staff needed to have the authority to resolve the financial aspects of grievances.

Over the last eight years, however, the Department of National Defence has done nothing concrete to implement the recommendations made by the former Chief Justice of the Supreme Court of Canada. As well, the present bill does not include that amendment, and the NDP would like the government to reconsider its position.

As a final point, regarding the strengthening of the Military Police Complaints Commission, we believe that Bill C-15 does not go far enough, and that there should be another bill, separate from the one being debated in the House today, to address this important issue. As well, many Canadians might reasonably wonder why there is unequal treatment between the procedure that applies in the criminal courts and the procedure that applies to the people who bravely serve our country.

In conclusion, the NDP urges the government to adopt its amendments as presented and adopted during consideration of Bill C-41. We firmly believe that the women and men in the Canadian Forces are entitled to a military justice system that is consistent with the stringently improved and circumscribed criteria and procedure.

We are opposed to minor offences resulting in a criminal record, as this can complicate everyday life for the person in question, in civilian life. We will do everything we can to make the Canadian military justice system fairer for the women and men in uniform who risk their lives in the service of Canada.