Mr. Speaker, I am honoured to speak on Bill C-25, an act to amend the National Defence Act and to make consequential amendments to other acts.
The legislation will strengthen the statutory framework governing the operations of the Department of National Defence and the Canadian forces, in particular the administration of military justice. It ensures an effective and fair military justice system, one that is capable of operating in conflict or peace in Canada or abroad.
There are four key components to Bill C-25 as it relates to military justice. First, these changes will enhance transparency and provide greater structure to the exercise of individual discretion in the investigation and the charging process.
Second, the amendments will modernize the powers and procedures of service tribunals, including the elimination of the death penalty under military law.
Third, the amendments will strengthen oversight and review the administration of military justice.
Fourth, the amendments will clarify, for the first time in the act, the roles and responsibility of the key figures in the military justice system and set clear standards of institutional separation for the investigative and prosecutorial defence and judicial functions.
I am especially pleased to speak in support of the changes on behalf of the minister, clarifying the roles of these key figures in military justice.
If we picture the manner in which the Canadian system of criminal justice functions in our cities and towns, there are four sets of key figures: the investigators, the prosecutors, the defence counsel and the judges. Each set of figures performs a discrete function in the criminal justice system. It is the interaction of these independent figures, each with a determined role, that produces fair outcomes in individual cases.
Each of these figures can be found in the military justice system. However, until recently their functions were largely carried out under the umbrella of the chain of command. Furthermore, the institutional separation between them was not as pronounced as in civilian criminal law.
A further complicating feature of military justice in Canada is that the Minister of National Defence has been assigned a variety of quasi-judicial duties under the act. This has meant that he played an active role in the administration of individual cases.
The roles, responsibilities and duties of the key figures are not precisely set out in the National Defence Act as it is presently laid out. This lack of precision has led to confusion, uncertainty and misunderstanding about the respective functions and relationships in delivering justice.
To ensure that these roles are clearly separated and to provide objective guarantees that cases will be administered impartially, Bill C-25 establishes the duties and institutional relationships among the prosecution, defence and judicial functions.
To this end there are five important features of the bill. It will remove the minister from the day to day administration of individual cases. It will set out the qualifications and role of the judge advocate general as legal adviser in relation to military law. It will fully separate the prosecution function at courts martial from the military chain of command by establishing the position of director of military prosecutions. The director will be appointed by the minister and responsible under the general supervision of the judge advocate general for the conducting of all prosecutions at courts martial.
It will provide for the appointment of a director of defence counsel services whose sole responsibility will be the provision of legal services to accused persons in proceedings under the code of service discipline.
Finally, it will provide explicitly for independent military judges to be appointed by the governor in council for a fixed term. Military judges are not responsible to the chain of command in the performance of their judicial duties.
Let us look at the minister's role. The National Defence Act assigns the minister with the management and direction of the Canadian forces and all matters relating to national defence. This includes responsibility for administration of military justice. The act also gives the minister a variety of powers and responsibilities relating to the day to day administration of the code of service discipline.
The report of the special advisory group on military justice and military police investigation services, chaired by the Right Hon. Brian Dickson, former chief justice of the Supreme Court of Canada, recommended the elimination of the vast majority of the minister's duties and responsibilities for the administration of individual cases under the code of service discipline.
Bill C-25 implements that recommendation. This approach will avoid perceptions of interference or conflict of interest in the administration of individual cases and will enable the minister to devote more time to his or her normal political and policy role.
I would now like to address the responsibility of the judge advocate general. The JAG, as he is known in the armed forces, has advised the department and the Canadian forces on military history and law since 1911. However, the National Defence Act does not set out his duties and this has contributed to uncertainty about his roles.
Both the Dickson advisory group and the Somalia commission of inquiry recommended that the roles of the JAG be clarified through amendments to the act. Bill C-25 clearly sets out the JAG's duties and functions as legal adviser to the governor general, the Minister of National Defence, the Department of National Defence, and the Canadian forces in matters of military law.
In addition, the judge advocate general will superintend the administration of military justice in the Canadian forces. In fulfilling this mandate the JAG will be required to conduct regular reviews and file an annual report to the minister, a report which the minister must table in parliament.
These changes, in addition to clarifying the JAG's duties, will improve the oversight and review of the administration of military justice.
The National Defence Act is currently silent on the important role of the prosecutor at courts martial. In this regard both the Dickson advisory group and the Somalia commission recommended the establishment of a military prosecutor, independent of the chain of command, to deal with serious disciplinary and criminal charges and to be responsible for the conduct of all cases before courts martial.
Prosecutorial independence is a basic element in our criminal justice system. A clear separation between the prosecution function at courts martial and the chain of command provides greater assurance that prosecution decisions will be free from external influences and conflicts of interest.
Bill C-25 will achieve this objective through the establishment of the position of director of military prosecutions. In order to reinforce the director's independence from the chain of command, the director will be appointed for a fixed term of four years and will report to and act under the general supervision of the judge advocate general. In order to ensure ministerial accountability for military justice, the JAG's directions to the director will be required in writing and the minister will be informed.
Subject to certain limitations designed to protect the administration of justice in individual cases, the director will also have the duty to ensure that these directions are available to the public.
The Dickson advisory group also recommended that the judge advocate general's duties in respect of his or her separate defence and prosecution functions be set out in the National Defence Act.
Bill C-25 establishes a clear institutional structure for the defence function. It establishes a director of defence counsel services whose sole function will be to provide and co-ordinate the provision of prescribed services to persons subject to the code of service discipline.
These services include legal assistance to persons detained or arrested acting as defence counsel at courts martial and certain appeals and providing legal advice to individuals making an election to be tried by courts martial or summary trial. The judge advocate general will supervise the overall provision of these services. To protect the solicitor-client privilege of accused persons, the judge advocate general will not be allowed to give specific directions in individual cases.
These institutional arrangements will enhance the separation between military defence counsel and other figures in the system. They will provide greater assurance of independent legal advice for those who need it.
With respect to the judicial function, whereas the minister currently appoints officers to perform judicial duties, Bill C-25 will provide a statutory basis for the independence of these military judges. It will do this by authorizing the governor in council to appoint military judges to a fixed five year term.
These amendments have a positive impact on how the military justice system is organized and conducted. The amendments secure a statutory basis for the authority exercised by key figures in the military justice system. The result is a modernized national defence act which for the first time explicitly defines the independent roles and functions discharged by each actor.
When viewed in their totality, these amendments will strengthen the Canadian forces as a vital national institution by promoting discipline, efficiency, high morale and justice among the men and women of the forces. I urge all members to support Bill C-25.