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.

The House resumed from March 29 consideration of the motion that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Strengthening Military Justice in the Defence of Canada Act

[The Acting Speaker, Conservative, Bruce Stanton]

I will let the hon. member for Renfrew—Nipissing—Pembroke know that we will have approximately three minutes remaining in the time allocated for government orders, so I will need to interrupt her at that time.

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

Mr. Speaker, I am pleased to have the opportunity to discuss Bill C-15, the strengthening military justice in the defence of Canada act, which is currently at second reading.

The bill addresses a variety of issues contained within the National Defence Act and aims to reinforce the military justice system. It has been discussed at length in the House, the Senate and at committee. It gives careful consideration to Senate committee recommendations stemming from the study of Bill C-60, as well as to the recommendations and proposed amendments put forward by the members of House when the bill's predecessor, C-41, was studied in committee. It would bring the National Defence Act up to date by addressing the recommendations made in Chief Justice Lamer's 2003 report, which itself was a result of an extensive review of the issues at hand.

In this regard, Bill C-15 would ensure our military justice system remains in keeping with Canadian values and in harmony with the Constitution and it would continue the maintenance of order and good discipline within the Canadian Forces.

The government recognizes that the proposed amendments in this bill are broad and, in some cases, complex. However, it should be noted the need for these changes has been recognized in most cases for years and that most of the proposed amendments have already been discussed and analyzed in committee.

This is the third time that this proposal has been put before the House of Commons since 2006. I move:

That this question be now put.

[The Acting Speaker, Conservative, Bruce Stanton]

Given the time, we will go to the questions and comments time for the hon. member for Renfrew—Nipissing—Pembroke at the next opportunity.

We will now move to private members' business as listed on today's order paper.

The House resumed from April 5 consideration of the motion that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, I am pleased to speak to Bill C-15, An Act to amend the National Defence Act. This bill would amend the structure of the Canadian Forces military justice system.

I would like to explain that members of the military are subject to two justice systems: the civilian system and the military system. Although most of the time they are subject to the military system, on some occasions and for some offences, they are subject to the civilian system. However, I will not address these issues in my speech on this bill.

Because of the nature of the soldier's job and the role members of our military play, the Canadian Forces, of course, sometimes need rules that are specific to that job. However, even though the military justice system has specific rules, we must not forget that it is part of the Canadian justice system as a whole. The two systems must therefore be compatible, and we must ensure that our soldiers are obviously treated fairly and equitably.

We must therefore ensure that even though the military justice system differs from the civilian system, it is consistent with our overall system of justice, which reflects what Canadians want. This means that the rule of law must always be respected. The military justice system exists not only for members of the military who have committed offences that have to be dealt with, but also as a command element to ensure that the rule of law is respected in all circumstances.

In addition, the Canadian Forces rely a great deal on discipline, which is certainly one of the pillars of a soldier’s job. The military justice system therefore reflects the need for discipline, and that is why we need it. Military justice is not perfect, however, and it needs to be updated when problems are identified. We must also not forget that members of the military are citizens, and that while their role in the military calls for a distinct justice system, that system should be as close as possible to the civilian justice system.

Obviously, military justice must reflect the protections guaranteed by the Charter of Rights and Freedoms as closely as possible. Although we recognize the need to have distinct provisions within the military system, that need must not outweigh the fundamental principles of justice.

Proceedings in the military justice system have to be efficient, so that discipline problems or issues can be resolved speedily when the situation calls for it, so the member can return to work as quickly as possible, for example. Speed does not, however, mean overstepping the fundamental principles of justice and the law.

I think we owe it to the members of our military, who put themselves in harm’s way for our country, for Canada, and for their fellow Canadians, to provide them with a justice system that is fair and just. We cannot expect the discipline and dedication that we need from our military without a military justice system that is completely fair to them.

Bill C-15 is in fact a step in the right direction for reforming the military justice system and making it a system that, for one thing, is more in line with the civilian system. This bill has its limitations, however, and it does not solve certain important problems, such as reforming summary conviction trial proceedings, reforming the grievance system and strengthening the Military Police Complaints Commission.

During the last Parliament, reasonable and fair amendments to the equivalent bill, Bill C-41, were negotiated in committee, including by my colleague, the hon. member for St. John's East. Unfortunately, those amendments have disappeared from this new version of the bill. They were approved by the committee, by parliamentarians. What is more, some had been proposed by the judge advocate general as compromises to correct the system in an acceptable manner. Now, because of the government, we have to redo the work that was done during the previous Parliament.

One purpose of those amendments was to remove certain offences from the list of those that result in a criminal record. That is mainly what I will be talking about.

Military justice includes a number of proceedings. Everyone has seen clips of trials by court martial on television. Those shows are fictional, but they give a good idea of what a trial by court martial is like. However, there are other types of trials, namely summary trials where the military's chain of command is authorized to judge soldiers under its responsibility directly. These trials are held without lawyers, without a jury, without a system of evidence, and without solid witnesses as in a formal court.

This proceeding is useful in a number of cases. It is used for minor offences regarding discipline in the army and does not require any intervention by a court.

Nonetheless, with a summary trial, soldiers can end up with a criminal record that they will continue to have once they return to civilian life.

I will elaborate on these minor offences, which include absence without leave and drunkenness.

Here is a simple example. One of your colleagues on the base is celebrating his birthday, and, like all his colleagues, you offer him a drink to celebrate. You are young. This also happens in civilian life. It is not unusual to be offered a birthday drink. Unfortunately, the next day, your colleague, who might have accepted a few too many drinks, is absent because he is sick. Or maybe he was caught drunk by one of his superiors when he returned to the dormitory.

On a military base, this is a breach of discipline. It is natural to expect exemplary discipline from our men and women in uniform, in light of the job they do.

I was a member of the Canadian Forces. I understand very well that discipline is part and parcel of our everyday lives. We adapt and it is fine. However, from time to time, for example, on a birthday when we party too much, there can be breaches.

In civilian life, this person would likely call his boss in the morning to say that he could not go to work. He would take a taxi home that night and go to sleep in his own bed.

Such conduct on a military base is dealt with by summary trial. I am not suggesting that a guy who calls in sick because he partied too hard the night before is behaving responsibly. People can be reprimanded, suspended or even fired if this kind of thing happens too often in the civilian world. That makes sense because the behaviour is not acceptable. Still, I am sure we can all agree that a guy who misses work because he drank too much on his birthday probably does not deserve to have a criminal record. But that is what happens to soldiers.

This soldier, who might have been 19 or 20, did not really understand what was going on. He did not understand the military justice system. He got his summary trial. Fifteen years later, as a civilian retired from the armed forces, he had a criminal record. His case was treated the same way as other much more serious offences that do deserve that kind of treatment.

A soldier should not end up with a criminal record for an offence that is nothing more than lack of discipline and certainly not a criminal matter.

He will end up with a criminal record without ever getting a real trial as set out in the Charter of Rights and Freedoms. His basic rights will not be respected. This kind of trial happens very quickly.

Bill C-15 does not take into account this kind of problem that, in practice, can have consequences.

I think that such cases are not rare. I do not have the latest numbers, but I reviewed the numbers in the annual reports of the judge advocate general to the Department of National Defence on the administration of military justice in the armed forces and the statistical reports on summary trials.

In 2009-10, 20,054 trials took place. Nearly 95% of them—the vast majority—were summary trials. During that same period, 98% of summary trials resulted in a guilty verdict. Charges of absence without leave accounted for 28% of the summary trials and drunkenness for 7%.

These are things that, in civilian life, do not deserve a criminal record. Although it warrants a slap on the wrist, it does not warrant a criminal record.

In the previous version of this bill, which was the subject of a compromise reached in committee during the last Parliament, the section on exemptions for a criminal record listed 27 sections of the National Defence Act. The current version contains only five exemptions.

In short, for Bill C-41:

(1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to

(i) a severe reprimand,

(ii) a reprimand,

(iii) a fine not exceeding basic pay for one month, or

(iv) a minor punishment;

In Bill C-15, however, we see that many of these sections are suddenly missing. It reads:

(a) an offence described in section 85, 86, 90, 97 or 129 for which the offender is sentenced to a minor punishment or a fine of $500 or less, or both;

It quickly becomes clear that a lot of things have unfortunately disappeared from the bill that should have remained.

Members will recall that there was consensus on Bill C-41 and that both the opposition parties and the government had reached an agreement.

I want to remind members that the offences and excluded penalties for inclusion in a criminal record would be far more broad under C-41, and the fine included did not exceed one month of basic pay and minor penalties.

Currently, the exemptions include only fines of less than $500 and minor sentences. In most cases, it exceeds a minor penalty or a $500 fine. The restrictions are too limited and will mean that that too many military members will end up with a criminal record.

For example, in one of the cases mentioned in the 2010 JAG report, one case of absence without leave was penalized by five days behind bars and a $1,500 fine. In others the sentence was 30 days in prison. These cases would not qualify as exemptions to inclusion in a criminal record, and yet they constitute cases of absence without leave.

Other cases concerning drunkenness—still from the same report–were punished with a severe reprimand and a $5,000 fine. Once again, this does not fall into the category of permitted exemptions. These exemptions are no longer as broad. The previous version, negotiated in committee by my colleague from St. John's East, must be consulted.

I should clarify that I am not questioning the appropriateness of the commanders' penalties. I have had the experience of discipline in the Army. I understand that discipline is important. However, there is a big difference between a disciplinary case on a military base and having a criminal record, which normally signifies a criminal offence. In this particular case, ending up with a criminal record for something that is more akin to foolish behaviour, is not a path that I want us to go down.

According to a Department of National Defence publication, the guide for the accused and officers designated to help them, “Summary trials are designed to provide prompt and fair justice in dealing with service offences that are relatively minor in nature but which have an important impact on the maintenance of military discipline and efficiency...”

This is not referring to criminal offences or major offences. It refers to minor offences that have an impact on military discipline.

Military discipline is something quite unlike what is found in civilian life. It is a mistake to put breaches of military discipline and civilian criminal offences on the same footing.

If a civilian did something equivalent to the vast majority of cases of breaches of military discipline, he would not be subject to any legal ramifications. It is not fair to impose consequences on the military that will have repercussions in their civilian lives, when most of the facts involve solely military issues.

Furthermore, the summary trial can cause notes to be made in a criminal record, even though the process has no judge who is adequately or professionally trained, nor a sound process for evidence and witnesses, nor defence counsel. It is not right that a summary trial for a minor offence should lead to a criminal record.

It should also be mentioned that a procedure that guarantees none of a person's fundamental rights, as is clearly the case with summary trials, should not have consequences that are as serious as a criminal record for the person who committed the offence. The procedure followed in a summary trial is simplified for the obvious reason that, in a conflict situation, military justice must be swift and efficient. Discipline must be administered smoothly so that things get back to normal very quickly.

In the case of minor offences, a breach of rules or a breach of discipline, a soldier’s chain of command— his superior—has the authority to judge. This is a swift and efficient procedure. However, the superior knows the accused and is therefore not entirely neutral. He may feel favourably toward him, or he may have an unfavourable bias against him. Even though he has some training, it does not change the fact that the superior knows the accused. There is no system for verifying the evidence and hearing witnesses. In the case of minor offences, the commander also knows the witnesses very well, and is therefore able to give more or less credibility to the witnesses according to his judgment and the esteem that he has for the people involved. There is no counsel to ensure that the rights of the accused are respected.

However, these courts, these summary trials may lead to fines as high as several thousand dollars, and especially to up to 30 days imprisonment or even a demotion. I think that one month’s imprisonment, without an impartial court or an adequately trained judge, is important enough that we should pay some attention to what the bill will do.

These procedures, which are found in a civil trial, are there for another purpose: to ensure that an individual's fundamental rights are respected. I can already hear members opposite claim that the NDP wants to protect criminals. I was a member of the military and I know that there is nothing criminal with most breaches of military discipline or rules. As a soldier, one has to abide by military discipline. However, as a civilian, one should not be exposed to consequences such as those that currently exist.

I also want to point out that an individual should be presumed innocent until proven guilty. We have to respect the impartiality and the independence of the judiciary. We should not be guided by impressions and biases and we should not rush to judgment. We must let the facts speak. An impartial and independent justice system is essential to people's confidence.

In the military, knowing that one cannot be judged impartially is not conducive to putting our trust in the military system. We accept that system and we trust that our superiors will be fair and just. Most of the time, they are to the extent that it is possible. However, we must set strict and strong limits to these summary trials and to the impact they will have later on in civilian life. Bill C-15 obviously does not do that, or does not do it any longer, because the sections added by Bill C-41 are not included in it.

I would like to conclude by reminding hon. members that having a criminal record makes things very difficult in civilian life. Once they go back to civilian life, soldiers will have to appear before the Parole Board of Canada, request a pardon, wait for five years after the summary trial and incur costs to erase their criminal record.

I think that is unacceptable, and I sincerely believe that the current bill should include amendments and other measures to avoid the situation described in my speech.

[Andrew Cash, NDP, Davenport, ON]

Madam Speaker, I would like to thank my hon. colleague for her speech tonight. She can speak with a measure of authority that many of us cannot because she has been in the Canadian Forces. She is also a young person who can understand the issues that relate to minor variances from discipline in the forces.

We ask a lot of our soldiers, our young men and women in uniform. Many of them come from regular working families right across Canada, from big cities, small towns or rural municipalities. They are in this situation and we expect a lot from them.

As we have heard many times in this House, veterans of our military are faced with very tough times. I wonder if my colleague could comment further on the detrimental effects of the use of summary trials when young people end up with these criminal records, and how they have to deal with that later on in life and the difficulties they could have.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, I am going to provide an answer to the hon. member for Davenport by giving the example of a recruits' course.

We often have recruits who may be 16 or 17. They have just begun their adult life. A recruits' course is intensive. It is very demanding. It tests soldiers, who are often very tired and even exhausted. They can make unintentional mistakes that will lead to a summary trial. For example, it can be the accidental discharge of a firearm. Nobody does it intentionally, but it can happen. The individual will have a summary trial and may even end up with a criminal record.

I once knew a colleague who was really tired. He was not paying attention and, unfortunately, he raised the flag upside down. He really did not do that on purpose, but he ended up with a summary trial. What he did was a mistake and it is something unacceptable in the military. That was simply caused by fatigue. That offence may also lead to a criminal record.

A 16- or 17-year-old does not understand the justice system. They do not think about what will happen when they leave the armed forces in 20 years. They leave 15, 20 or 30 years later and finally realize that they have a criminal record because they did not really understand what was happening.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Madam Speaker, the military is often like a world of its own. With summary trials, military officers are thinking of one thing, discipline, and how to make sure the incident does not happen in the ranks again. That is fine for the military. However, those young recruits leave after putting in their tour, and some of them leave with a criminal record. I would think that would have a very strong psychological effect on young people who have given of their time to their country.

Would the member care to comment on the downside and the ill effects, and the recurring effect, that would have on these young people leaving the military with a criminal record?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, after serving in the armed forces for a certain period of time, a member may decide to leave and return to civilian life, so they apply for a job. Most people know that you have to declare whether or not you have a criminal record. Most employers ask for that information. So, the soldier has to say yes.

Naturally, the prospective employer will ask what happened. That is, if they look at the application, because simply checking yes may mean that the CV will not even be kept. The employer will have the person explain why they have a criminal record. It can be embarrassing to tell a future employer about a silly mistake that was made. Furthermore, the employer may have a slightly unrealistic view of the veteran, the former soldier trying to return to civilian life.

It can be very detrimental. Everyone knows that, for any job, even to work at McDonald's, you are now asked if you have a criminal record.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Madam Speaker, I too spent some time in the military, on both sides of the justice system, and I did not leave with a criminal record. I disciplined a number of people under my command in my time in the service, for things the member suggests would carry a criminal record. None of them are carrying criminal records. The member is overstating that case tremendously.

Another colleague on the other side mentioned that it is all about discipline. It is not. It is about efficiency. Discipline is part of efficiency, with the emphasis on efficiency not discipline.

If I heard my colleague correctly, and I may have heard her wrong, she thinks the summary trial system somehow takes away the constitutional rights of the accused person. In fact, we have Supreme Court decisions that point out it does not. Charter rights and freedoms are preserved under that system. A member gets to choose whether he or she undergoes summary trial or court martial.

I may have heard my colleague wrong. I am not sure.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, I would like to make it clear that I do not believe that a summary trial violates the fundamental rights of a soldier. However, I believe there is a problem because being tried for a minor offence as a civilian would not result in a criminal record. However, this summary trial for a minor offence does result in a criminal record for the soldier, who may not be very aware of the potential consequences. We must try to improve Bill C-15 to prevent such situations from occurring.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Madam Speaker, I would like to thank the hon. member for her rather informative speech. I am not as aware as she is of the reality of the people serving in the Canadian Forces. She brought up some very interesting points.

Can the hon. member tell us, if she knows, how receptive members have been, to date, to the potential amendments to this bill? Could she provide us with an example of another relevant case that would help us to better understand the scope of the amendments, such as the ones she proposed?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Madam Speaker, to date, I have not had the opportunity to discuss with my colleagues on the government side what amendments they would be prepared to accept. However, I would like to believe that, since a consensus was reached on the amendments that were submitted during the previous examination of Bill C-41 and everyone seemed to agree on them, the government members will be prepared to go back to the same point where we were before with this bill. We are therefore prepared to deal with the same situation as with Bill C-41.

With regard to examples, there is just one thing that I would like to clarify for people who do not know what a summary trial is. The way it works is very impressive. When a person is young, they are lined up with four people who accompany them to the commander's office for the summary trial. The soldiers have to march at a rate of 120 steps a minute. The accused has to remove his beret but those accompanying him do not.

Even the way we enter the commander's office is rather impressive. This can be pretty interesting for a young soldier. When we were lucky or unlucky enough to accompany some colleagues before it was our turn, at least we knew what to expect. However, when we did not know what it was like, it was very impressive and we were already a bit unsettled when we entered the commander's office.

[Matthew Kellway, NDP, Beaches—East York, ON]

Madam Speaker, I am happy to rise today to speak about Bill C-15, the strengthening military justice in the defence of Canada act. As per its title, Bill C-15 is intended to amend the National Defence Act on matters related to military justice.

There is a substantial context to the bill. It has a fairly long history and iterations of the bill have come before this House, many iterations in fact.

The bill is a legislative response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, the May 2009 report of the Senate Standing Committee on Legal and Constitutional Affairs.

Chief Justice Lamer's report was a very comprehensive and independent review of the National Defence Act, which arrived at 88 recommendations pertaining to the military justice system, suggesting there are a lot of issues that need to be corrected.

However, to date only 28 of these recommendations have been implemented in the form of legislation, regulations or even change in practice. Clearly, much work remains to be done.

Other efforts to respond to the chief justice's report preceded the bill before us tonight. Bills C-7 and C-45 died on the order paper, in 2007 and 2008 respectively.

Bill C-60 made a dent in Chief Justice Lamer's recommendations, in 2008. Bill C-41 was introduced in 2010. It went through committee stage with agreement for some positive amendments, but it too eventually died on the order paper.

This bill, Bill C-15, seeks to accomplish a great deal in response to Justice Lamer's report and the Senate committee report.

Among other things, the bill would provide for greater flexibility in the sentencing process; and additional sentencing options, including absolute discharges, intermittent sentences and restitution. It would modify the composition of a court martial panel according to the rank of the accused person, modify the limitation period applicable to summary trials and allow an accused person to waive the limitation period. It clarifies the responsibilities of the Canadian Forces provost marshal, and, finally, it make amendments to the delegation of the Chief of the Defence Staff's powers as the final authority in the grievance process.

The bill is a step in the right direction, in that it would move the military justice system more in line with the civilian justice system. This much is true. However, it falls too short on some of the key objectives, those being reforming the summary trial system, reforming the grievance system, and strengthening the military complaints commission.

Curiously, the bill even falls short of Bill C-41 as amended by the committee. In our view, it is not worthy of the support of this House as currently drafted.

This view is informed most fundamentally by the principle that the men and women of our Canadian Forces are entitled to the same rights that we send them to fight for around the world. What a terrible and bitter irony it would be if we, as Canadians, were to stand aside and allow the men and women of our Canadian Forces to become effectively second-class citizens in our midst, particularly when we have intervened around the world in deadly conflicts to uphold basic human rights and systems of rule or law that ensure such rights are protected.

These rights to which we are so committed, for which we are prepared to put at risk the lives of young Canadians, in fact do not permit the kind of treatment to which we subject the men and women of our Canadian Forces under our current military justice system.

This requires a bit of an explanation about military systems of justice, in that military justice is a bit different from the justice system that prevails in the rest of civil society because of the primacy attached to the issue of discipline and efficiency in the military.

Retired Colonel Michel Drapeau is an expert in military justice and law and is the author of the only really significant military legal text in Canada. He had this to say about the implications to military justice of the centrality of discipline to the functioning of the military:

Few professions are as dependent on discipline as is the military. Discipline is fundamental to military efficiency, cohesion and esprit-de-corps, permitting commanders to control the use of violence so that the right amount and type of force can be applied in exactly the right circumstances, the right time and in the right place. At the personal level, discipline ensures also that in times of great danger and risk, the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise. Likewise, group and individual discipline ensures adherence to laws, standards, customs and values of civilian society, even during combat operations.

Another statement reads, “Therefore, discipline is integral not only to the maintaining of an efficient armed forces but also to ensuring that the rule of law predominates within the military, particularly when engaged in great peril and danger in combat.”

In 1980 and 1992, the Supreme Court of Canada examined the constitutionality of certain aspects of the military justice system. On both occasions it affirmed that a separate system of justice was needed to meet the unique requirements of military discipline. This is especially so because certain actions, like being absent without leave, which are offences in the military, are not obviously civil offences.

However, there is a tension here in the military justice system that must be resolved through legislation. There must be, on the one hand, speedy response to breaches of discipline. On the other hand, there must be adherence to law and as far as possible, that means adherence to the Charter of Rights and Freedoms and principles of natural justice. That is, principles that suggest that any system of justice should be heard and decided by a neutral impartial body and that, in the most general terms, the hearing be fair. That is, provide notice, the opportunity to examine evidence, to speak, to answer and so on. At this point this tension remains unresolved.

The B.C. Civil Liberties Association commented on the interests influencing the system. It said that military officers who give out sentences in summary trials are concerned with showing unit discipline and deterring future violations, not the effect they impose on an accused in the civilian world with a criminal record, for example.

We believe this tension is resolvable. We do not believe that the need for an efficient military justice system is inconsistent with, and therefore needs to take the place of, fundamental principles of justice for the members of our Canadian Forces. We believe that the bill is potentially salvageable with the necessary amendments at committee.

At the core of the issue before us is the matter of summary trials. In the context of the Canadian armed forces, summary trials are disciplinary actions which are generally less serious than courts martial. They are designed to deal with minor service offences with limited possible punishments. Offences can range from insubordination and drunkenness to being absent without leave. Actions like this, while destructive to the flow of military life, are less serious in the civilian world.

Retired Colonel Michel Drapeau testified before the national defence committee that summary trials continue to be the dominant disciplinary method used to try offences by the Canadian military. In 2008-09, there were a total of 1,865 cases determined by summary trial, and only 67 heard by court martial.

A 2008 CBC study found that military charges against Canadian Forces members had risen dramatically in the years since Afghanistan. Post-Afghanistan, disciplinary charges had increased by as much as 62% in certain areas.

Just 10 years previous, there were only 1,300 summary charges laid, compared to 2,100 in the midst of the Afghan conflict in 2006-07.

Most Canadians are likely unaware that the summary trial procedure exposes soldiers to penalties, including imprisonment and even more seriously the potential that following convictions they will have a criminal record that will continue through to their civilian lives.

While subsequent Judge Advocate General annual reports have indicated that the frequency of convictions has declined since the high point of the Afghanistan conflict, what is being left behind and what continues are convictions under this very inadequate form of justice. Canadian Forces personnel were still punished, and depending on the sentences, will have criminal records for the rest of their lives.

It is not news that having a criminal record can make life after the military very challenging. Ordinary things like getting a job, travelling, or renting an apartment become very difficult. Most Canadians would be shocked to learn that our soldiers, who bravely served our country, can get a criminal record from a system of justice that lacks the due process usually required in civilian criminal courts.

The objective of summary trials is to promote and maintain unit discipline. Therefore, the focus is on dealing with alleged offences expeditiously and returning the member to service as soon as possible. Fairness and justice, which are guaranteed in civil criminal trial, take a back seat to discipline and deterrence. In summary trials the accused do not have access to counsel. There are no appeals or transcripts of the trial and the judge is the accused person's commanding officer.

Through proposed and accepted amendments to Bill C-41, an iteration of this bill in the previous Parliament, we had gone much further down the road of reconciling this tension in the military justice system of expediency and the inclusion of fundamental legal principles. For example, a key New Democrat amendment to Bill C-41 was the provision ensuring military personnel convicted of offences during a summary trial would not be subject to a criminal record. We believed then, and we still believe, that those who bravely serve our country should not be deprived of the rights and protections that other Canadians enjoy.

It should be noted that Bill C-15 makes an exemption for a limited number of offences, if they carry a minor punishment which is defined under the act or a fine less than $500, to no longer result in a criminal record. This is a positive aspect of Bill C-15, but it does not in our view go far enough.

A New Democrat amendment to Bill C-41 also expanded the list of offences that could be considered less serious and would therefore merit less severe punishments and no carry-over of records to an individual's civilian life. That too had been accepted through committee with Bill C-41. This is one of the amendments that we would like to see included in Bill C-15.

Another area in which Bill C-15 falls short is with respect to grievance committees. In his 2003 report, Chief Justice Lamer described for us the grievance process in the military. Having spent about 20 years involved with grievance proceedings in the workplace context, I was surprised to learn about a grievance process in the military. However, Chief Justice Lamer stated in his report:

Grievances involve matters such as benefits, personnel evaluation reports, postings, release from the Canadian Forces, [et cetera] all matters affecting the rights, privileges and other interests of CF members.... Unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances.... It is essential to the morale of the CF members that their grievances be addressed in a fair, transparent, and prompt manner.

That is not happening presently in the Canadian Forces.

The grievance committee, under this system, is a group which is intended to be an independent civilian oversight body to be composed entirely of non-Forces members. In fact, it is composed entirely of retired Canadian Forces officers, and some just recently retired. Like the summary trials system, there is obviously an apprehension of bias in this system. As it is the purpose of this body to have an outsider perspective on matters such as benefits and personnel evaluations, it should be obvious that former Canadian Forces soldiers are not capable of bringing, or are not seen to bring, an objective and independent viewpoint to their task. This seems like a very obvious breach of the rule against bias.

The New Democrats have proposed that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. This amendment, too, was accepted as part of Bill C-41 and should also be a part of Bill C-15.

Finally, Bill C-15 would fail to strengthen the Military Police Complaints Commission. While Bill C-15 would amend the National Defence Act to establish a timeline within which the Canadian Forces provost marshal would be required to resolve conduct complaints as well as protect complainants from being penalized for filing good faith complaints, nothing has been done to effectively empower the commission to act as an oversight body. We believe it is necessary that the Military Police Complaints Commission be empowered by a legislative provision that would allow it rightfully to investigate and report to Parliament.

In conclusion, I will bring it back to Colonel Drapeau for the final word on this matter. He said, in part:

...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 those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I will leave the government side to ponder that question.