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 bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.

Sponsor

Peter MacKay  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Votes

May 1, 2013 Passed That the Bill be now read a third time and do pass.
Dec. 12, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on National Defence.
Dec. 12, 2012 Passed That this question be now put.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:05 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, I can assure you that I did not use any unparliamentary language. I was reminiscing about something that took place here.

It was nice to see this morning that there was affection, once again, between the New Democrats and the Conservatives on this bill, Bill C-15. In fact, as has been pointed out, there was a time when the NDP opposed Bill C-15, to the degree that it voted against it going to second reading. Liberals were actually quite open-minded about it. We had suggested that we should wait to see what took place at the committee stage, recognizing the value that could potentially be gained on the government side.

Then the bill went to committee. I understand that the New Democrats made in excess of 20 amendments. I believe that is what members have said time and time again. What they do not say is that they were blanked out. Not one amendment passed from the New Democratic caucus. Then—

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:05 p.m.


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Jamie Nicholls

That is not true.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:05 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

That is not true? Did any NDP amendments pass in committee?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:05 p.m.


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Liberal

John McKay Liberal Scarborough—Guildwood, ON

Not that I recollect.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:05 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

They might want to check the committee records, Mr. Speaker. If there is one, they have 10 or 15 minutes to maybe explain exactly which amendment of theirs passed.

I know that a couple of Conservative amendments passed. There has been a different style of government ever since this Reform-Conservative government came into power. Unless they are Conservative amendments, they do not typically pass. We have seen that. Liberals have introduced well over 1,000 amendments. The Conservatives do not like to pass opposition amendments. They have their own agenda. It is very difficult. At times, there may be a bit of a bend here and there, but not beyond that.

The New Democratic Party members ultimately voted no in committee on the legislation itself. Something happened in between. I suspect it may have been the opposition House leader working with the Minister of National Defence, because they have a good working relationship, as I pointed out at the beginning of my comments. Now they are happy and are supporting it and are taking turns taking shots at the Liberal Party in the House, because it is actually taking a principled stand on the legislation and is saying that there are serious issues. We are not prepared to do what the NDP has done and abandon them. We believe that we should seriously look at voting against it.

I would like, and I say it somewhat tongue in cheek, the NDP to revisit the issue. As best I can tell, it is voting in favour of the government's bill today because of the issue of minor offences. Whereas an individual who committed a minor offence could have ended up with a criminal record, the government has minimized it by way of an amendment it brought to the House of Commons. As a result, it has garnered the support of the New Democratic Party. That is an important issue.

When we look at the legislation as a whole, there are some positive things being done in Bill C-15. Liberals do not question them. However, there is a very serious issue, which the government has refused to look at. I made reference to it when I posed my question a few minutes ago. I said that I was a member of the Canadian Forces. I always considered myself a Canadian first and foremost, as all members of the Canadian Forces see themselves. At the end of the day, we would all like to think that they have a fair system. We recognize that there are discrepancies between military justice and the civil justice system, and we know that in some situations, that has to be the case.

I have cited in the past examples of being at work on time. There is a much stiffer penalty in military discipline with respect to showing up late or missing a day or two. If they miss a day, they could be accused of going AWOL, and there is a huge consequence for doing that. In the civil service, it is quite different. Within the private sector, it is quite different.

We recognize the need to allow that difference, but we should be trying to narrow the gap wherever we can so that we have a system that is fair. I believe that the NDP has missed the boat, or has maybe jumped out of the boat, on the issue of fairness in dealing with individuals who are members of the Canadian Forces.

At committee, Justice Létourneau spoke eloquently, I thought. He said that soldiers are citizens and should enjoy the same constitutional charter rights as all Canadians. He stated:

We as a society have forgotten, with harsh consequences for the members of the armed forces, that a soldier is before all a Canadian citizen, a Canadian citizen in uniform. So is a police officer...but he's not deprived of his right to a jury trial. Is that what we mean by “equality of all before the law”? Is not the soldier who risks his life for us entitled to at least the same rights and equality before the law as his fellow citizens when he is facing criminal prosecutions?

He then answers the question by saying that yes, it is.

Another presentation was made by Michel Drapeau, a distinguished Canadian. He served in the Canadian Forces brilliantly, I must say. He is actually a retired colonel. I think it is important to take note of some of the things he said in committee.

Again, I will quote directly what the retired colonel said:

...someone accused before summary trial has no right to appeal either the verdict or the sentence. This is despite the fact that the verdict and the sentence are imposed without any regard to the minimum standards of procedural rights in criminal proceedings, such as the right to counsel, the presence of rules of evidence, and the right to appeal.

He continues:

In Canada, these rights do not exist in summary trials, not even for the decorated veteran, yet a Canadian charged with a summary conviction offence in civilian court, such as Senator Patrick Brazeau, enjoys all of these rights. So does someone appearing in a small claims court or in a traffic court.

I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of these charter rights when facing a quasi-criminal process with a possibility of loss of liberty through detention in a military barracks.

To me, this is one of the underlying principles of the legislation. It is something to which we should all be giving special attention. Do we want the fairness provided to the civilians to be provided to individuals who put on our military attire?

As someone who has been a member of the Canadian Armed Forces, I would have liked to have seen that sort of system in place.

I cannot say how many times I have sat here and listened to New Democratic members of Parliament talk about how legislation is not perfect, so they are voting against it. They say that if it goes to committee, it needs to be made good. If it has to be amended, they will make amendments. If the government does not pass the amendments and it is not perfect legislation, they will not support it.

I have asked questions about that. I have challenged the opposition members and asked if they would support legislation if, on balance, it was good but there were some issues they had problems with. The wonderful thing about Hansard is that we can look at it. Time and time again, they say no, they want perfect legislation.

That is not what we are seeing here today. This is not perfect legislation by any stretch of the imagination. There is a need for us to make some changes to the legislation. In many pieces of legislation, one would find that there is a need to make amendments. We already know what the government is going to do with amendments. If it is not one of its amendments, it will not pass.

In many cases, we attempt to bring forward amendments. In other cases, we hope and have faith that the government will do the right thing. In this situation, the government has not chosen to do the right thing. That is unfortunate.

This is legislation that has been before the House before. The government talks about having 100 members of Parliament who have spoken to it. It has spent time in committee. Through the years, the government has failed to bring in the legislation. They have to take responsibility for it not always passing. An example is that the government chose to prorogue a session, something that had a huge, negative reaction from the Canadian population. That killed the bill.

Whether it is elections or the proroguing of sessions, the government has not been successful in bringing forward this legislation in a timely fashion.

It has also demonstrated that it does not recognize the importance of the Charter of Rights and Freedoms, our Constitution and fairness in our justice system when it comes to our military personnel.

A number of changes are being proposed in Bill C-15. It would provide security of tenure for military judges. It would allow for the appointment of part-time military judges. It would outline sentencing objectives and principles. It would amend the composition of the court martial panel according to rank. It would change the name from the Canadian Forces Grievance Board to the military grievances external review committee.

In fact, there were even some amendments brought forward from the government that ultimately passed. They dealt with an issue I made reference to yesterday.

The idea of giving someone a criminal record for something that took place while they were serving in the military in relatively minor situations is just unfair. We needed to see some changes on that front.

We are glad that the government has seen the light, at least in part, on that issue. It is exceptionally difficult, when individuals go for an interview, after serving x number of years, whether it is three years, eight years or whatever it might be, in the forces, during which time one day they were a little upset and used some profanity toward their superior officer, and a profound disciplinary action was taken.

Let us compare that to civilian life. In the military life, that could actually lead to a criminal conviction. They would not even have had the opportunity to see a transcript or to appeal the decision in a summary trial. We have to think of the consequences of that. Those individuals now go out into civilian life, and because of that moment of stress, anxiety, pressure or whatever it might be, when a question is posed on the application about whether they have a criminal record...we have to think about that outcome.

That is the reason there was a need for change. Having said that, I really believe that when we talk about summary trials, what is really at the crux of it is the idea that someone does not have a right to counsel, does not have a right an appeal and there is no transcript.

We are not saying we have to go it alone; other countries in the world have moved in that direction. One could ask the question, why not Canada?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:25 p.m.


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Ajax—Pickering Ontario

Conservative

Chris Alexander ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, now let us get this straight.

For decades in the 20th century, we had a summary trial system. Under Liberal governments, it was seen as constitutional, and indeed legal in every respect, a model to the world.

After 1982, the Charter of Rights and Freedoms was entrenched in our Constitution. We had Liberal governments for about 20 years at that time, the better part of two decades. The Liberal Party of Canada saw summary trials as they existed in our unreformed National Defence Act as constitutionally legal.

Fast forward to 2003 and the Lamer report, which recognized summary trials as legal and constitutional, but recommended some modifications, some updating of the National Defence Act. The Liberals did not act on that for three years.

From 2006 to now, Liberals, as they are today, blocked every attempt to make these amendments, but on the final stage of third reading of the fourth attempt to bring these changes in, they decided that summary trials were no longer constitutional and legal.

Does the Liberal Party simply not have a position, or has it changed its position 180°, and if so, why?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:25 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, things change through time. There will be a time on this particular government, I must say. Having said that, the hon. member made reference to the 2003 report to the minority government. There were in fact efforts made toward changing the system.

The member is saying that it has been debated enough inside the chamber, and even though the Liberal Party might be right, it does not matter. He saying that we should all just give a good, big, group hug, support it and pass the legislation. That is the mentality that the member is a proponent of.

I would suggest that the bill itself is fundamentally flawed because you have not, and you could have, in fact, improved the bill. You or the government—

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:25 p.m.


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Some hon. members

Oh, oh!

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:25 p.m.


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The Acting Speaker Barry Devolin

Order, order. I am going to give the member a few seconds to wrap up, but again would remind him to address the Chair rather than his colleagues.

The hon. member for Winnipeg North.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:25 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, the government needs to recognize that it is the one that is ultimately responsible for not doing the right thing here, and that is treating the Canadian Forces with more respect when it comes to judicial process.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:30 p.m.


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NDP

Jack Harris NDP St. John's East, NL

Mr. Speaker, I listened with great interest to the member's speech, apparently using speaking points from our speeches for the six or eight months that we debated this in Parliament.

The member said he did not know how many times he had listened to us. Well, we had 55 speakers at second reading. I think the hon. member's party had three, and they supported the legislation at second reading. We voted against it. We went to committee and introduced I do not know how many amendments—15, 16, 20, or thereabouts. The Liberal Party, which supported the second reading and seemed to be satisfied with it, introduced none.

Now it is coming here, reading our speaking notes, saying that it is going to vote against the legislation and giving us grief because we have tried to improve the legislation. We brought forth the witnesses to say the things that the member is now quoting. We championed this cause.

I want to understand why it is that the member gave the speech that he did. Was the Charter of Rights not in existence when his government was in power, between 1993 and 2006? What did you do about it then?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:30 p.m.


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The Acting Speaker Barry Devolin

Before I go to the member for Winnipeg North, I would like to remind all hon. members again, including the member for St. John's East, to address their comments to the Chair rather than their colleagues.

The hon. member for Winnipeg North.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:30 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, the New Democrats need to give their collective head a shake on this issue. They are just not making any sense. It is time to have a caucus and try to get things on the right track, or at least revisit what it is that they are doing.

Let us think about it. The Liberal Party says, "Yes, let the bill go to committee. In principle, let us allow it to go to committee in the hope that government will in fact make some of the changes." What does the NDP do? It says, "No, do not let it go to committee." It goes to committee and what do the New Democrats do? They propose 22 amendments, all of which get defeated and then they go on to have a filibuster on the legislation. Now, they have somehow had this road to Damascus conversion. The Minister of Defence has hoodwinked them and now they are going to be voting in favour of the legislation.

The Liberal Party has been consistent on this piece of legislation. In fact, I would suggest that it has been the Liberal Party that has said that it recognizes that our members of the Canadian Forces should have the same treatment, as much as possible, in the justice system as civilians.

That is something in which we want to narrow the scope. Obviously, we are different from the New Democrats. They really need to re-caucus the issue because they are out of tune with the charter.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:30 p.m.


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Conservative

Mark Strahl Conservative Chilliwack—Fraser Canyon, BC

Mr. Speaker, I listened with amusement to the hon. member's speech.

I did want to ask him why the members of the Liberal Party of Canada did nothing about this during its 13 years in power. How many more years would they have needed in government to bring forward significant reform to Canada's military justice system? Are they just blowing hot air once again here in the chamber?

I know the hon. member was not a member of the government, but he could look behind him to the hon. member for Scarborough—Guildwood and perhaps ask him.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

April 30th, 2013 / 1:30 p.m.


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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, one could ask the member why is it that the former Reform Party never recognized it as a valuable issue to the degree that it never raised it in question period.

The member is clapping his hands. He should give himself a clap and a pat on the back. The Reform Party was a disaster.

I suspect the New Democrats also never raised the issue in question period.

It was not until 2003 that the study came down to deal with the issue, which was initiated by the Liberal Party. Yes, there were a lot of things that we did in those last three years. They can talk about the Kelowna accord, child care and managing our economy to the degree that we had a surplus. We had a trade surplus. Look at where we are today. Yes, it would have been nice.

Now we have the opportunity to make a difference and let us do it right. If they do not want to do it right, wait until 2015 and the Liberals will get it right.