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.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Chair, on a point of order, I was going to wait until Mr. Harris finished, but I think this point of order is relevant at this point.

We have heard from witnesses, and it is relevant to the amendment before us now, and I think makes it inadmissible, that all convictions from summary trials at present, and under the amended version, after Bill C-15 that we have just agreed on after amending Bill C-15 with clause 75, do not result in criminal records within the Canadian Police Information Centre. None of those convictions from summary trial do so at present. They do result in a criminal record under the Criminal Records Act, and that is dealt with by the amendment that we've already passed. I think you'll find Colonel Gibson and his colleagues can confirm that. It makes this amendment—

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Chairman, if the opposition can drag Bill C-15 out until the death of this Parliament, they would do the same thing the next time around, dragging back t the same witnesses after the same things have been said. To unnecessarily delay passage of the bill, they're requiring these soldiers to go through the criminal records suspension process unnecessarily. By their actions, they're doing the opposite of what they say they intend to do.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman.

Mr. Toone made reference to 2011 and a witness who was before this committee then, which speaks to the length of time, and the number of times this legislation, which is in the best interests of our serving soldiers, has been considered by Parliament. That same witness came back again before our committee during this rendition of Bill C-15. It's getting to the point where witnesses like this are just using this committee to troll for clients and shill their books. It's a total abuse of the process.

Now, the opposition can drag Bill C-15 out—

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

Thank you.

I just want to respond to some of Mr. Alexander's comments.

Clayton Ruby is not the only one to raise concerns about this. The Criminal Lawyers' Association expressed grave concerns about it. They were opposed to the giving of a criminal record to people who were charged and convicted under a summary trial, objected to the procedures and to the constitutionality of it.

Mr. Justice LeSage, himself, in his report, said:

...I have very real concerns about obtaining a criminal record from a summary trial conviction. The issue of criminal records flowing from convictions at summary trial must be reviewed. The very 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. I am fully supportive of the summary trial as an efficient and effective method of maintaining discipline. However, because the summary trial, although constitutional for its purposes—

—and I think he's again talking in the general way—

—does not provide the panoply of safeguards of a civilian criminal trial, the unintended consequence of acquiring a “criminal record” at a summary trial should occur only in exceptional circumstances.

Now we're not talking about exceptional circumstances here. I suppose one might argue that if we're getting 94% out of 100%, the other 6% must therefore, by definition, be exceptional. I don't think that's the case. There's no particular special circumstances. For example, the mere shoving of a person is an assault. If one decided to charge someone with assault, you could get a conviction, possibly even in a criminal court. But I doubt very much that every shoving match that occurs in the military is dealt with by a charge of assault, just as every time something like that happens in a school yard or a school, the police are called. But I think it could be recognized that this kind of behaviour could be a discipline issue; fighting, shoving, even striking someone could be a discipline issue, but not necessarily one that ought to attract a criminal offence.

Mr. Alexander referred to the eight offences that we're talking about that are Criminal Code offences. If there are only eight offences that we're talking about, then you make a choice.

You invoke the police in a civilian trial system to ensure that what is regarded truly as a criminal offence ought to be treated as such, handled by the civilian authorities. A person gets all of the rights that they're entitled to under our Constitution and under the law, and if they're convicted, they end up with the consequences of that.

If it's going to be regarded as a disciplinary matter, we've all agreed that it's important to have a military discipline system, one that is, as Justice LeSage said, “an efficient and effective method of maintaining discipline” through the summary trial process. It's fast; it can be dealt with in a matter of days, not in the kind of time that a civil trial might take. It can restore unit cohesion, restore morale, restore discipline in a swift way and an appropriate way, and the punishment might be greater than one would get for the same offence in society.

We understand that may be required to maintain that discipline and efficiency. It's not being done because it should be. No one says soldiers should be punished more than civilians. That's not the purpose of it, not to provide a greater punishment.

Mr. Alexander's argument about treating them more leniently by not getting criminal records doesn't hold water in this context. Because the purpose of making it tougher on the individual is to ensure that the unit cohesiveness, the discipline, and the morale is maintained, not to punish them for the rest of their lives with a criminal record.

That's not the point here at all. The issue is the punishment that you're given, the process by which you get there, doesn't have the same constitutional protections, and therefore as Justice LeSage says, ought not to attract the unintended consequence in many respects of having a criminal record. Clause 75, with the G-2 amendment, goes some way to recognizing it, and it has taken a couple of years. It's taken the last iteration of this bill, Bill C-41, Bill C-15, and two years of arguments to get to the point where it was accepted. It was accepted in the last Parliament mainly because it was a minority Parliament. I would venture to say, given the makeup of the last Parliament and the makeup of this committee, there's no possibility that the changes to clause 75, which are now there, would have got through. If they didn't get through then, they'd be unlikely to be passed by this committee.

It's all very well to talk about ten years to get here, or six years or seven years or three iterations or whatever, but we would never have got here if it wasn't for the arguments that were made in the past two years. We're now here, but we're here obviously because the recognition of the consequence of a criminal record is a serious matter and the government and Parliament has now decided to do something about that, not everything, but something about that, and that something is contained in Bill C-15, clause 75.

We are putting forth the proposition or the argument that we must go further, that we must prevent people from getting a criminal record when they don't have due process of law, which every other citizen outside of the military has access to if they are going to obtain a criminal record. That's the distinction we're making here. We're saying to the men and women who sign up to the military that they could come out of here with a criminal record without due process of law. Every other person in our society who is going to end up with a criminal record has the constitutional guarantees, has the ability and the right to a fair and independent tribunal with the right procedural protections that are enshrined in our Constitution, and the procedures, laws, cases, and all the things that have been put into our law as the law progressed.

As retired Justice Létourneau said, the law has changed. The law changes as time goes on. There's been a development in the law and in the application of the Charter of Rights to our criminal law and our system. He suggested that the military justice system has not kept up with that. I have to agree with him; we are trying here to help it catch up in this particular aspect. Yes, we have a military justice system that may need a fundamental review but we have an opportunity here to say we want to make sure in the meantime that we don't give people criminal records who don't have legal protection.

If the concern is, and I know it is, that some people who perhaps should have a criminal record are not going to have one, well then there is a solution. That solution is to have them charged in the civil system. If someone commits a sexual assault against a minor on a base or a rape, then they can be tried civilly and prosecuted to the full extent of the law, and they will have the consequences associated with that. But we don't want to have a system wherein the only people in our system of justice who don't have access, as of law, to the procedural protections of our Constitution are the people who are serving our country in the military. That's a situation we'd find ourselves in if we don't pass this amendment here today.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

On a point of order, Mr. Chairman, we are not here to debate the relevant punishments for every offence. We're not here to discuss the subjective or objective gravity of the situation or the sentencing applied. We're here to discuss amending Bill C-15. This is totally out of order.

[The Chair, Conservative, James Bezan]

I'm just saying, though, that we have to remember that our witnesses are here specifically to help with the technical background on Bill C-15 and to provide us with the background information we need as to how these amendments are affecting the National Defence Act. They aren't here to provide hypothetical information. That's where we come in, as members, to determine what might possibly occur because of the bill.

Are you done, Madam Moore? Mr. Toone wants the floor.

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

The subamendment merely seeks to add another to that list.

I don't know how we can get all caught up in principle here when what we're talking about is how to achieve a fair result in relation to section 100 as compared to sections 101 or 101.1, and the others that are included here.

There are various theories we can apply to it. Our application is based on fairness.

My colleague, Mr. Brahmi, talked about the need for mens rea, and he got an answer that yes, mens rea is needed, and it is the same. I would agree with Colonel Dufour that in either civilian criminal law or in the case of this kind of offence there is a mental element required.

But because it's either wilful or negligent.... And we're not talking about the kind of negligence that's called criminal negligence in criminal law, just ordinary negligence, which is made criminal here because the offence is to, in the case of allowing an escape, negligently or wilfully allow escape. The kind of negligence we're talking about here is not the criminal negligence. The word “negligently”, according to the commentary found in Canadian Military Law Annotated, signifies that “...the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonable capable and careful person in his position in the Service under similar circumstances”, which is quite a lot of qualification.

In other words, simply being careless is enough to attract a conviction under section 100, which is totally different from what in criminal law is called criminal negligence, where somebody has to be acting with wanton disregard for the life and safety of others. But to have this particular offence, the mental element is so minor in terms of carelessness or doing something in a manner that would not have been adopted by a reasonably capable and careful person in that position under similar circumstances.

It's not so egregious as to attract a criminal negligence charge, but it's something that's simply either wilful.... Well, wilful may be pretty obvious, but wilful indicates that the accused knew what he was doing, intended to do it, and wasn't acting under any compulsion. So that's the mental element. It's wilful: you wanted to let this guy out; you opened the door; you took him out or you attached a rope to the bars and rode your horse away—as in the cowboy movies—and you did it on purpose. Or it's the other sense of being careless or negligent. That is enough to attract this.

But it's not enough, and I submit that if the circumstances are such, and all of the sentencing provisions relate to the circumstances of the individual: the seriousness of the offence, yes, but also the seriousness of the consequences of the action, the degree of blameworthiness of an individual, and all of that....

If we had Clayton Ruby here, who is the guy who has written the book Sentencing, which is used throughout the country, he would tell us that. In fact, in Bill C-15 that we have before us today, we're putting a list of the purposes of sentencing.

All we're saying here is that if those purposes of sentencing can be achieved by the imposition of either a minor punishment or a fine, in this case a month's pay, or a reprimand or a severe reprimand, then that ought to apply.

On offences that are considered minor offences, by the way, with minor punishments—because that's in our list of the least of the punishments that can be granted—those minor punishments include confinement to a ship or to quarters or to barracks, so you're confined to your ship if you're in the navy, or to your barracks or quarters if you're in one of the other forces. The second thing that's included in minor punishment is work or extra exercises, which would be telling someone to jog around the military base five times or whatever. Prohibiting someone from taking a vacation and keeping him on duty is considered a minor punishment. The last of the four matters listed in minor punishments is a warning.

For any of these lesser punishments, if somebody did something that was so minor as to only require a warning, is that something we would want to see involving a criminal offence? What if it were so minor as to only attract a warning, or some disciplinary matter such as a work detail, or giving someone an order to perform extra exercises, or confinement to barracks for a weekend or whatever? For those kinds of punishments, if these were the consequence of violating this act, even though the maximum penalty is quite high, if the level or degree of culpability were so minor and the consequence so minor as to attract a punishment up to and including a severe reprimand, then there ought not to be a criminal record.

We must have some compassion for the individual who is affected by this and recognize that if we can start off here with a bill that only has five offences listed and only talks about minor punishments and a fine of $500, an amendment submitted by the government, obviously upon reconsideration, that lists perhaps another 15 or more—

[The Chair, Conservative, James Bezan]

I'm going to stop you right there, Mr. Harris, before you start circulating papers. I'm going to rule this as inadmissible. As you guys know, chapter 16 of O'Brien and Bosc deals with the legislative process. At the bottom of page 766 and the top of page 767 is the issue of relevance as it refers to amendments to a bill. Since this is an amendment at second reading, this amendment that you're proposing is inadmissible, and I'll just quote:

...is inadmissible if it proposes to amend a statute that is not before the committee or a section of the parent Act, unless the latter is specifically amended by a clause of the bill.

Since you're quoting section 6.1 of the Criminal Records Act and it's not being amended by Bill C-15, your amendment is inadmissible. So, I'm ruling it out of order.

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

—then there's something significantly wrong with the process.

Thank you for correcting me.

We're still dealing with Lamer and a number of Lamer's important recommendations that this government is still refusing to put into place. And now we're being asked to put into legislation that we should wait another seven years before some of the specific sections that are dealt with ought to be considered.

I don't think that's good enough. I think if this does get passed in the near future, which I assume it will, if the government decides to call it for debate in the House and bring it through, then whatever progress is contained in this legislation—those aspects of this bill that are progress—will actually take place.

What clause 101 says is that we're going to wait another seven years before we have another go at it. Does that mean the next changes we're going to expect to see are going to come in 15 or 16 or 17 years from now? If the same pace of legislative change that you're suggesting continues, then I don't think that's good enough.

The way to deal with that is starting now. Having gone through this process, having exposed the problems that we see with this legislation, can we not actually have a fundamental review of this legislation to see where we need to go to actually bring our military justice system into the 21st century? We're just scratching the surface in terms of some of the changes that are being made here.

I recognize that to have the list we're debating in the government amendment to clause 75—a watered-down version of an amendment that I made in the last Parliament on behalf of my party, and we reached that result back in the last Parliament—is progress. If 95% of the service offences that go to court do not result in a criminal conviction, as has been suggested by the government, that is some progress. I think we recognize that. Instead of feeling blame, I take some credit for that. I say this not to boast, but to counter your suggestion that I should somehow share the blame for taking 10 years to get to this point, when it was the efforts that were made two years ago in this very room that got us to the point where we are now, and another six months in the House of Commons to get us back to there, at least on clause 75.

No, I don't share the blame for that. I think we're making a mistake here to limit the review of this legislation to something that's going to commence in seven years from the day on which this particular piece of legislation, Bill C-15, receives royal assent. That's going to mean that any further changes could be put off as late as 10 years from now.

What I do want to say, though—and I acknowledge your slight detour there to the LeSage report, which we've heard many times wasn't available in time to make changes to this legislation, which I disagree with—is you did indicate that the LeSage recommendations will require some legislative change. I wonder what kind of commitment the government is prepared to give, in terms of when the LeSage recommendations might be addressed in legislation. I'm assuming that's not going to wait seven years, and that we may have a timetable already in mind. If there is a timetable with respect to that, please let us know.

(Clause 101 agreed on division)

(On clause 102)

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

In a word, no. I accept absolutely no responsibility for the fact that it's taken, as you suggest, nearly a decade to get to where we are. This legislation has been before this House on a number of occasions for a number of reasons, and I can detail them as to why. The House was prorogued by your Prime Minister. An election was called earlier than legislation required it. There were all sorts of reasons that the previous versions of the legislation never got through.

One of the reasons, of course, was that the matter was debated and we just passed off and put aside one of the significant consequences, and that had to do with the summary trial matter, which took, I suppose, six or seven months after the debate on Bill C-15 started and took place in the House. The government finally acknowledged that perhaps they were prepared to agree to put back an amendment that was passed in the last Parliament.

In the last Parliament we had numerous amendments. We had a very thorough discussion, and I don't think the speed at which this bill passed in the last Parliament left anything to be desired. We went through clause-by-clause study fairly rapidly, in three or four days at the most, with witnesses and the clause-by-clause.

During that particular Parliament I was where Mr. McKay is. We brought forth a dozen or more amendments, of which eight or nine were passed. They were stripped out of the bill the last time, so I guess we have to argue them again. So I take no responsibility for the fact that Mr. Justice Lamer was asked to make some recommendations back in 2003, and that we're here now in 2013. I only came here in 2008, and we had an opportunity to debate Bill C-41, and we made improvements to it. It was actually sent back to the House in good time to be passed, but the government chose not to call it for debate in the House of Commons. That's not my doing.

So we don't accept any responsibility for that. The government chooses when legislation is called.

To suggest that all of these reports are being taken into consideration, I would refer you to your own comments about Mr. Justice LeSage. Whereas that was only tabled in the House in June, well, that may be, but the government had it in December because it was tabled with the government in December, and the government had plenty of time to incorporate Mr. Justice LeSage's recommendations into this report and also to deal with amendments that had been proposed the last time and which the government didn't agree with, only because they thought the wording needed to be improved. Yet they didn't take any steps to improve the wording and bring them back some two years later.

So let's not be too sweeping about these remarks. What I'm suggesting here, with what we now have from this government, after recognizing that it took some time to get to where we are, is that there'll be another seven years before we even look at what needs to be done to this legislation. That's what's wrong.

If we are here now still dealing with the LeSage recommendations going back to 2003—

[The Chair, Conservative, James Bezan]

Good afternoon, everyone. We're going to continue on with our study on Bill C-15. This is meeting number 69.

When we last met we finished with carrying clause 67. We are starting at clause 68.

(On clause 68)

Are there any questions or comments on clause 68? It starts on page 43 and continues right through to the top of page 46.

Mr. Harris.

Enhancing Royal Canadian Mounted Police Accountability Act

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, once again, I would like to congratulate the member for St. John's East on his speech. I must say that it is always a pleasure to listen to his fine analysis and his vast legal expertise as he picks apart bills that are brought before us.

I cannot help but draw a parallel between Bill C-15, which we are currently studying in the Standing Committee on National Defence, and the fact that the Conservatives refuse to hand more power over to people outside the system. That is what is happening with National Defence and military justice, and it is also what is happening here with regard to giving people outside the RCMP more opportunity to see what is going on within the system.

I would like to hear his thoughts on that parallel. Does he see a pattern in the Conservative government's actions?

[LCol André Dufour]

I can answer that.

I would like to begin by specifying that the law—chapter 22 of the Statutes of Canada, 2011—talks about that provision. That provision was used again because there was uncertainty over whether Bill C-15 and Bill C-16 should be introduced at the same time.

To answer your question more specifically, I would say that, in proposed subsection 165.21(4), two circumstances are set out—the judge's request, or the attainment of the age of 60 years. Subsection 165.21(5) talks about how to deal with resignations. The legislation overlaps simply to cover both possibilities.

[Col Michael R. Gibson]

Sorry, but just to respond briefly to Mr. Harris' observation, there are two things.

Bill C-15 was introduced in Parliament on October 7, 2011. The LeSage report was not tabled until June of 2012. I would ask you to just bear that in mind.

The second point is that it's a matter of legislative drafting and interpretation. In this case, we consulted with our friends, the legislative drafters at the Department of Justice, who actually draft the bills, and we asked them what they thought of this. They were fairly adamant that actually, no, it was good as it stood.

In fact the amendment suggested—with the greatest of respect to Justice LeSage—in their view was not technically appropriate and would not actually contribute to clarity or be consistent with their drafting of protocols.

That's why it is the way it is.

[The Chair, Conservative, James Bezan]

Main estimates need to be reported back at the end of May, or even the first part of June. So there is a timeframe there and we have some time before the minister needs to appear on that.

Are there any other questions? If not, let's get back to our work.

We're on meeting number 68. I want to thank Mr. Harris for taking the chair while I had to table a private member's bill in the House, and we ran late, of course. It was QP today, so it caused my delay, and I apologize for that.

We're doing our clause-by-clause consideration of Bill C-15, an act to amend the National Defence Act and to make consequential amendments to other acts. We were in clause 20 when we adjourned on Monday evening.

(On clause 20)

Are there any further comments or questions on clause 20?

Mr. Larose, you have the floor.