Mr. Speaker, I am pleased to speak to this important bill to amend the National Defence Act.
First, I want to thank hon. members of the House from all parties for the cooperation in expediting this important bill.
The purpose of the military justice system is to deal with matters that pertain directly to discipline, efficiency and morale of the military.
To maintain the armed forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with more speed and frequently punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.
In addition, special service tribunals rather than ordinary courts have been given jurisdiction to punish breaches of the Code of Service Discipline. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.
Bill C-60 is an act that will ensure our military justice system remains one in which Canadians can have trust and confidence. It will enhance the fairness of the military justice system, both from the perspective of the accused person and the Canadian public. It will ensure that members of the Canadian Forces enjoy a right to choose how they will be tried that parallels the rights found in the Canadian civilian criminal justice system.
Remedying an impasse that was created by an appellate court judgment, it will ensure that justice can continue to be done for accused persons as well as for victims. It will preserve the viability of the military justice system in fulfilling its key role to the maintenance of discipline, efficiency and morale upon which the Canadian Forces depend.
In particular, the bill will closely align procedures for the selection of the type of trial by court martial, as well as court martial decision making, with the approach in the civilian criminal justice system, but it will also preserve the attributes that are essential to satisfy the unique needs of the military justice system.
The need for a separate system of military tribunals distinct from the civilian criminal justice system has deep historical roots and was affirmed by the Supreme Court of Canada in 1992 in the case of R. v. Généreux.
The Canadian military justice system is designed to promote the operational effectiveness of the Canadian Forces in the ways I have already mentioned, but it must also ensure that members of the Canadian Forces are dealt with fairly.
Key to ensuring this over time is the supervisory jurisdiction of civilian appellate courts such as the Court Martial Appeal Court and the Supreme Court of Canada. As with any justice system, these appellate courts sometimes highlight the need for adjustments in our military justice system.
One such instance is the Court Martial Appeal Court's decision of April 24, 2008 in the case of R. v. Trépanier.
The court found that the exclusive power of the director of military prosecutions to choose the type of court martial that would try an accused person, and the duty of the court martial administrator to convene the type of court martial thus selected, violated an accused person's constitutional right to make full answer and defence, and to control the conduct of that defence.
The court held that these provisions of the National Defence Act violated the charter and were of no force and effect. Importantly, the court refused to stay its decision, effectively removing the authority to convene courts martial, an essential step in bringing matters to trial.
Leave to appeal the decision in Trépanier is being sought from the Supreme Court of Canada, along with a stay of execution of the decision. However, neither the appeal nor the stay will provide a clear, timely, and certain solution to the problems created by the Trépanier decision. Left unaddressed, trials by court martial cannot be conducted. Serious offences may go unpunished and victims will not see justice done.
Bill C-60, now before the House, is the government's legislative response to this Court Martial Appeal Court's decision. It will bring clarity and stability to the court martial convening process, and allow the process to continue to function.
First, the bill will simplify the court martial structure by reducing the number of types of courts martial from four to two. The remaining types of courts martial will be the standing court martial, which has a military judge sitting alone, and the general court martial, which has a military judge sitting with a panel of five members.
Second, the bill will establish a comprehensive framework for the selection of the type of court martial. It sets out which serious offences must be tried by general court martial and standing court martial respectively, and in all other cases permits the accused person to choose one of the two trial processes.
Finally, the bill will strengthen court martial decision making by providing military judges with authority to deal with pretrial matters at an earlier stage in the process and enhance the reliability of verdicts by requiring key decisions of the panel at a general court martial to be made by unanimous vote rather than by a majority vote as at present. That brings it more in line with what we would see in a civilian court with a civilian jury.
We have had good cooperation at the defence committee in working this through fairly quickly. We went through clause by clause last night at the defence committee and received agreement in almost all respects. One clause was debated and deleted. That did not take away from the effectiveness of the bill that left committee last night.
We have added one important aspect to the bill and that is a mandatory review and report after two years. After two years of the new bill being in force, it will be referred back to a committee of the House or Senate, or both, in a report issued that will guide the House in follow-up action.
An amendment that was defeated was in fact a sunset clause. The danger with a sunset clause is that it would put us back in the same situation that we are in today, where, in effect, the military justice system has ceased to function because courts martial cannot be convened. All of this is done with the best of legal advice from the judge advocate general branch and from a panel of very qualified and distinguished legal minds.
The benefit of all of these legislative amendments is that they will allow the court martial process to function. They will bring clarity, certainty and stability to the military justice system. More importantly, the impact of not making these amendments is that courts martial cannot be convened. The court martial process will become paralyzed. Very serious offences may go unpunished and victims will not see justice done.
Currently, there are about 50 cases that are in danger, as time goes by, of not being brought to justice. That simply should not be acceptable to anybody in the House, the Canadian public, and it is not acceptable to the Canadian Forces.
My plea to members of the House is to pass this measure quickly and get it to the other place, so we can pass it into law by the end of this session. The government is not trying to force something in a hurry. We are up against a timeline. The fact is that the decision came down in Trépanier only about seven weeks ago. For anybody who has been in the House for longer than the orientation session, they will know that there has in fact been fairly quick movement to bring necessary changes like this forward.
It is important that members of the House and all parties come together and pass Bill C-60 that would allow the military justice system to continue, and ensure that justice is done and seen to be done both for the accused and, more importantly, for the victims.