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

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

Mr. Speaker, I am happy to speak tonight to this important bill, Bill C-15, more commonly referred to as the military justice act. It is a bill that should have been dealt with Parliament long ago, but was delayed numerous times by the vagaries of the Canadian electoral system.

Unfortunately, as the bill stands now, I will not be speaking in favour at second reading. Despite still agreeing that the bill does represent a step in the right direction, this version omits key recommendations from the mandatory review process and it also omits recommendations that had already been accepted by all parties in the previous Parliament during debate on its predecessor, Bill C-41.

Certainly both sides of the House recognize the importance of the major reforms to our military justice system that took place in 1998. One of those important progressive provisions was the requirement that there be a mandatory five-year review of the impact of those changes in our military justice system.

The first review was completed by the very distinguished former Chief Justice of the Supreme Court of Canada, Mr. Justice Lamer, in September 2003. His conclusion was that our military justice system was generally working well, but it was not without room for improvement. Therefore, he then submitted 88 recommendations for improvements to that justice system.

Since that time, by most counts, only about 28 of those recommendations have been dealt with, either in legislation or in administrative changes. That still leaves 60 recommendations outstanding.

Mr. Justice Lamer made recommendations in three main areas. The first of those was action to increase the protection for the independence of military judges. The second area was for actions to improve the current grievance process. The third area was actions to address efficiencies in the overall military justice framework.

Tonight I want to talk largely about how well Bill C-15 does in terms of implementing those outstanding recommendations made by Mr. Justice Lamer. When we look at Bill C-15, what we find is a very mixed record.

The recommendations in the first area of independence of military justice were dealt with last fall with all party support. They were separated out into Bill C-16, due to the deadline Parliament had been given by a decision of the Military Court Martial Appeal Court in the case of Regina v. Leblanc, and that deadline was met with royal assent last November.

I mention this specifically because it demonstrates that with goodwill on both sides of the House, we can get reforms that are needed through the House of Commons in a timely fashion. What I see missing in this draft of the bill is that goodwill to respect opinions on all sides of the House.

The second area that Mr. Justice Lamer made recommendations in was the area of improvements to the current grievance system. Lamer judged the current process unsatisfactory, largely due to its failure to deal with grievances in a timely manner and then the resulting backlog of grievances that came about as a result of that untimely dealing with problems.

His conclusion was that the basic principles of the grievance system were sound, but that its operation was not sound. At the time of his report, there were over 800 grievances outstanding and he pointed out the fact that grievances were often stuck at the office of the Chief of Defence Staff for more than two years.

Lamer suggested a 12 month limit be placed on grievances, that they would have to be dealt with within that time period. However, he also suggested some ways that deadline could be met, but it required several things to happen.

If the Chief of Defence Staff were able to delegate responsibility for some grievances to subordinate officers, that would speed up the process. That provision is in Bill C-15 and has been in all the previous bills.

The other two things are not actually legislative action and unfortunately they have not taken place.

The second of his recommendation on grievances was that adequate resources needed to be made available so that grievances could proceed in a timely fashion. The main reason for the delay was not enough people and not enough resources to deal with those grievances.

His third recommendation was providing additional training to those members of the Canadian Forces who were actually dealing with grievances, so they became more skilled in getting resolution of the grievances at a low level and were able to therefore move on to deal with more serious grievances.

As I said, only the first of these is in the bill. The other two would be very difficult to manage now, in view of the large cuts to the DND budget this year. They require more resources for the grievance system and they require more resources for training. I have my doubts about whether those would be available, given the large cuts in this year's budget.

The other reform not included in this bill to do with grievances was one which was adopted as an NDP amendment to Bill C-41, the previous version of this bill. That was an amendment to add critical balance to the representation on grievance committees. Therefore, I am at a loss as to why the government would not have included this amendment, which was already accepted in the previous Parliament, and which would go a long way to helping restore credibility to the grievance committee system by having a good representation of difference kinds of members of the Canadian Forces on those committees.

In his third area of recommendations we probably have the most important recommendations for redressing the balance within the military justice framework as a whole. In talking about these, Justice Lamer set out four principles to guide that system. I want to take a moment to talk about those principles because I think it is important to keep them in mind as we are talking about this bill.

The first of those, and I shall quote Mr. Lamer, was to recognize that “maintaining discipline by the chain of command is essential to a competent and reliable military organization”.

What he is pointing out there is that discipline depends on a well-functioning grievance and justice system. Therefore, it is not a challenge to that system to have a good grievance system; it is a support to that discipline system. It is not a challenge to have a good justice system; it is a support to discipline within the military.

The second principle he raised is that it was necessary to recognize the particular context of the military justice system. I will quote him at length here because what he said was that we:

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

Mr. Justice Lamer did not say there should not be a system for summary convictions or expedited justice. He recognized that sometimes these things are necessary. However, he also recognized that we can do these things within the framework of the Charter of Rights and Freedoms and within a system that is just and fair to all the members of the Canadian Forces.

The third point or principle underlying these reforms to the framework that he mentioned was that those “who risk their lives for our country deserve a military justice system that protects their rights in accordance with our Charter” of Rights and Freedoms.

What he is saying there is that, like all other Canadian systems, but in particular because members of the Canadian Forces risk their lives in the service of their country, they deserve the protection of the rights that are in the Charter of Rights and Freedoms because that is what we are asking them to defend as members of the Canadian Forces.

His fourth principle said that it was necessary to recognize that any doubts about the military justice system and any lack of confidence in the military justice system would have negative impacts not just on discipline but also on morale within the Canadian Forces. Therefore, it becomes very important to deal with concerns about injustice in a timely fashion in order that the esprit de corps and the sense of common purpose can be maintained in the Canadian Forces.

By laying out those four principles, what he was saying is that the context that the military justice operates in makes it particularly important that we operate a model system.

Bill C-15 does make progress in two areas. I am prepared to acknowledge that.

One is in placing limits on the power of arrest without warrant under the existing sections 155 and 156 of the National Defence Act. Two court cases had already brought these wide powers of arrest without warrant into question, and Bill C-15 addresses this problem by incorporating Mr. Justice Lamer's recommendations.

The second area in which it makes progress is in providing for more flexible sentencing. Again, as recommended by Lamer, this would bring military justice in line with civilian justice in Canada by adding new sentencing options, including absolute discharges, intermittent sentences and restitution orders.

Those are two areas of progress I am prepared to acknowledge. Unfortunately, some of the most significant recommendations from Mr. Justice Lamer's report are missing from Bill C-15. That is why I am unable to support the bill at second reading.

One in particular I would like to highlight from Mr. Lamer's report deals with section 129 of the National Defence Act. That section establishes a general prohibition against conduct to the prejudice of good order and discipline. That is something no one could disagree with, given the context the military operates in. Unfortunately, as Mr. Justice Lamer noted, there is a lack of clarity in that section as to what the requisite elements of an offence are under this section or, in common language, what it is one has to do to violate this section is not clear. We might ask why Justice Lamer would focus on such a technical matter involving a single section of the defence act.

What he pointed out was that in the last year before his report, 44% of all charges in the military justice system were under this single section, where exactly what one has to do to be in contravention is unclear, and that this section also generated a large proportion of the appeals in the military justice system. This is what I would call a very major problem in terms of acceptance of the justice system, in terms of discipline and in terms of morale, and resulting from this lack of clarity it is not dealt with in Bill C-15, and it is a major omission.

It is so major, in fact, that it raises the general question of why most of the other 60 recommendations have not been included in Bill C-15. What was the standard by which the government sorted through and decided some of these deserve to stay and some of them have to go?

The second major omission that many of my colleagues have spoken about is the failure to reform the summary trial system. Again, the summary trial system, according to Mr. Lamer, in normal times accounts for about 96% of all cases in the military justice system. The major concern we have noted here is the possibility of summary trial convictions leading to criminal records, something that has a great impact on the future prospects of those convicted, both their prospects within the military and their prospects should they choose to leave the Canadian Forces. Again, in its last incarnation as Bill C-41, NDP amendments were adopted to expand the number of offences considered minor from 5 to 27, and this would reduce significantly the number of convictions that could result in a criminal record.

A further failure of Bill C-15 is its failure to address the need to strengthen the role of the Military Police Complaints Commission so that it can act as an effective oversight body with full investigative powers and the unfettered right to report to Parliament.

There is one other concern that Lamer had, which is perhaps not surprising, but is not addressed in this bill. He did acknowledge that all the solutions are not legislative in nature. This concern was the general under-resourcing of the military justice system. Lamer pointed in particular to the under-resourcing of the defence counsel services, where the number of defence lawyers in the Canadian military was equal to the number of judges and that number was four. So not having enough people to provide defence counsel contributed to these lengthy delays in the actual justice system in getting cases through the court.

A further particular concern with resourcing came about at CFB Esquimalt in my riding. That is the cuts that have been made to alternative dispute resolution programs. These cuts that have been made in this budget would result in the phasing out of the alternative dispute resolution program at CFB Esquimalt by March 2014.

Now why am I talking about this as part of Bill C-15? I would say we have had a proven success rate in reducing the number of grievances and the number of behaviours that result in discipline by having an effective alternative dispute resolution program operating on the base. We can look at the number of cases that were dealt with in alternative dispute resolution and we can look at the number of grievances and see that the number of grievances has gone down. We can look at the number of cases dealt with in alternative dispute resolution and see that the number of discipline cases has gone down. Why on earth would the government want to cut the funding to alternative dispute resolution at the base? What the Conservatives say is that there is no explicit mandate for alternative dispute resolution services anywhere in the National Defence Act.

However, as I said, it flies in the face of the proven results of the alternative dispute resolution program in having a significant impact on reducing recourse to formal grievance procedures and in reducing the incidence of behaviours that would result in formal discipline proceedings. It is a great shame to see this program being phased out at the base.

I conclude my remarks about this bill by saying, once again, that I believe Bill C-16 last fall demonstrated the ability of all parties to co-operate to get important reforms adopted quickly in the House of Commons. Once again, I am perplexed as to why this bill ignores previously agreed upon amendments and ignores key recommendations from Mr. Justice Lamer. For that reason, I cannot support this bill at second reading.

Let me restate the importance of improvements to our military justice system. As I said, it is extremely important to one of those fundamental principles, and that is maintaining discipline in a chain of command.

It is extremely important to maintaining morale within the Canadian Forces, but it is also a right of those who serve. Therefore, we owe nothing less to the members of the Canadian Forces than to give them the same rights and the same protections, albeit in a special context, that are given to all other Canadians.

Members of the Canadian Forces are held to a high standard of discipline. They are asked to risk their lives, and therefore our judicial system should reflect those sacrifices they make on behalf of all of us. Those who risk their lives for our country should not be denied their charter rights when facing things like summary trials.

Other countries have recognized this issue and have changed their summary trial process. I heard my colleagues previously listing countries like Australia, Britain and Ireland. It is time for Canada to catch up in this area.

Ensuring that our military justice system ranks as a model system and a system of which all Canadians, both members of the Canadian Forces and the public at large, can justifiably be proud of should be the goal of Bill C-15. Once again, I have to question the government's motives in putting forward a bill that rejects those previously agreed upon compromises that help us accomplish that goal.

My final remarks go back to the important innovation we had in 1998, a five-year review. We had that review from Mr. Justice Lamer. We had a more recent review completed. We know what needs to be done here in the military justice system, and it is left now to us to find a way to come together in Parliament to get that done. We on this side of the House have said we will not support the bill at second reading. We would urge the government to take another run at this, one that recognizes the things that had already been agreed upon.

I want to go back to talk a bit more about the grievance system. It would be an easy thing for the Chief of the Defence Staff to adopt a 12-month limit for dealing with grievances, if we had that provision that allowed him to delegate some of that responsibility to his subordinates. It would not be so easy for him to do so in the context of cutbacks to the DND budget for this year. Therefore, those adequate resources for dealing with grievances will not be available, I am certain, and adequate resources for training those who deal with grievance procedures will not be available, likely, because of these large budget cutbacks.

I wonder where the consistency is in the government's commitment to the military and the commitment to improving the military justice system, when it is proceeding with such large cutbacks on an annual basis. I just cannot square that circle. Once again, if they are concerned about efficiency, I would go back to programs like the alternative dispute resolution program at CFB Esquimalt in my riding and ask why that program, instead of being cut, is not being piloted at all the bases across the country as a way of trying to get the problem solved at the lowest level without resorting to the formal processes that take so long and consume so many resources and without leaving Canadian Forces members so unhappy that they often engage in behaviours that provoke discipline and then invoke the military justice system.

We have some good alternatives here. We have some good ideas. We know where we need to go in reforming the military justice system. Again, I just cannot understand the lack of goodwill of the government in introducing Bill C-15 in this form when we have had so much experience in previous Parliaments and we know what it takes to get all of us on to the same page and improving the military justice system for the benefit of all the members who serve in the Canadian Forces.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, near the end of my colleague's speech, which seemed as if it went on for much more than five minutes, more than he should have had, he said something about squaring a circle. I have been in the House now for about six and a half years and I have watched his party time and time again. Virtually every time we have had any measures put forward to improve the safety of our men and women in uniform, to provide the resources that our men and women in uniform need to do their job well and to return home to us safely, almost every single time, this colleague and his party continue to vote against those initiatives.

My question is very simple. Maybe just for once could the NDP put aside its ideological opposition to supporting our men and women in uniform and get the bill to committee where it can be studied in depth?

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

Mr. Speaker, there is a colleague of his on the other side who likes to start his responses by saying, “Utter nonsense”. I would like to quote that hon. member.

I gave the example of the bill last fall dealing with the independence of military judges. In that instance we worked together on all sides of the House and passed it through the House in record time in order to meet the deadline that was set in the court martial appeal court decision of R. v. Leblanc . We were able to do that.

With good will, as we have already demonstrated, we can co-operate on certain aspects of military justice to get things through the House of Commons.

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

Mr. Speaker, I would like to button the impression that my colleague from across the way seemed to want to give, the impression that we do not support our military.

We do support our military; we would just like to do it the right way. That is it. The right way, we feel, is to have dialogue and discussion with the members across the way so that we could put forward some of the concerns we have, and hopefully have those concerns listened to. The committee process has proven very limiting in that respect.

Could my hon. colleague just expand on some of the issues that we have with this bill? Obviously it is not with the whole bill, but there are enough concerns that we cannot give it our full support. Would my colleague care to elaborate on that?

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

Mr. Speaker, I am not sure I thank my colleague for that question, because I have already expanded about as much as I can.

I would like to go back to what he said at the very beginning. It has been my tendency not to take the bait from the other side when they say we do not support the military. Can they actually demonstrate that?

One of the things I would bring to the Conservatives' attention is that if we look at the ridings across the country that have large military populations and check which parties won in the last election in those ridings, we can see that most of the major military ridings across the country are represented by New Democrats.

The members on the other side can claim that we do not support the military, but I think the members of the Canadian Forces and their families know that we have been there when it counts. They know we can be counted on for the issues that are important to them and their families. They voted accordingly.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, it is very troubling, because Conservatives say one thing and do the opposite.

I have been sitting in the House for over a year now, and Conservatives would have us believe that they actually support our veterans and our military. However, when it comes to the budget for veterans and military personnel and their medical needs, Conservatives do the opposite. They cut those budgets.

Over the year, and my colleague could enlighten me on this, I have seen many bills introduced in this House, and I have seen many amendments offered by a number of opposition parties, including the NDP. Not one amendment to any of those bills has been accepted.

I would like to ask my colleague this question: am I on the right track when I say that Conservatives do one thing and say another thing?

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

Mr. Speaker, it is obviously late in the evening and late in the debate. I always like the first part of the question better than the last part, because I am not sure I can remember the last part of questions as they come to me. Perhaps it is important to make notes.

I always said, in my previous life as a city councillor, that when the government shifted from Liberal to Conservative, one of the things that I thought would change was the way the police and the military were treated by the Canadian government. One of the great disappointments, for me, when the Conservatives became the government was to find that they have the same bureaucratic bean-counting approach to members of the Canadian Forces that was used by the Liberals.

At the beginning, yes, there was a little increase in some salaries and some improvements in conditions, but what we have seen most recently in the budget is a very large cut to DND, which means that a lot of civilian contractors in my riding will probably actually lose their jobs.

The other thing we have seen is this attack on veterans' benefits. When people who are veterans' advocates raise complaints about that, we see a consistent pattern of violation of privacy rights and use of military and military medical records against them as advocates for members of the Canadian Forces.

As I said, I really did expect that the military and the police would be treated better by the Conservatives than they had been by the Liberals. It is sad to see that the same kind of treatment has continued.

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

Mr. Speaker, I know the member was particularly interested in the grievance process. Members opposite are not speaking, so it is hard to ask them to justify why certain things are missing from the bill. For example, in the last Parliament, Bill C-41 was amended to provide that the Chief of the Defence Staff would be given the final authority to grant relief, including financial compensation if somebody was not properly paid, for instance, or given the right benefit. That is not in Bill C-15. That was taken out of this version of it.

There was also a recommendation that the name of the grievance board be changed to the military grievance external review committee to emphasize that it was supposed to be outside of the military, an external review, and that it be populated by people without a military background. That has been taken out. Mr. Justice LeSage, who studied this issue, recommended that the change be put back again and also that there be a time limit of one year for dealing with grievances. In the last Parliament, the government rejected that idea, but Mr. Justice LeSage, in reviewing the act, says that it should be put in.

I do not know if the member can answer this. I am wondering why members opposite in the government have failed to recognize the importance of having a grievance procedure that is fair, effective and speedy.

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

Mr. Speaker, I thank the hon. member for his question, because it is the same thing I was musing about in my speech. It is hard to understand why some things are in the bill and some things are not, and what standard was used to make decisions about what should have been retained or not, in particular those things on which compromise had been reached in the previous Parliament. If the government is looking for support from the opposition parties for this bill to move forward quickly, why would it not include the things that had been in the previous bill?

When it comes to the grievance system, which I emphasized a lot in my speech, it is really important to both discipline and to morale within the military to have this well-functioning grievance system operating. I am at a loss to explain why the government would omit that from this bill, and it is one of the reasons that I am not supporting it at second reading.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Mr. Speaker, I am very pleased to have the last word, especially since a comment was made that I was really itching to talk about.

My colleague made an excellent speech that was eloquent and easy to understand. We are both members of the Standing Committee on Public Safety and National Security, and we have spent a lot of time studying the grievance system in our prisons. When he spoke about the grievance system in military justice, I could not help but make the link to the problem with the grievance or complaint system in prisons.

I find it rather strange that there is a double standard in both cases. Resources are being taken away from these two systems, but they are needed for the grievance systems in both of these places. That is just a comment that I wanted to share with my colleague.

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

Mr. Speaker, that is a very interesting question, because I think my colleague is onto something.

The government came up with a bill to label some prisoners as vexatious and problematic and to not accept complaints on the same basis. Maybe there is something about the idea that somehow complaints are a problem and are not about fixing problems. Perhaps there is that common attitude that would explain why a government that would support a private member's bill in the corrections area, a bill that would limit the right to complain, might also leave these things out of the bill.

As one of my colleagues said, it is probably an attitude of shooting the messenger who raises the problems rather than dealing with the problems themselves. I thank the hon. member for drawing that very interesting parallel.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, there were a number of other bills that I have had to speak on in this Parliament. I am pleased to rise this evening to speak on this one, but I will speak strongly in opposition to the bill going through as presented.

It is quite clear that Bill C-15 includes some significant reforms that we can support and in fact encourage all members to support. However, on the question from the member for Winnipeg North about why we would not support the bill in principle, I want to be very clear that I am never going to vote for a bill that would treat our military people unfairly.

The second reason for opposing the bill at this stage is the lack of trust that we have in the government to make the necessary amendments to the bill at committee. The Conservatives have clearly shown bad faith regarding Bill C-15. They have shown bad faith regarding our military personnel.

We have heard from everybody who has spoken this evening on the bill in its previous incarnations about recognizing the necessity of having a criminal justice system within the military context that would have to take into account the military discipline system at the same time. There is no dispute about that. Everybody accepts that on all sides of this House. However, if we are going to respect our military personnel and all that they contribute to this country today and all that they have contributed to this country historically, that system has to be one that is administered with firmness but very clearly with fairness.

There are aspects of Bill C-15, the part regarding criminal records in particular, that are grossly unfair to our military personnel. We would be treating them as very distant second-hand citizens with regard to the rights that all the rest of us enjoy and that this bill is prepared to take away from them. Again, our party is not prepared to support the bill as it stands because of that particular section as well.

The other point I want to make, and it has come up in the last few speeches, is that we have gone through incarnations of the bill twice before: once as Bill C-7 in 2007 and once as Bill C-41 in 2008.

Bill C-41 did get to committee in a minority government situation and had a number of amendments applied to it. We have to set that in the context of the report from Mr. Justice Lamer in 2003, the work that was done on Bill C-7 initially and then all of the work that was done and the evidence taken for Bill C-41 in committee.

Amendments were presented. They were accepted. There was a lot of negotiation, and that is not just me speaking on the information that I have of how the defence committee functioned at that time; Mr. Justice LeSage, who did his report in 2011, made similar comments about the amount of work that was done dealing with, in some cases, fairly complex issues.

There were not a lot of amendments—probably 10 or 15, or something in that range, and some of them fairly innocuous—but If we go back and look at all of the amendments that were made, we see that every single one of them has been stripped out in Bill C-15.

One of the changes we made was on the title of the grievance board, which is what it is still called. The committee wanted to be clear about the culture of how we should be dealing with grievances. A recommendation was made, adopted at committee stage and sent back here to the House at report stage.

We changed the title to military grievances external review committee because that more clearly reflected the context in which grievances were being dealt with, the personnel who were dealing with the grievances and the culture in which grievances should be addressed.

The bill came back as Bill C-15 and the title had gone back to grievance board, for no reason whatsoever except the Conservatives are absolutely determined to do it their way and no other way. In spite of the fact that all those negotiations went on in committee when it was Bill C-41, changes were made. With regard to that particular title, Mr. Justice LeSage agreed when he did his report.

Let me spend a couple of more minutes on Mr. Justice LeSage's report. He was appointed by the government to review the military justice system. In his report he said he did not specifically look at Bill C-15 because he was not asked to do that. It was not within his mandate. He did look at Bill C-41. He looked at the history and at Mr. Justice Lamer's recommendations, and he came up with a number of his own recommendations.

That report was presented to the government in December 2011. The bill itself came before the House shortly before that. It had very little debate, one to two hours, and one speech by my colleague. The bill has sat there since that time.

The report also sat in the hands of the government. I am going to suggest that it sat in the hands of the government because there were so many recommendations in that report that copied the amendments we did on Bill C-41.

The government finally tabled the report in the House earlier this month, on June 8. It did that because it did not want somebody with the reputation and stature of Mr. Justice LeSage agreeing with all of the amendments done by the collective parties in the last Parliament on Bill C-41. The government kept it hidden and finally, under pressure from the official opposition, brought it to the House.

I now want to take members to the major concern we have with the bill, and that is with regard to the criminal records. Mr. Justice LeSage, on pages 28 and 29 of his report, goes into some detail, and I want to read part of it:

The Criminal Records Act provides that a person is ineligible to apply for a pardon for ten years for a service offence under the National Defence Act for which the offender received a fine of more than $2,000...

What we will have is that our military personnel who have been fined $2,001 will have to wait 10 years before being able to clear their record. If they were in detention for six months, they will have to wait 10 years. That is not the standard we have set for other people in our society who have committed criminal offences that are much more severe than these. They would not have to wait 10 years.

Similarly, for the very minor ones, with a fine of less than $500, military personnel will have to wait three years before their record is cleared. If they were in the general civilian population, that would not even be a consideration. It would not be a criminal record. It would be quasi-criminal, and they would not have a record under the Criminal Records Act.

Justice LeSage goes on to say that we have to change this. He makes specific recommendations, and he does make reference to Bill C-41. He says that this was looked at, that it was very complex, but specific recommendations and amendments were passed at committee.

Section 75 of the bill provides for section 249.27 of the National Defence Act. The government put in a new section that says a criminal record would not apply. It then said it would not apply to five sections of the National Defence Act. It would not apply for a fine of less than $500, but it would apply for anything over $500.

Bill C-41 came back to the House as amended at report stage, in March 2011, just before the government fell and we had an election.

The Conservatives did have time. If they had called that bill, with everybody who was in support of it at that point, we actually would have had it passed. There was time in late March and early April, before the election was called, for that bill to get through the House. If they were serious about it, we would have had the bill in place. It would be the law of the land at this point.

However, that is not what they did.

Much like this bill, which has sat on the order paper since late last fall, we are only finally getting back to it this week.

The amendment that was passed at that time at committee included a number of sections. I will not do the mathematics right now, but it was roughly 15 to 18 sections. If military personnel committed an offence under these sections they would not have a criminal record. They are small items. It is things like being intoxicated on duty. Again, it is minor stuff, which in civilian life people would not have a criminal record for, at all.

With a lot of work, the committee went through these 15 to 18 sections and said these should not invoke a criminal record.

As I said a few minutes ago, what we see in Bill C-15 is that all of those sections, except five of them, are stripped out. We have all sorts of offences now—and Mr. Justice LeSage again confirms this in his report—that would not be offences in civilian life, that would not invoke a criminal record, that will now have an impact on our military personnel. It is not fair. It is going to produce really negative consequences.

It was interesting to hear a couple of the members saying, “Well, no, you are wrong about this. There really is not a criminal record.” Mr. Justice LeSage, in his report, said he was not surprised the member said that. When he spoke with Canadian Forces members across the country, he was surprised that many people, including lawyers, were unaware of the very real potential to acquire the equivalent of a criminal record if convicted of a minor service offence. Even the lawyers who might be advising military personnel as to whether they should, in a summary trial situation, admit their offence and plead guilty to it, did not know they would acquire a criminal record.

I wonder if my colleague knows that he may in fact have a criminal record under the provision.

That was the level of the lack of knowledge the committee saw under Bill C-41, and that Mr. Justice LeSage identified as he went across the country and took evidence. He made it very clear of the absolute need for all those sections of the National Defence Act to be exempted from attracting a criminal record.

However, the Conservatives stripped it out and reduced it down to five offences that would not acquire a criminal record. Another 10 to 13 offences are going to acquire a criminal record.

We are going to have military personnel, after they leave the service, trying to get employment.

One of the points Mr. Justice LeSage makes in his report is getting across the border. I know, coming from my riding in Windsor, how difficult the Americans are being, how very rigid they are on enforcing denials to Canadians who have any kind of a criminal record. They are going to get caught. They are not going to be able to go into the United States. In effect that would have a major impact on their ability to earn.

There are a lot of people who live on the Canadian side of the border but work on the American side. They will not be able to pursue that employment if they have these kinds of criminal records from their military service.

We need the government to give its head a shake and look back at what they did in Bill C-41. It made sense.

Mr. Justice LeSage is a very well-recognized person. He has strong stature. He understands the military justice system. He is one of the experts in the country. He did not make these recommendations lightly. Neither did the committee make those amendments lightly when it was doing its work on Bill C-41. The committee studied it and said, “This is a much better solution than what the government proposed at that time. This is the way we should go.”

That is where we should go back to now.

I have no particular faith in the government. I see some of the other silly amendments that the Conservatives stripped out, and I mean silly in the sense of their willingness to take out what were fairly minor changes. They were important changes. I do not want to downplay those. But when they have stripped every single one of them out, including the title of the grievance board, we know we cannot trust the government to deal fairly with our military personnel. The Conservatives have to get that message. We will continue to oppose the bill as long as we possibly can, until we get those amendments.

I want to move on to a couple of other areas. One of the recommendations from Mr. Justice LeSage was about disclosure, both with regard to summary trials and court martials.

I want to make a comment. It is very clear that 96% of all military discipline cases are dealt with by summary trial, so the Conservatives are saying it is obvious they are satisfied with the system.

If one can imagine, an individual either has minimal counsel from somebody who is not a lawyer, or none at all. Their commanding officers, who will ultimately be their judge in a summary trial, say they could either have a court martial, which would probably take six months to two years, or a summary trial. It is obvious why individuals end up electing to go the summary trial route 96% of the time.

With regard to the point of disclosure, both with regard to summary trials and with court martial proceedings, we made the recommendation very clearly that we had to have full disclosure. This is not dealt with at all. It was not dealt with in Bill C-7. It was not dealt with in Bill C-41, and it is not dealt with in Bill C-15. In spite of the fact that the government has known of that recommendation for six months, it has not done anything to amend Bill C-15 to include the requirement that full disclosure be given.

The point that Mr. Justice LeSage made when he made that recommendation, and I suppose the advocacy he was putting forward with regard to it, was that especially in a court martial the evidence is not given to the person in advance. When they get the evidence shortly before the trial, or in some cases at the trial, it will end up in a delay, an adjournment. On the other hand, if it is given early, the evidence they have against the individual is quite clear. Oftentimes it ends up in a guilty plea and a quick resolution of the matter.

In terms of the good faith of the government in this regard, it has known about that since December 2011. It has had six months to propose the amendment from the opposition parties to that section of the National Defence Act. It has done nothing about it whatsoever.

I could go on. There are any number of other fairly small amendments. We heard them from other members of my party this evening.

Let me deal with one that would allow the acceptance of the grievance. Rather than have it go over to the Justice department, which is the way it works now, it would stop at the Chief of Defence Staff. This would be financial compensation. An individual might say, “I was on this duty. I am entitled to danger pay. I am in a high-risk situation. I am entitled to an extra $200 for this month of employment”. The person dealing with the grievance says, “Yes, you are”.

Right now after that decision is made, it then goes over to the Justice department. Its lawyers look at it for as long as six months to another year before it is dealt with. It is grossly ineffective. It is inefficient. Again, it is unfair to the military personnel who are entitled to that $200 or $400.

The recommendation is that it stay at the military level, that the Chief of Defence Staff makes the final decision and allows for the compensation. The Conservatives stripped that amendment out too.

We will continue to oppose the bill as long as we possibly can. We are calling on the government to agree to put back those amendments that were in Bill C-41. At that point we can get this over with and get that firmness but fairness that we would apply to our military personnel in good faith.

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

Mr. Speaker, as a lawyer of long standing and great experience, the member's comments on these matters mean a lot.

I just want to add that Mr. Justice LeSage of the Ontario Superior Court, who did this report, said that the amendments that were in Bill C-41 took away the criminal record for certain offences but that, “I am of the view that the language contained in Bill C-41 is too narrow and should be expanded”.

He went on to say:

Suffice it to say I have very real concerns about obtaining a criminal record from a summary trial conviction. The issue of criminal records flowing from convictions at summary trial must be reviewed. The very damage that flows from a criminal record and the potential effect on a person's life is far too severe a consequence for most offences tried by summary trial.

He made the same arguments that we are making, which are that although it is constitutional it does not provide the safeguards of a civilian criminal trial and that the unintended consequence of acquiring a criminal record at summary trial should only occur in exceptional circumstances.

Is the member suggesting that the amendments that we had in Bill C-41 when it came back was the starting point for a further review and that we would expect members opposite to take it from there and in fact improve on the amendments that were made the last time instead of shipping them away?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I must admit that I was a bit uncertain but that is certainly the most logical interpretation to make of the comments of Mr. Justice LeSage, that even those 15 to 18 sections that BillC-41 had amended and had been added by the committee at that time were still too narrow. There were still too many low level inconsequential charges and convictions under the summary trials and that in fact that list should be expanded even greater. That is the most logical interpretation.

I have to say that there is a possibility that he may have been referring to Bill C-41 before it was amended, the original government version which had much fewer sections. However, he clearly had looked at Bill C-41 by the time it had come back to the House for its final report at that stage, so I think he was saying that even the 15 to 18 sections were too narrow.

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

Mr. Speaker, I want to thank the member for Windsor—Tecumseh and take advantage of the fact that he is an eminent legal expert to share with him a statement made by a witness in the Standing Committee on National Defence during the last Parliament. I want to share what Jean-Marie Dugas, a retired lieutenant-colonel with the Canadian Forces, had to say:

There's also the problem that you don't have that many lawyers on the city streets who are able to take care of our soldiers. Military law is military law, and there are regulations nobody has ever read or heard of before.

I would like to hear the member's comments on the availability of lawyers who are able to deal with military matters.