Mr. Speaker, I am pleased to speak on behalf of the Bloc Québécois to Bill C-41. This bill was introduced on June 16, 2010, to amend provisions of the National Defence Act governing the military justice system.
The amendments, among other things, provide for security of tenure for military judges until their retirement; permit the appointment of part-time military judges; specify the objectives and principles of the sentencing process; provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution; modify the composition of a court martial panel according to the rank of the accused person; and modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The text of this bill, beyond what I just listed on military justice, 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.
The Bloc Québécois wants Bill C-41 to be studied in committee. It is true that the purpose of this bill is to improve the military justice system by enhancing judicial independence, but we lean heavily in favour of the healthy administration of justice. Accordingly, we are in favour of any initiative to enhance impartiality and the quality of judges and courts. However, this bill is long and complex and it contains a number of other measures. That is why we are calling for it to be studied in committee, in order to have witnesses inform our decisions.
I will try to put this into context. Military justice reform dates back to 1997 and stems from two reviews. First, a special advisory group received a mandate to study the code of service discipline set out in the National Defence Act. Then, the commission of inquiry into the deployment of Canadian forces to Somalia was asked to review how to handle the actions of certain soldiers sent to that country.
The two resulting reports led the government to introduce Bill C-25, which went into effect in 1998. This bill amended the National Defence Act by abolishing the death penalty in the military justice system; incorporating civilian parole ineligibility provisions; creating the Canadian Forces Grievance Board; creating the Military Police Complaints Commission; strengthening the independence of military judges by making changes to the terms of their appointment, their qualifications and their tenure; and creating new positions within the military justice system in order to separate the investigative function from the prosecution and defence functions.
Clause 96 of Bill C-25 provided for an independent review every five years in order to examine the amendments to the National Defence Act. That was in 1997. With this in mind, the federal government appointed a former Supreme Court justice, Antonio Lamer, to conduct the first review. He presented his report to Parliament in March 2003.
In this report, Justice Lamer observed that “Canada's military justice system generally works very well, subject to a few changes.” Consequently, he made 88 recommendations to improve military justice, especially in the areas of arrest procedures and pre-trial detention, procedures for proceeding by indictment, the structure of the court and sentencing. He recommended that the rights of the accused be more in line with those in a civil court so they could choose the type of court martial, and that the finding of court martial panels be arrived at by unanimous vote. The purpose of another recommendation was to strengthen the independence of the principal intervenors in the military justice system and to improve the grievance and military police complaints processes.
In order to implement the recommendations of Justice Lamer and amend the National Defence Act, the government introduced Bill C-45 on August 27, 2006, but it died on the order paper.
So the government introduced Bill C-7, which was identical to Bill C-45, on March 3, 2008, and it died on the order paper when the election was called in the fall of 2008. Of course Bill C-45, which had been introduced on August 27, 2006, died on the order paper when the election was called in December 2006.
In April 2008, the Court Martial Appeal Court of Canada handed down a decision in the case of R. v. Trépanier. At issue was the possibility of choosing the type of court martial. The Court Martial Appeal Court of Canada ruled that a provision of the National Defence Act that gave the court martial administrator exclusive authority to select the type of court martial was unconstitutional. The Court Martial Appeal Court of Canada found that it was unacceptable that the accused could not chose the kind of court martial that would judge him or her.
Following that ruling, the federal government introduced Bill C-60 to accomplish the following: to more closely align the manner in which the mode of trial by courts martial is determined with the approach in the civilian criminal justice system, while still satisfying the unique needs of the military justice system; to reduce the types of courts martial from four to two; to allow military judges to deal with certain pre-trial matters at any time after a charge has been preferred; and to require court martial panels to make key decisions on the basis of a unanimous vote.
Bill C-60 passed in the House on June 18, 2008.
Bill C-41 is a new version of Bill C-45 and therefore fits into the notion of general reform with a view to implementing Justice Lamer's recommendations.
Bill C-41 before us here today is a new version of Bill C-45 and, once again, aims to implement Justice Lamer's recommendations. A closer look at Bill C-41 reveals that it fits into the broad military justice reform that began in 1998, as I mentioned. It contains several provisions.
First, it contains a number of provisions concerning military judges, which I will list. It provides judges with tenure until their retirement, grants judges immunity from liability as granted to a judge of a superior court of criminal jurisdiction, grants the chief military judge the authority to establish rules of practice and procedure with the Governor in Council's approval, improves the system's flexibility by appointing part-time military judges from a panel of reserve force military judges, and stipulates that in order to be appointed as a judge, the member must have served as an officer for at least 10 years.
There are provisions in Bill C-41 concerning summary trials. For one, in terms of the limitation period, charges must be laid within six months after the offence is alleged to have been committed, and the trial must commence within one year after the offence was committed. The accused person may waive the limitation period established for summary trials.
There are other provisions related to the court martial panel. In the majority of cases, the rank required in order to sit as the senior member of a panel would be lowered from colonel to lieutenant-colonel. As well, the pool of Canadian Forces members eligible to sit on a General Court Martial panel would be enlarged, and the number of non-commissioned members would increase from two to three for the trial of a non-commissioned member.
In addition to these provisions, Bill C-41 would reform military justice by putting additional restrictions on the power to arrest without warrant, by extending the limitation period from six months to two years in terms of civil responsibility, by granting the Chief of the Defence Staff the authority to cancel an improper release or transfer if the member consents, by indicating that the role of Canadian Forces provost marshal is provided for in the National Defence Act as well as by setting out his responsibilities and ties to the Canadian Forces chain of command and by requiring the provost marshal to provide the Chief of the Defence Staff with an annual report on his activities and those of the military police.
Lastly, Bill C-41 would protect individuals who file any type of complaint with the Military Police Complaints Commission and would require the provost marshal to resolve conduct complaints or to close cases within 12 months.
This is clearly an impressive and important bill. Once again, that is why the Bloc Québécois wants to discuss it in more detail in committee and wants to bring in witnesses with expertise in military justice so that they can provide some insight.
There are other arguments. The Bloc Québécois is not opposed to keeping military justice separate from civilian justice. It makes sense for the Canadian armed forces to have its own justice system, in light of the particularities of military life and military requirements. It is absolutely necessary to have discipline within an army. Without that discipline, we would lose any sense of structure and effectiveness.
Since the primary goal of our armed forces is to protect the safety of Canadians, this issue is vitally important. The Supreme Court of Canada recognized this principle in 1992, in the Généreux decision, which I will quote:
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 [and Quebeckers] 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. Breaches of military discipline must be dealt with speedily 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 the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.
I repeat, that was a quote from the 1992 Supreme Court ruling in the Généreux case. The Bloc Québécois subscribes to the principle of keeping military justice separate from civilian justice.
There are also offences in the Code of Service Discipline that have no equivalents in civilian justice. I am thinking of offences such as disobeying a command or a superior officer. Military justice applies to three categories of people: military personnel in the regular forces, reservists and civilians who work with military personnel on missions. But although military justice is necessary, people who join the Canadian Forces do not lose their rights, including their Charter rights.
For 12 years, a great deal of thought was given to modernizing military justice to bring it more in line with civilian justice. In its May 2009 report, the Standing Senate Committee on Legal and Constitutional Affairs wrote the following:
...the military, as an organization, benefits when the rules that govern it largely reflect those that apply to Canadian society in general.
The Bloc Québécois feels it is useful and necessary to reform military justice. Obviously, we have some fears and also some suggestions. As I said, the Bloc Québécois wants this bill to be sent to committee so that we can call the appropriate expert witnesses. But we feel that justice must prevail at all levels of society, and justice often depends on police work. We are afraid that because the provost marshal can be reappointed, he will not want to delve too deeply into something that could ruffle feathers among the defence staff. The Bloc Québécois will ensure that this does not happen, and we will introduce amendments to correct this situation.
Once again, when we have a complex bill before us, we need to take the time to do the necessary analyses and studies. This is the case with this bill. The provost marshal, who is the person who will ultimately be in charge of military justice within the armed forces, will have a renewable term. We need to look at that.
Why must this mandate be renewable when judges are appointed until they retire? We must then consider how this would affect the provost marshal's work. Would he give the defence staff less firm direction because his mandate is renewable? Would he be more sensitive when a case involves defence staff? It would be to our advantage to ask these questions in committee.
It is important that the listening public understands how this works. Committee work is of the utmost importance to the operation of any parliament, whether it be the British model or any other parliament in the world. Witnesses may appear before the House of Commons only in very exceptional circumstances. Generally speaking, with only a few exceptions, witnesses appear before committees.
It is therefore important that the national defence committee take all the time required to analyze Bill C-41 and examine all of its ins and outs. It is true that military justice must become more like civilian justice, simply so that citizens can understand how military justice works and relate to it. If the military justice system is completely different from the civilian justice system, citizens will not understand it and might question all the work done by our military personnel. Thus, this is a very important issue.
This work began in 1998. Some bills were deferred or came to an abrupt halt when an election was called. We must now—and I hope we will have time—deal with this issue before the next election campaign.
I am interested in responding to the questions of my fellow members. Once again, the Bloc Québécois supports sending this bill to committee for improvement. We hope to convince members of other parties of the benefits of the improvements we would like to make to it.