National Defence Committee on March 4th, 2013

[Col Michael R. Gibson]

—it just flows on with the text from 269(1.1). It's part of proposed subsection 269(1.1).

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

It's six months for a prosecution, except for the war crimes or the Geneva Conventions Act. Then it's two years for the civil—

[Col Michael R. Gibson]

That's correct.

[The Chair, Conservative, James Bezan]

Okay, are we good?

(Clauses 99 and 100 agreed to)

(On clause 101)

Mr. Harris.

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

Clause 101 is the provision—this amendment increases it from five years to seven. We have some serious concerns about that. We've had significant evidence brought before this committee, and I refer in particular to the evidence of Mr. Justice Létourneau, who complained about the piecemeal approach being taken to the amendment to this act. Also at one point he talked about the resistance to change within the legal structure of the military justice system. He expressed some grave concerns about how long it takes for the system to respond to things like the Charter of Rights, the evolution of the law, and the failure of military justice to keep up with it.

He made a very strong argument from his perspective about the necessity for a fundamental review of the National Defence Act. I know Colonel Gibson has very different views because he's the one, or his department is the one, that Mr. Justice Létourneau feels ought to have a more significant independent review. Our argument joins with Mr. Justice Létourneau in saying that by just referring to certain sections, for example, in clause 101—

[The Chair, Conservative, James Bezan]

Make your arguments on clause 100.

[An hon. member]

We are on clause 101.

[The Chair, Conservative, James Bezan]

Okay, I'm behind.

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

The sections that are there, specific sections would be examined sometimes seven years from whenever this comes into law. That's a long time for this to take place. We've heard significant constitutional arguments before this committee on certain provisions, such as clause 75, and we haven't finished that yet, but also concerns about the grievance procedure and how the grievance procedure is inadequate. We've heard concerns about the whole structure of military courts and the necessity of examining them in connection with the worldwide trend in western countries of further civilianization of the act.

I think implicitly in these comments, one would suggest that the independent reviews that we've had, in particular the last one, wasn't supported by the kind of resources that one might need to have a thoroughly independent review such as you might have, and Mr. Justice Létourneau's previous experience with the Law Reform Commission having adequate resources to do that.

We don't think that this is adequate at all. We think that there ought to be a significant independent review, not just of particular sections, some of which may be being amended now, but that there, in fact, be a thorough and fundamental review of the entire National Defence Act.

If I may quote from Mr. Justice Létourneau's evidence before this committee, he said:

As a proud member of the Canadian society, a society devoted to the promotion of equality of all before the law, I would like to close by reiterating some of the proposals found in the book that I filed with you today. Foremost, I urge this committee to study the international trends towards the civilianization of military tribunals to promote equality of all before the law, which can be achieved only by conducting a fundamental structural and organizational revamping of the National Defence Act in order to enhance its access, consultation, and legibility as well as its structure, internal arrangement, and form; and on a substantive level, to correct the flaws in the National Defence Act resulting from an imperfect duplication of the Criminal Code provisions, by taking into consideration the charter and military needs and by reviewing the provisions that attract constitutional criticism.

That's a very broad statement, but it requires in order to follow it a broader review than one that suggested that might take place some seven or eight years from now.

It's not clear from looking here, and maybe Colonel Gibson can enlighten us.... It says “seven years after the day on which this section comes into force”. When that might be, I don't know. The bill has to go back to the House. It has to go to the Senate. It has to be promulgated in force by some act of the Governor in Council. So, some seven years from that date, whenever it is, we will see another supposedly independent review of the provisions that are specified here.

I don't mean that in a flippant way when I say an independent review of the nature that Mr. Justice Létourneau was talking about, one that is fully resourced and fundamental in nature as opposed to a review of a particular section.

We don't support clause 101. We think it's inadequate and that it, in fact, prolongs the possibility of reform to this legislation, prolongs the possibility of fundamentally re-examining this. As we've seen already we didn't, and couldn't, attempt to re-write the National Defence Act by making amendments to this particular bill. Even some of the very modest recommendations that we had were deemed to be outside the scope of the legislation, and we accept that. That's the nature of dealing with an amending act. It is not a full act and you can't re-write an entire act in committee; you can only make amendments within the scope of the act. Therein lies some of the problems.

We've only gone so far as, in this case, the government was willing to go. Based on the criticisms that we've seen, based on the recommendations of Mr. Justice Létourneau and Colonel Drapeau and others who appeared before the committee, we think there are some substantial flaws in the scheme of the act, in the scheme of military justice, in the over-militarization of even matters such as grievance procedures, the failure to adequately address the concerns that have been raised about the inadequacy of grievance, and all sorts of things that are consequential upon that, and the failure to examine the international trends that see greater civilianization of the military justice system in other countries such as the U.K., Australia, New Zealand, Ireland, and other countries that have been mentioned.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

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

Chair, this is one amendment, one clause, in our bill to which we are particularly attached. I simply wanted to put on the record here a question directly relevant to this clause, though, in the context of Mr. Harris's previous remarks, which, for the record, we on this side find disagreeable. I haven't been called that in committee, or elsewhere, before. I regret the use of such language. We're trying to have a technical discussion of an important issue and at long last complete committee stage of consideration of an important bill.

This bill, in one form or another, has been before Parliament for the better part of a decade. We are now reviewing this bill in the context not of one review that has been put before the government, not of two reviews by senior members of the judiciary that have been put before the government, but of three reviews. This bill, because of those successive reviews, does not capture all of the recommendations, it's true. LeSage has not fully provided for it here. There will have to be further legislation almost certainly to respond to LeSage.

But would our colleague Mr. Harris not agree that the weakness, if there has been a failure to modernize the military justice system, is not in the number of reviews, the lack of reviews, or in the time period of those reviews; it is in the failure of successive Parliaments to legislate in this area. We all know the circumstances. I didn't hear it during the debate at second reading. I haven't heard it in debate at committee here, but will he not, for once, accept, as one of the long-standing members of this committee, some responsibility for the fact that Parliament has not yet acted and that this is the reason, if any, why our military justice system is not as modern as we would like it to be?

[The Chair, Conservative, James Bezan]

Mr. Harris.

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

In a word, no. I accept absolutely no responsibility for the fact that it's taken, as you suggest, nearly a decade to get to where we are. This legislation has been before this House on a number of occasions for a number of reasons, and I can detail them as to why. The House was prorogued by your Prime Minister. An election was called earlier than legislation required it. There were all sorts of reasons that the previous versions of the legislation never got through.

One of the reasons, of course, was that the matter was debated and we just passed off and put aside one of the significant consequences, and that had to do with the summary trial matter, which took, I suppose, six or seven months after the debate on Bill C-15 started and took place in the House. The government finally acknowledged that perhaps they were prepared to agree to put back an amendment that was passed in the last Parliament.

In the last Parliament we had numerous amendments. We had a very thorough discussion, and I don't think the speed at which this bill passed in the last Parliament left anything to be desired. We went through clause-by-clause study fairly rapidly, in three or four days at the most, with witnesses and the clause-by-clause.

During that particular Parliament I was where Mr. McKay is. We brought forth a dozen or more amendments, of which eight or nine were passed. They were stripped out of the bill the last time, so I guess we have to argue them again. So I take no responsibility for the fact that Mr. Justice Lamer was asked to make some recommendations back in 2003, and that we're here now in 2013. I only came here in 2008, and we had an opportunity to debate Bill C-41, and we made improvements to it. It was actually sent back to the House in good time to be passed, but the government chose not to call it for debate in the House of Commons. That's not my doing.

So we don't accept any responsibility for that. The government chooses when legislation is called.

To suggest that all of these reports are being taken into consideration, I would refer you to your own comments about Mr. Justice LeSage. Whereas that was only tabled in the House in June, well, that may be, but the government had it in December because it was tabled with the government in December, and the government had plenty of time to incorporate Mr. Justice LeSage's recommendations into this report and also to deal with amendments that had been proposed the last time and which the government didn't agree with, only because they thought the wording needed to be improved. Yet they didn't take any steps to improve the wording and bring them back some two years later.

So let's not be too sweeping about these remarks. What I'm suggesting here, with what we now have from this government, after recognizing that it took some time to get to where we are, is that there'll be another seven years before we even look at what needs to be done to this legislation. That's what's wrong.

If we are here now still dealing with the LeSage recommendations going back to 2003—

[A voice]

It's Lamer.

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

—then there's something significantly wrong with the process.

Thank you for correcting me.

We're still dealing with Lamer and a number of Lamer's important recommendations that this government is still refusing to put into place. And now we're being asked to put into legislation that we should wait another seven years before some of the specific sections that are dealt with ought to be considered.

I don't think that's good enough. I think if this does get passed in the near future, which I assume it will, if the government decides to call it for debate in the House and bring it through, then whatever progress is contained in this legislation—those aspects of this bill that are progress—will actually take place.

What clause 101 says is that we're going to wait another seven years before we have another go at it. Does that mean the next changes we're going to expect to see are going to come in 15 or 16 or 17 years from now? If the same pace of legislative change that you're suggesting continues, then I don't think that's good enough.

The way to deal with that is starting now. Having gone through this process, having exposed the problems that we see with this legislation, can we not actually have a fundamental review of this legislation to see where we need to go to actually bring our military justice system into the 21st century? We're just scratching the surface in terms of some of the changes that are being made here.

I recognize that to have the list we're debating in the government amendment to clause 75—a watered-down version of an amendment that I made in the last Parliament on behalf of my party, and we reached that result back in the last Parliament—is progress. If 95% of the service offences that go to court do not result in a criminal conviction, as has been suggested by the government, that is some progress. I think we recognize that. Instead of feeling blame, I take some credit for that. I say this not to boast, but to counter your suggestion that I should somehow share the blame for taking 10 years to get to this point, when it was the efforts that were made two years ago in this very room that got us to the point where we are now, and another six months in the House of Commons to get us back to there, at least on clause 75.

No, I don't share the blame for that. I think we're making a mistake here to limit the review of this legislation to something that's going to commence in seven years from the day on which this particular piece of legislation, Bill C-15, receives royal assent. That's going to mean that any further changes could be put off as late as 10 years from now.

What I do want to say, though—and I acknowledge your slight detour there to the LeSage report, which we've heard many times wasn't available in time to make changes to this legislation, which I disagree with—is you did indicate that the LeSage recommendations will require some legislative change. I wonder what kind of commitment the government is prepared to give, in terms of when the LeSage recommendations might be addressed in legislation. I'm assuming that's not going to wait seven years, and that we may have a timetable already in mind. If there is a timetable with respect to that, please let us know.

(Clause 101 agreed on division)

(On clause 102)

[The Chair, Conservative, James Bezan]

Clause 102 is a French amendment.

(Clauses 102 to 105 inclusive agreed to)

Clause 106 is amendments to the—

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

Chair, can I ask a question? I know we just carried it, but I'd like to have some clarification here from Colonel Gibson on clause 105, if that's acceptable.

[The Chair, Conservative, James Bezan]

Since I'm such an accommodating individual, Colonel Gibson, if you can—

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

Clause 105 requires the disclosure of a conviction. It is specific to offences in proposed paragraphs 249.27(1)(a) or (b), and it creates an offence for someone who is dealing with that in terms of employment in departments of government, employment by a crown corporation, employment in the Canadian Forces, or in any work or undertaking within the legislative authority of Parliament. That refers only to federal government employment. Is that correct?

[Col Michael R. Gibson]

Just a moment, please, Mr. Chair.

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

It creates the offence of asking someone whether they've been convicted of a particular offence.

[Col Michael R. Gibson]

Mr. Chair, this defence provision was modelled after an existing one in the Contraventions Act. There are actually two parts to that scheme, as we've discussed in a fair bit of detail, in relation to clause 75. That was modelled after a section in the Contraventions Act. This creation of an offence provision under part VII, in other words, one triable in a civil court, even though it's created under the National Defence Act, is meant to fulfill exactly the same policy purposes as those which Parliament has already created in the Contraventions Act, which is to say that it gives some teeth to a prohibition against people improperly asking questions about a conviction in respect of which a record wasn't created.

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

That's if a record was not created.

[Col Michael R. Gibson]

Right. This is meant to back up clause 75. This is an adjunct to clause 75.

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

I hear what you're saying and why it's there, but what is the practicality of that if the rules here are so arcane, as is being suggested, that specific offences are tied within the threshold of a punishment?

How is one to know, shall we say, if one has an application form and is asking questions about the type of record that a person might have or a record of conviction that a person might have, in terms of whether you were AWOL and got less than one of the four punishments that we talked about here, or your fine was less than a month's pay, which is the current wording of the amendment to clause 75?

How does someone who wants to comply with this actually know what to do?