Mr. Speaker, I am pleased for more than one reason to participate in this debate dealing with amendments to the National Defence Act.
First, the statute is in need of updating and there have been significant studies done for the purpose of preparing us for this sequence of amendments.
Second, I had a period in my legal training where I worked for the Judge Advocate General for a couple of years and I have very vivid recollections of the applications of the National Defence Act and the complexity of it at that time.
The engagement by Canada in Afghanistan for close to 10 years now has put the National Defence Act, at least the older parts and its weaknesses, under some stress and has brought out the evident need for change and reform. It is not like we just happened to notice that it needed change. Former Chief Justice Lamer looked at this area of the military justice system a few years ago. He studied it very well and made some great recommendations, many of which are contained here.
We should have no doubt here in the House as to the importance of getting these changes. This is not only a modernization, but it is also an adaptation to our modern standards of justice and, in that context, it is influenced by the more recent engagement of our military forces in some real war operation scenarios.
One of the things I will keep repeating in my remarks is the complexity of the military justice system, which everyone in the armed forces will appreciate, but most Canadians on the street do not. It is complex because people who are in the armed forces are subject, of course, to the Criminal Code, but they are also subject to standing orders, special orders and discipline type rules, and the military justice system is there to enforce all of those rules.
What kind of judge makes decisions about discipline, rules in other countries and the Criminal Code in Canada and elsewhere?
Fortunately, those people who end up making decisions about the conduct, good or bad, of Canadian Forces personnel are all well-trained. However, we need to remember that within the military justice system there are problems and incidents that range from homicides to driving a military vehicle recklessly, or not wearing one's uniform correctly or being rude to a senior officer in a conspicuous way. That is quite a range and those are not all Criminal Code offences. It is not a Criminal Code offence to be rude to a senior officer but it is an offence. However, the people who make the decisions on many of those things, we believe, are reasonably well trained. In every case, it is at least a military officer and, in some cases, it is a dedicated military judge making the decisions.
Most of this military justice system is contained within the National Defence Act. That by itself is very complex legislation, but the components of it that deal with the military justice system are also complex. If we wanted to look back 100 years ago, justice within the military forces was probably very summary, very quick and in some cases brutal. It was handled by officers who, in the whole history of our military, had that authority to police and discipline those people over which they had command.
Some of those incidents, if we look back in time, are pretty rough and rugged. We can look back to the whole history of Canada and the British history and the military justice was very tough. Even in the first world war, there are some very compelling stories of the application of the Canadian military justice system with respect to our serving men and women. There are some very sad stories about very tough application of justice and summary decisions, executions and a very firm hand.
By the time we entered the second world war, there had been some refinements, but generally the decisions made on Criminal Code and discipline matters were made by generals, colonels and people in the higher echelons of the service. It was still pretty rough but, over time, the legal judging of military personnel became more stratified and there were scenarios where officers made disciplinary decisions and provided for punishment at an appropriate level. Then there was the concept for certain types of offences of importing a judge from outside of the unit and having a fair trial of the service member.
We can imagine how complex things can be. In Canada, under the National Defence Act, we have the two concepts of the disciplinary decision making, which involves penalties and applications of penalties and convictions, and we have the Criminal Code, where similar persons make similar types of judgments about the conduct of military personnel here.
If there is a military person in service on a base, the National Defence Act has the authority that the person sometimes can be charged with an offence under the National Defence Act, which is really an offence under the Criminal Code. That jurisdiction was always there. When the military person was off the military base, the police outside of the base would normally take care of it. However, there were always instances where the military police on the base would come in contact with civilian police off the base and the offence itself straddled the base and civilian territory. Therefore, in Canada the enforcement of the Criminal Code and the National Defence Act has been and perhaps continues to be potentially complex.
Imagine how much more complex it is when we have personnel serving outside Canada. They can be in a foreign country on a Canadian base where there will be an agreement between Canada and that other country. They can be in a foreign country where Canada does not have an agreement with that country. They might not be on a military base. The Canadian can be serving on a ship in a port in another country. The Canadian can be serving on a ship, but be off the ship in the port in or out of uniform when a disciplinary offence or a Criminal Code offence takes place. Or the personnel could be in an aircraft.
There are all kinds of scenarios that develop. I do not want to give the impression that Canada and the other countries have not found a way to manage all of this complexity. They have and there are treaties and agreements that deal with the complexities of who is responsible for prosecuting and whose jurisdictions prevail over which personnel.
This bill goes some distance in further clarifying when there is a prosecution under the National Defence Act. It provides a better statutory underpinning for the military police and the Canadian Forces provost marshal administration. This certainly helps those whose job it is to provide the policing and investigatory functions with a better focus and better statutory footing.
When prosecutions take place under the National Defence Act, the person who is accused of a disciplinary offence, if I could put it this way, can be tried and convicted by an officer. It has always been that way in the military.
Fortunately now, though there did not used to be many years ago, there is an appeal process. People can appeal it up the chain of command if they think they have been dealt with too harshly. The bill makes it statutorily clear that the Chief of Defence Staff's powers are the final authority for such grievances.
It is good to know there is a grievance system. As I recalled military history, there did not used to be a grievance system. Once a commanding officer issued a penalty, it had to be delivered on, that was the end of it and some of those penalties were quite harsh.
Other types of offences under the National Defence Act are dealt with by the highest-ranking officer. There is another category where someone is actually appointed as a judge under the National Defence Act. Most of the time these are highly-trained military personnel who are trained as lawyers and become military judges. The Judge Advocate General's department was the home of those military judges.
This statute provides for part-time military judges. It envisages, either because of a requirement for special expertise or a shortage of personnel, the bringing in of a judge from the civilian sector who would be a judge under the National Defence Act. That is a very positive thing. I am sure the core of judges with the Judge Advocate General do not mind that at all. It might help to lighten the workload.
The experience of the Judge Advocate General's department is very complex, keeping in mind all of the complexity I described before. I have mentioned the problem of someone in the forces being a prosecutor, someone else in the forces being a judge and decision maker and then another person in the forces being the person accused. There is an in-house set of relationships which seems to have worked reasonably well, but we can also envisage scenarios where there might have been problems in the relationships between the prosecutor and the judge, between the defence counsel, who is usually a military person, and the accused person who is a military person.
Keep in mind that the military is a lot smaller than the rest of Canadian society, so there could be situations where there might have been some relationship anomalies between the parties that might have or could be seen to have an effect on the disposition of the military justice decision making.
In all fairness, the military has been fairly adjusting to this and avoiding these kind of problems. However, once in a while there can be a difficulty and the accused can feel quite aggrieved.
Again, I go back to the complexity. We can have scenarios where the military persons accused of bringing disrespect upon the forces here or abroad. We can have misuse of military equipment, and we know how much military equipment is out there. People do make mistakes. People in the forces are not allowed to make a mistake. They have to use equipment properly, whether it is a computer, a motor vehicle, a piece of armament, a ship or an aircraft. In those types of scenarios, while they are usually not criminal, they can be.
I recall a case many years ago involving the crash of a Canadian Forces helicopter. The circumstances lying behind it gave rise to suspicions of criminal negligence. Therefore, the matter was not just one of conduct, not just one of possible carelessness or poor planning, it actually became criminal. What looks like just an accident to many people, in the military justice system it can be levered up into something much more serious. It was so long ago that I cannot recall the disposition. However, I do recall the many competing values that were brought to bear on that incident. There was loss of life, loss of a valuable piece of equipment, damage and it was off a military base.
The bill would go a long distance to clarifying some of these relationships for the benefit of the military justice system. It would bring better security of tenure for military judges.
Recalling my comments about the complexity of the relationships, someone who, as a military officer, makes a decision about a disciplinary offence, even a Criminal Code offence, is still in the forces with the individual in relation to whom made the decision. It is not like in our civilian system where we really only get to see the judge during a trial. These men and women serve together in the forces. They can bump into someone for whom he or she may have made a military discipline decision or a Criminal Code summary conviction decision. They can bump into that person a year later on a military base somewhere else.
It has been decided, quite properly, that just as we give security of tenure to our civilian judges who work to age 75, we will do the same for our military judges to ensure they have the independence from the forces, independence that they must have to do their job.
The National Defence Act will import the principles of sentencing that currently exist in the Criminal Code. About 15 years ago we spent a lot of time developing those principles. They are in the code. As I say, the National Defence Act amendment has been delayed for so long that it has taken us now 10 or 15 years to put those principles into the National Defence Act. That is all for the better.
There are several other objectives. I am fairly confident that after the committee has a look at the bill, the House will want to give its approval.
