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

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, the member for Winnipeg North seems to be obsessed with the NDP. He spent about 10 out of 20 minutes talking about us. Is it because he won by 45 votes over the NDP in Winnipeg North that he is so obsessed with us and what we are doing?

I come back to the question that was asked. They voted for the bill at second reading. Normally, this course of action is taken in order to propose substantial amendments in committee and try to improve the bill. However, once the bill got to committee, they did not do anything. To defend themselves, they said they tried to improve the bill, but they did absolutely nothing.

Is it the Liberals’ philosophy to sit back and let the government do what it wants to, without saying anything or making any concrete proposals? Instead of simply voting against a bill, the Liberals should also put forward amendments, as we do in committee. What does the member think?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, one of the things I never do is take my constituents for granted. Whether one wins by 45 votes or 4,500 votes, I like to believe that I never take my constituents for granted and I will continue to work for them. I suspect members will find an attitude like that within the Liberal caucus.

Within the New Democratic caucus, members might feel that Jack Layton was its jackpot. However, at the end of the day, members will have to answer to the best of their abilities.

What concerns me is the fact that we continue to move forward where we can, and I believe that this legislation could have been made better.

I apologize if I offended anyone with my comments regarding Jack Layton. I respect what he was able to accomplish as a parliamentarian. However, my point in standing at this time is to say that we should never take our constituents for granted.

[The Acting Speaker, Barry Devolin]

Order, please. Before we resume debate, I understand the hon. member for Saint-Lambert is rising on a question of privilege.

The House resumed consideration of the motion that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the third time and passed.

[The Speaker, Andrew Scheer]

The hon. member for St. John's East has approximately eight minutes left to conclude his remarks.

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

Mr. Speaker, just before question period and members' statements I was outlining why we have seen fit to indicate our support for this bill at third reading despite the fact that we voted against it at second reading, second reading being approval in principle.

We raised quite a number of points concerning the deficiencies of the bill through speeches and debate at second reading. The deficiencies of the bill are also deficiencies of the status quo. In other words, the things that we were seeking to improve have been there for a long time.

We complained about the inadequacy of the summary trial procedure, because people did not have the full availability of all of the charter procedures. That was there in 1983, when the Charter of Rights and Freedoms came in. It was there in 1993, when the Liberals came to power, and it was there in 2006, when the Conservative government came into power. When Bill C-41 came about, I started talking considerably about this issue and about the need to bring about changes in the act.

In the last parliament, under Bill C-41, we brought about changes in committee similar to the amendment to clause 75 that was passed here in committee. Other measures that we brought forward went further in different areas, but did not achieve success. Nevertheless, the changes contained in Bill C-15 regarding military justice are, on the whole, positive, although they are not where we want to be.

As I said before question period, we are making a commitment that when we form a government in 2015, we are going to fix these things. We are going to fix the fact that the grievance board would not have a requirement for civilian as well as military members. We are going to fix the fact that grievances would not have to be heard and completed within one year. We are going to fix the fact that a change would be made in legislation to allow the Vice Chief of the Defence Staff to issue instructions on investigations that the Provost Marshal could undertake, for example.

There are a series of things that need to be done. We need to go further in reforming the law with respect to summary trials and the protections that need to be present. These are things that we are committed to doing.

However, we are also committed to the progress that has been made. I would like to put it on the record that we claim credit for that. We put it on the table and we made the arguments at second reading with those 50-some speeches and we got a commitment from the government to make an amendment to that provision. Because of that, 93% of summary conviction trials will now not result in a criminal record.

We brought in a number of amendments. I think it was 22. I do not recall any of them being warmly accepted by the government, but they were brought forward for a very important reason: they were brought forward to fix the deficiencies in the act. We are not satisfied with the result, but that does not mean we are going to throw out the progress that has been made.

We brought those amendments because we want to make it clear that we are not satisfied and we want it to be fixed. We want it to be improved. We want the changes that we brought forward to be made. We want to give the Chief of the Defence Staff, for example, the financial authority to compensate CF members as a result of the grievance process. We want to ensure that there is police independence and that any charges must be laid within a year. We want to expand the procedure for summary trials so that no one gets a criminal record without having the protections of the Charter of Rights and Freedoms in terms of proper due process. These things are part of our commitment to the men and women in uniform, and we want to see them happen.

We brought before the committee people such eminent personages as Clayton Ruby, a renowned and probably pre-eminent Canadian lawyer. The member opposite said “infamous”; he may be infamous in some circles, but I tell the member that as a member of the legal profession, he is extremely highly regarded.

He was treasurer of the Law Society of Upper Canada, which means president. He has been honoured across the country for his work. He has the most comprehensive work on sentencing in Canada. His works are quoted by all courts in Canada, including the Supreme Court of Canada. He is an eminent personage who came and testified before our committee and talked about the need to ensure that members of our military have the same protections in law and the same rights as others.

We had former justice Gilles Létourneau of the Federal Court of Canada. He had also been chair and commissioner of the Somalia inquiry, which probably was what first brought to light to Canadians the deficiencies in our military justice and policing systems. That gave rise to reforms, although they took a long time to get here.

We can point fingers all ways to Sunday as to who is responsible. The government ultimately is responsible because it has control over legislation, except in the case of a minority government, which has less control. We are here now with significant reforms, if not all the ones that need to be brought in, and we should claim progress. Certainly we are claiming, on behalf of our party, some significant progress in addressing this particular concern that we brought to the table and that got us to the point where we are today.

Therefore, I want to encourage members to support the bill. For some reason the Liberals have decided not just to vote against it but to attack the New Democrats for supporting it. If the enemy is the government, I do not know why they would not attack the government. However, I am not in charge of their strategy, so I do not know.

If they want to oppose it, they could just get up and quietly vote against it, but instead they want to make some issue of the fact that we, who opposed it in second reading, got a substantial improvement in the committee in favour of individuals so that 93% of the people charged with summary conviction offences would get no criminal record. The Liberals think there is something wrong with that, and at the same time they approved the bill in principle at second reading, offered no amendments in committee and are now going to vote against it and oppose it here today. That is for them to explain.

I am here to explain to the House and to the men and women in uniform why we are supporting the advances that are being made and why we are making the commitment to bring about some significant changes, including what was proposed by Mr. Justice Létourneau in his testimony: a fundamental wall-to-wall review of the National Defence Act, conducted outside the control of National Defence, that would give Parliament truly independent advice on how to fix this situation.

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

Mr. Speaker, we on this side would like to congratulate the member for St. John's East for his support for the bill, for his party's support for the bill, and for his recognition of the important progress it represents in our military justice system. It represents progress by ensuring that criminal records would no longer be generated by a whole series of summary offences. It represents progress in sentencing reform, in victim impact statements, with regard to entrenching the rule of the grievance board, the Provost Marshal of the Canadian Forces, and so forth, as well as entrenching the process of review in which we all believe.

The member cited Clayton Ruby and Mr. Justice Létourneau. Would he not agree, just for the record, that there is a very strong position to be considered that says, as Chief Justice Dickson said, as former Chief Justice LeSage has confirmed in his most recent report, that “the summary trial process is likely to survive a court challenge to its constitutional validity”, and that the most curious aspect of this third reading of the bill so far is the absolutely vertiginous change in position by the Liberals?

I do not know if they have it back to front or front to back. I do not know if it is because the member for Papineau is now in charge and that someone is not really in control of the wheel, but the Liberals seem to no longer accept the constitutionality of the summary trial process that they lived with for decades in government, that they accepted at second reading and voted for, and that they sat on their hands for and did nothing to change in committee.

Would the hon. member agree with that assessment?

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

Mr. Speaker, first, let me say that the comments that my friend referred to at committee by Mr. Justice LeSage, Justice Dickson and Justice Lamer about the general acceptability of a differing system of military justice from the civilian system and the Charter of Rights and Freedoms, I think, were cast in general terms. I do not believe that kind of analysis would be applied to the individual specific aspects of the system, as Clayton Ruby and Mr. Justice Létourneau pointed out. They were not passing judgment as they would in a court when presented with a certain fact and situation and circumstance, which is the only way these types of decisions are made by a court. I think that was clarified by the testimony of Mr. Clayton Ruby, retired Colonel Michel Drapeau and Mr. Justice Létourneau.

As for the Liberals, I think they are going to have to speak for themselves.

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

Mr. Speaker, I have nothing but sympathy for the member for St. John's East having his own vertiginous moment here. I am quite fond of the member for St. John's East, and I want to commend him quite uncategorically and say that he has worked very hard on this file. He has worked very hard on this file in this Parliament and in the previous Parliament. His 20-minute explanation at this stage as to why the NDP is having a moment of support for the government is an interesting phenomenon. I wish him well.

The member started off by saying that NDP members made 55 speeches against the principle of the bill. They probably did. In fact I think I even heard some of them repeated this morning, with an amendment at the end that said “but we are going to vote in favour of the bill”.

The member worked very hard in committee, and I commend him for his work. He moved 22 amendments and had no success with any one of them, which is unfortunate. I think the bill would have been improved by a number of his amendments.

Then the member said they were taking credit for what movement the government did make. I am not quite sure what movement the government did make, but nevertheless let us say they did. It is regrettably a stripped-down version of it.

At the end of the committee, he was so unhappy with the lack of movement by the government that he filibustered for four hours. I declined the opportunity to listen to my hon. colleague for four hours, and now he is back in the House supporting the government's bill.

I would ask the hon. member, when he is having his vertiginous moment, if his stomach in fact turning.

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

Mr. Speaker, I thought vertigo had to do with the head. I am not sure, but it is something between the ears, I believe.

In any event, I think the hon. member is confusing support for the legislation with support for the government. I made it very clear that I did not support the government. In fact, the reason we had the mini-filibuster in committee was that the members opposite decided, without any warning or any politeness or any consultation, that instead of coming back the next day to finish the committee hearings, they wanted to go forever. I said that if they wanted to go forever, then we were prepared to go forever.

I know the member declined to enjoy the conversation and continue with the rest of the legislation, but we went ahead and did so in his absence. We did work hard on the bill, and we laid the groundwork, I think, for what will be significant future progress in this area.

I do not know why the member is saying he does not see the improvements in the bill. I will remind him that we now have the circumstance where some 93% of the summary trial procedures that go forward for our men and women in uniform will not result in a criminal conviction. For that, I am grateful. I am sure the men and women in uniform are as well.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I would like to thank the hon. member for his hard work on this bill and particularly for bringing forward very important amendments.

We have to credit the government for finally, actually, accepting some amendments.

One thing that concerns me is that apparently the government did take some action on Right Hon. Antonio Lamer's report of 2003, but has yet to take any action on the report, which it commissioned, I understand, by the Right Hon. Patrick LeSage. That report was brought to the government and tabled in 2012, in the process of the review of this bill.

How long do we have to wait in this country to bring forward a modernized system of trial of offences for our brave men and women who serve overseas? Why do they not merit a quicker response by the government to bring forward a more just system?

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

Mr. Speaker, I would like to thank the member for Edmonton—Strathcona for her question. I could not agree with her more.

This has been an extremely slow process. The kind of review that Justice LeSage did, for example, was available to the government members a year ago, in June, I think. It was finally tabled in December, when they said it was too late to deal with it. If they had dealt with it when they received it, we could have had amendments to this act in keeping with his recommendations.

We have asked the government to commit to bringing forth legislation within the year. I hope it will do so. We want to go further than that and follow Justice Létourneau's recommendation that there be a fundamental wall-to-wall review of the National Defence Act conducted outside of the control of the Department of National Defence to give Parliament a legislative proposal addressing not only the military leadership's wishes, but also those of our civil society.

Other nations similar to ours, whether it be Australia or the U.K., have modernized the system. They have made it far more related to the civilian process. We are not that unique in Canada that we cannot do that, but we need to do it with the proper wall-to-wall review that Justice Létourneau has suggested.

How long will we have to wait? It does not seem that the government is prepared to do it. Maybe we will have to wait until 2015 in the hopes that the review can and will be done.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I would like to inform you that I will be sharing my speaking time with the member for Esquimalt—Juan de Fuca.

I am pleased to rise today to speak about this bill, which at the outset contained a number of clauses to which the NDP was opposed at previous readings.

After a difficult battle over amendments to clause 75, regarding criminal records, an issue on which we very publicly expressed our views, our party is satisfied that we forced the government to change nearly 95% of the offences under the Code of Service Discipline. They will no longer result in a criminal record. This is why I will be supporting Bill C-15.

It must be said that my colleagues worked very hard to ensure these changes were made. Today, we are proud of the tangible results we obtained for members of the Canadian Forces. Our efforts will make it possible to reform one of the most important pieces of legislation aimed at establishing a more equitable military justice system.

By way of background, Bill C-15 is a legislative response to the recommendations made by the former chief justice of the Supreme Court of Canada, the Right Honourable Antonio Lamer, who tabled his report on the independent review of the National Defence Act in 2003. It contained 88 recommendations regarding the military justice system, the Military Police Complaints Commission, and the grievance process up to and including the Canadian Forces Provost Marshal. In addition, another review of certain provisions of the National Defence Act was conducted by the Ontario Superior Court. This report was given to the government in December 2011, but it was not until June 2012 that the minister tabled it in the House.

Despite the fact that the Conservative government received the LeSage report more than a year ago, it has not yet incorporated a single one of these recommendations into Bill C-15. In fact, the Conservatives voted against the amendments put forward by the NDP, which was attempting to have a number of recommendations from the LeSage report included in the bill.

Bill C-15 has appeared in various guises in 2007, 2008, 2009 and 2010. Bill C-41 was tabled as a follow-up to the 2003 Lamer report and to the report by the Standing Senate Committee on Legal and Constitutional Affairs. It contained provisions on military justice, including sentencing reform, military judges and committees, summary trials, court martial panels and the Canadian Forces Provost Marshal, and a number of provisions related to the grievance and military police complaints processes. Bill C-41 was amended in committee, but died on the order paper because an election was called.

Basically, Bill C-15 is similar to the version of Bill C-41 that came out of the committee’s work during the previous session. However, major amendments that were put forward in the last Parliament at committee stage were not included in Bill C-15.

At present, a conviction following a summary trial for a military offence may result in a criminal record for the Canadian Forces member even though there is no guarantee that the trial was fair. In fact, during a summary trial, the accused may not consult legal counsel. There is no appeal, nor is there a transcript of the trial, and the judge is the commanding officer of the accused.

This results in consequences that are too severe for Canadian Forces members who are found guilty of minor military offences, such as disobeying a lawful command, feigning an illness and permitting or assisting an escape, even though the escape itself does not lead to the establishment of a criminal record. This is why the Right Honourable Patrick LeSage stated that the damage that flows from a criminal record and the potential effect on a person’s life is “far too severe a consequence” for most offences tried by summary trial and that the consequences are “totally disproportionate to the violation”.

Although some progress has been made, we feel that additional reforms are required and that there must be a review of the summary trial process.

Both in the House and in committee, the NDP has asked for changes and amendments to reduce the impact of disciplinary punishments and of a potential criminal record, and to raise the issue of the absence of a comprehensive charter of rights.

The NDP fought to improve the bill in committee. Our efforts resulted in a longer list of offences and cases that will not lead to a criminal record, as well as a number of other amendments to improve the bill, and this shows our commitment to reforming the system.

The NDP supports this update to the military justice system. We understand that members of the Canadian Forces must comply with very high standards of discipline, but we strongly believe that in return they must be able to rely on a justice system that meets standards that are just as high.

Many Canadians would be astounded to learn that the men and women who serve our country with valour may be given a criminal record because the system does not follow the procedural rules that are normally applied by civil courts. They may be subject, as the Right Honourable Patrick Lesage writes, to consequences that are “totally disproportionate to the violation.”

Moreover, for the Canadian Forces Grievance Board to be seen as an external and independent civilian oversight body, as it is intended to be, the appointment process must be amended to reflect this reality. Consequently, some members of the board should come from civil society.

One NDP amendment stated that at least 60% of members of the grievance board must be people who had never been officers or non-commissioned members of the Canadian Forces. This amendment was passed in March 2011 as part of Bill C-41, but it was not kept in Bill C-15, as the Conservatives rejected it.

In order to guarantee the independence of the external committee, the NDP put forward an amendment to clause 11, to exclude serving members of the Canadian Forces. This measure was called for both by Justice LeSage, following his independent review, and by Bruno Hamel, chair of the Military Grievances External Review Committee.

Here again, the Conservatives voted against this measure, just as incapable as they always are of setting up the measures needed to ensure the independence of the grievance review committee, the military police or the judicial elements of the military justice system.

The NDP will work toward making the military justice system more equitable for all Canadian Forces members who put their lives in danger in order to serve Canada.

Many of our allies have considered it worthwhile to amend their summary trial processes, which leads us to wonder why it is taking Canada so long to modernize the military justice system for our troops.

The eminent jurist Gilles Létourneau has called for an independent and comprehensive review of all the National Defence Act provisions that deal with the military justice system.

When will the Conservative government stop making ragtag, piecemeal changes to the military justice system? When will it carry out an exhaustive and independent review?

I would like to end by saying that the official opposition has at heart the best interests of the men and women who defend our country and who risk their lives to make the world a better place.

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

Mr. Speaker, I have a fairly simple question to put to the hon. member for Pontiac.

If the NDP really has the interests of the Canadian Armed Forces at heart, why did it take him two years to vote in favour of this bill? The government was prepared to go ahead two years ago. This is the fourth version of this bill we have considered. Why?

It is not merely a matter of the over 50 speeches the hon. member for St. John's East has mentioned. Why were there 77 NDP speeches at second reading? Why make 16, or whatever, at this stage? Why delay the passage of a bill that the NDP is now supporting and which is very important and very worthwhile for our Canadian Armed Forces? This bill could have been passed two years ago.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I thank my hon. colleague for his question, and for his passion for the Canadian Forces. It is a passion I share.

The passage of time is attributable simply to the fact that the bill presented earlier would not do. It had to be amended. The facts show that it really did need to be amended.

The Conservatives did nevertheless accept a few important amendments. Why did it take them two years to accept them? I can now send his question back to him.

In any case, at this point, both sides are agreed that it is time to act.