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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is nice to hear the Conservatives and the NDP agree that it is time to take action. However, they are also falling short in taking the necessary action that will in essence provide a greater sense of fairness and justice for people who serve in the military so they get the same sort of treatment in a certain area that civilians get. I am referring to summary trials, and my question is related to that.

In a summary trial, members of the Canadian Forces are treated differently than the civilian population. They are not provided or afforded the right to counsel, they are not provided the right to appeal and they are not even allowed to have transcripts on what takes place. That is the reality, even if the bill passes, for members of the Canadian Forces today, yet Canadians outside of the Canadian Forces are allowed that form of justice.

Why does the NDP support that two-tier level of justice, which is different for those in the Canadian Forces than for those who are not, on the issue of summary trials?

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I think the hon. member is perhaps mistaking our support for the bill as support for the complete perspective and direction of the Conservative government on defence issues, which is simply not the case.

There is enough good in the bill at this time to proceed to action. These other matters can be addressed in the future under other bills. We would hope that the very important points my hon. colleague is making are addressed in the future by the government, and they certainly will be addressed in the future by our party.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, one request that is continually made about this bill is to expand the list of military offences that do not entail a criminal record. We know how important the reintegration of military personnel is when the time comes to return to civilian life, and how important it is to have an accurate and well prepared file when looking for a job, approval for a mortgage, or things of that kind.

We want to expand the list, because, minor offences can sometimes lead to a military sentence and a criminal record, which could prove an obstacle when soldiers come back to civilian life.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I thank my hon. colleague for his question. I agree with him completely.

That is precisely one of the basic issues our party has brought to this debate. I believe we have addressed this issue in a very rational and measured way. Clearly, reintegration of military personnel should be a priority for this government.

No doubt the defence critics will continue to press this government to ensure that everything is done properly.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I rise today to speak to Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, more commonly referred to as “the military justice act”. I am happy to say today that, as a result of improvements that have been incorporated into the bill by amendments at the committee stage, I will support Bill C-15 at third reading.

One of the most progressive provisions of our military justice act, which was made in 1998, was the mandatory five-year review process. The first of those reviews was completed by a very distinguished former chief justice of the Supreme Court of Canada in September 2003. Mr. Justice Lamer's conclusion was that our military justice system was generally working, while not without room for improvement, and he made recommendations in three main areas: actions to increase the protection of the independence of military judges; improvements to the current grievance process; and actions to address deficiencies in the overall military justice framework.

The recommendations in the area of independence of military justice were dealt with in the fall of 2001, with all-party agreement, and received Royal Assent at that time.

The second area that Mr. Justice Lamer made recommendations in was the area of improvements to the current grievance system. He judged that while the grievance process was unsatisfactory, this was largely due to its failure to deal with grievances in a timely manner and the resulting backlog of grievances that resulted. At the time of his report, there were over 800 grievances outstanding, and grievances were often stuck at the level of the Chief of the Defence Staff for more than two years. Apparently, this is still the case.

Mr. Justice Lamer suggested a 12-month limit and that this deadline could be met if several things happened. One of those was if the Chief of the Defence Staff were given the ability to delegate responsibility for some grievances to subordinate officers. This would be a provision in Bill C-15. The other two recommendations were not really legislative measures in nature. What he said was that we needed both adequate resources to deal with grievances and adequate training for the grievance officers. Unfortunately, both of these two objectives would be very difficult to accomplish in view of the large cuts to the DND budget again this year.

The third area of his recommendations came in addressing deficiencies in the overall military justice framework. The former chief justice set out four principles that he thought should guide the system. I will go over those again. I know I have spoken about them previously in the House, but they are very important to understanding why military justice is so important.

The first of those principles was that we understood that maintaining discipline by the chain of command was essential to a competent and reliable military organization. However, in order to maintain that discipline, they need to have confidence in the disciplinary measures. Therefore, anything we can do to improve the military justice system will improve maintaining discipline and will make our military more competent and more reliable as an organization.

The second principle he stressed was that it was necessary to recognize the peculiar context of the military justice system, meaning that we, as he said:

—need to have a system that will properly operate under those special conditions that our men and women are placed in, often abroad, under conditions from peacekeeping to peacemaking, in what is often a hostile environment, and indeed sometimes outright war.

His third point was that those who risked their lives for our country deserved a military justice system that protected their rights and freedoms according to the Charter of Rights and Freedoms.

Finally, with his fourth principle, he argued it was necessary to recognize that any doubts about, or lack of confidence in, the military justice system would have negative consequences on morale within the Canadian Forces.

Therefore, these aspects of the context of military justice make it particularly important in Canada that we operate a model system of military justice. As I said, I now believe Bill C-15 does make progress in some areas. One, which I mentioned in my second reading speech, I would like to mention again, and that is progress in placing limits on the power to arrest without warrant under the existing sections 155 and 156 of the National Defence Act. A second, in Bill C-15 from the beginning, is in providing more flexible sentencing options, again as recommended by Mr. Justice Lamer, and a provision that would bring military justice in line with civilian justice by adding some new sentencing options, including absolute discharges, intermittent sentences and restitution orders.

While Bill C-15 would make some improvements in the summary trial system, which accounts for 96% of all cases dealt with in the military justice system, we believe, because of the volume of those cases, that a full review of the summary trial process is still necessary.

Another area of concern that remains for us is the failure of Bill C-15 to address the need to strengthen the role of the Military Police and the Military Police Complaints system so it can act as an effective oversight body with full investigative powers and with the full confidence of all members of the Canadian Forces.

We call for the elimination of the new clauses from subsection 3 and subjection 5 in section 18.5, which would allow the Vice Chief of the Defence Staff the authority to direct Military Police investigations. We know from our past experience with the investigations in Somalia that this is a very dangerous provision. Both past and present chairs of the Military Police Complaints Commission have expressed their concerns about this step backward. Unfortunately, that provision remains in the bill. This provision illustrates an unfortunate tendency by the government to misunderstand the importance of the concept of independence of police and a misunderstanding of its essential importance to maintain the confidence of all parties in the integrity of investigations and therefore the outcome of judicial processes.

We have seen similar attitudes recently illustrated by the Minister of Public Safety in his apparent political interference in the operations of both the RCMP and Correctional Service Canada for which he is responsible. Again, we would very much like to have seen this provision allowing the Vice Chief of the Defence Staff to direct police investigations to have been removed to guarantee that the integrity of those investigations and the confidence in those investigations would remain very high because that would affect the ultimate outcome and the ultimate acceptance of discipline within the military justice system.

One area in which I believe the committee made significant progress in improving Bill C-15 came in the amendments that significantly reduced the number of offences for which a conviction would result in a criminal record. Now it is estimated that more than 93% of convictions for disciplinary offences will not result in a criminal record. This will remove a major inconsistency between our military and civilian justice systems and perhaps most important to me will at the same time remove a major employment obstacle for some of those leaving the forces who unfortunately had disciplinary offences that would never have received a criminal record in civilian life, but became obstacles to their employment in civilian life because of this discrepancy between our two civilian and military systems of justice.

There is one other concern that I touched on briefly before that is not addressed in the bill. As Mr. Justice Lamer acknowledged in his statement, all the solutions are not legislative in nature. His concern in his report was very much the general under-resourcing of the military justice system. This continues to be the case today. I have a particular concern with resourcing at CFB Esquimalt in my riding, which has seen cuts to the alternative dispute resolution programs, which will result in the ending of those programs by March 2014.

One might ask what the alternative dispute resolution has to do with military justice. What was found at CFB Esquimalt was that the use of the alternative dispute resolution programs led to lesser involvement with the military justice system and fewer disciplinary problems by being able to solve apparent conflicts between members of the forces at a very early and a very low conflict level.

Those cuts have been based on the argument there is no explicit mandate within the National Defence Act for alternative dispute resolution services and therefore they should not be funded. What it ignores is that this would in fact reduce the demands on the already overstressed military justice system and that the costs of this program are very low.

In conclusion, let me restate the obvious importance of improvements to our military justice system. It is very obvious that they would help to both increase discipline and reliability of the military, that they would help increase morale within the military and that they would respond to the basic rights of those who served in the Canadian Forces.

Members of the Canadian Forces, as I said, are held to a very high standard of discipline, and therefore our judicial system should reflect that fact. Ensuring that our military justice system ranks as a model system and a system that all Canadians, both members of the Canadian Forces and the public at large, can justifiably be proud of is an important goal we should keep in mind.

While work remains to achieve the high standards that can make us all proud of our military justice system, co-operative work at the committee level has made enough changes to Bill C-15 to convince me that it represents significant progress in that direction, and for that reason, as I said, I will support the bill at third reading.

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

Mr. Speaker, as the member knows, the committee on national defence recently visited his riding and CFB Esquimalt. We join him in congratulating all the members of the Royal Canadian Navy for the fine work they do on that base, as others in the Canadian Forces do across the country.

I have two questions, one on substance and one on process.

First, does the member understand that the provisions of the bill relating to the empowering the Vice Chief of the Defence Staff to communicate with the military police through their Provost Marshal are actually in both the spirit and letter of our military justice system. They allow the operational imperative of the battlefield or of a military mission to be communicated, to be brought to the attention of those conducting a police investigation,and that there are safeguards.

The intervention must be in writing. The military police have the right to make that representation public if it wishes. If members are not happy with the nature of that representation, they have the right to go to the Military Police Complaints Commission. Is he aware of those safeguards?

Second, the NDP now agrees with the bill. They want it to move forward. They see the improvements it represents. Will the member take responsibility for the fact that this is happening much later than it should have?

There have been 112 speeches at all stages. There have been many more speeches in committee, and 90% have come from the NDP. It has taken us two years to get through the bill, and this is the fourth version of a bill that is long overdue.

In the member's view, why have we taken so long to get to this point?

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, for my part, it is always very interesting to have the government blaming the opposition for the government's delays in bringing bills forward.

I had the Minister of Justice do this to me on the same sex divorce act, where he keeps saying I am the obstacle to bringing forward the bill.

While I do recognize the vagaries of the electoral system, prorogations and other actions by the government have also delayed the bill coming forward. However, the one I really want to take issue with is when the members on the other side say that there were too many speeches from members on these bills. The members of my riding sent me here to speak on their behalf, to represent their interests. I represent a riding that is one of the largest military ridings in the country, and I will never apologize for speaking on military justice matters.

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

Mr. Speaker, I congratulate the hon. member on his speech. Certainly it was better the second time around, and possibly it was the third time round, I am not quite sure. However, nevertheless, on the issue of too many speeches, democracy is a real pain that way. People actually prefer to talk about things instead of fighting about things.

I noticed there was not that much change from the speech on second reading to the speech on third reading and that he was still unhappy with the ability of the Vice Chief of the Defence Staff to impose himself or herself into a police investigation. As the hon. member is the critic for public safety, this is a pretty important issue. The government had a wonderful opportunity to do something.

As we see from the history of the bill, this does not come up often. It was an opportunity to be co-operative with the opposition. Unfortunately, the his party put forward 22 amendments and got nowhere with any of them. The government put forward two amendments, one of which was quite useful.

I would be interested in his concerns about what co-operation means at a committee level. If we bring forward witnesses, they make suggestions. Amendments are drafted to reflect those suggestions, and none of them were adopted.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, based on my experience in the public safety committee, sometimes our amendments have not been adopted, but the government has introduced amendments that accomplish the same thing.

I am not really very concerned about who gets the credit in committee. I am all about ensuring we make improvements to the bills. Since those improvements have been made, as I said, then I will support the bill.

It does not mean I support the government. It does not mean I think the process was perfect. However, I would like to have seen, as is the case in public safety, that the Liberals do more than just complain and actually introduce amendments at the proper time if they have problems with the bill.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I am sharing my time with the member for Ottawa Centre.

Matters are not moving forward quickly, but they are moving forward. Ten years after the report of former chief justice Antonio Lamer of the Supreme Court, and four years after the report of the Standing Senate Committee on Legal and Constitutional Affairs, we are finally ready to amend the National Defence Act. The proposed amendments have long been awaited by this country’s military, and I want to lend my support to Bill C-15, stressing the significant contribution the NDP has made to the process.

Bill C-15 is a step in the right direction. However, we still have some way to go in order to have a system of military justice that is genuinely fair. To that end, I shall also be suggesting a few measures to be taken in the future. As I was saying, Bill C-15 is a step in the right direction. It brings Canada’s judicial attitude towards its military up to date and will ensure serving members of the forces greater fairness in relation to other Canadians.

In particular, the bill allows greater leeway in sentencing, with additional sentencing options, including an absolute discharge, intermittent sentences and restitution; a change in the composition of the court martial panel depending on the rank of the accused person; a change in the limitation period for summary trial and the ability for an accused person to waive the limitation period; and so on.

It is also quite clear that Bill C-15 gives new powers to the Vice Chief of the Defence Staff in relation to military police investigations. In my humble opinion, this is a retrograde step. It signals that the government could have done more, but overall, this bill will nevertheless ensure greater justice for members of the military.

This situation was made possible by the recommendations of my New Democratic Party colleagues, whose hard work made it possible to include necessary amendments in the initial bill. Through its efforts, the NDP made it possible to expand the list of offences and cases that do not entail a criminal record, which happens in 95% of military cases. That is no small thing: 95% of military justice cases lead to a criminal record. We know what that means.

Moreover, the crimes in question are not all comparable to those committed by Corporal Lortie. We are talking about disobeying an order, feigning sickness and facilitating an escape, even though the escape in itself does not even lead to a criminal record.

Former chief justice of the Ontario Superior Court Patrick LeSage said that the harm done to a person by a criminal record was far too serious a consequence and that its effects were out of all proportion to the offence in question. As we know, a criminal record can have very negative repercussions for an individual in civilian life. When military personnel return to civilian life with a record, things are difficult for them.

It is deplorable that the Conservatives refused to include in Bill C-15 the recommendations Justice LeSage made in 2011, when they had more than a year to think about it. We in the NDP tried hard to have them included, but the government refused, so we will have to wait until next time. It is vital that Canada continue to look at the issue of military justice. The men and women who choose to defend their country deserve our highest consideration.

One aspect to consider, in addition to the severity of sentences, is the speed with which they are imposed.

In the military, summary trial resolves most issues. At such a trial, the accused person is not entitled to counsel. Furthermore, there is no transcript and no appeal.

I know I am repeating what my colleagues have already said, but I believe it has to be said again and again, so that people are informed. The worst of it is that the judge is the accused person’s commanding officer, which naturally opens the door to abuse. While we have equipped Canada with a professional army, we have to admit that this kind of trial looks like a distressing anachronism.

Fortunately, the NDP proposed a series of amendments to improve this bill, in particular to enhance the independence of the military police by eliminating the ability of the Vice Chief of the Defence Staff to give specific instructions to the Canadian Forces Provost Marshal respecting an investigation.

The NDP also drew inspiration from Justice LeSage's recommendations when it said that a charge must be laid within a year of the commission of an offence. This will spare members of the forces from having to live in fear that an earlier offence may suddenly draw severe and unexpected punishment.

I am proud to vote in favour of greater judicial equity for Canada’s military, who are entitled to our greatest respect. I also find it deplorable to have to wait so long for a report to be translated into a bill, and I would ask the government kindly to supply a legislative response to the LeSage report within a year, which will make it possible to provide greater fairness within the Canadian Forces.

In conclusion, I maintain that Bill C-15 is a step in the right direction. It will lighten the judicial burden borne by our military, who have many other stressors to deal with.

Nevertheless, we will have to do more and do better to complete this picture, and that is what we will do when the NDP is in power. For these reasons, and because the NDP’s efforts have underpinned one of the most significant reforms designed to establish a more equitable system of military justice by limiting unreasonable criminal records, I give my full support to Bill C-15.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am wondering if the member could indicate which amendment it was, in committee, in which the NDP proposed that the minor offence could not lead to a criminal offence.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, is this question more important than protecting our military?

We feel that protecting military personnel from a criminal record is the most pressing question.

[Denis Blanchette, NDP, Louis-Hébert, QC]

Mr. Speaker, I would like to thank the member for her speech.

How odd for the government to complain that we are taking too long to pass this bill, given that it has been working on the bill for so long and especially given that it is the one controlling the legislative agenda.

My colleague mentioned a very important point. Despite the fact that the LeSage report was adopted more than a year ago, we have yet to see any response to the report. The fact is that we are supporting this bill even though it is just a small step in the right direction.

Could my colleague talk about how eliminating criminal records will affect military personnel?

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I would like to thank the member for his question.

There are times when our military personnel make mistakes. In the past, those mistakes would have resulted in a criminal record. I do not feel that our military men and women should get criminal records for one slip-up. At times, they want to unwind and things end up going off course. I do not believe that our military personnel should be punished for such blunders.

Of course, if they commit serious offences, justice will run its course. However, it is very important that our military personnel do not have a criminal record because, as my colleagues said, if they wish to buy a house or a car or get a loan someday, it will be difficult for them to do so.

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

Mr. Speaker, if the hon. member could point the House to the NDP amendment that led to the reduction in criminal records under summary conviction events, I would appreciate it.