Bill C-15 (Historical)

Strengthening Military Justice in the Defence of Canada Act

An Act to amend the National Defence Act and to make consequential amendments to other Acts

This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;
(e) modify the composition of a court martial panel according to the rank of the accused person; and
(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.
Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.

The House proceeded to the consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as reported (with amendment) from the committee.

Speaker's Ruling

[The Deputy Speaker]

There are two motions and amendments standing on the notice paper for the report stage of Bill C-15. Motions Nos. 1 and 2 will be grouped for debate and voted upon according to the voting pattern available at the table.

Motions in Amendment

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

moved:

Motion No. 1

That Bill C-15, in Clause 4, be amended by replacing lines 11 to 13 on page 4 with the following:

“(3) The Vice Chief of the Defence Staff may, with the consent of the Provost Marshal and in accordance with the respective roles, responsibilities and principles set out in the Accountability Framework signed by the Vice Chief of the Defence Staff and the Provost Marshal on March 2, 1998, issue instructions or guidelines in writing in respect of a particular investigation, providing that the rationale for issuing the instructions or guidelines is also stated.”

Motion No. 2

That Bill C-15, in Clause 4, be amended by replacing line 16 on page 4 with the following:

“section (3) and the relevant rationale are available to the public.”

Mr. Speaker, I rise today for a very specific set of changes with which I hope the House will find favour.

As we know, Bill C-15 is, for the most part, supported by people throughout the House. It is an act to amend the National Defence Act and to make other consequential amendments. The piece I want to focus on is quite critical and deserves consideration at report stage. It is about changes to the military policing process.

If we go back to why it matters, we go back to an incident Canadians would sooner forget: the shameful incidents that occurred in Somalia involving Canadian armed forces and the subsequent efforts to interfere with that investigation. That led to an entirely new accountability framework, which I am holding here. The Vice Chief of the Defence Staff and the Canadian Forces Provost Marshal co-signed an accountability framework in March 1998 to set out the principles for proper operational flow.

The primacy of operations as well as the need for independence in investigations are recognized. Striving towards these complementary objectives through a transparent, timely and responsive process are described in this framework agreement as being critical.

These are very important principles that are embodied in the document. What Bill C-15 does is throw them out the window. I have brought forward these amendments to get the relationship back to where it should be, under the accountability framework, to ensure that senior military officials cannot interfere in an investigation.

It is unseemly to imagine that we would have a military investigation. Again, let us cast our minds back to a situation like Somalia. We can all hope that such a thing will never happen again. To have some assurance, we need to have good systems of law, accountability, clear lines of authority and absolute certainty that senior defence staff cannot intervene in an investigation to engage in a cover-up. That is why we have the accountability measures that currently exist.

In the section of Bill C-15 I propose to amend, we have something quite extraordinary. We have a change in the relationship. For members who are following along, the relevant section of Bill C-15 is clause 4, proposed subsection 18.5(3). Here we find the bill turning the accountability framework on its head. We find the following words: “The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation". In proposed subsection 18.5(4) we find: “The Provost Marshal shall ensure that the instructions and guidelines issued under subsection (3)”—in other words, by the Vice Chief of the Defence Staff— “are available to the public”.

That is what we have in Bill C-15, and that is why my amendments propose to clean it up. My amendments, very clearly, would ensure that the Vice Chief of the Defence Staff may, with the consent of the Provost Marshal, in accordance with their respective roles and responsibilities and the principles set out in the accountability framework to which I have just referred, issue instructions and guidelines in writing along with the rationale.

My amendment still meets the government's purpose. The Vice Chief of the Defence Staff may still issue instructions, but only with the consent of the Provost Marshal and only if consistent with the framework agreement under which our military policing system has been living since 1998.

Am I the only one who thinks that we need these amendments? No, I am not. I felt that it was important to bring them forward when there was significant testimony before the committee coming from none other than the Military Police Complaints Commission. The Military Police Complaints Commission, which was represented by senior counsel, said, “We don't think it's intended to be used in any kind of nefarious way, but it sort of calls into question what is and isn't improper interference”.

That could be called the understatement of the year. It definitely calls into question what could be called improper interference. This was also pointed out by a very significant witness before the committee, a professor of law from the University of Toronto, Professor Kent Roach, who in his substantive presentation to the committee made some very telling points.

There are reasons we have an accountability framework, and it is very important that this legislation not turn that on its head, undo accountability and open the door to completely improper interference in investigations by the Vice Chief of the Defence Staff. This is, of course, I hasten to add, not specific to any individuals holding the posts in the current era or in the past. However, as a matter of good principle and good policy, one does not put in place a system that is open to such clear abuse.

The provisions put forward by the Military Police Complaints Commission in its brief, which I want to point out, stated:

The provision in question, in clause 4 of the bill, would create a new NDA subsection 18.5(3), which would expressly authorize the Vice Chief of the Defence Staff to direct the Canadian Forces Provost Marshal—the head of the CF military police—in the conduct of specific [military police] investigations.

I should be careful when I speak of investigations in this place and use the initials “MP”. I should quickly clarify that it is military police.

In the Commission's view, such an express authority is inconsistent with existing arrangements in place since the period following the troubled Somalia deployment which specifically sought to safeguard [military police] investigations from interference by the chain of command.

Further down, the evidence from the Military Police Complaints Commission states:

the proposed authority of the [Vice Chief of the Defence Staff] to direct the [Provost Marshal] regarding the conduct of particular military police investigations set out in subsection 18.5(3) represents an important departure from the status quo. This proposed authority would effectively abrogate key provisions of the Accountability Framework whose purpose was to adapt the command relationship of the [Vice Chief of the Defence Staff] and [the Provost Marshal], such that the latter would retain appropriate independence from the chain of command in the conduct of individual law enforcement investigations.

Similarly, I want to mention that the University of Toronto professor to whom I referred earlier, Kent Roach, also spoke of the critical importance of police independence in investigations.

I am putting forward two small amendments. They do not deter or distract from the overall purpose of this act. Anyone who examines the history of why the accountability framework was brought forward in 1998 will see clearly that it is good public policy. It is a wise provision to ensure independence. It is not just that justice must be done but that it must be seen to be done. Opening the door to this kind of abuse goes against all principles, natural justice, the rule of law and the independence of an investigator from top-down interference.

I know it is unusual to pass amendments at report stage, but these are clear and straightforward and meet the demands and strong recommendations of the Military Police Complaints Commission itself. They make sense, and I urge members on all sides of the House to support these amendments to Bill C-15 at report stage.

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

Mr. Speaker, is the member for Saanich—Gulf Islands aware that one of the purposes of Bill C-15, as reported back unamended to this place from committee, is to make the accountability framework, which to date has been an administrative document only, a statutory component of the framework governing military justice, to give it the status of a statute and to make the role, mandate and mission of the Provost Marshal of the Canadian Forces much more explicit than it has ever been before? Under Bill C-15, unamended, the Provost Marshal would have the absolute ability to make public any instruction he or she receives from the Vice Chief of the Defence Staff on any occasion.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, Mr. Speaker, I am aware of that, of course, but just as I am aware of it, so too were other witnesses before the committee. I draw attention to the following statement from Kent Roach, law professor at the University of Toronto:

I think it's always a problem in a democracy when police independence to commence an investigation or conduct an investigation is interfered with.

Michel Drapeau, who is a lawyer with over 34 years of experience with the Canadian military, said:

Would the mayor be able to issue a direction to the chief of the Ottawa police, even if it's in writing, about a particular investigation? The answer is “no.” Would the Prime Minister be able to do that with the RCMP? The answer is “absolutely not.” So why would it be here?

Those witnesses and experts in military justice knew, just as the Military Police Complaints Commission knew, that the instructions would later be made public. The question is how much damage would be done by demands or instructions from the Vice Chief of the Defence Staff in the course of an investigation, even when the Provost Marshal might make them public later on. There is a very large window for abuse, and we should close it now.

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

Mr. Speaker, I thank the member for Saanich—Gulf Islands for bringing forth these amendments. It gives us another opportunity to talk about this important issue.

I wonder if she would comment on the fact that the parliamentary secretary said that the idea was to bring the accountability framework into the legislation, but in fact the amendment actually refers, specifically, to the existing accountability framework bringing it into legislation and it says that in fact the VCDS shall not direct the CFPM with respect to specific military police operational decisions of an investigative nature. That would clearly give legislative effect to the accountability framework that was brought forward, so I do not understand why the parliamentary secretary is saying he wants the accountability framework in legislation and does not seem to be supportive of an amendment that would do just exactly that, by specifically referring to it.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I can only thank my colleague from St. John's East, who also is very familiar with this legislation and has worked hard on it, for making my point for me.

The amendment I am putting forward is entirely consistent with what the government says it wants to do. As currently drafted, Bill C-15 would create the opportunity for top-down military hierarchy meddling in investigations where it should not be meddling. With the fact that the amendment, as I have put it forward, specifically refers to the accountability framework and the sections therein and would allow the Chief of the Defence Staff to issue instructions where the Provost Marshal consents, I think we have plugged what could become a very significant hole. I am using the word “hole”. It is the kind of weakening that emerges when we allow one part of a framework to allow evil to slip in. We do not want top-down political interference in a military hierarchy. The Vice Chief of the Defence Staff should not be able to give instructions to the Provost Marshal. It is as clear as day that is the wrong way to go if the accountability framework is turned on its head, even in the guise of implementing and giving statutory authority to the accountability framework.

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

Mr. Speaker, it is a pleasure to rise in this place again at report stage debate on Bill C-15, a bill that is absolutely fundamental to the well-being of the Canadian Forces and to the modernization of the military justice system, which is at the absolute core of its mandate.

I would invite all hon. members, if they are ever asking themselves about the relevance of this debate and the relevance of this bill, to have a look at the National Defence Act. It is a weighty document in both languages, which is mostly devoted to the military justice system.

Roughly 180 pages out of 230 pages of this document are devoted to the military justice system because of the special need of our Canadian armed forces at home and abroad to maintain discipline and to maintain operational effectiveness while ensuring that justice is done both when they are training on their bases at home in peacetime and also amid the uncertainties and exigencies of the combat they have been involved from time to time throughout their history.

This is an important bill. I find it surprising that the member for Saanich—Gulf Islands would raise amendments at this stage on a very specific part of the bill regarding the role of the Provost Marshal, which is going to be enshrined under this legislation much more clearly in law than ever before, but without mentioning the requirement for operational effectiveness, mission success. That is why we have a military justice system that is separate from the civilian system.

We make a special request of the Canadian armed forces soldiers, sailors and aircrew when they go on missions and when they are at home preparing for such missions. We ask them to live under a justice system that will meet the special requirements of those dangerous situations in which they find themselves from time to time.

The failure to refer to these urgent operational requirements is very revealing in the presentation from the member for Saanich—Gulf Islands. It shows that she has not understood why we have a military justice system and she has not understood the balance that has been struck throughout this legislation, not just in Bill C-15 but in all bills that have established our excellent military justice system over decades.

She has not followed the testimony of witnesses, across the board, in committee and outside of committee, indeed, because most of those best qualified to pronounce on this issue agree with the balance that has been struck in this legislation. The two witnesses the member mentions are in fact the only two I can remember having commented at all positively on the kind of proposal she is making.

It is also extraordinary that the member would introduce these amendments at this very late stage in debate of this bill. We have had dozens of speeches. We have had days and weeks of testimony in committee. This is the fourth Parliament to be considering these amendments.

We are here in the 41st Parliament. There was a similar bill before the 40th Parliament, the 39th Parliament and the 38th Parliament. The recommendations we are trying to enact, at long last, are more than a decade old. They actually came forward in the 36th Parliament.

How many people were here during the 36th Parliament? Was anyone here? There were a very few. Certainly the member for Saanich—Gulf Islands was not here, and neither was I.

I also have a sense of déja vu in that I think some of us were standing in this House a full year ago, on budget day, discussing military justice. It was Bill C-16, an urgent portion of this bill that was taken out of the bill because we were not moving quickly enough on the bill. Here we are again today, going around in circles.

Bill C-15 proposes to put into legislation the appointment, duties and functions of the Provost Marshal as recommended by the Lamer report. He suggested the National Defence Act be amended to define the role of the Canadian Forces Provost Marshal and to set out a framework concerning the relationship between the CFPM, the military police and the chain of command.

The motions before the House today call upon the Vice Chief of the Defence Staff to issue instructions or guidelines in writing in respect of a particular investigation, provide the rationale for issuing the instructions and make sure they are made public.

The proposed section of the bill, as unamended, clearly would provide for written instructions already. The bill reads:

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

I hear the member for St. John's East telling us that we should simply buy into a mention of an accountability framework with a specific date, 1998, in the legislation. We do not mention administrative documents in legislation passed by this House. We do not do that. That is not good legislative practice, in this place or in the other place. What we are trying to do is take the content of that accountability framework, which I agree is important, and turn it into legislative terms, which is what this bill would do.

The intent of proposed subsection 18.5(3) is to recognize the unique circumstances of the military police, who often operate in zones of armed conflict. I will mention that again: zones of armed conflict. I would like to hear the member for Saanich—Gulf Islands, in her subsequent interventions, if there are any, inform this House as to how she proposes to deal with those circumstances.

Military police may be going to investigate a situation, here or there on the battlefield, but they do not have knowledge of the operational next steps of the mission. They do not know if there is going to be direct fire called in at that location. They do not know if there is going to be a live fire training exercise at that location. They do not know if there is going to be an air strike at that location. That is what this provision in the bill, as unamended, seeks to allow the VCDS to inform the Provost Marshal of, and absolutely the Provost Marshal could make public the rationale. That is the default position. That is what is expected of the Provost Marshal. That is what the Provost Marshal would be empowered to do under the bill as unamended.

However, in those rare cases when, for reasons of operational secrecy, the protection of Canadian lives or, if there is personal information involved in the investigation, privacy, the Provost Marshal may not make the instructions fully public or may not make them public at all.

In other words, the intent of proposed section 18.5 is to strengthen the independence of the military police, as the default position is that the instructions must be made public, and it is unnecessary to refer to an administrative document. The VCDS would be responsible and accountable for the instructions he or she gives. While the fact of the issuance of the direction and its contents should be public, the rationale may be classified or engage issues of operational security.

Members of the Standing Committee on National Defence heard that some misgivings about section 18.5(3) were actually alleviated by subsequent clauses, which would provide for the transparency of any directions issued. Let us listen to Colonel Gibson, a senior member of the Judge Advocate General's Office, from his testimony on February 13. He said:

...there's the very important transparency provision set out at proposed sections 18.4 and 18.5, which says that the default position is that the instruction must be made public. It gives the discretion ultimately to whether or not to release that, having regard to the impact on a particular investigation, to the provost marshal.

Therefore the Provost Marshal has the hammer if he or she is concerned about this, and it is transparent.

We heard the Provost Marshal and the Vice Chief of the Defence Staff in committee expressing the view that this would be the right way to strike a balance. They were comfortable with this, that their independent ability to conduct investigations on the military police side would be protected.

On our side, there really is not more information or more insight provided on this issue, either by the amendments presented today or by what we have heard in this House so far. I remind the members of the House that there have been three attempts previous to Bill C-15, four if we count this bill, to amend this legislation to bring our military justice system up to date.

We in committee considered a wide range of amendments. We are grateful to all members of the committee for the full discussion we had. There are two amendments coming forward to this place, one of which is urgently required because it would reduce the likelihood that members of the Canadian Forces would be carrying into civilian life a criminal record for offences committed under the military justice system that do not justify a criminal record. We need to enact that change quickly. It has been close to a decade that we have been trying to do this, and we have failed so far. We are not serving the Canadian Forces well as long as we fail to pass this legislation, and we would like to move through report stage and third reading as quickly as possible.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I am happy to fill the parliamentary secretary in on the rules of parliamentary procedure. If he is shocked that I have produced amendments at report stage, I would like to ask him when he thought I could have done it sooner? As the member well knows, as a member of Parliament for the Green Party and as leader of the Green Party, in terms of parliamentary procedure, I have the same rights and privileges as an independent, which means I am not allowed to sit on committees. I do monitor committees. I have wonderful volunteers from universities who attend every committee meeting. I have all the evidence that goes before committees and I use it to produce amendments. My earliest opportunity to present amendments is right now at report stage.

I would remind the hon. parliamentary secretary that the principle of police independence is paramount. Probably the leading authority is Lord Denning in Ex Parte Blackburn in 1968. This bill, according to serious experts, and not just one or two witnesses, is casting aside as if it were an irrelevant witness the Military Police Complaints Commission. My friend the parliamentary secretary should give serious regard to these amendments and change his position.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Mr. Speaker, once again, the Military Police Complaints Commission is actually relevant to this debate. If there is a problem that the Provost Marshal sees with the instructions he or she has receives or with any of the procedures as exercised under the legislation now proposed as unamended, that person has the right to go to the Military Police Complaints Commission. This is another one of the safeguards embodied in the bill as unamended.

What the member for Saanich—Gulf Islands fails to note is that we have heard proposals for amendments very similar to hers at committee already. She has not addressed the question of operational effectiveness, operational exigencies, the unique role of the Canadian Forces, that means that the independence of police investigations needs to be balanced with other rights, such as the right to life of the Canadian Forces.

Is the member prepared to deny them the information about a threat to their lives in order to protect one principle of a police investigation, which is important but which is clearly trumped by the special circumstances of the battlefield?

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

Mr. Speaker, the parliamentary secretary would know it was not just one or two witnesses who opposed this. Glenn Stannard, the current chair of the Military Police Complaints Commission, and Mr. Peter Tinsley, a former chair of the Military Police Complaints Commission and a person of long-standing military police experience, both testified. Retired Colonel Drapeau, a military person who is now a practising lawyer and law professor spoke out as well.

Peter Tinsley called it a “backward step”, and it is a backward step. Since 1998, the accountability framework that was put in place and signed by both the Vice Chief of the Defence Staff and the Provost Marshal provided that there would be no direction by the Vice Chief of the Defence Staff with respect to specific military police operation decisions. It set out the roles of the relationship and that is in the act and we like that. However, this is a backward step. He knows that. There is no justification that makes any sense that has been given for it.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Mr. Speaker, it is absolutely not a backward step. It is a necessary step. It is a forward step. It is a step, as the member for St. John's East well knows, toward bringing an administrative document, an accountability framework that had only administrative status that could have been undone administratively at any stage, into law. The member, as a lawyer of long standing and one who practises his trade in the Standing Committee on National Defence in a legislative context, should understand the importance of that elevation of the role, responsibilities and accountabilities of the Provost Marshal and the VCDS.

I certainly understand the rules of this place. I certainly understand the ability of the member for Saanich—Gulf Islands to submit amendments. What I do not understand is our inability to move this legislation forward after a full decade, after 78 speeches in this place, after consideration of four successive drafts in four Parliaments of the same bill.

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

Mr. Speaker, the major reason the government gives for rolling back the clock is operational requirements. Both Mr. Tinsley and Mr. Stannard addressed that very directly. Their answer to the parliamentary secretary and the government was that military police were not stupid, that they did not go into conflict zones and conduct an investigation. The key flaw in the government's argument is that there is no restriction in proposed subsection 18.5(3) as to when an instruction might be given.

Could the hon. parliamentary secretary tell the House what the operational requirements were that required chain of command interference in Somalia?

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Mr. Speaker, it reflects the inability of the member and other members opposite to see the true context of the bill and the amendments we have proposed at report stage of the bill when he is required to refer all the way back to Somalia in even framing a question about this issue.

The military justice system has functioned extremely well in Afghanistan. It has functioned extremely well for two decades, since Somalia, because of changes that were made and accountabilities that were strengthened. Bill C-15 will strengthen them even further.

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

Mr. Speaker, I am pleased to speak to the bill at report stage, an important bill about reforming military justice in Canada.

The parliamentary secretary talked about the changes that arose since Somalia. One of them was the document I have in front of me called the “Accountability Framework Between the Vice Chief of the Defence Staff and the Canadian Forces Provost Marshal”. It was the Somalia inquiry that brought to light the need for a review of these matters, and there have been some iterations of change since then.

The amendment before us now is a backward step. Most of what is in the bill is positive. We spent considerable time in the House debating what needs to be done to fix it, particularly with respect to the issue of criminal records, to which the parliamentary secretary referred.

We do not believe, as a matter of principle, that individuals going before a military tribunal, who do not have access to the full rights that any defendants in a civil criminal trial in civil society has, should, if convicted, end up with a criminal record. We fought to change that. We argued in the House for many days about that. We argued in the House in the last Parliament to seek to change that. We in fact changed it in committee in the last Parliament, but it never got through because an election was called. There has been a whole process going on to seek to reform the legislation. Our position is that the bill does not go far enough.

This is report stage. We brought forth 19 amendments at committee stage to seek improvements to the bill. One of them involved the removal of this—