Bill C-16 (Historical)

Security of Tenure of Military Judges Act

An Act to amend the National Defence Act (military judges)

This enactment amends the provisions of the National Defence Act that deal with the tenure of military judges.

Security of Tenure of Military Judges Act

[Bev Oda, Conservative, Durham, ON]

moved that Bill C-16, An Act to amend the National Defence Act (military judges), be read the second time and referred to a committee.

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

Mr. Speaker, I stand this morning with great pleasure in support of a bill that addresses the urgent need to ensure the proper functioning of our military justice system.

I will begin by reminding all members that our debate--

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, I rise on a point of order, and I do apologize to my hon. colleague. I should inform you that there have been consultations and I am hopeful that the House will give its consent to the following motion: That, notwithstanding any Standing Order or usual practices of the House, when the House begins debate on the second reading motion of Bill C-16, an Act to Amend the National Defence Act (military judges), one member from each recognized party and the member from Saanich—Gulf Islands, who shall divide her time with any of the following members, the member for Richmond—Arthabaska, the member for Haute-Gaspésie—La Mitis—Matane—Matapédia, the member for Ahuntsic, and the member for Bas-Richelieu—Nicolet—Bécancour, may speak to the second reading motion, after which the said bill shall be deemed to have been read a second time and referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read a third time and passed.

[The Acting Speaker, Conservative, Barry Devolin]

Does the hon. parliamentary secretary have the unanimous consent of the House to present the motion?

[Some hon. members]

Agreed.

No.

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

Mr. Speaker, I rise again in support of the bill that addresses the urgent need to ensure the proper functioning of our military justice system.

The bill comes to us in the context of two facts that I think all hon. members will recognize. One, a legal circumstance that places additional pressure on all of us to ensure the smooth functioning of our military justice system, one that has served Canada well for decades. We just celebrated the centenary of the Office of the Judge Advocate General without a challenge to its constitutionality. I will come back to that issue and delve into the circumstances that have led to a danger of that happening.

This is a measure that has been considered in the House three times during three previous Parliament when bills were brought forward that provided for exactly the very limited measures that are provided for in this bill. They died on the order paper, despite two days of debate in the House in the last Parliament and five days of debate in committee in the last Parliament. These issues have been thoroughly ventilated among all of us.

They have received the benefit of the views of the members opposite in committee and in the House, and our consultations to date lead us to believe that, on this narrow but important issue of the independence of military judges, there is a consensus among the parties represented in the House to move forward with alacrity and to ensure that trial by court martial in this country's military justice institutions continues to take place in full conformity with the law and the continuing modernization of our civilian, civil and military justice practices.

Ensuring the safety of Canadians requires that members of the Canadian Forces remain in a constant state of operational readiness. In this regard, the military justice system is a critical tool in allowing the chain of command to deal with matters directly related to the discipline, efficiency and morale of the military. Many hon. members on all sides of the House will know first-hand from their experience, and we all know from our observation of the excellence of our Canadian armed forces the importance of morale, the fundamental importance of justice that is swift, justice that is fair, justice that brings together a team that reinforces the cohesion of that team to the smooth operational functioning of a military.

It is not just a question of the institution's effectiveness, it is also a question of our military's ability to reflect the values that we as Canadians hold dear. Any Canadian soldier, private, sergeant or officers, whether they are in Libya or on a peacekeeping mission on the Golan Heights or anywhere else, will tell us that they can only do their job to the extent that they are representing and projecting Canada's values. Those values are built upon a system of law, a system of justice and that system must be fully reflected in the system of military justice that serves our military.

In the absence of such a system, our military men and women would not be able to focus on their top priority—protecting the interests of Canada and its people.

For that reason, the government, the Supreme Court of Canada and even the Constitution have recognized the importance of maintaining a robust military justice system. The military justice system must meet the unique needs of the Canadian Forces and must also be subject to the Canadian Charter of Rights and Freedoms. The charter guarantees that a person who is charged with an offence has the right to be presumed innocent until proven guilty in accordance with the law in a fair and public hearing by an independent and impartial tribunal.

It is on the issue of independence that I speak to the House today. The independence of the judiciary is a fundamental right of all Canadians, and maintaining that independence is an important responsibility of government. This means ensuring that Canadian courts, including courts martial, are free from real and perceived undue influences and interference.

Judicial independence, or the freedom to deliver a ruling based solely on fact and law, requires that the judge presiding over a trial have a certain level of job security and that his appointment be permanent.

That is the system we have in our civil courts and it is the system we must now have in our military justice system.

On June 2 of this year, the Court Martial Appeal Court made an important decision regarding the security of tenure of military judges. I am referring to the case of Regina v. Leblanc. This ruling assessed that the process by which military judges are appointed, currently on a five year renewable basis, does not satisfy the constitutional requirement for an independent judiciary. Therefore, the court has given Parliament six months, or until December 2, to pass remedial legislation to update the National Defence Act, otherwise, its provisions related to the appointment and tenure of military judges will be declared constitutionally invalid. This is not a new issue.

Since it took office, the government has been actively seeking to make amendments, similar to those I just mentioned, to the National Defence Act.

The enhancement of judicial independence is one issue that the government first attempted to address in 2006 with Bill C-7, which died on the order paper, as I mentioned at the outset. Since then, the government has attempted to amend the National Defence Act on two separate occasions: Bill C-45 in 2008 and Bill C-41 in 2010, both of which died on the order paper as a result of prorogation or the dissolution of Parliament.

Therefore, we cannot be taken to task for not having tried to resolve this issue earlier as circumstances literally did not permit us to bring these efforts, which we all have endorsed in one way or another, to fruition. Ideally, Parliament would have passed legislation that would have dealt with the issue of security of tenure in 2006, unfortunately, circumstances were such that this was not the case. Today, with a renewed sense of urgency on this issue, we come before this House with Bill C-16

In order to address the concerns identified in the Leblanc decision, the proposed amendments to the National Defence Act contained in Bill C-16 would provide military judges with security of tenure to the fixed age of 60, subject only to removal for cause based on the recommendations of an inquiry committee established under regulations. This is a procedure that reflects, in the military justice system, the type of removal proceedings that we see in our civilian justice system in extreme cases when it is applied to judges.

The government recognizes that 60 is an earlier age for retirement than most judges in the civilian justice system. However, we must remember that military judges are commissioned officers in the Canadian Forces, colonels and lieutenant colonels at the moment, and that the military must balance the need for an experienced judiciary with the need for physical fitness and deployability in all of its members. It is the principle of universality of service. For this reason, 60 is the maximum prescribed retirement age for all Canadian Forces members, and this must include military judges who are, of course, members of the Canadian Forces.

I would like to close by emphasizing that the government recognizes that the amendments proposed in this bill are technical in nature, but they constitute amendments that are necessary to ensure that the National Defence Act is consistent with the charter and that the military justice system operates in accordance with Canadian legal standards.

We are really talking about the modernization of our military justice system, the obligation we have to ensure that our system reflects developments in the civil justice system. I am not only speaking about our own observation as parliamentarians, as government, that this must take place, but observations that have been endorsed by the Supreme Court of Canada and by a recent decision by the military appeals court that this now take place specifically with regard to the issue of the independence of military judges.

Should Bill C-16 not move forward quickly the ability of military judges to hear cases will be put into question, causing uncertainty within the military justice system. By ensuring security of tenure to the fixed age of 60, Bill C-16 would make a significant contribution toward ensuring the continued independence of military judges within the military justice system.

Let us keep in mind that our military justice system has a long-standing and proud tradition in Canada. The Court Martial Appeal Court was created in 1959 by Parliament. It is a military justice system that is subject to civilian control, civilian supervision and civilian oversight. It is also subject to that oversight in that the Court Martial Appeal Court is a superior court of record with a chief justice of its own. It is composed only of superior court judges appointed by governor in council. Appeals from this court go directly to the Supreme Court of Canada, so our military justice system fits under the charter, under our Constitution, into a system of justice that is overseen ultimately under appeal by the Supreme Court of Canada.

Let us also put the bill into perspective. The full-time military judges of whom we speak and to which this new measure would apply number four in this country at the moment, three of whom are lieutenant colonels and one a colonel. They do handle a large amount of work. The bill really would apply to a relatively restricted field of the military justice system and our military as a whole.

This government recognizes that while urgent, the issue of judicial independence is but one of many aspects of our military justice system that requires updating. Performing a regular review of any legal system is necessary to ensure its continued relevance and effectiveness, which is why the government has also introduced Bill C-15, which proposes implementing many of the recommendations found in the 2003 report by the late chief justice Antonio Lamer.

Together, Bill C-15 and Bill C-16 represent a comprehensive response to the recommendations found in the Lamer report and in Regina v. Leblanc to ensure that our military justice system remains consistent with Canadian values.

I therefore call upon the House to support both of these important bills as they move forward. I also call upon those independent members of the House, some of whom were active in committee in reviewing the provisions now contained both in Bill C-15 and Bill C-16, to join us in moving the bills forward expeditiously in recognizing that the values we all share, the military we all support, deserves to see these technical but important updated measures move forward as quickly as possible.

It is one of our duties to our military. It is our duty to Canadians to move quickly forward on this. We need to ensure that our Canadian Forces are served by the best, the most modern, the most effective military justice system that we can have in this country at this time.

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

Mr. Speaker, I will make my own speech in a few minutes, but I would just like to refer to the member's notion of the duty of the independent members of the House. I would like to ask the parliamentary secretary, why are we in this situation that he has to call upon them to do that? They just refused unanimous consent to a motion to move this through quickly, but they did so in an apparent retaliation for what the government refused yesterday.

I see the member is wearing a poppy. We made statements the other day on the occasion of Remembrance Day. It is traditional in the House. The Green Party has a representative here, even though it does not have party status. The Bloc Québécois has four members but no party status. These members wanted to have an opportunity to make a Remembrance Day statement, yet the government refused.

The House leader for the New Democrats, the official opposition, specifically asked for unanimous consent yesterday and it was refused by the parliamentary secretary and his party. That is why we are in a situation where there is not a free flow to see this go through. I think there is a general will that this be passed.

The government is the author of its own misfortune. Why would it refuse to allow the representatives of the Green Party and the Bloc to make a statement in observance of Remembrance Day?

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

Mr. Speaker, it is unfortunate that any member of the House would see fit, for any reason, to politicize an issue, to link an issue that really is, and I think the member for St. John's East would agree with me, technical in nature, that is urgent because of the judicial context now set for this issue.

Yes, there is give and take in the House. There is free flow of requests and agreements, sometimes request refusals. However, let us be clear, if this measure does not move forward expeditiously, and we had hoped it would do so today, and we still think expeditious progress for the bill is possible, those who will suffer are all of us in the House because our credibility in serving the military and the military justice system will be in doubt.

Every single member of the Canadian armed forces who is served by the court martial system, by the summary trial system, runs the risk of having the constitutionality of that system being called into question as early as December 2. Therefore, the urgency does transcend the give and take that we habitually engage in in the House. It should compel all members to reconsider their positions and to move toward expeditious passage of the bill.

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

Mr. Speaker, I was not going to touch on this issue, but the hon. member for St. John's East has raised it. It grieves me enormously to block unanimous consent on this matter. The parliamentary secretary's presentation on the facts and the value of Bill C-16 is uncontested from the Green Party's point of view. He presented it admirably.

However, it has been a source of great grief. I have heard from Green Party members across the country. They are stunned that independent members were not allowed to speak. Others have spoken from other parties to reflect on the sacrifices of those in previous wars and those currently in military action.

Patriotism is not something that is the exclusive province of one party on one side of the House. If anyone has politicized any issue inappropriately it was government members who two days in a row have refused the Bloc Québécois members in Parliament and the duly elected Green Party member of Parliament in speaking to Remembrance Day.

I think the matter of unanimous consent is usually negotiated. It is negotiated with goodwill and that goodwill was absent in this case.

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

Mr. Speaker, I would simply urge our hon. colleagues opposite, the member for Saanich—Gulf Islands, and those other independent members who made their views known at the start of today's debate, to find a different way of expressing their displeasure.

The decision rendered on June 2 by the Court Martial Appeal Court was one that declared our current military justice system invalid because of the lack of security of tenure for judges. The provisions of this ruling were suspended until December 2 to allow this House to act, to allow the Parliament to Canada to correct this situation. December 2 is coming quickly.

Those members have a position that they wanted to express. They are entitled to use the rules of this place for whatever ends they choose. However, I would appeal to them to choose a different context, to make a different piece of legislation, a different measure, the object of their disapproval or their disruption in this case. Military justice and the integrity of the justice system serving the Canada armed forces is too important.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, I greatly appreciated the hon. member's speech. It was very detailed and interesting. He has represented Canada's foreign affairs department in Afghanistan and he supports human rights everywhere in the world. I have a question for him: why is it important for members of the military and all Canadians to have an independent judiciary? He spoke about the Constitution in his speech and I would like him to speak a little bit more about the importance of an independent judiciary here.

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

Mr. Speaker, I thank my hon. colleague for his question. It is truly important for all members of this House to have a good understanding of what members of our Canadian Armed Forces experience. They are often deployed overseas, in such places as Afghanistan, where the justice system does not work well or even not at all. That was certainly the case in Kandahar in 2006 and it continues to be the case for several areas of justice in Afghanistan.

Therefore, it is vital that our armed forces take with them a reliable justice system that is consistent with our values. When they are deployed, they are governed by the military rather than the civilian justice system. Military justice in Afghanistan, Libya and other countries where our forces are deployed must be swift and fair and reflect the values of Canada's civilian justice system and its most recent developments.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, as my colleagues said earlier, it is rather difficult to listen to our hon. Conservative colleague tell us that we are politicizing an issue, when all the Conservatives have been doing from the beginning is ramming their bills down our throats. I would like to read a quote and ask him to comment. Manon Cornellier, who is a very respected columnist in Quebec, had this to say:

The Conservatives have a majority. They know that they will get their bills through and that they have the time to honour the best parliamentary traditions, that is, by acting in a thoughtful and insightful way and giving members, organizations and the public an opportunity to be heard. Ideally, this should be accompanied by a willingness to listen.

The government wants its bills, for example bills C-10 and C-19, to be passed post-haste. It is telling us that we are politicizing the debate, but in fact it is the one doing so. That is rather rich.

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

Mr. Speaker, I have not read Ms. Cornellier's article. However, I can assure the hon. member for Gatineau that, in this case, we listened to her party and had some real in-depth discussions on this issue in the House during previous Parliaments and in committee. We agree. We agree on the independence of military judges.

I think, then, that our idea to introduce this bill efficiently and quickly reflects the best traditions of the House in terms of consultation and willingness to reach a consensus, two very common things in the history of this House. I can assure my colleague that in issues related to military justice, we intend to continue this tradition—

[The Acting Speaker, Conservative, Barry Devolin]

I regret to interrupt the hon. member.

Resuming debate, the hon. member for St. John's East.