Bill C-41 (Historical)

Appropriation Act No. 3, 2012-13

An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2013

Strengthening Military Justice in the Defence of Canada Act

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I have three or four quick points and a quick question.

The speaker from Windsor West was lamenting the lack of a flowery title. I point out that the short title of the bill is very descriptive. It is called strengthening military justice in the defence of Canada act. That is pretty descriptive.

I will say that I believe that my hon. colleague is only 20, so he has lots of time to have a career in Parliament and then to sign up for the military. I would encourage him to do that. It is a great profession.

I will point out that the Provost Marshal, in discussing Bill C-41, said that he had faith in the independence of the system, which goes to one of the situations to which my hon. colleague has taken exception.

On the point of counsel, the vast majority of cases are minor in nature. For summary trials and other measures, people all have either counsel or an assisting officer who can assist them through the process.

One of the important features of the military justice system is timeliness, especially in a field of operation like Afghanistan. We would want to get the individual through the system and back into ops to conduct the mission of the forces. The vast majority of cases are minor, and timeliness is of the essence.

Does my hon. colleague have any comments on the necessity for timeliness in the military justice system?

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, it is an honour to speak on behalf of my constituents in Surrey North.

I want to start by talking about what the Minister of National Defence pointed out in his speech. He pointed out that this bill is long overdue and should have been addressed before the Conservatives became government. That is due to the slow pace of the government in addressing the criminal justice system and the military. It is the government that has been dragging its feet over a number of years.

Having said that, I know the minister has had a rough run over the last couple of years, whether it was the military procurement or the pay difference in Afghanistan recently. I point out that this bill is a small step in the right direction, and I have to give the minister kudos for the small step in the right direction, but more could have been done with regard to the criminal justice system.

As the minister pointed out, this bill was introduced in the House back in October of 2011 and was an act to amend the National Defence Act and to make consequential amendments to other acts, basically strengthening military justice in the defence of Canada act. Bill C-15 would amend the National Defence Act to strengthen military justice following the 2003 report of the former chief justice of the Supreme Court, the Right Hon. Antonio Lamer, and the May 2009 report of the Standing Committee on Legal and Constitutional Affairs. Again, Justice Lamer made recommendations back in 2003, and it is only now that the government is getting around to addressing our broken military justice system.

Among other things, this bill would provide greater flexibility in the sentencing process. The bill would provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution, and it would modify the composition of court martial panels according to the ranks of accused persons and would modify the limitations, among many other things.

Bill C-15 is a step in the right direction. However, the government should have done more. Bill C-15 suffers from the Conservatives' slow-footed response to the LeSage report, which was not incorporated in the bill, along with the lack of wall-to-wall review of the sections of the National Defence Act pertaining to military justice.

Bill C-15 falls far short of key issues when it comes to reforming the summary trial system and the grievance system and strengthening the Military Police Complaints Commission. We are letting our soldiers down with this unnecessary slow pace of change. The NDP will continue to lay the groundwork for a larger review of the need for the modernization and civilization of the military legal system and the implementation of greater civilian oversight.

I am proud of my colleagues on the defence committee, who forced the government to make some amendments to the bill. As members may recall, I spoke on second reading of this bill about some of the shortcomings of the bill that New Democrats would like to strengthen. One thing was with regard to military personnel having criminal records. We were not comfortable with that particular clause in the bill. My NDP colleagues on the defence committee forced the Conservatives to accept an amendment, which would force changes so that over 90% of disciplinary offences would not result in criminal records. We will support Bill C-15 at this point. The NDP is proud to vote for the significant, tangible result that we have been vocally and legislatively in support of for the members of our Canadian military forces.

Our efforts have established one more important reform in building fairer military justice. It is important that the amendments that were offered by the New Democrats were accepted by the Conservatives. It is a small step, one aspect of the bill, not the entire bill. We would like to see more changes to the military justice system, so we can have a robust justice system in the military. This would be a small step in the right direction. One of the key elements was regarding the criminal records for military personnel, so 90% of those military personnel would not have a criminal record after going through this. That was an important first step.

Members of the Canadian Forces are held to an extremely high standard of discipline, and they in turn deserve a judicial system that is held to a comparable standard. The New Democrats will support Bill C-15's proposed improvements because it is a step in the right direction. However, the government should have done more. The Conservatives voted against several prudent NDP amendments at committee that asked to fully incorporate Justice Lamer's 2003 recommendations and some of Justice LeSage's 2011 amendments. They even voted against a clarification to the letter of the law in clause 35, as proposed by Justice LeSage. This has resulted in a failure to strengthen the proper safeguards for independence in the grievance system, military police or judicial elements of the military justice system.

The New Democrats are calling on the Conservatives to approach the military justice system in a holistic way. What the Conservatives have been doing is taking a piecemeal approach, a little bit at a time. The National Defence Act is a relic. We need to look at it in detail to reform it wall to wall and bring our criminal justice system in the military to the 21st century. The Conservatives had a chance to do this for the last six or seven years. However, they have not done it. They have taken a very piecemeal approach to the military justice system, and we are doing an injustice to the men and women who serve this country proudly. We can do much better. We can support our men and women by ensuring they receive justice when they need it.

Going back to Justice Lamer's recommendations, in 2003, the Right Hon. Antonio Lamer, former Chief Justice of the Supreme Court, presented his report on the independent review of the National Defence Act. The Lamer report contained 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the Provost Marshal. Bill C-15 would be the legislative response to these recommendations.

Former chief justice of the Superior Court the Hon. Patrick LeSage provided an additional review of certain sections of the National Defence Act, which was handed to the government in December 2011. The Minister of National Defence tabled the report in June 2012.

The Conservatives took over a year to table that report. They had it sitting on the minister's desk and he did not act at all. They have had a number of years to bring forward legislation so we can reform the military justice system, yet, as I have mentioned before, the Conservatives are foot-dragging on the issue of reforming our justice system. Even though we are supporting this particular bill, one of our major concerns is that, while it would be one little step in the right direction, there are numerous recommendations from the LeSage report and the Right Hon. Antonio Lamer recommendations that are not part of Bill C-15.

That is what the government needs to work on. It needs to take on a wall-to-wall review of the National Defence Act. The Conservatives have voted against amendments attempting to incorporate several of LeSage's recommendations.

Bill C-15 has appeared in earlier forms. Just going back through the history of it, first Bill C-7 and Bill C-45 died on the order paper due to the prorogation in 2007 and an election in 2008. In July 2008, Bill C-60 came into force, simplifying the structure of the courts martial and establishing a method for choosing the type of court martial more closely aligned with the civilian system.

In 2009, the Senate Standing Committee on Legal and Constitutional Affairs considered Bill C-60 and provided nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2000 Lamer report and the LeSage report. It outlined provisions related to military justice, such as sentencing reform, military justice committees, summary trials, court martial panels, the Provost Marshal and limited provisions related to grievance and the military complaints process.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament. The amendments carried over included those on court martial and military judges and security of tenure, appointment and age. There are other important amendments to Bill C-41 proposed at the amendment stage and incorporated at the end of the last parliamentary session. However, those amendments that were introduced to the previous bill were not taken into consideration in Bill C-15.

That is unfortunate, because we had a bill that went through the process. We heard from witnesses in the committee. Experts, judges and many people associated with the military justice system testified. We had reached a compromise. We reached across different parties. The Conservatives, Liberals and NDP worked together to bring about amendments that would serve our military justice system in a way that is fair. In committees, input is heard from key witnesses and amendments are reached. When that process takes place, all sides can be heard from. The committee recommended a number of amendments that would have helped make the system better.

However, as we have seen in the past from the Conservatives, they have failed to incorporate those very amendments that were agreed upon in the last session of Parliament. That is very unfortunate. The amendments that came out of the last session were a consensus from all three parties.

However, the Conservatives are not listening, and they do not want to incorporate those very amendments that would have formed more consensus towards how we could take a larger leap forward in forming our military justice system. They have backtracked a little from that. This is a smaller step in the right direction.

There was one amendment, a compromise that the NDP fought for in Bill C-41, clause 75. At the prompting from the NDP and in recognition of amendments absent, the Conservatives introduced this amendment into clause 75 of Bill C-15.

While this compromise that the NDP fought hard for in Bill C-41 and Bill C-15 is an improvement on the current legislation, it does not go far enough to improve the summary trial process for our Canadian Forces. It does not guarantee that a person who is convicted of an offence during a summary trial is not unfairly subject to a criminal record.

Furthermore, the Conservatives voted against prudent NDP amendments that would have ensured that the proper legislative mechanisms were in place to apply clause 75 retroactively.

We brought forward a number of other improvements at committee. I believe that is what committees are for. That is where we improve bills to make the laws we make in this place better to serve Canadians in a better way, yet the Conservatives voted down every single one of those amendments.

This is a small step in the right direction. I think we could have taken a bigger step. In fact, I believe we need a wall-to-wall review of the National Defence Act to bring the act into the 21st century, yet the Conservatives did not want to take even a slightly bigger step.

Here are some of the amendments we proposed at committee. One of the amendments voted down by the Conservatives would have given the Chief of the Defence Staff the financial authority to compensate CAF members in the grievance process. It amended clause 6 in Bill C-41, responding directly to Justice Lamer's recommendations. An amendment to clause 11 in Bill C-41 would have changed the composition of the grievance committee such that it would include 60% civilian membership and would exclude active-duty Canadian Forces members, thus enhancing the independence of the board.

These are common sense amendments that would improve the military justice system. These amendments in the previous Parliament were approved by the committee, yet the Conservatives failed to bring them into Bill C-15.

Again, this is a small step in the right direction. They could have done more. They could have taken some of the testimony we heard at this committee for Bill C-15 and also at the committee in the previous Parliament. That committee had agreed to these amendments, yet the Conservatives took those amendments out. That is puzzling. One year they agreed to them, and the next year, in a new parliamentary session, they are going back on their word. That is failing the very people who serve this country.

Another amendment we introduced was a provision to ensure that a person convicted of an offence during a summary trial would not be unfairly subjected to a criminal record. It amended clause 75 in Bill C-41.

These were very common sense amendments. I could go on about some of the changes we proposed and some of the things we would like to see in our approach to reforming the military justice system. The least this House could do is provide the Canadian Armed Forces with a modern National Defence Act so that they can carry on their jobs.

I want to go back to what I started with. The Minister of National Defence has had bad news over the last two years. He has bungled the F-35 procurement. It is a mess. It is a fiasco. I could use a number of other adjectives to describe it. We have seen a number of other scandals in the ministry of defence. We have seen recently a differential in pay in Afghanistan.

The Minister of National Defence could use a little bit of good news, and I would say that this is very little good news, which is going to reform the military justice system. We are calling for a wall-to-wall review of the National Defence Act so that we can reform the criminal justice system in the military and provide the support, encouragement and resources to our military personnel who serve us proudly.

I have a free voice to speak up in the House, to speak on behalf of my constituents from Surrey North, because of the very sacrifices the men and women in the military have made. The least the House could do is provide them with a modern National Defence Act so that they can carry on their jobs.

[Peter MacKay, Conservative, Minister of National Defence]

moved that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the third time and passed.

Mr. Speaker, I am very pleased to rise in support of Bill C-15, which aims to amend the National Defence Act to strengthen Canada’s military justice and grievance systems.

This legislation is a comprehensive package of amendments that will enhance the military justice system, clarify the roles and responsibilities of the Canadian Forces Provost Marshal and improve the military police complaints process and military grievance system.

As a former practitioner of the law, Mr. Speaker, you could vouch for the fact that the modernization of law, including the justice system for the Canadian Forces, is an extremely important undertaking and is a long time overdue.

As the House has heard throughout its considerable consideration of the bill, the military justice system is essential to maintaining the discipline, efficiency and morale of the Canadian Armed Forces.

The requirement for a separate, unique system of military justice has long been endorsed by Parliament and the Supreme Court, and is further recognized in the Charter of Rights and Freedoms.

The framework of Canada's military justice system has also been validated in two independent reviews. The first was conducted by Chief Justice Lamer and was tabled in the House in 2003. A second review, by Chief Justice LeSage, was tabled last year following the introduction of the bill.

The amendments proposed in Bill C-15 were developed to address those recommendations that are still outstanding from the Lamer report.

Bill C-15 encapsulates the government's previous legislative efforts to address these recommendations, namely through Bill C-7, Bill C-45 and Bill C-41, so the bill is essentially in its fourth iteration.

The content of the bill has been thoroughly debated and reviewed. It has been before the House, where some 100 speakers from all parties participated in the debate. Most recently, the Standing Committee on National Defence met eight times in February in examining the bill. Three sessions were devoted to clause-by-clause review of the proposed legislation, and the committee heard from 16 expert witnesses from the Department of National Defence, the Canadian Armed Forces and non-governmental organizations.

I want to take this opportunity to thank my House colleagues and the witnesses for their diligence and dedication in the study of the bill.

I would also be remiss if I did not note the leadership of the Parliamentary Secretary to the Minister of National Defence, the member for Ajax—Pickering and members of the committee, as well as Colonel Mike Gibson, who has dedicated tremendous time and effort in bringing the bill forward to this point.

The bill before the House today will make several important changes to the National Defence Act and enhance the military justice system and grievance framework. These amendments include setting out a wider and more flexible range of sentencing options, enhancing the treatment of victims by introducing victim impact statements at courts martial, and clarifying the process and timelines for future independent reviews of the military justice system.

I am pleased to say that members from both sides of the House are generally in support of enhancing the military justice system and grievance process. However, during second reading and in committee, it became apparent that misconceptions regarding certain provisions have persisted, specifically, those provisions related to criminal record exemptions and the Vice Chief of the Defence Staff’s authority to provide instructions to the Canadian Forces Provost Marshal during investigations.

I would like to take this opportunity to make the government's position clear on these issues and to put to rest any misunderstandings that could further delay the implementation of this important legislation.

Let me begin by quickly addressing concerns related to the criminal records aspect in clause 75 of the bill, because it seemed to be the focal point of many of the comments here in the House and in committee.

While summary trials are necessary to maintain discipline within the Canadian Armed Forces, clause 75 specifically recognizes that most summary trial conviction offences are not sufficiently severe to justify a criminal record for the disciplined military members within the meaning of the Criminal Records Act.

Specifically, this clause ensures that service members would no longer be required to apply for a record suspension, also known as a pardon, for convictions that would not constitute an offence for the purposes of the Criminal Records Act. That is to say, it simply would not show on a person's record upon leaving the Canadian Forces if he or she has been convicted under one of the offences specified in the act.

In response to concerns under the scope of exempted convictions, the committee accepted the government's proposal to amend the bill to expand the list of exemptions. National Defence estimates that this provision would exempt approximately 95% of summary trial convictions from resulting in a record within the meaning of the Criminal Records Act and eliminate any undue hardship to members transitioning to civilian life. Therefore, most would leave the Canadian Forces with an unblemished record if convicted under one of the mentioned offences.

In committee, members also expressed concerns over a provision to give the Vice Chief of the Defence Staff the statutory authority to provide case-specific direction to the Canadian Forces Provost Marshal during investigations. The intent of this provision is to statutorily define the relationship between the Provost Marshal and the chain of command and to enhance the transparency and accountability of military police investigations.

Unlike civilian police forces, Canada's military police may be asked to operate and conduct investigations in operational theatres, as we have seen in places like Afghanistan, where active combat is taking place. Taking this into account, there may be the need in exceptional circumstances for the Vice Chief of the Defence Staff to issue special instructions to the Canadian Forces Provost Marshal. I say this because surely an operational combat zone would qualify as an exceptional circumstance. Special instructions would balance the investigative independence of the Provost Marshal with the safety and security of those involved in the investigation and the operational imperatives of the Canadian Armed Forces.

This bill would establish in statute a mechanism for issuing such instructions, thereby achieving three objectives. Firstly, maximizing accountability by identifying a single authority for such instructions, namely, the Vice Chief of the Defence Staff. Secondly, establishing a statutory requirement for such instructions to be issued in writing, therefore improving transparency. Finally, further increasing transparency by requiring such instructions to be made public, unless the Provost Marshal considers that it would not be in the best interests of the administration of justice to do so.

There are also provisions here where one can envision that information, particularly intelligence that was passed to the Canadian Forces by allies, would be protected in such circumstances.

In closing, our troops perform extraordinary tasks each day—often at great risk to themselves—in service of our country. They need—and deserve—to know that they can have confidence in the fairness and strength of the military justice system that governs and protects them.

This legislation before the House today has been years in the making. In fact, if we trace its history, it goes back to a period before this government came to office. The amendments have now had the benefit of a full second reading debate in the House of Commons and committee study. I strongly urge the House to support implementing these important provisions without delay.

It will benefit the men and women in uniform of the Canadian Forces and their families. It will benefit these extraordinary Canadians who do so much on behalf of our country at home and abroad.

Motions in Amendment

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

Mr. Speaker, I will conclude my brief opening remarks.

I would like to go into some detail about clause 4, which should make the chair of the Standing Committee on National Defence happy. He seems to be quite anxious that I discuss clause 4, which is the subject of the amendments proposed by the member for Saanich—Gulf Islands.

Bill C-41 was amended in committee, but it died on the order paper. When Bill C-15 was introduced for second reading, the amendments contained in Bill C-41, which had received widespread approval, were not included in their entirety.

As a result, we initially opposed the bill at second reading because we felt it was a step back. There had already been a similar bill, complete with approved amendments, but those amendments were not included in the new bill. We therefore decided to oppose it.

A number of amendments were proposed in committee. The NDP put forward 22 amendments and five subamendments. The Conservatives proposed two. One addressed dates and the other addressed clause 75, which would increase the number of sentences that would not result in a criminal record. That is why the amendment was passed. We have now decided to support Bill C-15 because of that improvement.

However, some problems have still not been resolved. The situation is not perfect, but progress has been made. This bill has not taken us as far backward. We are moving forward.

The NDP proposed amendments to clause 4 of Bill C-15. They were rejected. The hon. member for Saanich—Gulf Islands is not a member of the Standing Committee on National Defence. She does not have the right to sit on committee. The hon. member is now presenting amendments, and this is a perfectly normal part of the democratic process, since she did not have the opportunity to do so before.

These amendments pertain to the section of the bill related to the Canadian Forces Provost Marshal and the investigations that will be conducted.

The wording of the second amendment, Motion No. 2, would be changed to read as follows: “The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) and the relevant rationale are available to the public.” “[A]nd the relevant rationale” is what is being added.

I agree with this amendment because it specifies that the Provost Marshal is not just making the guidelines available to the public but also the reasons for them.

This is a worthwhile amendment because it makes it possible to make the instructions and the reasons for them public. It makes it possible to provide a rationale for the guidelines. This lends weight to the instructions that the Provost Marshal could ultimately issue. It is worthwhile.

The other amendment, Motion No. 1, will read as follows if it is passed:

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.

For the people listening to my speech, it is important to understand what the current provision of the bill says. It reads:

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

The motion moved by the hon. member for Saanich—Gulf Islands adds a lot of details.

It is important to note that both amendments seek to ensure that a rationale is provided.

I find that really interesting because when such important decisions are made, it is crucial that there be an explanation of how and why they were made. That makes them much easier to accept and it gives a better idea of the intended direction.

I would also like to talk about the importance of strengthening the Military Police Complaints Commission, the MPCC. The underlying issue is guaranteeing the independence of the MPCC.

Some aspects of clause 4 concerning the MPCC are a step backwards for the military justice system. Furthermore, there could be interference by the chain of command in military police investigations. Thus, I believe ensuring the independence of the MPCC would be the responsible thing to do.

The amendments specify that the rationale is to be provided, which would at least explain what happened. At the very least, there could be a better understanding of the interference and it might not seem unwarranted because the reasons would be provided.

I would like to point out that a former chair of the MPCC, Peter Tinsley, and the current chair, Glenn Stannard, have expressed their concerns about this provision. Both recommended that it be deleted from the bill. The provision at issue concerns the Vice Chief of the Defence Staff and his authority to issue guidelines and instructions in respect of military police investigations.

One of the important things to point out is that the amendments proposed by my colleague would make it possible to provide additional information about the reasons for the investigation. However, clause 4 is problematic.

Of course the NDP will undertake to resolve this situation when it is in power.

[The Chair, Conservative, James Bezan]

Yes.

I think in the last committee it was ruled out of order, but I'm ruling it in order. That one was a part of Bill C-41.

[Colonel Michael R. Gibson, Deputy Judge Advocate General of Military Justice, Office of the Judge Advocate General, Department of National Defence]

Thank you, Mr. Chair.

I would like to thank the honourable members of this committee for this opportunity to appear before you today to speak to Bill C-15.

As Deputy Judge Advocate General for military justice, I, together with my team, have a played a significant role in the preparation of this legislation. I am very glad to have the opportunity to appear today to assist the members of the committee in their consideration of the bill, for two reasons.

The first is that we are lawyers and members of the Canadian Forces. The system we assist in constructing and that we endorse is one that applies to ourselves. We live it every day.

My 32 years of service in the Canadian Armed Forces have taken me to over 60 countries around the world. Between us, Lieutenant Colonel Strickey, Lieutenant Colonel Dufour, and I have multiple operational deployments, including to Bosnia, Afghanistan, Congo, and Sudan. We thus understand first-hand how the military justice system must possess certain functional attributes, including portability, in order to fulfill its purpose. We are fully committed to both the effectiveness and the charter compliance of the military justice system.

The Canadian military justice system has two fundamental purposes: to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency, and morale, and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It thus serves the ends of both discipline and justice. These purposes are stated in the statutory articulation of purposes, principles, and objectives of sentencing in the military justice system set out at clause 62 of Bill C-15.

Simply put, an effective military justice system, guided by the correct principles, is a prerequisite for the effective functioning of the armed forces of a modem democratic state governed by the rule of law. It is also key to ensuring the compliance of states and their armed forces with the normative requirements of international human rights law and of international humanitarian law.

The second reason is that having listened carefully to the testimony of the witnesses who have appeared before you, there is a concern that there may be some misapprehensions about some of the provisions of this bill. I would like to briefly address two of them now.

The first relates to clause 75, concerning the creation of records within the meaning of the Criminal Records Act arising from conviction for minor service offences.

The origin of clause 75 was our concern that although it is necessary to maintain stringent discipline in the Canadian Forces and that this may require trying persons for what could be seen as relatively minor offences, it was not necessary for the maintenance of discipline to have the collateral effect of creating a record within the meaning of the Criminal Records Act to achieve this purpose.

This could have an adverse impact on service members seeking other employment following their release from the Canadian armed forces and, as you've heard in some detail, other consequences as well. In order to relieve what could be seen as the potential for an unintended and unnecessary harshness, we adapted the scheme that Parliament has already put in place in the Contraventions Act.

The effect of clause 75 would be, employing certain thresholds relating to both the objective and subjective gravity of the enumerated offences, to preclude the creation of a record for conviction of the enumerated offences, under the threshold of the specified punishments, and thus obviate the requirement for Canadian armed forces members to have to later apply for a record suspension.

The minister has undertaken that an amendment will be introduced matching the provisions of the one adopted by this committee during its consideration of Bill C-41.

In order to assess the impact of this proposed version in terms of dealing with convictions at summary trial, we conducted a detailed statistical analysis using statistics from the JAG annual report for 2009-10 as a representative sample. This assessment indicates that if the provisions of the amended version of clause 75 are applied for that year, 94% of the offences tried at summary trial would not have resulted in the creation of a record.

Taken together with the introduction in Bill C-15 of absolute discharges as a sentencing option, we would thus predict that approximately 95% of cases tried at summary trial would not result in the creation of a record under the proposed provisions. The remaining cases would be largely made up of the eight Criminal Code offences triable by summary trial. This version of clause 75 should thus be highly effective in achieving the desired policy intent.

The second issue relates to summary trials.

The purpose of summary trials is to provide prompt but fair justice in respect of minor service offences. Summary trials are also intended to contribute to the maintenance of military efficiency and discipline, in Canada and abroad, in times of peace or armed conflict.

Summary trials are vitally important to the operational effectiveness of the Canadian Forces. They are the workhorse of the military justice system, consistently trying about 96% to 97% of cases. They exemplify the attributes of promptness, portability, and flexibility.

It must be pointed out that some of the most eminent constitutional jurists of the charter era in Canada, former Supreme Court of Canada Chief Justices Brian Dickson and Antonio Lamer, and former Chief Justice of the Ontario Superior Court Patrick LeSage, have conducted independent reviews of the military justice system and have supported the importance and constitutionality of the summary trial system.

The portrayal of summary trials that has recently been advanced by some is, at best, a very partial depiction of the full picture that must be taken into account in making a responsible and accurate assessment of the fairness and constitutionality of the summary trial system.

I would be glad to amplify later on other factors that should be taken into account. It does bear repeating at this point, however, that no Canadian court has in fact ruled that summary trials are unfair or unconstitutional.

A major reason that there are not a large number of amendments concerning summary trials proposed in Bill C-15 is that Chief Justice Lamer, having reviewed them, did not identify a significant number of problems and did not recommend any changes.

Legislative reform of the military justice system involves a process of continuous improvement over time, just as is the case with the civilian Criminal Code. Bill C-15 provides important updates as well as a statutorily mandated regular independent review to help ensure that this is accomplished.

Bill C-15 will not be the last word on military justice. To borrow a phrase famous in legal circles, the military justice system is a living tree. Further legislation will be necessary in the future to respond to the recommendations of the LeSage report and to other issues, but this overdue Lamer response bill needs to be passed in order to get on with addressing the next series of improvements.

To coin a metaphor, Mr. Chair, it is necessary to move the Lamer response train out of the station so that we can bring the LeSage response train in, load that one up, and deal with the next set of improvements.

Thank you, Mr. Chairman. l would be pleased to assist the members of the committee by answering your questions.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair, and through you to the witnesses, thank you for appearing.

My first question is for Dean Holloway. I'm going to respect the chair and ask you to abbreviate some of this because it could be a little expansive.

Dean Holloway, you referred to the Australian military justice system during your testimony before this committee on Bill C-41. You said, and I am paraphrasing, it was, or is, much more visceral and much less reflective than our approach in this country.

Given that we have two independent reviews by former Chief Justices Dickson and Lamer, along with a 2011 independent review by Chief Justice LeSage, all supporting the military justice system, does this not reinforce your view that here in Canada we have had time to reflect and make recommendations that suit our military justice system? My constituents, and I think most Canadians, like to compare us to our allies. You did Australia; I wonder if you could just make a short reference to the U.S. and Great Britain.

[Peter MacKay, Conservative, Minister of National Defence]

Thank you very much, Mr. Chair.

Colleagues, I'm pleased to be with you again. I note that this is my 32nd appearance before the committee as a government member. I recognize that we're here for the important examination of Bill C-15.

I should also note that I'm joined by Major-General Blaise Cathcart, who is our Judge Advocate General, as well as by Vice-Admiral Bruce Donaldson, who is the Vice Chief of the Defence Staff.

The proposed amendments to the National Defence Act found in this bill will ensure that Canada's military justice system remains one that the Canadian armed forces, and I suggest Canadians at large, can trust. These amendments will also clarify the roles and responsibilities of the Canadian provost marshal and will enhance the military police complaints process and the military grievance system, among other amendments.

The need for a military justice system to maintain the discipline, efficiency and morale of the Canadian Forces, one that is separate from the civilian system, has been endorsed by Parliament, as well as the Supreme Court of Canada in the 1992 Généreux decision. The existence of a separate military justice system is also expressly referred to in the Charter of Rights and Freedoms.

Mr. Chair, colleagues, this system, the existence of a separate military justice system, in addition to being endorsed by both Parliament and the Supreme Court of Canada, is also expressly referred to in the Charter of Rights and Freedoms. As members here will know, the strength of Canada's military justice system was confirmed as well in two independent reviews, material that I know you have reviewed.

The first independent review, conducted by Chief Justice Lamer in 2003, for example, found that Canadians would continue, and could continue, to have confidence in Canada's military justice framework, a framework that meets the disciplinary needs of the military, whether in times of peace or conflict and whether in Canada or abroad. That said, Chief Justice Lamer also recognized that there were opportunities for improvement, and he made recommendations to strengthen our system.

His assessment was supported by the findings of the second independent review of the military justice system, conducted by Chief Justice LeSage and tabled in the House last June, following the introduction of this bill, Bill C-15.

The bill before you today is required to implement those recommendations from the Lamer report that are still outstanding, and it maintains the essence of the government's previous legislative efforts to address this report, mainly through Bills C-7, C-45, and C-41. It is a bill that clearly identifies the objectives, purposes, and principles of sentencing in the military justice system. It sets out a wider and more flexible range of sentencing options. It enhances the treatment of victims by introducing victim impact statements at courts martial.

I view this, Mr. Chair, as someone who spent a bit of time in the courts prior to my career in politics, as extremely important. This is a modernization of many of the basic principles we've had in our criminal justice system, going back almost 20 years, that we are trying now to bring forward for victims who would be affected within the military justice system.

All of this is in line with amendments set out in Bill C-41. The bill also clarifies the process and the timelines for future independent reviews of the military justice system.

Now, since this bill was introduced, the government has worked hard to respond to concerns and certain misconceptions regarding the state of Canada's military justice system. It might surprise some to know that a relatively small number of Canadians even realize that we have a separate military justice system. So I'd like to take this opportunity to briefly, Mr. Chair, speak to some of these issues and clarify any lingering misunderstandings that might exist.

I want to begin by first addressing the summary trial system. This system has been validated by both the first and second independent reviews of Bill C-25. The 2012 most recent independent review confirmed that the summary trial system is both vital to the maintenance of military discipline and essential to the life and death work the men and women of the Canadian Forces are asked to do each day. Moreover, this review concluded that the current system is constitutionally sound.

The 2012 LeSage review made several helpful recommendations for improving summary trials, and the government will certainly pursue them following the passage of this bill. That is to say that the LeSage report, and there may be questions on this, was actually tabled after this bill was presented to Parliament.

Speaking specifically to clause 75, there's also been confusion over the matter of criminal records flowing from convictions of service offences in this particular clause of the bill. To be clear, under clause 75, service members would no longer be required to apply for a criminal record suspension, formerly known as a pardon, for convictions that would be deemed to not constitute an offence for the purposes of the Criminal Records Act.

Some members have expressed concern over the scope of these exemptions that will be created by this clause. I've listened carefully to these concerns. As I've indicated, and as I've previously indicated during second reading, the government will submit an amendment that will expand the list of exemptions to mirror those amendments made by the committee during its consideration of Bill C-41.

We hope this will help facilitate a quick progress through the committee of this important legislation, as it is now in its fourth iteration and has appeared before the House of Commons for debate now, by my estimation, in five different parliaments.

Some members have expressed concerns over the scope of the exemptions that will be created by this clause. I have listened carefully to those concerns. And as I indicated during second reading, the government will submit an amendment that will expand the list of exemptions to mirror the amendment made by the committee during its consideration of Bill C-41. We hope that this will help facilitate the quick progress of this legislation through committee.

Mr. Chair, colleagues, over the last 10 years a number of changes have already been made to the Canadian Forces Grievance Board. These changes have reinforced the responsibilities of the chain of command to address grievances quickly and directly, and they have simplified the review process to make the grievance system more responsive to the needs of military members. The amendments proposed in Bill C-15 will further enhance the effectiveness of the grievance system.

This bill allows the Chief of the Defence Staff to delegate his power as the final grievance authority when appropriate. This measure allows grievances to be resolved more swiftly and efficiently, while allowing the Chief of the Defence Staff to focus on those grievances with strategic consequences.

The bill will also formally change the name of the Canadian Forces Grievance Board—at its own request—to the Military Grievances External Review Committee. The new name will better reflect the board's independent status and increase the confidence of our military members in its impartiality.

Mr. Chair, let me conclude by saying a few quick words about the military police complaints and the provost marshal. For any complaint dealing with the conduct of military police, the bill requires the Canadian Forces provost marshal to resolve the issue within 12 months—this, I suggest, is a move to expedite cases in that system and to prevent long delays of justice—and protects those making complaints in good faith from being penalized for doing so. The provisions of the bill regarding the Military Police Complaints Commission are consistent with the recommendations of both the Lamer and the LeSage reports.

With regard to the position of the provost marshal itself, this bill specifies its roles and duties and clarifies the relationship with the provost marshal and the chain of command and increases transparency by requiring the officer to submit an annual report to the Chief of the Defence Staff.

Finally, Mr. Chair, I think we can all agree that a sound and fair justice system for our military is key to maintaining the discipline and effectiveness and the morale and justice for members of the Canadian armed forces and their families, and to protect the public and project public confidence. That is precisely what the government is working toward through the delivery of Bill C-15.

I'm also proud to be here, along with officers from the Canadian Forces, to respond to any questions the committee has on this important legislation, and I look forward to seeing the committee's support and work on this bill.

Thank you. Merci.

Strengthening Military Justice in the Defence of Canada Act

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I am pleased to rise today to participate in the debate on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

I do believe that bringing the military justice system more in line with the civilian justice system is a step in the right direction. However, there are some key issues where the bill falls so far short that it is impossible for me to support it at second reading.

I will quickly highlight the key issues. The bill falls short when it comes to reforming the summary trial system, reforming the grievance system and strengthening the Military Police Complaints Commission. Those three areas are critical when we go back to first principles with respect to military justice.

I would remind members of a speech made by my friend and colleague, the NDP defence critic, the member of Parliament for St. John's East. I think he articulated the challenge best in his opening remarks on this bill. He reminded us that it was important to have a good look at our whole military justice structure because there were a number of problems that needed to be resolved.

Military justice needs to fit in with our entire justice system. We need to ensure there is conformity between the kinds of laws we have in relation to military justice, as well as our general justice system, certainly in terms of the fundamental principles of law. We need to understand that there are differences between military law and our general legal system, and there are good reasons for that. The military justice system recognizes the relationship between the justice system and discipline within the military. There is a significant importance to discipline in the military.

This is what the author of the only significant legal text in Canada used in law schools, Michel Drapeau, has said about the importance of discipline in military law:

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

He went on to say that discipline was integral, not only to the maintaining of an efficient armed forces but also to ensuring that the rule of law predominates within the military, particularly when engaged in great peril and danger in combat.

Military discipline is important for two reasons, not only for maintaining discipline so that when someone violates the law there is quick action and a speedy response to breaches of disciplines, but also because there may well need to be procedural differences available in the military context. Nonetheless, it is also extremely important that when engaged in combat there always be an adherence to the rule of law.

Our country certainly wants a military force and troops who are capable of carrying out their use of force in a lawful manner, regardless of the circumstances of grave peril that others take. Therefore, we say that the military justice system does not only exist to punish wrongdoers but it is also a central part of command discipline and morale.

Here in Canada, we have a voluntary military and the military justice system must be seen as equitable and fair. Otherwise, we will not only have a justice problem but we may very well also have an operational and recruitment problem. We must recognize that people who volunteer for military service have a right to know that they will be treated fairly.

Therefore, we must emphasize the justice side as well as the military side. We want, expect and need a high level of morale in our system among our troops and we demand loyalty, but that is a two-way street and the system must be seen as being fair.

That is the crux of my concern with Bill C-15 as it is before us today. Yes, it finally takes steps to update the military justice system but it does not go far enough in recognizing that the members of the Canadian Forces who are held to an extremely high standard of discipline, in turn deserve a judicial system that is held to a comparable standard.

I will now speak to the three issues that I referenced at the beginning of my speech. I hope I will be able to address each one in some detail, although I am always dismayed by the fact that we only get 10 minutes in these debates to address issues as important as this one. Nonetheless, I will give it a whirl and I will try to be a concise as possible.

I will talk first about reform to the summary trial system. The amendments in Bill C-15 simply do not adequately address the unfairness of summary trials. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Summary trials are held without the ability of the accused to consult counsel, there are no appeals or transcripts of the trial and the judge is the accused person's commanding officer. This causes undue hardships on certain members of the Canadian Forces who are convicted for very minor service offences.

For example, some of the minor service offences include insubordination, quarrels, disturbances, absences without leave, drunkenness and disobeying a lawful command. These could be matters that are extremely important to military discipline but they are not worthy of a criminal record.

Bill C-15 makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine less than $500, to no longer result in a criminal record. This is one of the positive aspects of the bill but it does not go far enough.

At committee stage last March, NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not worthy of a criminal record if the offence in question received a minor punishment. The amendment also extended the list of punishments that may be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a fine equal up to one month basic pay or another minor punishment. This was a major step forward for summary trials. However, this amendment was not retained in Bill C-15 and we want to see it included.

A criminal record can make life after the military very difficult. Criminal records can make getting a job, renting an apartment and travelling very difficult indeed. A lot of 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.

A similar unfairness persists with respect to the grievance system. The way the system currently works, the grievance committee does not provide a means of external review. Currently, it is staffed entirely of retired Canadian Forces officers, some only relatively recently retired. If the Canadian Forces Grievance Board is to be perceived as an external and independent oversight civilian body, as it was designed to be, then the appointment process needs to be amended to reflect that reality. In other words, some members of the board should be drawn from civil society.

Our NDP amendment provides that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. This amendment was passed in March 2011 in Bill C-41 but was not retained in Bill C-15. It is important that this amendment be included once again in this bill.

Finally, I will briefly touch on the third point related to the strengthening of the Military Police Complaints Commission. Bill C-15 would amend the National Defence Act to establish a timeline within which the Canadian Forces provost marshal will be required to resolve conduct complaints, as well as protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, we in the NDP believe that more needs to be done to empower the commission.

Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions empowering it to act as an oversight body. The Military Police Complaints Commission must be empowered by a legislative provision that will allow it to rightfully investigate and report to Parliament.

I will conclude by summarizing all of these issues in one sentence. Systems that impose significant penalties on individuals require increased procedural protections and surely we can all agree that the brave men and women who serve our country deserve nothing less.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I am honoured to rise after many of my colleagues have spoken in the last few months to Bill C-15 on military justice.

In 2003, the Right Hon. Antonio Lamer, who was the former Chief Justice of our Supreme Court, presented his report containing an independent review of the National Defence Act. That report contained 88 recommendations pertaining to military justice, the Military Police Complaints Commission, grievance procedures, the Provost Marshal and so on.

The bill is the legislative response to these recommendations. Thus far, however, only 28 recommendations have been implemented in legislation, regulation or by a change in practice.

In 2010, Bill C-41 was introduced to respond to the Lamer report, and in essence this bill is similar to Bill C-41 that came out of committee in the previous Parliament. The amendments carried over include court martial composition and military judge security of tenure.

However, other important amendments—and it is really important that we all be aware of this—that passed committee stage at the end of the last parliamentary session did not end up in the bill. These include the following three NDP amendments that I will mention.

First, the authority of the Chief of the Defence Staff in the grievance process: This was amended clause 6 in Bill C-41, responding directly to Chief Justice Lamer's recommendation. That is not here.

Second, changes to the composition of the grievance committee to include a 60% civilian membership: This was an amended clause in Bill C-41. Again, this is not in Bill C-15.

Third and finally, a provision ensuring that a person who is convicted of an offence during a summary trial is not unfairly subjected to a criminal record: This is amended clause 75 in Bill C-41. This last amendment from Bill C-41 that did not reappear in the bill will be the main focus of my own remarks.

The NDP will be opposing the bill at second reading. However, we do hope that some of these shortcomings that I will be emphasizing, and have been emphasized by some 50 or 60 of my colleagues in the House, will be looked at seriously. The practice of committees of the House will vary somewhat in this case, I hope, and some amendments will come back at third reading.

I want to clarify that the amendments to Bill C-15 do not adequately address the injustice of summary trials. Summary trials are by far the most used military tribunal within the military justice system. The purpose of a summary trial is to deal with minor military-related offences. The objective is to quickly deal with alleged offences within the unit, so members can be returned to active service as quickly as possible, which helps promote and maintain discipline within the unit.

In his brief, Colonel Michel Drapeau stated that the summary trial was the most frequently used disciplinary method to deal with offences committed by Canada's military personnel. In 2008-09, 1,865 cases in total—96%—were resolved through summary trial, while only 67 cases—4%—were heard through court martial.

The amendments in Bill C-15 do not adequately address the unfairness of summary trials. Currently a conviction of a service offence from a summary trial in the forces can result in a criminal record. Summary trials are held without the ability of the accused to consult counsel. There are no appeals, there are no transcripts of the trial and the judge is the accused person's commanding officer.

This reflects an undue harshness when certain members of the forces who are convicted of various minor service offences end up with a criminal record, leave the service at some point and enter into society, with a criminal record and everything we know that can imply for their prospects, whether it is looking for jobs or advancing in the educational sphere. The fact that people have criminal records can sometimes be looked at when they want to upgrade their education.

Some of the minor service offences include insubordination, quarrels, disturbances, absences without leave, drunkenness and disobeying a lawful command. These, by definition, could be extremely important matters to military discipline, as we can imagine, every one that I have just listed. Discipline and efficient functioning of a military unit has to be at the very core of how the military functions, and we can see how these could be of great instrumental concern to the military. However, they are not worthy of a criminal record, I suggest.

Bill C-15 makes exemptions for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine less than $500. These would no longer result in a criminal record. This is to be welcomed, but my point is that the recommendations in Chief Justice Lamer's report and the NDP amendments in Bill C-41 have to be taken seriously. We have to go further.

What we propose, by increasing from 5 to 27 the number of offences that would be exempt from a criminal record after summary conviction, responds to a very serious need in the military to hear that society, outside the military, understands the incredibly tough job people expect of members of the military and the pressures they are under that can often lead to summary conviction trials. People also want to welcome them back into society without the burden that is the worst kind of send-off for their service to our country—namely, a criminal record.

A criminal record can make life after the military very difficult, to put it mildly. It can make getting a job, renting an apartment and travelling very difficult. Imagine having a criminal record and trying to travel to the United States these days. A lot of Canadians would be shocked to learn, frankly, that 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.

I have spoken to my colleague from Repentigny, who has had some experience in the military. He spoke in the House, not by way of a speech but by way of several interventions, and I want to put the interventions on record as part of my speech so they can be integrated into a broader theme.

First, the member for Repentigny stated:

My experience has shown me that soldiers are subjected to conditions that are extremely different from what is experienced in the civilian world.

People are encouraged to join the Canadian Forces in order to gain experience and come out with some incredible tools. I made mistakes, minor ones. It happens to everyone. For example, you go before a superior officer and get charged, fined, patted on the back and told not to do it again. That is part of life's lessons. We are talking about young people who enlist at the age of 18, 19 or 20 and who need guidance. I do not think that providing guidance for minor offences involves encouraging young people to join the Canadian Forces, exposing them to extreme conditions and handing them a criminal record on their way out. That does not work.

In another intervention, my colleague from Repentigny had the following to say:

For the last 10, 15 or 20 years, professionals, members of the military and experts have been requesting changes that should be made.

These amendments were brought forward and agreed to during the previous Parliament. Everyone agreed. Now the Conservatives are proposing half measures by saying that they are going to send the bill to committee for review, but they are not giving any guarantees.

I presume he means any guarantees that they actually will modify in light of common sense.

Finally, the member for Repentigny said something that I think is indeed disturbing, if what he says is true, and I believe it to be true. I spoke to him yesterday to confirm that Hansard is correct. He stated:

Mr. Speaker, being an ex-member myself, I have seen trials that colleagues and friends have gone through and the impact they can have to ruin careers and leave people looking at the military in a certain way but not necessarily understanding the system. I have seen summary trials put onto military personnel in such a way that they were used as a training tool. I think there is a serious problem with this.

That is the understatement of the century.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, I am pleased to be able to speak today and say a few words on Bill C-15.

As a former member of the Canadian armed forces, or the Royal Canadian Navy, my experience taught me, in the time I did spend, a lot of appreciation for the professionalism of our armed forces. I had the pleasure to serve at Canadian Forces Base Portage la Prairie. I had the thrill of going up in a Tutor jet, which my colleague understands very well. I went up only once. In the Royal Canadian Navy, I remember the professionalism when, many years ago, we were doing anti-submarine exercises. We always came out on top when it came to exercises with the U.S. Navy.

Many years after that, I went to Vladivostok in Russia as an interpreter with the Canadian Navy, the first western fleet to sail into Russia when it finally opened up the city. It was quite an experience. I saw the respect that the officers and men of the Russian navy had for the high degree of knowledge and skills of our armed forces.

I mention this because when I have a chance I speak on anything that touches on the military, in spite of the fact that at times some of us do not agree with the direction the military is going. Once people have been part of this family, as I call it, they want to make sure the current members receive the very best, whether or not we are talking about equipment, whether they agree with the mission or not, and certainly when the members come back as veterans.

We have seen some problems with people suffering from post-traumatic stress syndrome. We have seen problems with veterans' funerals. I just want to emphasize that we need to do the very best for them, and that also includes the justice system.

That brings me in a roundabout way to talking about this bill. The NDP believes that Bill C-15 is a step in the right direction to bringing the military justice system more in line with the civilian justice system.

However, it falls short on key issues when it comes to reforming the summary trial system, reforming the grievance system and strengthening the military complaints commission. I might add that amendments to that effect were brought into the last Parliament. For some reason they were not included in this particular bill.

In 2010, Bill C-41 was introduced in response to the 2003 Lamer report and the 2009 Senate committee report. It included the military justice provisions relating to sentencing reform, military judges and committees, summary trials, the court martial panel and the Canadian Forces Provost Marshal and certain provisions concerning the Military Police Complaints Commission.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of the Senate committee during the last Parliament. The amendments carried over include those respecting the composition of the court martial panel and security of tenure for military judges until their retirement.

However, I would say that other important amendments 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 concerning the authority of the Chief of Defence Staff in the grievance process, changes in the composition of the grievance board so that 60% of members are civilians and the provision that a person convicted of an offence at a summary trial should not be unfairly subjected to a criminal record.

Many important reforms are proposed in this bill. The NDP has long supported a necessary updating of the military justice system. The members of the Canadian Forces are held to extremely high standards of discipline and deserve a judicial system that is held to comparable standards.

However, as previously mentioned, the NDP will oppose the bill at second reading. This bill contains a number of deficiencies that we hope will be addressed in committee if the bill is passed at second reading.

As we have previously discussed here, and from what I have personally seen in other committees, the fact that a bill winds up in committee does not mean the Conservatives will adopt amendments. What then are the amendments that we would have liked to include in the bill before it was studied here in the House?

We say that the amendments in Bill C-15 do not adequately address the unfairness of summary trials. Currently, a conviction at a summary trial in the Canadian Forces results in a criminal record. Summary trials are held without the ability of the accused to consult counsel. There is no appeal and no transcript of the trial.

Bill C-15 would an exemption for a select number of offences. They carry a minor punishment, which is defined in the act, or a fine less than $500 to no longer result in a criminal record. This is one of the positive aspects of the bill, but it does not go far enough.

At committee stage in March of the previous year, NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not worthy of a criminal record if the offence in question received a minor punishment. The amendment also extended the list of punishments that might be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a reprimand, a fine equal up to one month basic pay or another minor punishment. This was a major step forward for summary trials. However, this amendment was not, for some reason, retained in Bill C-15, and we would like to see it included.

As far as serious offences and criminal records are concerned, the number is probably minor. However, a criminal record can make life after the military very difficult. Criminal records can make getting a job, renting an apartment or travelling very difficult. A lot of 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.

What we are asking is that people who serve our country in the military have the same access to a fair judicial system as people in civilian life have and that if they have certain reprimands, they do not result in a criminal record for the rest of their life.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, before I launch into my speech, I will just pick up on a point that my good friend was making about the amendments proposed to the previous incarnation of this bill. As he rightly pointed out, those amendments have not been included in the current version of the legislation.

I will talk about some of the testimony given in regard to the previous bill, which does beg the following question. Here we have witnesses, people who have a tremendous amount of detailed knowledge about some of these issues, coming before committees on this particular bill and its previous incarnation, and yet every single proposal for an amendment is disregarded. Some of these amendments are reasoned amendments. We have seen this in committee after committee. On the aboriginal affairs committee I am involved with, I do not believe we have had a single amendment to the legislation before the committee.

We use our time here in the House to raise these issues because the public pays attention to debate in the House. Bringing forward these important points of view for consideration in legislation is part of our responsibility of due diligence as parliamentarians. I have talked about due diligence a number of times in the House. It is our responsibility to examine the legislation closely, to see where there are potential faults and to see if there are ways that we can improve the legislation. We are being responsible parliamentarians by raising these issues, and if we need to take the time in the House to do that, we will take the time in the House. The government will continue to limit debate, and here it is ironic that we are talking about military justice. Despite our talking about justice here, the government continues to limit debate, forcing time allocation, managing witness lists, and on it goes, all of which are not part of the democratic process.

Turning to Bill C-15, I am sure that others have spoken about this but I just want to read into the record that on October 7, 2011 the Minister of National Defence introduced Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, the strengthening military justice in the defence of Canada act. Just as a little aside, it is about strengthening military justice, and if we want to strengthen military justice in this country the other thing that we have to do is to look after veterans when they come home. If we want to talk about justice, that is justice. I have too many Afghanistan veterans in my riding suffering from PTSD who cannot get access to the education funds they need to resume their lives because of the trauma they have suffered in Afghanistan. Therefore, if we want to talk about military justice, let us also talk about supporting the troops when they come home.

Bill C-15 would amend the National Defence Act to strengthen military justice following the 2003 report by the former Chief Justice of the Supreme Court, the Right Hon. Antonio Lamer, and the May 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs. Among other things, the bill would provide greater flexibility in the sentencing process. It would:

(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.

It would also clarify the responsibilities of the Canadian Forces Provost Marshal and make amendments to the delegation of the Chief of Defence Staff’s powers as the final authority in the grievance process.

The New Democrats believe that Bill C-15 is a step in the right direction to bring the military justice system more in line with the civilian justice system. However, it falls short on key issues when it comes to reforming the summary trial system, reforming the grievance system and strengthening the military complaints commission.

I will now turn briefly to the legislative summary, because it does bring forward some of the testimony on the previous bill. The legislative summary indicates that the Bill C-15 “largely reproduces the provisions of the former Bill C-41...”. That is an important point because the New Democrats did propose amendments to that bill and there were witnesses who came forward and talked about some ways the bill could be improved. Many of us support aspects of the bill but there are some key parts that require further attention.

In summarizing some of the key witness testimony, the legislative summary states:

[They] raised concerns regarding specific clauses in the bill, including:

provisions that would permit the Vice Chief of Defence Staff...to issue instructions in respect of specific military police investigations;

provisions regarding the composition of the Grievance Board and provisions allowing active service members of the Canadian Forces to be appointed to the Grievance Board; and

provisions making the CDS the final authority in relation to grievances submitted by military judges not related to their judicial duties.

A number of submissions to the committee suggested that while the bill was a very positive step, it ought to have gone further by, for example, reforming the summary trial system to include more procedural protections for accused persons or by diminishing the consequences of conviction before such tribunals. The lack of authority of the CDS to provide financial compensation when compensation is found to be due under the grievance process, and the failure to implement certain outstanding recommendations in the Lamer Report relating to the Grievance Board were also raised as concerns during the hearings.

I want to focus on one particular aspect of this and read from the testimony on Bill C-41 by the B.C. Civil Liberties Association. Concerns have been raised about the summary trial aspect of the bill. In its brief called “Supporting the Troops: Fairness for Canada’s Soldiers”, the B.C. Civil Liberties Association raised a number of issues. I want to talk about summary trials first, because many of us in the House are not lawyers and do not have intimate knowledge of the criminal justice system.

The brief states:

Summary trials are a type of service tribunal used to try members of the Canadian forces who are accused of wrongdoing in an expedient, informal manner. They are the main alternative to courts martial, which more closely match the civilian judicial process and generally require more time and expense to try an accused. Summary trials are the principal method through which individuals in the military are tried. They make up roughly 95% of service tribunals convened each year under the Act, while courts martial are used to try the remaining 5% of cases.

Summary trials can be used to try an accused charged with almost every offence under the Act, aside from particularly serious offences such as mutiny and certain seditious offences, and can also be used to try individuals for offences under other Canadian statutes such as the Criminal Code and the Controlled Drugs and Substances Act. While certain minor offences, such as drunkenness and being away from a post without leave, can only be tried by way of summary trial, in other cases an individual charged with an offence under the Act is given the choice as to whether to be tried by summary trial or court martial. It is to be inferred that individuals charged with an offence may be daunted or intimidated by the more complex nature of proceedings before courts martial. A majority of those charged with disciplinary violations under the Act, especially those charged with minor offences, do not choose to avail themselves of their right to be tried through a court martial....

One of the most serious deficiencies of the summary trial procedure is the fact that most accused lack adequate representation. Individuals being tried by summary trial do not have the right to be represented by a lawyer, and may be prevented from doing so even if they arrange for counsel at their own expense. The Act does require that an accused be provided with an “assisting officer,” who can assist with many aspects of the process, including preparing an accused person's case and making submissions on their behalf at the trial. However, assisting officers are not required to have any legal training, or any previous experience with the summary trial process. They are generally other officers in the accused's unit, and are appointed for the role under the authority of the presiding officer at a summary trial, which in itself presents a conflict of interest. Many assisting officers therefore lack sufficient training and experience to provide an accused with effective representation.

It also states:

BCCLA believes that the summary trial process, which is used to try individuals for offences under the Act in an expedited manner, fails to meet minimum standards for procedural fairness. Despite the potential for significant criminal penalties, including imprisonment and stigmatizing criminal records, the summary process deprives Canadian soldiers of basic standards of fundamental justice, including the right to legal representation, the right to be tried according to the standard of guilt beyond reasonable doubt, the presumption of innocence, and the right to an impartial adjudication of one’s case. Weak trial procedures and limited mandatory training for decision makers tend to induce poor quality adjudication, false convictions and wrongful imprisonment. During deployment or active combat there may be sufficient reason to justify a departure from basic standards of procedural fairness, but absent such urgency and necessity, the rule of law and the principles of fundamental justice demand more for our soldiers.

There is a lot more in this testimony, but my time is running out.

Given what we require our troops to do, which many of us here would not be prepared to do, these principles of fundamental justice are critical. That is why the NDP is opposing the bill. That is why the former member recommended a number of amendments, which are simply not present in Bill C-15.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, proposes a series of measures to enhance the military justice system. This bill is a legislative response to some of the recommendations made by Justice Lamer in 2003 following his review of the National Defence Act and to recommendations made by the Standing Senate Committee on Legal and Constitutional Affairs six years later. Of Justice Lamer's 88 recommendations, Bill C-15 takes just 28 into account. Sixty recommendations were not included in the bill that the Conservatives introduced in response to the key concerns raised by the Lamer report on national defence.

In its current incarnation, the bill resembles previous national defence and military justice reform bills introduced in the House, such as Bill C-7 and Bill C-45, which died on the order paper when Parliament was prorogued in 2007 and when the election was called in 2008.

The following year, in July 2008, Bill C-60 proposed a simplified courts martial structure and set out a precise method for choosing a type of court martial that would harmonize well with Canada's civilian justice system. It was introduced and debated in the House before being referred to the Senate committee that studies legal and constitutional affairs. After a painstaking review of the bill, the Senate committee made nine recommendations for changes to the National Defence Act.

Later, in 2010, Bill C-41 was introduced in the House of Commons. The main purpose of the bill was to address the key recommendations that Justice Lamer made in 2003 and that the Standing Senate Committee on Legal and Constitutional Affairs made in 2009.

Bill C-41 included provisions to reform the military justice system in the areas of sentencing, judges and military committees, summary trials, court martial panels and the Canadian Forces provost marshal. Further provisions proposed changes to the Military Police Complaints Commission.

The bill before us today, Bill C-15, is similar to Bill C-41, which was introduced by the Senate committee in the previous Parliament. It provides, among other things, greater latitude regarding the sentencing process and additional sentencing options, such as absolute discharges, intermittent sentences and restitution. It modifies the composition of a court martial panel according to the rank of the accused person, and the limitation period applicable to summary trials. It also allows an accused person to waive the limitation periods. In addition, the bill sets out the Canadian Forces provost marshal's responsibilities.

As the NDP members who spoke before me pointed out, our party believes that the bill is a step in the right direction to bring the military justice system more in line with the civilian justice system. Unfortunately, it fails to address the fundamental issues that a serious military justice reform must tackle, including summary trials, grievances and measures that should be contemplated to strengthen the Complaints Commission.

Because it is silent on these substantive issues, Bill C-15 seems from the outset to be unfinished business that has not been given proper consideration.

During the debates on previous bills dealing with National Defence reform, relevant amendments were proposed and adopted at committee stage at the end of the last parliamentary session. We are sorry to see that these amendments were not even taken into consideration in Bill C-15 as it now stands.

The amendments proposed by the NDP included changes to the powers of the Chief of the Defence Staff in the grievance process, which stems directly from a recommendation made in the Lamer report, changes to the composition of the grievance committee so that 60% of its members would be civilians, and a provision to ensure that a person found guilty of an offence during a summary trial would not unfairly be given a criminal record. The Conservatives rejected all of these amendments.

The NDP has long supported a necessary update of the military justice system, but not at any cost. We, New Democrats, think that members of the Canadian Forces are subject to extremely high disciplinary standards. Therefore, they deserve a justice system governed by similar standards.

Many Canadians would be shocked to learn that the people who have served our country with such valour can have a criminal record under a system that does not have the procedural regularity that is ordinarily required in the civilian criminal courts.

The NDP will firmly oppose Bill C-15 at second reading as long as measures have not been adopted to improve it throughout. New Democrats will continue to fight to make the Canadian military justice system fair for the men and women in uniform who have risked their lives in the service of Canada.

That said, the weaknesses and flaws in this bill mean that we cannot support it. The following are some of the weaknesses in the bill that make it impossible for New Democrats to agree to it.

Let us talk about the reform of the summary trial system. The amendments in Bill C-15 do not adequately address the injustice of summary trials. At present, a conviction in a summary trial in the Canadian Forces means that a criminal record is created. When summary trials are held, accused persons are unable to consult counsel. There is no appeal and there is no transcript of the trial. In addition, the judge is the accused’s commanding officer. This is too harsh for some members of the Canadian Forces who are convicted of minor offences. Those minor offences include insubordination, quarrels, misconduct and absence without leave. This is undoubtedly very important for military discipline, but it does not call for a criminal record.

Bill C-15 provides an exemption so that certain offences, if there is a minor sentence determined by the act or a fine of less than $500, will no longer lead to a criminal record. This is one of the positive aspects of this bill. We think this bill does not go far enough.

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 not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased to 27 from five.

This was an important step forward for summary trials. However, that amendment was not retained in Bill C-15 and we want it to be included again.

A criminal record can make life after a person’s military career very difficult. With a criminal record, getting a job can be a thing of the past, and renting an apartment and travelling can be very difficult. Many Canadians would be shocked to learn that members of the military who have served our country so courageously can have a criminal record because of flaws in the military justice system.

Let us talk about reforming the grievance system. At this time, the grievance committee does not allow for external review. Retired employees of the Canadian Forces, some of them very recent retirees, sit on the committee. If the Canadian Forces Grievance Board is to be seen as an external, independent civilian body, as it should be, the appointment process needs to be amended to reflect that. This committee should therefore be composed, in part, of civilian members.

The NDP amendment suggests that at least 60% of the grievance committee members must never have been officers or members of the Canadian Forces. The amendment was adopted in March 2011, for Bill C-41, but it was not incorporated into Bill C-15. It is important that this amendment be included again.

Let us talk about the authority of the Chief of Defence Staff in the grievance process. One of the major weaknesses of the military grievance system is that, contrary to a recommendation in the Lamer report, the Chief of Defence Staff lacks the authority to resolve the financial aspects of grievances. Although the defence minister approved the recommendation, no concrete action has been taken in the past eight years to implement it. The NDP proposed an amendment to this effect when Bill C-41 was at the committee stage. Although this amendment passed in March 2011, it was not retained in Bill C-15. The NDP will fight to have it put back in.

Let us talk about strengthening the Military Police Complaints Commission. Bill C-15 amends the National Defence Act to establish a timeline in which the Canadian Forces provost marshal will be required to resolve complaints and protect complainants from being penalized for submitting a complaint in good faith. The NDP believes that more needs to be done to strengthen the commission.

Retired Colonel Michel W. Drapeau is an expert in military law. Here is what he had to say before the Standing Committee on National Defence on February 28, 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. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. 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.

It is up to the Conservatives to explain to the House why the relevant recommendations that were agreed to during the debate on Bill C-41 have not been incorporated into this bill.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, the Conservatives really have trouble with happy mediums and balanced approaches. One place where this is obvious is in the area of foreign policy, but we also see it in legislation. Just this week, we have again been presented with a mammoth bill that covers pretty much everything but the kitchen sink. And yet on a subject as important as military justice and the rights of the men and women who defend our country, the Conservatives have brought forth a mouse. I think there is room, somewhere between the mammoth and the mouse, for legislation that is a little more worthwhile.

In 2003, as we know, Justice Lamer submitted his report on the independent review of the National Defence Act. He made 88 recommendations relating to military justice, the Complaints Commission, the grievance procedure and the Canadian Forces provost marshal. We are talking about 88 recommendations. And here we are with a bill that covers only 28 of those recommendations. Once again, this is the approach the Conservatives always take: to pick and choose only the things and the testimony that suit them.

A lot of things are missing in this bill and I will not address them all, since that would take too long. However, I am going to focus on one aspect in particular where the bill does not go far enough: summary trials and the mark they leave on the lives of soldiers, in the form of a criminal record, even after they return to civilian life.

We know that a summary trial can be debatable. It is a judgment dealing with matters that can be as trivial as a quarrel or absence without leave. It may relate to misconduct, insubordination, and so on. But the point is this: someone can be convicted of a relatively minor offence and end up with a criminal record for the rest of their life. This is particularly troubling when the accused in a summary trial cannot be represented by counsel and cannot appeal. There is no transcript and the judge is too often, and very often, the accused’s commanding officer. In other words, the people who defend our rights and freedoms are not entitled to the protections under the Charter of Rights and Freedoms at summary trials. If this were merely a question of internal military discipline, we could always debate it, but the problem is that summary trials leave indelible marks on people’s lives in the form of criminal records.

We recognize that the bill makes a vague attempt to remedy the situation. However, it really does not go far enough. It proposes that five offences be considered minor and not result in a criminal record. That is all well and good for the offences in question—and I will not continue to harp on it—but much more could be done. In fact, Bill C-41, Bill C-15's predecessor in the last Parliament, was debated in committee and amended to expand the list of offences and the types of sentences that would not result in a criminal record. I do not know why the Conservatives did not keep this amendment.

What we want is to expand the list of offences from 5 to 27, and the committee already agreed to this. It is so important. As retired Colonel Michel Drapeau, an expert on military justice, said:

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.

Why? Because unless and until we, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted.

We must stand up for and respect our soldiers. As Colonel Drapeau went on to say, “From where I stand, I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial.”

Why should the consequences of relatively minor offences related to military discipline extend into the civilian lives of our men and women in uniform? Once again, we are not the ones saying this. I would like to quote the British Columbia Civil Liberties Association.

“Presiding officers in summary trials...are military officers...and their primary concern is likely to be unit discipline and deterring future violations, not the effect the sentence they impose will have on an accused in the civilian world.”

In short, we have a system that is not working and that needs to be reformed. This bill clearly does not go far enough to do that. Furthermore, in terms of reforming the system, our greatest allies—Great Britain, Australia and New Zealand—have changed their systems.

Our soldiers often participate in joint missions with the soldiers from those countries and are able to see first-hand the injustice that is being done to them, an injustice that this Parliament must agree to remedy today.

[Paulina Ayala, NDP, Honoré-Mercier, QC]

Mr. Speaker, on October 7, 2011, the Minister of National Defence introduced Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. The NDP believes that this bill is a step in the right direction in order to make the military justice system and the civilian justice system more uniform. Still, it does not address the key issues needed to reform the summary trial system and the grievance system. Today I will speak to the grievance system.

Significant amendments were made at the committee stage at the end of the last session of Parliament, but have not been included in Bill C-15. These include the NDP’s amendments concerning the authority of the Chief of Defence Staff in the grievance process, changes in the composition of the grievance board, and the provision that a person found guilty of an offence through a summary trial would not be unjustly burdened with a criminal record.

I want to say something about the last point. This bill proposes many important reforms. The NDP has long advocated the updating of the military justice system. Members of the Canadian Forces are subject to very high standards of discipline and, as Canadian citizens, they deserve a justice system that is subject to the same standards as those that apply to other Canadian citizens.

With regard to reforming the summary trial system, the amendments in Bill C-15 do not properly address the unfairness of summary trials. At present, a conviction at a summary trial in the Canadian Forces results in a criminal record. The accused is not able to consult counsel. There is no appeal and no trial transcript. In addition, the judge is the accused's commanding officer. That is unduly harsh for some members of the Canadian Forces who are convicted for minor offences.

Among those minor offences are insubordination, quarrels and disturbances, misconduct, absence without leave, drunkenness and disobeying a lawful command. They are very important for military discipline, but not worth a criminal record.

Bill C-15 provides an exemption so that some offences—with minor punishments or fines under $500—would not be put on a criminal record. This is one of the bill’s positive aspects. But we do not think it goes far enough.

In committee, in March 2012, the NDP proposed amendments to Bill C-41 that would have expanded the list of offences that could be considered minor and thus would not attract a criminal record if the offence in question received a minor punishment. The amendment also would have expanded the list of penalties that could be set by a tribunal without being noted in the criminal record.

That was progress in terms of summary trials, but since that amendment was not included in Bill C-15, we want it to be included now.

I want to mention Colonel Drapeau, a retired Canadian Forces colonel and an expert in military law. He testified before the Standing Committee on National Defence in February 2011. This is what he said about summary trials:

...I'll get right to the point. The answer is yes...Decriminalize the summary trial system. End of discussion. Remove today the custodial power of the commanding officer to send somebody to detention. If that needs to be done, then that person ought to be tried by court martial where all the rights are provided. So you remove that in the same way as Ireland has done it, as Australia has done it; you decriminalize it. There's no record.

The individual would not have that stigma attached to him just because he didn't shave that morning or he showed up late. Whether he gets a fine or a suspension of leave or he has to stay on the ship when alongside, I can live with that, and that would apply in Canada and abroad. And if there really is a requirement to prosecute someone because of the severity of the offence, then a court martial, and a court martial can be held any place in the world.

That results in a criminal record.

A criminal record can make life after a military career very difficult. Having a criminal record can make it difficult to find a job, lease an apartment, travel or obtain insurance.

I researched the effects of a criminal record on persons who do not go to court and found that it can affect a number of aspects of the person's daily life: employment, entering another country and insurance.

That is right. We can be refused insurance coverage if a member of our family, perhaps a child who was a soldier, has a criminal record because he did not shave his beard one morning.

People with criminal records have difficulty finding work, especially in security. Who better than a former soldier to work for a security company? But he would not get the job.

In general, two out of three employers require a criminal record check.

Under the Criminal Code, civilians can have a criminal record for such offences as assault, extortion, harassment, kidnapping, identity theft, murder, homicide, abuse and theft. That is not the case for our soldiers.

We are severely punishing certain Canadians. Our soldiers, members of our armed forces, receive harsher penalties.

The list of crimes against justice is a long one and includes corruption, failure to report a crime, obstruction and perjury. These are all good reasons to be in such a situation, but a young soldier arriving late for his shift is not a good reason.

Another witness at committee, the British Columbia Civil Liberties Association, said that military officers who impose penalties during a summary trial are often trying to set a disciplinary example within the unit in order to discourage future infractions, rather than burden the accused with the consequences that come with having a criminal record in civilian life.

The goal is to achieve discipline within our armed forces. I do not believe that the officer imposing the sentence necessarily wants to punish a young man who makes a mistake for his entire life. Soldiers simply want discipline within the military, and that is a good thing.

We therefore have a problem of basic fairness dominating a system that imposes harsh sentences on people who need increased procedural protection.

Colonel Drapeau went on to say:

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. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. 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.

The summary trial is by far the most commonly used form of service tribunal in the military justice system. The summary trial is designed to deal with minor service offences.

The NDP believes that Canadian Forces personnel must comply with extremely high standards of discipline and that, in return, they deserve a justice system that also meets standards similar to those applied to other Canadians.

Having a criminal record can make post-military life very difficult. It complicates everything from finding a job, to renting an apartment and so on.

We really want to see this bill improved and to ensure that the committee members' amendments will be included in the bill. That is why we plan to oppose it in the upcoming vote.

[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.

[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.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you very much, Mr. Chair.

I want to start with Mr. Kennedy.

Thank you both for being here. We appreciate it very much.

Mr. Kennedy, I'm going to go over the three areas you had difficulty with so I know whether I heard you correctly.

The first was on withholding certain information that would be available to the new civilian review and complaints commission. The other was on the review body being kept in the dark regarding the information they would be receiving. The third was on the service standards and no actual time limits or restraints on how long the investigation would take.

On the whole issue of information, I'm frankly a little surprised. We just had the current chair of the complaints commission here. We have heard from a number of other witnesses who are really pleased with the measures that Bill C-42 has taken in making sure the complaints commission could get the information that's required and could summons information and witnesses. I would like some clarification on how much further you think we should go on that.

In regard to the time constraints, there are pros and cons to both. When you put time restraints on an investigative body or a complaints commission, those can work against the complaints commission, just as if, were it open-ended and extended 10 years, that would obviously not be desirable.

I don't know whether it is a fair assumption that not putting time constraints on the complaints commission would automatically create delays. I would just caution all of us as we're reviewing this bill that certainly there are pros and cons to both. I would think this bill would intend to give the complaints commission the time it needs to do the job, as opposed to putting time constraints on the commission and then not getting the job done properly. It's looking at the pros and cons of both scenarios.

I just have a few moments, but I'll give you a moment to comment, if you'd like, and then I'd like to go on to Mr. Plecas.

Message from the Senate

[The Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that when the House did attend His Excellency the Governor General in the Senate chamber, His Excellency was pleased to give, in Her Majesty's name, the royal assent to the following bills:

Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)—Chapter 9, 2012.

Bill C-40, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2013—Chapter 10, 2012.

Bill C-41, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2013—Chapter 11, 2012.

Bill C-288, An Act respecting the National Flag of Canada—Chapter 12, 2012.

Bill C-278, An Act respecting a day to increase public awareness about epilepsy—Chapter 13, 2012.

Bill C-311, An Act to amend the Importation of Intoxicating Liquors Act (interprovincial importation of wine for personal use)—Chapter 14, 2012.

Bill C-310, An Act to amend the Criminal Code (trafficking in persons)—Chapter 15, 2012.

Bill C-25, An Act relating to pooled registered pension plans and making related amendments to other Acts—Chapter 16, 2012.

Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act—Chapter 17, 2012.

It being 2:15 p.m., the House stands adjourned until Monday, September 17, 2012, at 11 a.m., pursuant to Standing Orders 28(2) and 24(1).

Strengthening Military Justice in the Defence of Canada Act

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, it is a pleasure to speak today against the second reading stage of Bill C-15. Before my colleagues across the way start saying that I do not like the military and all of those things, I will stress that it is because I so strongly support the men and women in our military who sacrifice so much to serve our country and put themselves on the line that I find it very difficult to support this legislation. Surely, our men and women who serve us at home and overseas in unimaginable circumstances deserve due process, and that is what this is all about. It is about transparency, accountability, t doing the right thing and natural justice.

When I look at Bill C-15, I do acknowledge that the government has taken a baby step in the right direction. However, it is only a baby step and does not go far enough.

As I look at the legislation, I experience déjà vu. Not too many days ago I stood in the House and talked about another bill, Bill C-11, the Balanced Refugee Reform Act, which was legislation that the Minister of Citizenship, Immigration and Multiculturalism praised as being a miracle. It was legislation that all political parties worked on and together they included elements that would address human smuggling, put processes in place that would speed up processing times and short-term detention for people who did not have identification verification, all of those things. I want to acknowledge my colleague from Trinity—Spadina who did such an amazing job on that file. The government side and the other opposition party also praised that legislation.

Then, lo and behold, out of the blue we then had legislation that went backward and undid so much of the work that was done. Bill C-11 was the Balanced Refugee Reform Act and we ended up with Bill C-31 in its place, which undid all the work that was accomplished in Bill C-11. That is exactly the déjà vu I am experiencing now.

Once again we had legislation that was in Parliament, Bill C-11, which had been acclaimed but was still not fully implemented, and then it was undone. On the other hand, Bill C-15 undoes the amendments that were accepted in Bill C-41. Once again, we need to look at what the drive is behind this. The drive behind it seems to be the majority my colleagues are experiencing across the way. I was really hoping that after a year of being a majority government it would have gotten over that and gone on to do the work of Parliament in a way that respects the role of the opposition and, of course, the contributions the opposition has to make when it comes to legislation.

As I was saying, I was experiencing déjà vu. Here we are with this iteration of Bill C-15, and none of the compromises, amendments that were made in Bill C-41 are in it. Why? It is so tiring to hear about how the Conservatives are all about the military and how the opposition does not care about the military.

When I look at this legislation, I wonder how much my colleagues sitting across the aisle really care about the men and women who serve in our military and put their lives at risk and why the Conservatives have chosen to ignore key recommendations from a critical report written by Antonio Lamer, which was issued in 2003. There were 88 recommendations in that report. Out of those 88 recommendations, only 28 have been dealt with to date.

I am not fully blaming my colleagues across the aisle. The other opposition party also had an opportunity to implement the recommendations that were made in the Lamer report and it chose to sit on them. I do not know why, maybe it was dealing with a lot of other issues. Surely, no other issue can be as important as ensuring that the men and women who serve in our military get justice and get treated fairly.

We have all of these things going on. One good thing that I suppose we could say, as could my colleagues across the aisle, is that Bill C-41 was never acclaimed.

My colleague who spoke just before me is such an eloquent speaker. I just hope that one day in the future I can emulate even 10% of what he is able to express so clearly and so succinctly.

As my colleague said, the government had the opportunity, because the bill was at the report stage, to deal with it before Parliament was shut down for the last election. However, it chose not to.

Here we are a few days before Parliament closes and, again, through bullying tactics, we will sit until midnight every night this week. Why was the legislation not introduced earlier so we could have dealt with it? It could have gone through all the stages.

Here we are at 10:50 p.m. on the Tuesday night, before Parliament recesses on Friday, debating the treatment of our men and women who serve in the military to give them the kind of fairness that we expect as civilians. Where are the priorities of the government? Certainly not with the men and women in the military. The government seems to have other priorities.

When I looked at all of this, and I will go through this in detail, I was struck by a quote from the Minister of National Defence in February 2011, when he appeared before the Standing Committee on National Defence, the same defence minister who occupies the seat today. This is what he said when he endorsed the summary trial system:

—the summary trial system strikes the necessary balance between meeting the unique disciplinary needs of the Canadian Forces and the needs to respect the rights of individual members of our military....Canadians similarly need to know that their country's military system will treat those who serve fairly and in a way that corresponds to Canadian norms and values.

Does the minister still believe in those words? If he does believe them, why is the minister not accepting the fact that the summary trial system is tainted with undue harshness? Sentences are resulting in criminal records for minor offences. Why is the minister ignoring the need for greater reform than the baby step that is being proposed in this legislation?

When we look at all of this, we really begin to question the motives and what drives the government.

In the previous iteration last year, the NDP put forward some amendments. Quite a few were accepted. Other important amendments that were passed at committee stage at the end of the last parliamentary session are not in Bill C-15, although a couple are. The ones that are not there include the following.

First, the authority of the Chief of Defence Staff in the grievance process, responding directly to Justice Lamer's recommendation, is not included in the bill. Second, changes to the composition of the grievance committee to include a 60% civilian membership is once again not included in the bill. Third, a provision ensuring that a person who is convicted for an offence during a summary trial is not unfairly subjected to a criminal record. Once again, that is not included.

What would address some of our concerns with this legislation? We absolutely need further amendments and we need to ensure that the summary trial system is fixed. Summary trials are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the trial. The bit that I find very hard, maybe because of the background I have had, where I have always believed that if people are accused of something, they have the right to representation. Then they have the right to go before a person who is fairly neutral. In this case, people end up having to go in front of one of their commanding officers. If they go before one of their commanding officers, I am not sure how independent that is and what kind of pressure that puts individuals who are there to advocate for themselves without legal counsel. This absolutely puts undue pressure on our armed forces when they can be convicted for very minor service offences.

I am sure that some members previously had employers somewhere, other than the Canadian people. Perhaps they had some kind of an accusation against them, or maybe they came to work late or whatever and before they knew it, there was a grievance. They then had to defend themselves, in other words, put their case forward. First, they could not get representation. Second, they had to go before their employers. Imagine the kind of depressing effect that has on people when they have to go in front of someone who has that much power and authority over them? That actually has a chilling effect on even the accused's desire for justice because they are afraid of the kind of impact that could have on their career and so on.

The kind of minor offences we are talking about, and I think I could often be accused of these, are: insubordination, and I think I was born with that one; normal quarrel and disturbances, almost everyone in the House would have to be charged at some time or other; absence without leave, imagine all those young people at school ending up with criminal records because they were away without leave; drunkenness and disobeying an officer's command.

This is a very serious business. I really do not want to make light of it because it actually affects our military. However, at the same time, when I am reading some of these trivial things, I am thinking that we are going to give our men and women who serve our country, without holding anything back, a criminal record for these. If they end up with a criminal record, once they are out of the army, crossing that border could become almost impossible.

I deal with cases of people who were stopped, had charges of drinking and driving even 10 years ago and were still finding it difficult to cross the border.

Is that the way we want to treat our men and women when they go looking for certain jobs? As members know, there are jobs where people deal with the public and there is a requirement for criminal record checks. If we did any of these things, as long as we were not too far out there, we would not end up with a criminal record. Military members are already held up to such high standards, so why are we, in the idea of criminality, stooping so low as to give them a criminal record? We really need to pay attention to this.

It is not easy living with a criminal record, but I will not get into that. The members know that anyway. If they have not experienced it themselves, I am sure they have had constituents who have come and talked to them about it.

Regarding reform of the grievance system, I absolutely understand grievances and I also understand accountability and transparency. Whenever we have professionals, whether the RCMP, teachers or any other profession that we hold to account, one of the key things is that civil society has engagement. Once again, this bill fails to address that. It is really critical when grievances are under review, there be a representation from civil society on the panel. This would give it that authenticity that we often talk about, and the accountability.

At this stage, I will read a quote from the Lamer report. It is quite amazing. I did not know this gentleman, but he is very learned obviously, because he gets to the heart of the matter. He writes:

Grievances involve matters such as benefits, personnel evaluation reports, postings, release from the Canadian Forces...all matters affecting the rights, privileges and other interests of CF members...unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances...

I want to stress this. He says:

It is essential to the morale of CF members that their grievances be addressed in a fair, transparent and prompt manner.

That becomes really critical when we take a look at reforming the grievance system.

I will read a quote from Colonel Michel Drapeau, a retired colonel from the Canadian Forces and military law expert. In February 2011, before the committee, he said:

—I find it...odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I plead with my colleagues across the way to see the light of day and please address and give fairness to our military men and women who serve us so unselfishly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That is not happening presently in the Canadian Forces.

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

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

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

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

...I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I will leave the government side to ponder that question.

Supplementary Estimates (A), 2012-13

[Tony Clement, Conservative, President of the Treasury Board and Minister for the Federal Economic Development Initiative for Northern Ontario]

moved that Bill C-41, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2013, be read the first time.

(Motion deemed adopted and bill read the first time)