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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is a pleasure to speak today to Bill C-15.

I had the privilege of serving in the Canadian Forces for a few years. When I joined the forces, the last thing I thought about was military justice. There is no real explanation for the difference between military justice and civilian justice. The difference was never pointed out or anything of that nature.

After being in the forces for a relatively short period of time, I grew to believe that there was a need for a military justice system. Members of the forces face unique situations and, under those types of situations, there are dispositions that they would not get in a civil court system. The whole concept of respect, support and listening to our superior officers is a good example of that.

I was posted to two bases in Edmonton, Griesbach and Lancaster Park. I was living in Lancaster Park but Griesbach is where the military jail was located. Quite often I would be commuting between the two military sites and I would pass through the Griesbach jail. It was interesting, even though it was highlighted within the military, I think we need to put it into perspective.

At that time, the Canadian Forces consisted of somewhere in the neighbourhood of 60,000 personnel and many more participated in our reserves. However, the numbers fluctuate. We do not have a huge force today nor is it really necessary. We do not need to have 100,000 members. I think there is a growing dependency on our reserves and I do not know whether that is good or bad. A lot depends on our obligations and how that structure is put in place at a time when there is a greater demand. Right now, the numbers are relatively reasonable. Many would argue that we should be looking at expanding our regular force. There are some concerns related to that.

We have been talking all afternoon about some of the technicalities of what is within the law. What we are really talking about is somewhere in the neighbourhood of 40 to 60 individuals in the forces who might require some sort of judicial intervention known as a military court martial of some form. The types of offences vary significantly, just like in a civil court. At the end of the day it is a fairly small percentage of military personnel who are on the other side of the bench where they must defend themselves or get someone to defend them. I would suggest, and many would argue, it is a relatively small network but it is a growing network.

Colonel Drapeau authored a book on military justice, which was about 2,000 pages. We could probably all learn a great deal by reading what he was talking about. I must be honest and say that I have not had the opportunity to read it. It is a fairly extensive read. However, for those who are interested in getting a better understanding of some of the intricacies of military justice, I would suggest that they give some serious consideration to reading this book.

It is important to note that the government has not been successful in making the necessary changes. Many individuals for a number of years have been arguing and suggesting that the government be more proactive at making some of the changes that are being proposed today. We could go back to 2006 and Bill C-7, to which one member made reference. I was not here at that time but I understand it was a bill of a similar nature, which the government was unable to get passed. Afterward, it came up with Bill C-41, which again the government was unable to get passed. Then it brought forward Bill C-45 and it failed to get that legislation passed.

We have a different and new dynamic with the majority government and we now have before us Bill C-15. The Liberal Party has been very clear on the issue. We plan to support the bill because we see the merit of having a system that is more effective, fair and more transparent. We think that at the end of the day Bill C-15 would do all three of those things. As such, even though we have other concerns related to the legislation and we will have to wait to see after it goes to committee what ultimately happens, there is strong merit for this bill to go to the committee stage.

As has been pointed out, a series of amendments have been proposed over the last number of years. It was implied that some of those amendments would ultimately be incorporated into the bill. I should acknowledge at the very least that the government took into consideration a couple of the amendments but there was a sense that the government could have done more in terms of acknowledging other amendments. Now that there is a majority government, we anticipate that the bill will pass.

However, it can be very frustrating being in opposition when we have thoughts and ideas that make sense, we bring them forward in the form of amendments at committee stage and the government shies away from them. It is, indeed, unfortunate. We have seen a negative consequence of the government shying away from Liberal Party amendments in particular. I am thinking of bills like Bill C-10, where the Senate had to reintroduce Liberal Party amendments because at the committee stage the government did not see the merit in passing them. I suspect that, unfortunately, very few amendments will be received well enough to pass. However, we are hopeful that the government will recognize that we are trying to support and enhance this legislation. That is one of the reasons we felt it was important to support this bill going to committee.

It is also important to recognize some of the sentences being proposed in the bill: the concept of absolute discharge, intermediate sentences and the whole issue of restitution. If we can narrow the gap between military law and civilian law, we would see that as a positive thing. We want to ensure as much as possible that we are dealing with a system that is fair and, in part, this bill moves us in that general direction. It is fair to say that military law is quite often harsher and has less flexibility. In certain situations, one can understand that and see how it could be justified.

I just want to highlight two very important points as we continue to debate this, whether it is inside the House or in the committee. First is the importance of trying to narrow the gap between the military law and civilian law, thereby ensuring more rights, transparency and a sense fairness within the military structure. Second is to realize that a vast majority of members of the Canadian Forces are outstanding and there is never a need. As I indicated, we talking about 40 to 60 cases a year.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, I am very pleased to take part in today's debate on Bill C-15 on military justice.

As a former member of the Standing Committee on Veterans Affairs, I have nothing but the utmost respect for the work done by the men and women of the Canadian armed forces. I believe that these exemplary citizens deserve nothing but the best.

Bill C-15 amends the National Defence Act to strengthen military justice. The military justice system is a separate yet parallel system of justice within the Canadian legal framework. It is distinct from, but similar in many ways to, the civilian criminal justice system.

I would like to say a few words about the importance of military justice in the proper functioning of the Canadian Forces. The Supreme Court of Canada has, on more than one occasion, recognized and confirmed the requirement for a separate system of military justice to maintain and enforce discipline. A clear articulation of the court's view on this point was expressed by Chief Justice Lamer in 1992:

The purpose of a separate system of military tribunals is to allow the armed forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. To maintain the armed forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.

This excerpt addresses several basic themes of military justice. Discipline is the cornerstone of a professional military. It is critical to the success of Canadian Forces operations. However, when we talk about military justice, there has to be an emphasis on the justice side as well. We want to be able to count on excellent morale among our troops and we demand loyalty.

However, it is a two-way street. The system must also be seen as fair for the members of our armed forces. In the two areas of our military justice system that I want to focus on today, that fairness is somewhat lacking. I will therefore focus on summary trials and the issue of grievances.

In our military system, grievances are written into the National Defence Act. Our armed forces are subject to military discipline and are in a rigid, chain-of-command, top-down structure. Their only recourse when it comes to dealing with issues affecting their pay and benefits, their release, medical issues, getting adequate medical treatment and issues of that nature is through a grievance system. This grievance system is in disarray, and the proposed changes in the legislation do not really deal with that.

I would like to quote retired Colonel Michel Drapeau, who is very familiar with the military and the armed forces. Here is what he had to say about the grievance system:

Given the mounting number of grievances by CF members and the current state of disrepair of the CF grievance system, the last thing the CF leadership ought to do is attempt to mitigate problems related to grievances. In the Armed Forces, the submission of a grievance is normally seen as a measure of last resort imbued with significant career risks.

I think that when a member of the Canadian armed forces decides to submit a written grievance to his or her commander, it is because he or she sincerely believes that the issues in question justify filing a grievance and that they will be dealt with non-judgmentally. But as it stands, the grievance committee does not allow external reviews. If the Canadian Forces grievance committee is to be seen as an independent, external civilian body, as it should be, then the appointment process must be amended to reflect that reality. The committee should be made up of some civilian members. The NDP suggests that at least 60% of grievance committee members must never have been an officer or non-commissioned member of the Canadian Forces. This amendment was adopted in March 2011 for Bill C-41; however, it was not retained for Bill C-15, and that is unacceptable.

Another major flaw in the military grievance system is that the Chief of Defence Staff has little power to resolve financial aspects related to the grievances.

The NDP proposed an amendment in order to resolve this problem at committee stage for Bill C-41. Unfortunately, once again, this amendment was not retained in Bill C-15.

The second aspect I would like to talk about is summary trials. Summary trials are a suitable and fair means of dealing with minor service offences. A commanding officer or someone delegated by him or her may preside over a summary trial. These officers attend a training seminar, but often they do not have the necessary skills to preside over trials similar in nature to civilian criminal trials. Conversely, the court martial is in some ways a civilian court with military jurisdiction. A set of rules, including the rules of law, apply in courts martial.

The following quote is from the annual report of the Canadian Forces' Judge Advocate General:

A total of 1,998 service tribunals were held during the reporting period, representing 1,942 summary trials and 56 courts martial.... [The number of summary trials represents] approximately 97% of all service tribunals held in a given year.

Summary trials are therefore the norm rather than the exception. They can result in fines, imprisonment or a period of detention for up to 30 days, if the trial is presided over by a commanding officer. In addition, a number of military personnel dealt with by summary trial and found guilty could end up with criminal records similar to ones they would receive had they gone to trial before a civilian court, with all the applicable rules and procedures.

We do not oppose having a summary trial system in order to maintain order, discipline and morale, but we must nevertheless ensure that members of the Canadian Forces do not end up with criminal records that they must attempt to have expunged through the parole board after leaving the military. Imagine that. Our concern is that, in the military justice system, we need to have speedy trials, as former Chief Justice Lamer said. However, the trade-off should be that members of the military do not get a criminal record unless they are tried by a court that has the required support.

What is worrisome, at the end of the day, is that people could find themselves with a criminal record at the conclusion of an inequitable proceeding, without a lawyer, before a tribunal that is not independent. We still fear that the summary trial structure and process are a far cry from their civilian counterparts.

As I was saying earlier, the United Kingdom, Australia, New Zealand and Ireland, whose military justice systems resemble Canada’s, deemed it appropriate to change their summary trial system to provide a more equitable judicial process.

Why then deprive our Canadian Forces of the constructive amendments that could be made to summary trials? That is the question.

To conclude, Canadian military law is essential for the maintenance of discipline and order among the troops. However, our soldiers deserve a military justice system that is above all fair and equitable for the accused, while remaining sensitive to the need for military discipline. Although Bill C-15 includes a number of legislative provisions, some of which are welcome because they strengthen military justice, I, like my colleague the member for Sherbrooke, believe that it is a leaky old boat and that soldiers deserve much better. Frankly, we could do better.

The government's bill also includes too many provisions that do not go far enough or that are simply useless for dealing with the pressing problems within our military justice system. As I said previously, and having been a member of the Standing Committee on Veterans Affairs, soldiers deserve better than to find themselves with a criminal record after having served their country with pride and dedication. The government says that it is thinking of our veterans’ transition to civilian life, but what kind of shadow or cloud hangs over them when they are told that they may end up with a criminal record? Frankly, it makes no sense. These are not the kind of conditions that would allow us to say that we love our veterans and will take care of them. It is not true and it is wrong.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, the likelihood is close to zero. Since the amendments proposed in 2010 to the earlier version of Bill C-15 were rejected at the Standing Committee on National Defence, we wonder what chance there would be to get them adopted in committee when the 2012 version of Bill C-15, when it was the Conservatives that introduced it. It would be astonishing to see the government members change their minds. As we have seen in many files, the Conservatives rarely accept the opposition’s recommendations. I cannot see why they would change their minds today.

Of course, we are using our time today to suggest these amendments to them. Moreover, we hope to light a little candle that may show them it is a good idea.

Today, we are showing them that recommendations coming from outside their party can sometimes be very good and worthy of deeper consideration.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my hon. colleague from Dartmouth—Cole Harbour for sharing his time with me. I am very grateful.

It is a great pleasure to speak about this issue, as the city of Sherbrooke is proud to be home to two Canadian Forces reserve units, two institutions, the Fusiliers de Sherbrooke and the Sherbrooke Hussars. I have had the pleasure and privilege to meet with them many times over the last year or so. I have great respect for them and am eternally grateful for the work they do day after day. My respect for their work is why I feel a duty to rise today to speak to Bill C-15. Our men and women in uniform protect our lives, so I have a duty to protect their interests in the House of Commons.

I would like to give some background about the legislation we currently call Bill C-15, which has had many past iterations. On October 7, 2011, the Minister of National Defence introduced An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 will strengthen military justice. It is a direct response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, in May 2009, work done by the Standing Senate Committee on Legal and Constitutional Affairs.

The NDP believes the bill is a step in the right direction to harmonize military justice and civilian justice. It has gone off course, however, just like a defective submarine. There will be a few colourful expressions in my speech. I sometimes enjoy expressing myself that way. Our summary trial and grievance systems are in urgent need of an overhaul, and the Military Police Complaints Commission needs to be strengthened.

I would like to delve into the background a little to better illustrate the need for reform. In 2003, the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, submitted his report on the National Defence Act. It contained 88 recommendations aimed at demining various areas, including military justice, the Military Police Complaints Commission and the grievance process. Only some of the mines were cleared, however, as only 28 recommendations have been implemented. I think we would all agree that a partly demined field remains quite hazardous.

Bill C-15 has donned many types of camouflage. First off, Bills C-7 and C-45 both died honourably in combat because of prorogation in 2007 and the elections in 2008. It is our contention that we would not be here debating this bill right now if the government did not have a nasty habit of hitting the panic button and proroguing Parliament.

Later, Bill C-60 was sent to the front lines wearing slightly different camo. It simplified the court martial structure, bringing it more in line with the civilian justice system. In its report, the Standing Senate Committee on Legal and Constitutional Affairs made nine recommendations regarding potential amendments to the National Defence Act.

In 2010, Bill C-41—we have amassed a number of bills, making things somewhat complicated, and I hope everyone is able to keep track of the numbers—was sent out to the front lines in response to the Lamer report and the Senate committee. Bill C-41 proposed reforms to sentencing, military judges and commissions, and summary trials, among other things. We could say that Bill C-15 is the brother-in-arms of C-41. The amendments brought forward cover the composition of the court martial panel and the appointment of military judges with security of tenure to a fixed retirement age.

However, some basic amendments made at committee at the end of the last session of Parliament were not included in Bill C-15, and that poses a problem for us. Is it by chance that three amendments that were very important to the NDP are not included in today's version, Bill C-15?

The three amendments relate to: the chief of Defence Staff's authority in the grievance process, which was a direct response to one of the Lamer report recommendations; changes to the composition of the grievance committee to include a 60% civilian membership, as discussed earlier today; and the provision ensuring that a person convicted for an offence during a summary trial is not subjected to a criminal record, which we also discussed earlier. I will talk about these three amendments, which—we do not know why—are not included in Bill C-15, the bill we are debating today.

Bill C-15 does not deal effectively with the unfairness of summary trials.

Right now, a conviction during a summary trial in the Canadian Forces results in a criminal record. What is sad for our troops is that those who are accused are not able to consult with counsel. There is no right of appeal and no transcript of the trial. Everything is off the record. What is more, the judge is the accused's commanding officer. So much for an impartial hearing.

An expert in military law, retired Colonel Michel Drapeau, said the following in February 2011:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year....As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

A soldier slips up because of ongoing stress. We are not talking here about major offences but about misconduct, absence without leave or disobedience of a lawful command. We recognize that a soldier's code of ethics and code of conduct are the fundamental pillars that have become the pride of the Canadian army, but first and foremost, soldiers are human beings. They go through things that few people in our society experience. They live in a state of perpetual stress. We are not asking for military immunity but simply to put into perspective these acts of misconduct, which do not in any way warrant a criminal record and everything that goes along with that.

In committee in March, we proposed to expand the list of offences that could be considered minor and not worthy of a criminal record from 5 to 27 in order to give soldiers more latitude. This amendment was abandoned and we want it to be restored. We do not want this amendment to become the unknown soldier of the bill. We want it to be acknowledged. When soldiers who have a criminal record as a result of a minor misconduct finish their military service, they will find it difficult to find a new job or even to rent an apartment.

While our soldiers ought to be held to the very highest standard of behaviour, the reality is that soldiers are human and thus imperfect. Soldiers are also entitled to a fair and equitable justice system, just like all other Canadians. It is a constitutional right to be represented and to have access to a fair trial.

The second amendment concerns the reform of the grievance system. The current grievance board does not allow for external review. Are we still living in the fearful cold war era when everything must be hidden? Retired Canadian Forces personnel serve on that board. In fact, almost everyone on that board is from some kind of military background. We think that is not at all reasonable. The Canadian Forces Grievance Board should be seen as a civilian, external, independent body. That is why we proposed that 60% of the board or committee’s members should be neither officers nor enlisted personnel in the Canadian Forces. That amendment was approved for Bill C-41, but it is not included in Bill C-15 before us today. We wonder why not.

The third amendment that had been included in the previous bill, C-41, and that we would have liked to see in this bill is the strengthening of the Military Police Complaints Commission. The idea of giving this commission more powers so that it could act as a watchdog has been almost ignored. Its scope of action must be broadened so that it can legitimately investigate and report to Parliament.

The question must be asked: why have the Conservatives not kept the amendments proposed by the NDP and adopted by the committee in 2010 when Bill C-41 was studied? These amendments were good soldiers that could have protected the interests of our military personnel. The Conservatives are continuing to undermine the progress made by all members of the Standing Committee on National Defence and the recommendations made by the representatives of the Canadian Forces.

Such good soldiers as those amendments must not be abandoned. Even our allies—the United Kingdom, Australia, New Zealand and Ireland—have decided to modernize the summary trial process. Why has Canada—having dithered so long on the issue—not got down to the task of finding the necessary tools to ensure that our military personnel are properly represented and judged?

As we have said many times, we are opposed to Bill C-15, because we see it as a tank without any firepower and without armour, one that makes it impossible for our soldiers to get a fair and impartial trial.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, I am quite certain you have once again made the right choice.

I would first like to thank my distinguished colleague for his very interesting speech. He was able to highlight our concerns regarding Bill C-15, on military justice.

One of our greatest concerns, in fact, is the chance of someone ending up with a criminal record following a process that is not entirely fair and equitable, without the benefit of legal assistance, before a tribunal that is not totally independent. This structure worries us.

My colleague surely knows that the United Kingdom, Australia, New Zealand and Ireland, whose military justice systems resemble Canada's, have seen fit to change their summary trial system in the interests of procedural fairness.

Why are we depriving the Canadian Forces of such positive changes to the summary trial system? That is my question.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I am pleased to rise and participate in the debate. I thank my colleague, the member for Gatineau, for a very interesting presentation that I enjoyed very much.

I will be sharing my time with the capable and hon. member for Sherbrooke, who will likewise participate in this debate and enlighten all members as to just how this affects him and his constituents and what we think needs to be done to this bill as it relates to the Canadian Forces.

There is a large population of Canadian Forces members in Dartmouth—Cole Harbour, which I hear from on a fairly regular basis on a number of different matters relating, for instance, to community volunteer activities; to what is going on at the market; to our support, as the official opposition, for a proper procurement process to make sure that our Canadian Forces women and men who are asked to serve on behalf of this country are provided with the best equipment to do their job in a safe and effective manner.

We also are standing with our Canadian Forces women, men and their families as it relates to the government's support for the members when they return from active duty from various spots around the world. It is certainly my commitment and that of my party that if we ask our women and men, our brothers and sisters, our fathers and mothers, our uncles and cousins and community colleagues to risk their life and limb, the least we can do is to ensure, whether or not they return to this country, that they or their families are properly cared for. That is certainly my commitment to the people of Dartmouth—Cole Harbour. I know that feeling is shared by my colleagues in the official opposition.

It would be fair to say that most Canadians only have a glimpse of the nature of justice in the Canadian Forces. Frankly, I think that Canadians would be shocked to learn that the people who bravely serve our country can get a criminal record from a system that lacks the due process usually required in civilian criminal courts. We know there is an incredible need and requirement within the armed forces for a strong disciplinary system. However, we also need to recognize that the women and men who work for and serve this country should, at the very least, be subject to the same rights and benefits under the Charter of Rights and Freedoms as civilians. That is simply not the case as it relates to issues like summary convictions and the grievance procedure. I will talk a bit about the concerns we have with respect to those systems.

As has been described, Bill C-15 is the latest iteration of the bill as a result of a recommendation from an internal review of the National Defence Act in 2003 by a former chief justice of the Supreme Court, the Right Hon. Antonio Lamer. Contained within the report were 88 recommendations relating to military justice and the Military Police Complaints Commission, the grievance process and the provost marshal.

It is important to recognize that Bill C-15 is the latest response to these recommendations and that only 28 recommendations thus far have been implemented in legislation, regulations, or via a change in practice. As the NDP critic and deputy critic have said so well, it needs to be underlined that it is important that we do this better and that we do more. Even in previous Parliaments more was done.

All parties on the defence committee worked very hard on the recommendations by the Lamer inquiry and a number of changes were passed in previous parliaments. Unfortunately, those amendments to the National Defence Act did not find their way into Bill C-15. Frankly, not moving forward with those amendments is almost a sign of disrespect to the hard work of the members of the defence committee.

If immediate passage of this bill were as important as some government members have suggested, why did they not bring this bill in forthwith when the new Parliament began? Why did they not bring in the bill that was accepted by all members of the House but that died on the order paper when the government decided to hold an election last year? If it were so important, and we believe it is, why did they not bring forward the bill that we had all agreed on? Undoubtedly, that bill would have found its way through committee and been passed into law by now. That is an indication of how big a hurry the government is in. It tabled Bill C-15 in October of last year. It does not seem to be a priority because the bill has not received the attention it deserves.

Other important amendments passed at committee include the following. One dealt with the authority of the Chief of Defence Staff in the grievance process, responding specifically to Justice Lamer's recommendation. It related to the ability of the Chief of Defence Staff to levy a financial award in one shape or another. That does not exist now but it was recommended that it be done.

A second dealt with changes to the composition of the grievance committee to include 60% civilian membership. Right now the grievance committee generally consists of Canadian Forces members, often at the officer level or, at the very least, recently retired Canadian Forces members. That needs to be changed to bring in some greater external oversight.

Third, there was a provision ensuring that a person who was convicted for an offence during a summary trial would not be unfairly subject to receiving a criminal record as a result. That is a serious problem. The summary trial system needs to include some of the provisions of the Charter of Rights and Freedoms so it will not as onerous and potentially damaging a system as it is now to the future of many of these women and men in the Canadian Forces.

This is a important issue for New Democrats and the people of Dartmouth—Cole Harbour. We want to make sure that the right thing is done and the proper changes are made.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am not aware if my esteemed colleague was present throughout my speech, but I never once referred to “all our amendments”, but to very essential and important amendments. The member is correct that there were some amendments incorporated.

However, the point is not the fact that no amendments were accepted or reproduced in the bill, but that some very fundamental points have been tossed away by the Conservative government. It does not seem to like anything that asks for transparency and fairness for the people who are at the top of the line and who will be affected by the end result of the work toward Bill C-15.

[Lynne Yelich, Conservative, Minister of State (Western Economic Diversification)]

Mr. Speaker, there have been repeated assertions by the hon. members opposite that none of the amendments made at committee to the predecessor Bill C-41 were retained in Bill C-15.

Is the hon. member aware that in fact two of the amendments made at committee are present in Bill C-15? They are found in clauses 101 and 135 of the bill. Could the member please clarify?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, it is so urgent that we have been waiting to see major changes to the National Defence Act since 2003.

It has become urgent because the government in power has allowed the situation to continue. As my colleague from Davenport said, the problem is that the government prorogued Parliament when the time came to pass the bill with proper amendments. In one stroke, prorogation erased all the work that had been done in committee, everything that had been adopted, and everything that had been agreed upon between the parties in a minority government context, in which political parties should work together, something the government does not do.

In his report, Chief Justice Patrick LeSage does not give the government a blank check. He agrees with many of our positions, that a lot of things should be changed to make Bill C-15 palatable.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, that is an excellent question. The problem lies in trying to answer it for the Conservative government. That is impossible for me. I absolutely fail to understand the logic behind three-quarters, if not all, of its decisions.

On the one hand, the Conservatives tell us they are tough on crime, and they make bad decisions that are overturned by the courts. On the other hand, they tell us they stand behind the members of our forces. We constantly hear that from the Minister of National Defence. Listening to him, you would think he is the only person concerned about the members of the Canadian Forces. However, when it comes to protecting them by means of a major amendment in a major bill such as Bill C-15, the minister abandons the members of the Canadian Forces, sacrificing them on the altar of false promises.

And yet he should be protecting them. After all the service these people have rendered to their country, it seems to me the least we can do is to be fair with them.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, it is an honour to rise in the House today to speak to Bill C-15.

First, I would like to congratulate our national defence critic, the hon. member for St. John's East, who is doing an amazing and remarkable job on a file that can be difficult, given that we are dealing with a government that would rather act like G.I. Joe than seriously examine the country's national defence needs, analyze the cost to Canadian taxpayers and have a comprehensive view of Canada's defence role as it relates to the deployment of military personnel in our country and abroad.

I have tremendous respect for the Canadians who work for our Canadian Forces. I have met many of them, since there are obviously a number in my riding, it being in the national capital region. In my riding, it is not unusual for people to frequently come across Canadian Forces members. I really admire the work that they do, here, inside our borders, and around the world, especially in light of what has been going on. It takes a special person to put his or her life in danger to protect our values, rights and what we stand for every day.

That is why we cannot afford to let the government take so many years to introduce this bill. I said “so many years”, because in 2003, retired Chief Justice Lamer was asked to produce a report on the situation and to make recommendations regarding the bill.

The summary of Bill C-15, which was produced and which I will give a little background on shortly, states the following:

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.

As I said a moment ago, I believe this quite lengthy bill has been long due since 2003. However, “long due” does not mean we should hand out blank cheques, even though the bill concerns national defence and our men and women working for the Canadian Forces. The NDP is not in the habit of handing out blank cheques.

This bill has previously appeared in a number of forms, as bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and when the election was called in 2008. In July 2008, Bill C-60 was introduced and it came back with a vengeance. Bill C-60 simplified the structure of courts martial and established the method for selecting the type of court martial that would harmonize best with the civilian justice system. In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined the bill and recommended nine amendments to the National Defence Act.

This happened after 2003, when the Right Honourable Antonio Lamer tabled a report on his review of the National Defence Act, a report that contained 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces provost marshal.

Looking at Bill C-15 as it currently stands—because that is the one we have to consider—we realize that it is supposed to be a legislative response to those recommendations. However, only 28 recommendations have been included in the bill.

I will say it right away—and the critic said this—we will not support this bill at second reading because, in any case, the government will be referring it to committee. However, there are so many flaws, serious flaws, in this bill, and it is not because it should have been introduced so long ago that we should adopt any such poorly constructed legislation. That is our position on the matter.

In 2010, Bill C-41 was introduced in response to the 2003 Lamer report and to the Senate committee's 2009 report. It contained the military justice-related provisions respecting, for example, sentencing reform, judges, military panels, summary trials, the court martial panel, the Canadian Forces provost marshal and certain provisions respecting the Military Police Complaints Commission.

It can nevertheless be said, for those who were here at that time—I was not—that bills C-41 and C-15 resemble each other and are similar to what was introduced by the Senate committee during the last Parliament.

The amendments stood included those concerning the composition of a court martial panel, and security of tenure for military judges until retirement.

However, other important amendments—and I want to emphasize this—adopted at the committee stage at the end of the last parliamentary session were not included in Bill C-15. That includes the NDP's amendments respecting the authority of the Chief of Defence Staff in the grievance process—a direct response to a Lamer report recommendation—changes in the composition of the grievance committee so that 60 % of members would be civilians and the provision to ensure that a person guilty of an offence on summary conviction would not unfairly be given a criminal record. That is the amendment under clause 75 of Bill C-41.

We have been in favour of bringing the military justice system up to date for a long time now. There is no doubt about that and I do not want to hear anybody say otherwise in this House. Members of the Canadian Forces are known to be subject to extremely strict rules of discipline and they deserve a justice system that is subject to comparable rules.

I remember when I first started out as a lawyer, doing criminal law, that there was a judge in the Outaouais district—he is still there–near Gatineau, where I am a member of Parliament, who used to tell us, because he had a military background, that nothing could be as secret and closed as military justice. This is understandable, because it operates in accordance with a very closed system of discipline. It is understandable. I think that members of the Canadian forces voluntarily submit to these extremely strict rules of discipline.

They often have absolutely critical work to do, and the chain of command is not very tolerant of exceptions. All of that is understandable and yet, sometimes there are certain types of behaviour problems—I repeat, “behaviour problems”. And those who are not accustomed to this environment can be completely flabbergasted at what can lead to a criminal record for a member of the Canadian Forces. Anyone practising criminal law in civil society, or dealing with labour rights or grievances, will find provisions in these bills that are rather surprising.

To begin with, they mention reform. For us, the problem is that the reform under discussion is of the summary trials system. The amendments in bill C-15 do not adequately address the injustice of summary trials. At the moment, a summary trial conviction in the Canadian Forces means a criminal record. Some might say, “good for them”. However, summary trials are held without the accused being allowed to seek legal or other counsel. They have no recourse and there are no transcripts of the trial. Moreover, the judge is the accused's commanding officer. This is too harsh for some members of the Canadian Forces who are convicted for minor offences. Once again, some may say that there is no room for exceptions, but there are times when it is completely ridiculous.

I have had people come and consult me, but the problem was that everything had already been taken care of.

Let us put ourselves in the place of a member of the Canadian Forces who has committed an offence, for example, absence without leave or a quarrel with another member. The member’s own commanding officer tells him he will have a summary trial. We cannot seriously think that a member of the Canadian Forces is going to go against what his own commanding officer suggests. We cannot really call this transparency. That may be too harsh for some members of the Canadian Forces who are convicted of minor offences. I will say it again, because it is important to know what we are talking about. These minor offences include insubordination, quarrels, misconduct, absence without leave, drunkenness, disobeying a command, and so on. This is certainly very important for military discipline, and I am not saying otherwise, but does it call for giving someone a criminal record? It is important that we ask ourselves that question.

Having a record will have an effect when the member leaves the Canadian Forces. He may have trouble finding a job once he rejoins the civilian world. Bill C-15 does provide an exemption so that if there is a minor sentence handed down under the act or a fine of less than $500, certain offences are not entered on the person’s record. This is one of the positive aspects of the bill, but we think it does not go far enough. We hope the committee will do its job. I do not know whether the Standing Committee on National Defence is as extraordinary as the justice committee. At the Standing Committee on National Defence, even when self-evident amendments are moved, they are not adopted.

Last March, at committee stage, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and so would not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased to 27 from five. The amendment also adds to the list of sentences that a tribunal may impose without them being entered on the record: for example, a severe reprimand, a fine equivalent to a month’s salary and other minor sentences.

This was an important step forward for summary trials. However, the amendment to Bill C-15 was not accepted. It is therefore entirely to be expected that we would want to include it again. A criminal record can make life after a person’s military career very difficult. It can mean losing a job, being refused housing, having trouble travelling, and so on. If Canadians knew that members of the military who served our country so courageously are being treated this way for the kinds of misconduct I have referred to, I think some of them would be in shock, as I was when I read the bill and what had gone on over the last 10 years in this regard.

There is also the question of reforming the grievance system. As a labour lawyer, I have always advocated the greatest possible transparency and independent arbitrators, because it affects the labour relations between the parties. The same is true when we talk about a Military Grievances External Review Committee. At this time, the Canadian Forces Grievance Board does not allow for external review. The people who sit on the Military Grievances External Review Committee are retired Canadian Forces employees and some very recent retirees. So if the Canadian Forces Grievance Board is to be seen as an external, independent civilian body, as it should, the appointment process definitely needs to be amended to reflect that. The committee should therefore be composed, in part, of civilian members.

The amendment that the NDP suggested, and that it will certainly suggest again when the bill is examined in committee, is that at least 60% of the grievance committee members never have been officers or members of the Canadian Forces. I repeat: it is the Military Grievances External Review Committee. The amendment was adopted in March 2011, for Bill C-41, but it was not incorporated into Bill C-15.

It is extremely important that people from the outside be part of the external review committee, and I am persuaded that my colleagues will agree with me. It is therefore important that the amendment be included again.

There is the whole question of the authority of the Chief of the Defence Staff in the grievance resolution process. There is a major weakness in the military grievance system. The Lamer report contained a recommendation concerning the fact that the Chief of the Defence Staff does not have the power to settle financial claims in grievances. In spite of the fact that the Minister of National Defence approved the recommendation, no concrete action has been taken in the last eight years to implement it.

The ministers responsible for certain portfolios who come before our committees need to agree to the amendments we recommend. When it comes time to amend legislation, those ministers need to remember what they have said.

During committee examination, the NDP proposed an amendment, which was adopted in March 2011. Nonetheless, the amendment was not incorporated into Bill C-15. If this bill is referred to committee, the NDP, under the leadership of the official opposition’s national defence critic, the member for St. John's East, will continue to fight for this.

There is also the question of strengthening the Military Police Complaints Commission. Very little has been said about granting that commission greater powers so that it acts as an oversight body. The commission’s powers must be expanded by legislation so that it is able to investigate legitimately and report to Parliament.

The NDP is not alone in making the case for the need to amend Bill C-15. A number of organizations support our positions, including the British Columbia Civil Liberties Association, which has said that fundamental fairness requires that systems that impose serious penalties on individuals provide better procedural protection.

In R. v. Wigglesworth, the Supreme Court of Canada, an arm of our democracy, confirmed that, if an individual is to be subject to penal consequences such as imprisonment, he or she should be entitled to the highest procedural protection known to our law. I believe that will come as a shock to no one.

That is often where the problem lies. Military justice is often opaque or not very transparent. No one knows exactly what goes on, except those curious individuals who want to know more. It is important that justice indeed be done. That is even more important for the members of our Canadian Forces who dedicate themselves body and soul to each and every one of us, to all the Canadians we represent. They go to other countries to promote fundamental values and rights, democracy, the right to a fair trial and so on. And yet, once back in Canada, those members, for all kinds of reasons, are sentenced without receiving the advice of counsel or being able to obtain a transcript. When a former Canadian Forces member consults a civilian lawyer, that lawyer has trouble representing the member because the member’s file contains absolutely nothing other than what he or she has said.

I would not go as far as my colleague from Scarborough—Guildwood, who spoke before me, but I believe that is a small step. Many years have elapsed since the Lamer report, and I believe the members of the Canadian Forces deserve a lot better than Bill C-15.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I wonder if my colleague can provide comment in regard to Bill C-15 and what he perceives as one of the shortcomings of the bill, maybe something the government could have done, either in a more timely fashion or in general with regard to the bill. Does he have any thoughts in regard to that?

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

Mr. Speaker, it is far from a blank cheque. I think I have articulated at least three areas where there are legitimate questions to be raised. I do not think that is an exclusive list by any means.

I agree with the hon. member that the bill has seen a number of reiterations.

Mr. Justice Lamer's report was a good report. It was quite useful. I think a lot of the justice's recommendations see their way into Bill C-15. Without having my arm twisted behind my back, I would commend the government for actually recognizing that. I do wish, though, that it were not quite the last item on the government's agenda in each and every Parliament. However, we are here and let us hope we can get it into committee.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I appreciate the hon. member for Scarborough—Guildwood's answer. I would like to ask him if that amounts to the Liberal Party giving the Conservative government a blank cheque for the passage of Bill C-15.

Fairly recently, when a similar bill reached committee stage, the Liberal Party agreed that it needed a lot of amendments. There was also a Liberal government in place when the Honourable Justice Lamer presented some 95 recommendations, of which only a few dozen are being implemented in Bill C-15. I hope the Liberal Party is not giving the Conservative government a blank cheque.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, Bill C-15 provides a statutory articulation of the objectives, purpose and principles of sentencing in the military justice system. This would provide military judges presiding over courts martial, presiding officers at summary trials and appellant judges in the Court Martial Appeal Court and the Supreme Court of Canada with parliamentary guidance similar to that which is provided to their civilian counterparts, while recognizing the unique characteristics and requirements of the military justice system.

Does the hon. member agree that providing statutory articulation of the objectives, purpose and principles of sentencing to these important actors in the military justice system is something that should be supported by all members of the House?