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

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

Mr. Speaker, I thank the member for Thunder Bay—Rainy River for his contribution to this lengthy and lengthening debate. However, he has called for a wall-to-wall review of the military justice system.

That review was done 10 years ago by the Right Hon. Antonio Lamer, former chief justice. We have still not translated those recommendations into legislation. We have quite an audience here today and across the country for an issue that has been before four Parliaments. Canadians are asking why we are still debating these urgent matters that need to come forward.

Will the hon. member please tell us why, if this amendment is so good, it was not raised by the NDP in committee. It certainly was not raised in this forum. It was not raised in the 78 often repetitive, to be very honest, speeches by him and his colleagues at second reading. It was not raised in the 40th Parliament. It did not even feature among the amendments brought forward at report stage in the 40th Parliament where we were in a minority position and the NDP had much more influence over the shape of the bill. Why is it coming so late? Why the delay? Why no military justice updated and modernized for our Canadian Forces?

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Mr. Speaker, I thank the member for his question. As I said before, I know this member from Ajax to be a highly intelligent and very committed member of Parliament, but to answer his question, I have to remind him that we are not government yet. The time will certainly come in 2015 for Canadians to make that kind of decision.

A call for a wall-to-wall review was done in 2003, but it is 10 years later. Of course, the Conservative government has been here for most of that time, and the member is asking why it has not been done.

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

Mr. Speaker, I may not share the member's optimism about 2015, but I do find passingly bizarre this line of questioning from the government about this wall-to-wall review.

Bill C-15 is the wall-to-wall review. We are 98% done. There is a small section that is being debated, and the government is putting up this wall of resistance to what is, in many people's judgment, a very simple fix. It can be fixed. It can be done. It is a system that is currently working, so why mess with it?

I would be interested in the hon. member's speculations as to why the government is putting up such bizarre reasons for what many argue is a simple fix.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Mr. Speaker, the problem is that the government has a piecemeal approach to these sorts of things, and it is not just this bill but all kinds of other bills. I cannot speak on those before 2008, but almost every bill that has come before the House in this Parliament and the Parliament before are piecemeal, rather than having one comprehensive bill come forward and everybody is standing in this House when it comes time to vote.

If it were ever deserved by this government, I would be happy to say, “Thanks very much; that is a fabulous bill and I support it”. Unfortunately, the best I can do in this particular case of Bill C-15, and just about every other bill the government has put forward, is to say, “That is an interesting attempt from the Conservative government, but why did it not go that needed step further to make legislation of which we and all Canadians could be proud?”

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I do not have a lot of time for my speech, since it is getting late and there is an important speech coming up.

The parliamentary secretary has been repeating the same question since early this afternoon. I just want to point out to him that the NDP proposed 22 amendments and 5 subamendments to improve this bill in committee. We are not talking about one or two amendments. It was 22 amendments and 5 subamendments. How many of these amendments were approved? Not a single one.

We worked very hard to get one amendment passed, and this amendment is essential to our support of this bill. This amendment was eventually presented by the Conservatives. We worked very hard to ensure that members of the armed forces do not end up with criminal records.

This bill is very important, even though it is a long time coming. The bill responds to reports dating back to 2003, as my colleagues mentioned earlier. They made some excellent speeches and showed that this bill does a lot of good and that it represents a good step forward.

I would like to talk about the important point that the NDP gained, because we work very hard in the House and in committee. As a result of our hard work, 95% of disciplinary code breaches will not lead to a criminal record, as was the case previously. That is thanks to the NDP.

That is why we will support this bill. We worked hard in committee, did our homework and were on the front line.

As I mentioned, we proposed 22 amendments and five subamendments to improve this bill. Unfortunately, the Conservatives voted against them.

We are very proud to have managed to get the main amendment. Our Canadian Forces are people who sacrifice their lives and sometimes ruin their family lives to serve our beautiful country and its people. When they leave the Canadian Forces, they do not deserve to have a criminal record for breaches that are not serious or are minor, and for which they would not receive a criminal record in the civilian system.

For that reason, I will say that this bill is a step forward. However, I would like to tell the parliamentary secretary who just rose a number of times to tell us that we are not doing serious work, that the opposite is true. We are doing serious work. We proposed 22 amendments and five subamendments in committee. The parliamentary secretary voted against all those measures.

We finally have a bill that we managed to improve. We are very proud of it. We are very pleased with it. We will not give up, and we will continue on.

Some people had some doubts earlier, but it is true that we will be in power in 2015. It is true that we will do what needs to be done in 2015 to have a true democracy and adopt budgets that do not come in an omnibus package and that can be studied.

That is how things will go in 2015. The budgets would be proposed in committee and will be studied as they should.

[The Speaker, Andrew Scheer]

The hon. member will have six minutes left to conclude his remarks the next time this bill is up for debate.

It being 4 p.m., the House will now proceed to the consideration of Ways and Means Proceedings No. 15, concerning the budget presentation.

The House resumed from March 21 consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as reported (with amendment) from the committee, and of the motions in Group No. 1.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is a pleasure to rise to address Bill C-15. I have had the opportunity to provide comments on Bill C-15 at earlier stages and I would like to think I spoke a great deal on the importance of the issue. I have a bit of a bias, I must say right upfront, in the sense that I had the privilege and honour of serving in the Canadian Forces for a few years back in the 1980s. I have a great amount of respect for what the men and women do in Canada and abroad and the important role they play in who we are as a society and in protecting our interests, again whether here or abroad.

It is important to recognize that there are two different systems of justice: the Canadian civilian justice system and the military justice system. As much as possible, it is important that we recognize the differences and, where we can, we need to narrow the gap in the disparities between the military and civilian justice systems. We need to recognize the importance, for example, of the Charter of Rights. I hope to highlight that fact.

We could argue that this or that should happen, but what I do know is this has been an issue for a number of years already and we have seen the government in the past few years attempt to rectify the problem. Unfortunately, many questions have gone unanswered. If we were to confer with different stakeholders, we would find that there was a bit of optimism at the committee stage and the government could have listened a little more to what some of the concerns were. I do not think the government acted in areas it could have or should have acted, which ultimately would have provided a healthier bill today.

I have had the opportunity to read over some of the comments made at the committee stage and there was one in particular by Justice Létourneau. He said it in a wonderful way when he made reference to soldiers. He stated that they were, in fact, citizens of Canada and should enjoy the same constitutional and charter rights that all citizens had. I will quote specifically what he had to say in committee, which is as follows:

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

He went on to answer the question by stating “yes”.

That is what I mean about the disparities between the military and civil justice systems and the need for us to narrow the process so we can ensure, as much as possible, the rights that are so very important to all Canadians. I highlight the importance of something which we in the Liberal Party are very passionate about; that being our Constitution and Charter of Rights.

In committee Mr. Drapeau, a retired colonel, also gave some fairly striking testimony that I thought would be appropriate for all members to at least take note of. In reference to this whole military justice regime, he stated that an accused:

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

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

He went on to say:

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

Those two paragraphs summarize the concerns the government was unable to or failed to address at the committee stage. We find that most unfortunate.

We recognize there are numerous changes being suggested in the legislation with respect to, in part, the 10-year clause for military judges; outlining sentence objectives and principles; amending the composition of the court martial panel selection, which would be based on the rank of the accused; changing the name from the Canadian Forces Grievance Board to the military grievance external review committee, which gives the impression it is more at arm's-length, at least in name; and imposing a criminal record for certain service offences. There are more aspects being dealt with in Bill C-15, but those are just some of the ones I would highlight. I recognize I am limited in how long I can speak to this issue.

However, if we deal with the idea of imposing a criminal record, which stays with the individual after he or she has left the forces and can have a very profound impact on the opportunities that he or she would have after serving our country, we must be careful in what we are putting on our men and women of the forces who find themselves in awkward positions at times while serving. There are different types of crimes that take place.

Having been a previous member of the forces, I recognize the importance of compliance and obeying superior officers and so forth. We understand there is a huge difference if someone is working at company X in Toronto versus that same person working in the Canadian Forces and he or she shows up late. If a member of the Canadian Forces is late, there is a significant penalty. If he or she decides to disappear for a few days, or go AWOL as it is referred to, there is a fairly significant consequence to that action compared to in civilian life depending on the job.

We recognize there is a need to have discipline within the military, but we also recognize that it is important for all of us to understand that a Canadian soldier is a Canadian citizen first and foremost. We have laws today, whether by charter or otherwise, but we want to ensure that members of our forces are treated, as much as possible, in the same fashion as civilians would be treated. This legislation was an attempt at narrowing the differences between civilian law and military law. Had the government worked a little more with the stakeholders, we would probably have better legislation than what we have now.

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

Mr. Speaker, the hon. member has noted that the changes to the military justice system to update it and modernize it have been a long time coming. However, his speech makes it clear that he has not been following the debate in all of its breadth and depth over recent months. Could he confirm to the House that he understands that the Canadian Charter of Rights and Freedoms actually explicitly recognizes a place and the constitutionality of an independent military justice system?

Could the member also confirm to the House that the changes foreseen in Bill C-15, which would ensure that continuing constitutionality and would ensure, for example, that a wide range of offences would no longer generate criminal records, are urgently needed and that the only thing standing between those changes, which the members supports, and their enactment is this debate? Is it not now urgent to move on from report stage to adoption of the bill so our men and women in uniform can benefit from the improvements to the military justice system foreseen in Bill C-15?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the member does not reflect on many of the comments that were made in committee, dealing with issues such as summary trials and pardons. This is something the Conservatives got rid of.

I use the example of the charter because it is something to which people look. I am not necessarily saying that Bill C-15 would contradict the charter. That is not the purpose of me raising it. It is just that there is this expectation Canadians have, whether it is issues like the charter or other criminal laws, that members of our forces are treated as Canadian citizens.

I recognize the difference between our civil court system and our military justice system and there is a need to have some difference. However, I do not necessarily believe the government has done what it could have done to narrow the scope and get the different stakeholders on the same page.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, I appreciate the comments shared by my colleague from Winnipeg North, who has distinguished himself with military service in our country.

His reference to the testimony that was cited through the committee hearings is important because the witnesses who gave testimony brought a great deal of credibility to the issue. In particular, I refer to comments by retired Colonel Michel Drapeau, who had identified the fact that without a pardon system, which was recently revoked by the Conservatives, and the summary trial being set up as it was, with no record and no means of meaningful appeal, Canadian Forces members were left haunted by a record and unable to find employment upon release.

In his experience, would he see the same? It is tough getting work after someone finishes a career, I do not see that—

[The Acting Speaker, Barry Devolin]

The hon. member for Winnipeg North.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, when we have a retired colonel come before the committee and address it with those types of issues, it is very important, in particular for those Conservative backbenchers, to really tune in and listen to what has been said. For someone leaving the forces after serving, not all of these incidents that occurred in the forces deserve to have a criminal record upon exiting the forces. However, the impact that this will have on individuals in their ability to get the type of job that would be of great benefit for them and their families, has been somewhat restricted. That was why the pardon system was there. There was a great deal of merit in it. It was one of the issues brought up time and time again as one of the inequities that the government did not really give any—

[The Acting Speaker, Barry Devolin]

Resuming debate, the hon. member for Halifax West.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I am pleased to rise in debate on Bill C-15 today, a bill that involves the military justice system.

We in the Liberal Party recognize the need to reform the law in this regard and to reform the Canadian court martial system. It is very important to ensure it remains effective, fair and transparent and to look for ways that it might be improved. However, we do not accept the idea that a Canadian citizen who joins the Armed Forces ought to thereby lose the basic rights of a Canadian citizen, especially before military courts.

Like almost all Canadians, the Liberal Party believes that human rights and equality are universal issues. They are universally important, and that is why, back in 1982, the Trudeau government, along with the provinces, changed the Constitution, repatriated the Constitution of Canada from Britain and brought in the Canadian Charter of Rights and Freedoms. Those rights are extremely important.

It is a shame that last year, on the 30th anniversary of the charter, the government did not feel very much inclined to celebrate, whereas the vast majority of Canadians hold the Charter of Rights and Freedoms very near and dear to their hearts and believe it is very important. We could ask for the views of anyone from former Eastern bloc countries, for example, or anybody else who has emigrated from a country where the kinds of rights found in the Charter of Rights and Freedoms are not respected.

In this case we are talking about the summary trial system within the military. It is important for it to be a good and properly balanced system and for it to respect the rights of Canadian citizens who take on the task and show the courage to make the fundamental offer to put their lives on the line for our country. It is important that we treat their decision with respect and appreciation and ensure that their rights are protected.

Our concern, though, is that within the summary trial system, not having an effective means for appeal and not having recorded proceedings are important shortcomings that ought to be remedied.

I cannot imagine people not being allowed to have an appeal in the civil or criminal court system in Canada, or that even if they were allowed to appeal, the lawyers on the appeal would not have access to the written record from the trial court.

How could we possibly put forward appeal arguments without referring to what was found or what the evidence was before the trial court? That makes no sense to me. It is fundamentally important that an individual have a record of the evidence, because otherwise appeal judges cannot make the kind of judgment they have to make about the evidence and about whether, for instance, the evidence actually supported the findings of the court in a particular case.

We do not believe, in some cases, that introducing a criminal record for Armed Forces members for certain offences is just and fair. Some of those offences would not be considered criminal offences outside the military, so we should consider very carefully whether we want to give people who have offered to serve their country a criminal record for some offences that would not be considered serious enough outside the military to justify a criminal record, especially considering that the means for pardoning offences in this country has effectively been removed by the Conservative government. It has made it much more difficult, it has made it take much longer and it has made it much more expensive for anyone who has a record to get a pardon, regardless of the merits of their cases.

That is very unfortunate, because surely my hon. friends across the way would agree that there are cases in which people convicted of a criminal offence have redeemed themselves, have done wonderful work after that, and have shown themselves to be model citizens who are deserving of a pardon. How do we do that when we are removing that opportunity from people who have served their country in the Armed Forces?

We also find it problematic that the Vice Chief of the Defence Staff can intervene and give direction in a particular, specific police investigation by military police.

Again, if we look at the system in Canada outside of the military, we would never dream of saying that the Prime Minister should be able to stop an investigation by the RCMP if he does not like it, nor would we say that he should be able to give the RCMP directions on how to conduct an investigation. Surely nobody on either side of the House would suggest, I hope, that we ought to do that or that we ought to give that kind of power to the Prime Minister.

In specific investigations it is obviously important that we have a separation between the elected powers in the executive branch and the people who actually run the investigations and run the police. It is vitally important and it even extends, in our country, to the legal actions taken by the Government of Canada.

For instance, the Minister of Justice and Attorney General of Canada is involved very little in legal proceedings involving the Government of Canada. He or she may be called upon from time to time to give policy direction in relation to something the department is doing or in relation to a matter, but not to get involved in the actual prosecution of a case or in determining what the government's position would be or in how it should be argued before the courts.

This is for obvious reasons. It is not the role of an elected official of the executive branch to do that. Maybe at times we may have someone in the role of the minister of justice who has expertise in an area, but it is still not appropriate, and generally speaking, that person would not have particular legal expertise in the area that is being adjudicated before the courts. It is very important to have that separation.

In this case, there is the idea that the Vice Chief of the Defence Staff could step in and call the Provost Marshal and say, "Stop this investigation. We do not like it politically. It is not popular with the government. Cut it out." I am not suggesting that the Vice Chief of the Defence Staff would do that; I have great confidence in the Vice Chief of the Defence Staff at the moment, and I trust we will have good ones in the future, but we have got to have that separation. It is a fundamental issue of justice.

There are a number of disparities and differences between the military and civil justice systems that we think should be narrowed as much as possible. Yes, where it is essential, we are going to have differences, and that is fine; however, where it is not essential, let us remove those differences.

While we recognize that updates to the military criminal justice system must be made, we think the government is missing a real opportunity to make those changes properly and in a way that respects the rights of Canadian citizens who have made the choice to serve their country and put their lives on the line by joining the Canadian Armed Forces.

It is inexplicable that many aspects of the military justice system remain unimproved or provide powers that we feel are unnecessary. For example, Bill C-15 enshrines in law a list of military offences that now carry a criminal record, some of which we think are hardly necessary. We no longer have the pardon system—as I was saying earlier, the government has basically revoked it—and summary trials are set up in the military with no record and no means of meaningful appeal. How could one appeal without a record of evidence? We think it leaves the possibility of Canadian Forces members being haunted by a criminal record and being unable to find employment upon release. Is that really what Canadians want if someone is convicted in the military of a very minor offence that would not be an offence under the criminal law of the outside world?

I think Canadians have a great appreciation for the military. We should oppose and defeat this bill.