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

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, amendments to clause 75, which deals with criminal records, were proposed.

I understand that the Liberal Party really wants me to say it, but that is not what is important to me. What is important is that our military personnel no longer be charged and faced with a criminal record, no matter which party proposed the amendments.

The NDP's amendments were shot down in committee, but they were reintroduced. That may be politics, but the important thing is that our military personnel not have a criminal record.

[Jonathan Tremblay, NDP, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I find it very curious that some Conservative members are saying that we are delaying passage of the bill, when reports were released and concerns raised a decade ago.

The government has been studying this file for four years. However, just because NDP members continue to raise concerns because not everything has been addressed, they claim that the NDP is delaying passage of these laws, yet the Conservatives have the power to pass them. I would like the member to comment on that. The Liberals and the Conservatives had the opportunity to improve the lives of our veterans, but they did not.

Today, Canada deserves better. That will probably happen in 2015, with an NDP government that finally takes action on this file.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, as I said at the beginning of my speech, 10 years after the report by former Supreme Court chief justice Antonio Lamer and four years after the report by the Standing Senate Committee on Legal and Constitutional Affairs, the National Defence Act will finally be amended.

It took a long time. Both the Conservatives and the Liberals, when they were in power, could have decided to protect our military personnel. It has been a very long road.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, it is interesting. We have this bill in front of us yet again. I know there is some frustration from the government side that we chose to get up in the House to speak on the bill.

However, from where we sit, frankly, it is our job. It is a bit rich to hear from the government members that they have heard just too many speeches and that somehow we are getting in the way of getting the bill done.

I do not have to tell members that back in 2006 we had an offering from the government. Then there was a parliamentary crisis, for the government at least, in that it had to prorogue Parliament. It is interesting. The reasons for proroguing Parliament were around issues dealing with the military and the fact that the government could not share documents with Parliament, which put the military in a very difficult position because of the political gamesmanship.

However, the government had this bill in front of Parliament and what did it do? It prorogued Parliament because of a political crisis for the Conservatives, not because of Parliament.

As members will well recall—I certainly recall because I was on the committee—we put forward the issue and asked the Speaker to act on the lack of co-operation from the government on its due diligence to share information with Parliament.

Therefore, when the government claims that somehow the NDP, the official opposition, is getting in the way of progress on bills, it should look in the mirror. The bill could have been passed long ago if the government had chosen to have it pushed through. However, we did get some gains, so to speak, by pushing amendments.

I find it interesting that the Liberal Party is trying to play some kind of crafty game by asking us in the NDP to cite exactly where the amendment is, in terms of trying to change the act.

The difference between the NDP and the Liberals is that we actually put amendments forward. Maybe they should actually read the dossier when they are at committee. I am assuming the members who are asking the questions were actually at committee, so maybe they should look back in their files.

I guess the Liberals' strategy is fascinating for them, but we on this side, in the opposition, actually want to get results. That is why we push for amendments and we are not playing little “gotcha” games as the Liberals are doing down there.

I appreciate the fact that they might not have any ideas. However, then they try to push it onto the official opposition members who actually stand here day in and day out saying we are against the government but we have solutions and alternatives. I guess the Liberals sometimes have problems with that, but that is for them to sort out.

It is interesting. This bill's origins come from a report from former chief justice Lamer. I was a big fan of his. I found that he was one of our best. He was someone who saw the importance of having a balance between the rights of citizens and the importance of governments to be able to act. His recommendations were very thorough, as the Speaker knows. In fact, I believe the Speaker knew him well and knew of his work.

On a side note, I was able to vacation with him, ever so briefly, just down the road here on the Rideau Lakes. One of the things that so impressed me, with respect to his kind of analysis of the law, is that he understood that we had to do a much better job when it comes to allowing our men and women who put their lives on the line to receive the same kind of rights as we have as everyday citizens, and we can see it in the work here.

I am a son of a veteran. My dad served in World War II. Both my grandfathers served in World War I. It was clear to them when they signed up that they had certain responsibilities. They went to defend our country. They also believed strongly, both of my grandfathers and my father, that Canada was an example for that balance that I talked about and Lamer was referring to, but they thought we could do a lot better. Over time, we have done better. Let us acknowledge that.

However, what we are talking about here is the importance of looking around the world and seeing that other jurisdictions are doing a much better job when it comes to military justice. For example, Australia, New Zealand and others have looked at the whole issue of summary trials.

My colleague has already outlined the concern we have about how often summary trials are used. However, it seems to us on this side of the House that if we are to be genuine and authentic in supporting our men and women, it has to be comprehensive. When we are talking about summary trials, clearly this is an area that deserves a lot of attention. All we have to do is look at what our allies are doing. They certainly have been seized with it and have made sure that something has been done.

Also, I want to underline the importance of those who serve in our Canadian Forces having confidence in the integrity of the system, one that would allow them to appeal and to access justice in a timely manner. Those are the standards we all use in the civil system that we are under. However, it seems that when it comes to our men and women in the military it is a different scenario. Of course there is a different atmosphere because of command and control and the way in which discipline is used. Therefore, we were looking for changes to reflect that in this bill.

The House will recall that, when the Speaker was on this file, retired Colonel Drapeau appeared before committee and pointed out a number of smart things that could be done and encouraged the government to be involved in making changes. He talked about summary trials and the right to appeal the verdict or the sentence, as I mentioned before, because if military members are not able to appeal either, then there is less justice. It is not just about it being seen to be done but actually being done.

Colonel Drapeau also stated:

There are growing worldwide concerns regarding the compatibility of the military justice system with international human rights standards. In Europe, the European Convention on Human Rights has had an impact on national military law, particularly in the United Kingdom, Germany, and France, to name a few.

What he is referring to—and I think Lamer was onto this as well—is that we have to put things into context, that there have been changes in international law and international conventions, so that the men and women who serve us have to have their rights acknowledged in that context. If we are signing onto conventions that allow for more accountability and more access to justice, then it should not be something that is just for a chosen few, as in this case, or a majority, and when we look at the military it is obviously not the majority. In fact, other countries have done this. That is important.

For example, with signing onto treaties, we have a bit of a problem with the way in which the government has implemented the cluster munitions treaty. We have concerns with the way the government's legislation has been written with respect to that treaty. There are the issues of interoperability with our allies. We want to make sure that, if we are signing onto an international treaty to ban the use of cluster munitions, we will not put our men and women into harm's way to be prosecuted by any laws from elsewhere. Certainly we want to make sure we are acknowledging and in line with our own commitments when it comes to that treaty.

All that is to say that we will support this bill. As the official opposition, we have done a good job in putting forward our ideas. Sadly, the government did not take them all. Some changes have been made, but there is more work to be done. However, we stand proud to renovate the laws that would serve our men and women who serve us so well, which I can say was the case with my father when he served our country. It is the least we can do for those who serve for us.

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

Mr. Speaker, I want to congratulate the hon. member on his speech. He wandered a bit, but nevertheless, he got his point across.

I actually want to recognize the work of the NDP on this file. It has done yeoman's work. It has worked very hard, both in the House and in committee. It needs to be acknowledged; there is no question about it. The problem I have is that the NDP submitted 22 amendments and none passed. It is kind of hard now to claim credit for somehow making improvements to the bill when in fact none were passed.

Given that the NDP and Liberals have very legitimate concerns about the VCDS issue on police, constitutional fairness for accused persons, the grievance process, et cetera, I do not know how, in effect, the NDP can try to make a silk purse out of a sow's ear. This was the government stomping both opposition parties pretty hard and not doing nearly as much as it could. In fact, it is probably quite a climb down from Bill C-41, on which all parties came together, so to speak.

As I say, I am not opposed to the NDP's work, as it did a good job, but I do not think it now needs to be voting for the bill on the basis of some perceived credit.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I think I was just accused of wandering in my speech. That was an interesting question. That was a nice little trip we went on.

I think he was trying to ask me why New Democrats put forward amendments. We put forward amendments because we were trying to strengthen the bill. I was simply pointing out the juxtaposition of what we did and the Liberal Party did not do, sadly.

I am not sure what the opposition to the bill is at this point from the Liberals. There was something about it not being constitutional. Right now what we have in front of us is within the purview of the Constitution. There are some good things in the bill, and we acknowledged that back in 2006 in the first iteration of it.

I suggest that Liberals take another look at what exactly they want to change and, next time, put forward their ideas. Who knows; some good things might happen. One never knows.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I would like to thank the hon. member for his speech. He is highly respected for his work on foreign affairs, and I am glad he is honouring his father. I honour my father as well for serving in the air force in World War II.

I find it very puzzling that the third party would criticize New Democrats for tabling a series of amendments to a bill and then, having achieved what we consider to be some substantial amendments, say spitefully that we should oppose a bill that would include that amendment. Despite the fact that a good number of witnesses called for a bigger review, which we also called for and supported, and despite the fact that there could be further improvements to the bill even though the government keeps putting forward one-off amendments instead of bringing forward omnibus changes that would provide a better justice system, I wonder if the member would like to speak further on that. It is a rather bizarre position that the third party is taking.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, let me put it this way. If members are going to do their jobs here, they need to do a couple of things. First, they need to do an analysis of what the legislation is, and second, if they do not like it, they need to provide solutions to improve things. That is what New Democrats did. Everyone can see that the government actually incorporated our ideas in its amendments. It is great. We have done that before and we will do that in the future, because we are here to get things done for everyday people, not play parlour tricks or suggest that we are here to simply raise issues and oppose things. We actually propose things and, in this case, we think we proposed some good ideas, such that the government incorporated those ideas in its own amendments. We will never apologize for that.

[The Deputy Speaker]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Charlesbourg—Haute-Saint-Charles, Employment Insurance; the hon. member for Cape Breton—Canso, Employment Insurance.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I have the distinct pleasure of rising for the second day in a row to discuss and debate Bill C-15 on the military justice system.

I would like to begin by saying that, philosophically, the founding tenet of liberalism is that we never accept the status quo if there is no good reason to do so. In other words, a Liberal will never say that something must be done a certain way just because it has always been done that way and for no other reason.

In some debates on the military justice system, people rely heavily on that line of reasoning. They say that it is a different system and that it has always been different. They say that military culture has been around for thousands of years, that that is how it works, and that it should continue to work that way. That is not good enough for a Liberal.

I would like to continue with what I was saying yesterday about how a soldier is a fully fledged citizen who has the same rights as any other citizen. Soldiers are simply citizens who have decided to dedicate themselves to their country, to wear the uniform with pride and to serve either in conflict zones overseas or here in Canada when they are called to help communities cope with natural disasters, for example.

The soldier's role and place in society has changed a lot. As I was saying yesterday, there was a time when soldiers were either slaves or mercenaries. Members of the society they served did not respect them. They may have had no choice but to do as they were told because they were slaves or mercenaries. That is no longer the case; society has changed.

Soldiers today stand up for their rights. We see that every day. The person sitting next to me is the Liberal critic for veterans affairs. He has risen several times in the House to ask the government why it is not treating veterans fairly on many fronts, including its efforts to claw back disability pensions.

Soldiers know that they have rights and they are ready to stand up for those rights. Modern soldiers expect society to grant them the same rights as any other citizen. This bill maintains a justice system apart from the one that we civilians enjoy as members of society.

I want to share a quote from a witness who testified in committee. The witness in question, retired colonel Michel Drapeau, has been quoted many times during debate today and yesterday. During his testimony, he said:

...someone accused before a summary trial has no right to appeal either the verdict or the sentence... [He does not have] the right to counsel, the presence of rules of evidence, and the right to appeal.

As we have heard many times, soldiers are made to stand for the entire trial. In addition, there is no transcript that could be used for appeal.

Colonel Drapeau went on to say:

In Canada, these rights do not exist in summary trials, not even for a 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.

In other words, I have more rights than a soldier who is accused of speeding. However, this person willingly chose to join the armed forces and to serve Canadian society.

There are big differences between the military justice system and the civilian justice system. I understand and accept that the military justice system is a separate system and must always be unique, but I am not sure that the differences should be so drastic. That makes me very uncomfortable with this bill.

It may be because the military justice system is not as open as the civilian justice system, but there is something else I want to point out. I heard that 98% of trials end in a guilty verdict. In other words, the accused is found guilty 98% of the time. That seems high to me.

This raises some questions about the nature of the military justice system and about whether we should make more significant changes than what is proposed in Bill C-15.

The government needs to recognize that society in general, but specifically in this case, the legal system, is a system of interrelated aspects, that is in a kind of delicate balance. What may have been acceptable a couple of years ago, before this bill, may no longer be acceptable because a certain important change has been brought to another aspect of the legal system making the current system less fair for military personnel accused of wrongdoing.

Of course, I am talking about the fact that the government has removed from the legal system the possibility of obtaining a pardon and erasing a record based on continued good behaviour after a mistake has been made. When that is taken away, all of a sudden the fact that the military justice system is less fair becomes a bigger problem.

Now, if someone is falsely accused and found guilty, based on a trial process that has not respected the principles of fairness and justice that exist, even for someone who gets a speeding ticket, then that the person is really stuck. The individual would have no recourse, and that would impede his or her ability to perhaps obtain gainful employment after leaving the military.

We recognize now that many former servicemen and servicewomen suffer from post-traumatic stress disorder. However, this is something that was not recognized a few years ago, and it was certainly not recognized after the Second World War.

We are talking about people coming out of the military who may have gotten into trouble because of post-traumatic stress disorder and now they cannot get a pardon. They are out of the military, trying to find a job and may be having trouble adapting to the demands of employment. Not only that, they are dragging this offence around, which they cannot have pardoned. Therefore, we have a whole new set of problems that flow out of this situation of unfairness.

We have to understand that society has changed. We have PTSD, which is something we did not understand a few years ago. Therefore, this creates a problem that is perhaps going to get worse because of not having properly thought through Bill C-15.

There is a delicate balance, but the government has upset that balance in the judicial system by making certain changes that it thought might have some value for it politically.

I would like to speak to the issue of the VCDS. I can never remember what that stands for. The vice-chair of disciplinary services, is that correct?

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

Vice Chief of the Defence Staff.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Fortunately, I have the defence critic sitting next to me here. He is a fine defence critic and knows the bill inside out. He has been briefing members of our caucus with great skill and knowledge of the bill.

We have the Vice Chief of the Defence Staff who can intervene in any disciplinary process. I would like members, especially members of the NDP, to look at the parallel with the RCMP and the Commissioner of the RCMP. There is a complaints process within the RCMP in cases where an RCMP member has been found to have violated the code of conduct. However, the Commissioner of the RCMP does not have a right to get involved in that investigation.

The members opposite say it is very important that the Vice Chief of the Defence Staff has that right because he can bring the operational context to bear in the investigative process. However, the same could be said for the Commissioner of the RCMP. The argument could be made that he or she should have the right to intervene because he or she could bring some operational context into the process. There is a contradiction here. In the case of the RCMP, the Commissioner cannot intervene. In the case of the Vice Chief of the Defence Staff, he or she can intervene. I do not quite understand why the distinction.

Let me read a quote regarding the danger of this right to intervene, which I am told is a new right that did not exist in preceding years. This is from testimony before the defence committee by Mr. Peter Tinsley, the former chair of the Military Police Complaints Commission. He said:

My very brief summary submission is that if Bill C-15 is passed into law in its present form, inclusive of the new subsection 18.5(3) authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada a[s] late as 1999 as underpinning the rule of law, as well as run counter to the norms of police-government relations, certainly in Canada, and I can tell you internationally in developed countries, which recognize the importance of police independence and prohibit police service boards or similar executive bodies from giving directions regarding specific police operations.

This is a very interesting quote. We like to compare ourselves to other countries, which is proper because we can learn from what is being done elsewhere, as other countries can learn from us.

I would mention that in other countries, they appear to have understood that the military justice system needs to change. We cannot just say that it has always been like that since time immemorial, and therefore it should remain like that. Maybe some people can say that, but that is not the Liberal perspective on things.

Justice Gilles Létourneau, in providing criticism of the summary trial system, which remains, as I said, largely unaddressed in Bill C-15, said the following:

This form of trial has been found to be unconstitutional in 1997 by the European Court of Human Rights because it did not meet the requirements of independence and impartiality set out in Article 6 of the European Convention on Human Rights. As a result of this decision and others, the British Parliament enacted legislation which now provides guarantees to an accused soldier. These provisions include the following:

(a) the accused may be represented by counsel; (b) the accused is entitled to an Appeal to the newly created Summary Appeal Court; (c) the Summary Appeal Court is presided by civilian judge, assisted by two military members who are officers or warrant officers; and (d) as a general rule, imprisonment or service detention cannot be imposed where the offender is not legally represented in that court or in a court martial.

In our system, not only does the accused have to stand through the whole process, and not only is there no transcription of the process, but the accused does not have the right to legal counsel. That sounds pretty retrograde to me. That just does not sound like modern Canada to me.

All of that having been said, I will say that there has been one improvement to the system that would be brought by Bill C-15. That would be, of course, security of tenure for military judges so that they feel that they can exercise their independence. As a result of Bill C-15, military judges would have security of tenure until they reached the retirement age of 60 or until they were removed for cause on the recommendation of an inquiry committee or if they resigned.

This bill would also allow for the appointment of part-time military judges, which I suppose sounds like a fairly good idea if the caseload is not high enough to have full-time judges or if full-time judges need some supplementary help. Why not use part-time military judges? I do not see a problem with that.

All in all, we cannot support this bill. We have been consistent in our voting throughout the process. We have not voted against it at second reading only to flip and vote for it at third reading even after all our amendments have been rejected.

I think consistency is important in this place. I am proud to say that we will continue with our previous line of argument, and we will continue to not support this bill.

[Jonathan Tremblay, NDP, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, the Liberal Party stopped following the doctrines of liberalism quite some time ago. In fact, many Liberal supporters take issue with that.

Today the Liberal Party of Canada is first and foremost a centrist party that likes to use a divide-and-conquer strategy. It is also very narrow-minded. Liberalism is a doctrine of political philosophy that views liberty as its top priority. That is its very definition. I do not see the link between liberalism and denouncing the status quo. I do not understand why the member talked about that at the beginning of his speech. I do see a link, however, between the Liberal Party of Canada and the status quo, because that party's members hide behind the status quo whenever it suits them, especially when they want to divide and conquer.

I am not sure where the member was going with that. However, if we do not pass this legislation, we will be left with the status quo. Perhaps the bill does not propose the best improvement ever, but if we do not pass it, we will be left with what we already have.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I will respond to the member's criticisms of liberalism, but if I am not mistaken, two weekends ago, the NDP tried to adopt the liberalism philosophy by abandoning socialist ideology as its guiding principle. As we can see, the NDP is shifting towards liberalism, and I congratulate the party on this wise move. The member mentioned that Liberals like to divide and conquer, but I would point out that we are not in power at the moment. We do not divide and conquer, and that is a fact.

The idea at the very heart of liberalism is that we must always strive to reform the system. We do recognize that there were some minor reforms in this bill. For instance, the independence of military judges is one improvement, since they will have better job security. However, the reform contained in this bill is not enough to warrant the support of the Liberal Party.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Speaker, there are so many good things in the bill for soldiers. It would allow sergeants to serve on courts martial. It would amend limitations on the period for summary trials. It would enhance the timeliness and fairness of the military police complaints process. So many aspects of the bill are fair for our soldiers.

The hon. member has embarrassed himself today. I have never seen someone arrive in the House more ill-prepared to give a speech, especially when he is supposed to be advocating for members of the Canadian Armed Forces. If that was what he was attempting to do, he failed in his attempt. He talked about veterans. He talked about PTSD in the wrong context. He did not understand what the term VCDS stands for. That is unconscionable.

What I will say for my friends in the NDP is that they showed up today prepared to debate the bill. Unfortunately, the Liberal Party has demonstrated that they are not prepared to argue. They are not prepared to step up for soldiers. They never were, in particular during the decade of darkness. I will not allow the member to stand up and embarrass himself further, because this will stand as a comment.