House of Commons Hansard #167 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was amendments.

Topics

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, on October 7, 2011, the Minister of National Defence introduced Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. Bill C-15 amends the National Defence Act to strengthen and alter military justice following the 2003 report of the former chief justice of the Supreme Court, the right hon. Antonio Lamer, and the May 2009 report of the Senate Standing Committee on Legal and Constitutional Affairs.

Among other things, the bill would provide greater flexibility in the sentencing process and additional sentencing options, including absolute discharges, intermittent sentences and restitution. It would 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. It would also allow an accused person to waive the limitation periods. The bill would clarify the responsibilities of the Canadian Forces provost marshal and, finally, it would make amendments to the delegation of the Chief of Defence Staff powers as the final authority in the grievance process.

New Democrats believe that Bill C-15 is a step in the right direction to bring the military justice system more in line with the civilian justice system. However, it falls short on key issues when it comes to reforming a number of required aspects of the military justice system, including the summary trial system, the grievance system and the Military Police Complaints Commission.

I will provide some background. In 2003, the right hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, presented his report to the independent review of the National Defence Act. The Lamer report contained 88 recommendations pertaining to military justice, the Military Police Complaints Commission, the grievance process and the provost marshal. Bill C-15 is the legislative response to these recommendations, but thus far only 28 of those recommendations have been implemented in legislation, regulations or via changes in practice.

This bill has appeared in earlier forms. First, Bills C-7 and C-45 died on the order paper due to prorogation by the Conservative government in 2007 and an election in 2008. In July 2008, Bill C-60 came into force simplifying the structure of the court martial system and establishing a method, which was more closely aligned with the civilian system, for choosing the type of court martial. In 2009, the Senate committee consider Bill C-60 and provided nine recommendations for amendments to the National Defence Act. In 2010, Bill C-41 was introduced to respond to the 2003 Lamer report and the Senate committee report. It outlined provisions related to military justice, such as sentencing reform, military judges and committees, summary trials, court martial panels, the provost marshal and limited provisions related to the grievance process and the Military Police Complaints Commission.

In essence, Bill C-15 is similar to the version of Bill C-41 that came out of committee in the previous Parliament. There are a number of amendments that carry over, which include the court martial composition, military judges' security of tenure and provisions relating to the appointment process and the age of judges. However, other important amendments that passed at committee stage at the end of the last parliamentary session are not included in Bill C-15. These include the following, which were also presented by the New Democrats as amendments to that piece of legislation.

What is missing from this bill is the authority of the Chief of Defence Staff in the grievance process, which responds directly to Justice Lamer's recommendation; changes to the composition of the grievance committee to include a 60% civilian membership; and finally, a provision to ensure that a person who is convicted of an offence during the summary trial is not unfairly subjected to a criminal record. It is this last point that causes particular concern to all Canadians who care about the justice system in this country.

There are many important reforms in this bill and the NDP supports the long overdue update to the military justice system. Members of the Canadian Forces are held to an extremely high standard of discipline and they, in turn, deserve a judicial system that is held to a comparable standard. The NDP will be opposing this bill at second reading. However, there are shortcomings in this bill that we hope can be addressed at the committee stage if, in fact, it gets that far. Here are some of the amendments that we hope to see passed.

The amendments in Bill C-15 do not adequately address the unfairness of summary trials. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Summary trials, though, are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the so-called trial, and the judge is the accused person's commanding officer. This causes undue harshness on certain members of the Canadian Forces who can be, and are, convicted of very minor service offences, offences that would not otherwise be criminal offences.

For example, some of these minor service offences include insubordination, quarrels, disturbances, absence without leave, drunkenness and disobeying a lawful command. These could be matters that are extremely important to military discipline, but they are not necessarily worthy of a criminal record. Certainly drunkenness is not a criminal offence, and many members of the House would probably attest to that.

Bill C-15 also makes an exemption for a select number of offences if they carry a minor punishment, which is defined in the act, or a fine less than $500 to no longer result in a criminal record. This is one of the positive aspects of the bill but it does not, in our opinion, go far enough.

At committee stage last March, the NDP amendments to Bill C-41 were carried to expand this list of offences that could be considered minor and not necessarily worthy of a criminal record. We would increase that number from five specified offences to 27, if the offence in question received a minor punishment.

The amendment also extended the list of punishments that may be imposed by a tribunal without an offender incurring a criminal record, such as a severe reprimand, a reprimand on its own, a fine equal up to one month's basic pay or another minor punishment.

This was a major step forward for summary trials. However, this amendment was not retained in Bill C-15, and we want to see it included here.

We also believe it is important to reform the grievance system because at present the grievance committee does not provide a means of external review. Currently it is staffed entirely of retired Canadian Forces officers, some only relatively recently retired. If the Canadian Forces Grievance Board is to be perceived as an external and independent oversight civilian body, as it was designed to be, then the appointment process needs to be amended to reflect that reality. Thus, some members of the board should be drawn from civil society.

The NDP amendment provides that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. Again, this amendment was passed in March 2011 in Bill C-41 but was not retained in the bill before the House. We think it is important to see that amendment retained in the bill.

Finally, the NDP believes we must strengthen the Military Police Complaints Commission. The bill amends the National Defence Act to establish a timeline within which the Canadian Forces provost marshal would be required to resolve conduct complaints as well as to protect complainants from being penalized for submitting a complaint in good faith. Although a step forward, the NDP believes that more needs to be done to empower this commission.

Care has not been taken to provide the Military Police Complaints Commission with the required legislative provisions empowering it to act as an oversight body. This commission must be empowered by a legislative provision that will allow it to rightfully investigate and report to Parliament.

Let us talk about what some independent people have said about the bill. I want to quote Colonel Michel Drapeau, a retired colonel from the Canadian Forces and a military law expert. Here is what he said in February 2011:

I strongly believe that the summary trial issue must be addressed.... There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

Colonel Drapeau also said:

—I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

I believe all members of the House want to see members of the Canadian Forces guaranteed the very charter rights that we send them into harm's way to fight for on our behalf. One part of those rights is that when people face potential criminal sanctions, they have a right to counsel. They have a right to a judge that is independent. They have a right to transcripts and a meaningful right to appeal. Bill C-15 does not allow this and I urge all members of the House to work on this bill to address those serious problems.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:10 a.m.

Ajax—Pickering Ontario

Conservative

Chris Alexander ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, the draft before us absolutely does guarantee those measures that the member for Vancouver Kingsway mentioned at the end of his speech, because it has been designed by Canada's leading judiciaries over decades. Of the 88 recommendations made by a former chief justice that are embodied in the bill, 83 have been accepted on this side of the House as much as on that side.

We have not heard anything new on the bill from the member opposite. We still have not heard an answer from him or his colleagues about a point on which they have been misleading the House.

The member for Timmins—James Bay, others among his colleagues and now the member for Vancouver Kingsway have implied that this requirement for 60% of the grievance board to be civilians comes from a recommendation of Justice Lamer. It does not. Will the member opposite acknowledge that it is not part of the 88 recommendations?

We, on this side, do accept that civilians should be eligible. However, we do not accept that there should be a quota of civilians on that board because military experience is relevant to the hearing of grievances for the Canadian Forces. Also, it has not been recommended by high judicial authorities.

Will the member for Vancouver Kingsway come clean about the origins of this proposal, which absolutely had no place in his party's position during the last Parliament?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, it is always interesting when the government pivots off to another issue instead of addressing what are really the square and central problems and issues of a particular piece of legislation.

I never heard the member provide the government's response to this. Currently, a conviction of a service offence from a summary trial in the Canadian Forces may result in a criminal record. Right now in the Canadian Forces, summary trials are held without the ability of the accused to consult counsel. There are no appeals or transcripts of the trial. The judge is the accused person's commanding officer. Why will the hon. member not address those points?

We all know the serious implications of a criminal record. Why will the government not explain why a Canadian Forces member who is charged with an offence that could result in a criminal record would be deprived of the simple right to consult a lawyer, which is a charter right? Why will it not explain why it proposed legislation that does not allow a simple transcript to be kept of the proceeding so that if there were a wrongful conviction, there would be a basis from which to launch an appeal?

I am a lawyer by training and I know the importance of having due process. The real question is this. Why will the government not give due process to our men and women of the Canadian Forces to make sure they have the charter and constitutional rights that all Canadians deserve?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:15 a.m.

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Mr. Speaker, I thank my honourable colleague, who made a heartfelt speech on Bill C-15.

He spoke of strengthening the Military Police Complaints Commission. That is a step in the right direction for the government.

It goes without saying the Canadian Forces provost marshal will resolve complaints and protect complainants from being penalized for having made a complaint in good faith, but what more could we do to increase the Military Police Complaints Commission's authority?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, one measure we can take to strengthen the complaints commission process is to protect complainants from being penalized for submitting a complaint in good faith. This is known colloquially as whistleblower protection. It is something that the government and provincial governments across this country have been slow to embrace. It is the practice of making sure that people who see wrongdoing feel free to come forward and make those complaints, of course in good faith, so that they do not risk career retribution or other forms of punishment for doing so.

It is particularly difficult for people in government agencies and very tight-knit organizations such as police forces or the Canadian Forces to actually feel free to come forward and report wrongdoing when they see it, because there can be such serious ramifications to their own careers. This is particularly the case when one's commanding officer may be the judge who is hearing the complaint against him or her.

We need to reform the system to bring it more in line with the norms of civilian justice and make sure that all people in this country have access to charter and constitutional rights.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:15 a.m.

NDP

François Choquette NDP Drummond, QC

Mr. Speaker, today I will be speaking about Bill C-15. I will begin with a brief history of this bill.

In 2003, the Rt. Hon. Antonio Lamer, former chief justice of the Supreme Court of Canada, tabled his report on the independent review of the National Defence Act.

The Lamer report contained 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces provost marshal. Bill C-15 is the legislative response to these recommendations.

We must mention, however, that only 28 of the 88 recommendations have been included in this legislation. Thus, the response is incomplete. Bill C-15 is not a full response to the Lamer report.

Bill C-15 has appeared in a number of previous forms. First there was Bill C-7, which died on the order paper when Parliament was prorogued in 2007—an act that, by the way, was undemocratic—and then Bill C-45, which met the same fate when the 2008 election was called.

In July 2008, Bill C-60 came along, simplifying the court martial structure and establishing a system for choosing the court martial format that would harmonize best with civilian justice.

In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-60 and made nine recommendations for amendments to the National Defence Act.

In 2010, Bill C-41 was introduced as a response to the 2003 Lamer report and the 2009 report from the Standing Senate Committee on Legal and Constitutional Affairs.

It included provisions related to military justice, such as reforms to sentencing, military judges and committees, summary trials, the court martial panel and the Canadian Forces provost marshal, as well as provisions pertaining to the Military Police Complaints Commission.

Essentially, Bill C-15 is similar to the version of Bill C-41 tabled by the Senate committee in the last Parliament. The accepted amendments included the composition of the court martial panel and the appointment of military judges during good behaviour until their retirement.

Some important amendments were adopted at the committee stage, at the end of the last parliamentary session. Unfortunately, they were not included in Bill C-15. It is really strange, because many of these amendments were suggested and supported by the NDP and by others. For example, one amendment dealt with the authority of the Chief of the Defence Staff relative to the grievance process. That was a direct response to a recommendation in the Lamer report, and it is missing. There was also an amendment regarding changes in the composition of the grievance board, so that 60% of its members would be civilians. Once again, it is not in this bill. Finally, there was a provision to ensure that a person found guilty of an offence at a summary trial would not be unjustly burdened with a criminal record. That, too, is missing.

What the NDP wants are simple and important things that affect military justice and show respect for the people who serve the country by defending our rights and freedoms.

This bill does propose a number of important reforms. The NDP has long been in favour of the necessary updating of the military justice system. Members of the Canadian Forces are subject to very severe discipline and, thus, deserve a judicial system that is governed by rules comparable to those in the civilian system.

This bill has many shortcomings that we hope will be discussed in committee if the bill is passed at second reading.

The first thing that must be reviewed is the reform of the summary trial system. It is a serious problem. The amendments in Bill C-15 do not deal adequately with the injustice of summary trials. There is a true injustice in these trials. At present, a guilty verdict from a summary trial in the Canadian Forces results in a criminal record. Summary trials can cover many things, some of them insignificant.

They may apply not only to such serious charges as insubordination, but also to less serious offences such as drunkenness or the like, which have nothing to do with the criminal offences that would be found on a criminal record. This is a serious problem that must be reformed, and it must be done immediately.

For example, summary trials are held without the accused being able to consult counsel. There is no recourse and no transcript. We can imagine how a trial is conducted when there is no transcript of what was said. The name says it all: “summary trial”. It is summary, with no real justice and no recourse to a real, fair justice system. Summary trials are held for minor and major reasons, and there is no logic to them.

Moreover, the accused person’s commanding officer acts as the judge. That is much too harsh for some members of the Canadian Forces who are convicted of minor infractions. The fact that the commanding officer is also the judge raises questions about the impartiality of the process. Therefore, changes are needed.

These minor offences include insubordination, as I said, but also quarrels. “Quarrel” is a pretty big word to describe someone raising their voice to someone else. We have to look at the definition of “quarrel”. We are not talking about striking and injuring someone here. Accordingly, we do not see why this should result in a criminal record. Misconduct, again, is very broad. As I said, it is the commanding officer who decides all of this.

Absence without leave, drunkenness and disobeying a command are all undoubtedly very important for military discipline, I agree, but they do not deserve a criminal record, particularly since these soldiers have lives after their military service. Someone who quarrelled with one of his colleagues and who returns to civilian life could find himself with a criminal record because of this.

It then becomes difficult to find a job, to travel outside Canada and to find housing. This creates a whole host of problems for people who, let us not forget, serve the Canadian public and defend our rights and freedoms. Because of some of these measures, their own rights and freedoms are being trampled on somewhat by this military justice system. This process needs to be revised.

I could touch on many other aspects that need to be revised, but I will not have time. A lot of competent people have looked into this. Bill C-15 does not properly reform the military justice system.

To conclude, we in the NDP believe the Canadian Forces already have to meet extremely high standards when it comes to discipline. We know the strict discipline this job calls for. Members of the military are entitled, in return, to a judicial system that is required to meet comparable standards. A criminal record can make life after the military very difficult. Criminal records complicate the process of finding a job, renting an apartment or travelling.

Accordingly, the NDP will fight to make the Canadian military justice system fairer for the men and women in uniform who have risked their lives in the service of Canada. For that reason, it is very important that this act be revised, to respect and honour our soldiers.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:25 a.m.

Ajax—Pickering Ontario

Conservative

Chris Alexander ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, does the member across the way understand that, by giving his speech, particularly on the subject of criminal records, he is perpetuating the system he hopes to change? Does he realize the Minister of National Defence rose in the House yesterday to indicate the government's willingness to propose an amendment that was first proposed during consideration of Bill C-41 in a previous Parliament? The amendment deals with criminal records arising from summary conviction trials. It would add 25 new offences to the two offences currently in the bill, bringing to 27 the number of offences that do not lead to a criminal record, in the hopes of modernizing the summary trial system.

These amendments need to be considered in committee. Does the honourable member understand that by prolonging debate in the House, we are perpetuating the system he hopes to change?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:30 a.m.

NDP

François Choquette NDP Drummond, QC

Mr. Speaker, I thank the honourable member for the question. If he is willing to propose amendments, then I encourage him to do so. We are still debating Bill C-15 because it remains flawed, as I have pointed out in my speech. I spoke of the flaws relating to summary trials, but there are several more. I do not believe the Conservatives fixed all those flaws. In fact, here is what Colonel Michel W. Drapeau said about summary trials:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year.

If my honourable friend says he has resolved the issue, good, but Bill C-15 remains flawed. That is why it is important to discuss it today.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:30 a.m.

NDP

Sadia Groguhé NDP Saint-Lambert, QC

Mr. Speaker, I commend my hon. colleague on his speech. He talked about improving military justice and how important that issue is to the NDP, and he mentioned that we need to reduce the differences in how military and civilian courts handle cases.

Could my hon. colleague tell us more about the need to reform the sentencing process for summary trials?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:30 a.m.

NDP

François Choquette NDP Drummond, QC

Mr. Speaker, I thank my hon. colleague for her question. Indeed, summary trials are problematic. I hope that everyone in the House recognizes how important it is that our troops be able to have another life after serving in the military. We need to help them transition to civilian life. Serving Canadians and protecting their rights and freedoms is not an easy job. Military personnel have to make major sacrifices and submit to a very strict discipline. Therefore, it is only natural for us to make their lives easier, as a way to thank them for their services. A person should not have a criminal record because of something that is not a crime. That is why Bill C-15 is inadequate and needs improvement, as I pointed out during my speech.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:30 a.m.

NDP

Pierre Nantel NDP Longueuil—Pierre-Boucher, QC

Mr. Speaker, I am pleased to speak in this House on the subject of Bill C-15. We have before us a bill that is a recognition of a serious problem in the administration of military justice. In this regard, we are unfortunately lagging behind many other countries that have identified the same problems as we have, but have made faster and more effective efforts to fix them.

What is strange is that while our Conservative friends acknowledge the problem, they have deliberately chosen to fix only half of it. And that is why we have a problem; that is why we oppose this bill.

My colleague has talked about the first problem: summary trials that are held in circumstances that do not allow for the accused to make a fair defence. Summary trials are really the nub of the problem. The vast majority of offences committed by members of the military are dealt with by summary trial. One of the statistics we have here seems frightening to me: in 2008-09, a total of 1,865 cases—96% of all cases—were disposed of by summary trial. Obviously it is a euphemism to say “seems”, because 96% says it all.

What this system means is that the accused does not enjoy rights that are otherwise considered to be fundamental in an ordinary justice system: the right to be represented by counsel; the right to appeal; a transcript of the trial so the person can appeal based on the trial; and the right to an impartial judge. As it stands, the person’s commanding officer is the judge. That situation is clearly unfavourable.

What if there was judicial error? What if the decision was tainted by personal tensions between the accused and the judge, for example, who happens to be the person’s immediate superior? Anyone who works in an ordinary situation will agree that these are certainly not ideal circumstances for making an objective decision. There is no organization in which such a structure exists without the opportunity to have the decision reviewed.

The expression “criminal record” is probably the one that most clearly expresses something that can harm and weight down a person’s life. The circumstances in which that record is created are therefore a matter of concern for us. It is in fact a very good thing that we are trying to address this issue. Once again, we are expressing this kind of confidence in our parliamentary system so that we can find concrete solutions for people having to deal with this problem.

When we consider the consequences of having a criminal record, we can say that the decisions of these tribunals in fact have very serious consequences. These are decisions that harm a person’s entire life. In the first place, having a criminal record will certainly harm the person’s entire existence, jeopardizing all his opportunities to gain access to certain positions, certain jobs, certain countries and so on.

Imagine you are enrolled in the army and are told to go and fight for your country, for noble values and so that young girls can go fly kites. You are given a weapon, sent into mine fields and left to live in misery, sadness, loss and anger. After all those tribulations and the incredible stresses to which you are exposed, you are given a criminal record for a breach, a breach of discipline, a breach of some barracks code of conduct, for example. That is not even a serious crime, an abuse of power or a violent act, but rather an act of disobedience or insubordination, or merely the result of one pint too many. And you are unable to defend yourself adequately at your summary trial. Imagine that later on, years later, you travel to the United States for a one-week vacation and are turned back. You are in the car with your daughter, and the customs officer says you cannot enter the country because you have a criminal record. One can see the heresy in that situation, when someone who has served his country clearly suffers an injustice.

In the spring of 2011, the NDP proposed many amendments in committee, one of which in particular comes to mind. We proposed that there be 27 minor penalties, that is to say penalties not resulting in a criminal record. There are currently only five. That is definitely a step forward that should be looked at more closely, since this is clearly a form of injustice. This seems obvious to a novice, since I do not claim to be a legal expert.

These exceptions must absolutely be brought back to the table in order to put a stop to the injustice of giving military members criminal records for inconsequential offences.

Now I would like to talk about respect for the standing committee and its work. It is surprising that the majority in this House did not want to adopt the amendments we introduced last spring. These are not partisan proposals. Instead they are an appeal to common sense and show respect for our military members. This is even a matter of respect for the standing committee’s work. The committee worked long and hard, as many of my colleagues can attest. We can also attest to the enormous amount of work that is done in the committees and that generally appears to remain a dead letter.

This committee heard evidence and thoughts, recorded appearances and heard many speeches. What about the result of its work? Is it merely good for the shredder? One would think so.

Ultimately, the committee thought it was good and wise, when Bill C-41 was introduced in spring 2011, to adopt the proposal made by the members of my party, who felt that special attention should be given to cases in which an offence does not deserve a criminal record. Why not respect the committee's work and restore that proposal, which was made in good faith and in a non-partisan manner?

I would also like to note the importance of the Military Police Complaints Commission and of enhancing its work capacity, which is absolutely necessary. Limited by the fact that it cannot examine cases that arose before 1999, the commission is designed to handle those in which doubts are raised about the military police's work. I have seen cases in which the commission appeared to be powerless in difficult situations where lives were at stake; I hope to have the time to discuss them. For the good of military personnel and the credibility of the military police, it is essential that the commission be able to operate efficiently in a manner respectful of the players who constitute it.

Lastly, we believe that, to be relevant, the grievance committee that examines the rights of military personnel respecting their benefits, their release, internal issues, harassment and medical matters must be independent and stand outside the Canadian Forces. We have previously suggested, for what I believe are obvious reasons, that 60% of the committee members should be individuals who have never served in the Canadian Forces. This is a reasonable proposal that, like everything we are discussing here, is a matter of natural justice and of aligning military justice with civilian justice.

The members of the Canadian Forces obviously have no association or union to which they can turn. That is why we want the committee to receive and hear the grievances of Canadian Forces members in the rigorous, impartial manner characteristic of an independent outside agency.

This is a matter of natural justice. No one can dispense justice on his or her own behalf. I am going to act like an intellectual and translate that sentence into Latin: Nemo iudex in causa sua. I have quite a Latin accent; I am trying to entertain my colleagues.

Everyone has a right to be heard, and that includes the opportunity to appeal a disputed decision or apply for a review of a decision that appears to be incorrect. As that first rule was very popular, I am going to add a second: Audi alteram partem. This is a reference to our basic system and to the Latin language. These are rules of natural justice commonly in effect in civilian law courts in Canada. They are also in effect in military courts in many countries such as Great Britain—which, it must be acknowledged, the government likes so much—New Zealand, Australia and Ireland.

Why do these rules and rights not apply in our own military courts? Are we saying, “Join the army, sign here, and lose all your rights”? That is a good question.

What I find most disturbing is the extent to which these people devote their lives to defending their country. It seems almost old-fashioned to say it, but they have to be effective, not drag their feet and solve a problem. They are doing it for us. Honestly, as a parliamentarian, I am embarrassed that it has taken so long to move forward on this issue; we are dragging our feet. I hope we can show some collegiality and resolve these matters as soon as possible so that our men and women in uniform feel they are being heard by civilian society.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:40 a.m.

Ajax—Pickering Ontario

Conservative

Chris Alexander ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, as every member well knows, two former chief justices of the Supreme Court, Justice Dickson and Justice Lamer, both agree that the Canadian Charter of Rights and Freedoms as well as natural justice are protected by the Canadian Forces' current summary trial system. According to some well-respected leaders in the field of justice, this system works fairly well.

There are currently 27 offences leading to a criminal record in the summary trial system that we are hoping to remove from the list after the committee has concluded its study.

By prolonging the debate, which has already lasted a year, and preventing the committee from proceeding with its study, the member is perpetuating a system that all of us want to change.

I have a question for the member about criminal records. Does he agree the time has come to send the bill to committee in order to speed things along?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:45 a.m.

NDP

Pierre Nantel NDP Longueuil—Pierre-Boucher, QC

Mr. Speaker, I thank my colleague for the question.

There is indeed a time to fix things, but let us not misdiagnose the problem. That is essentially what I would say.

Here is a concrete example. A certain individual in my riding, who shall remain nameless for obvious reasons, has come to see me on several occasions, complaining that he was ignored by the military justice system and that his life was torn apart. I do not blame my colleague.

It is clearly time to do some housecleaning. No need to parge the walls if the whole foundation is sinking. It is important to get a good read on things and properly assess the situation before getting to work.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:45 a.m.

NDP

Hoang Mai NDP Brossard—La Prairie, QC

Mr. Speaker, I would like to commend my hon. colleague on his excellent speech and, above all, on his use of Latin.

One thing I find rather strange is that, in this bill, the government does not take into account previous recommendations and things that were accepted in a previous session.

And now, the Parliamentary Secretary to the Minister of National Defence is telling us there are more amendments. First the government does not take into account the very important amendments my colleague mentioned, then it introduces a bill and improvises by proposing other amendments. There is an issue of trust with this government, especially when it comes to the way it does things and handles amendments.

Could my colleague explain why this government's actions are a cause for concern, since the government seems to be improvising without taking into account the excellent work done by the committee and other non-partisan committees that came up with real solutions?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:45 a.m.

NDP

Pierre Nantel NDP Longueuil—Pierre-Boucher, QC

Mr. Speaker, I thank my hon. colleague from Brossard—La Prairie for his question. God knows he is right to be unhappy that the government has so little regard for the committee's recommendations and witness testimonies.

In the committees I work on, there have been many occasions where we felt we were making a sincere and real effort to do good parliamentary work. We kept in mind we were serving Canadians. Taxpayers pay us and hope that Ottawa uses public funds as wisely as possible to manage situations.

Sadly, the government's editorial strategy and the way it uses its majority as a steamroller create the impression that any arguments we make are dismissed; everything is presented with a partisan flavour, so the government can feel it has solved the problem and is the possessor of the absolute truth, which is really unfortunate.

There is no Latin quote I wish to add.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:45 a.m.

NDP

Paulina Ayala NDP Honoré-Mercier, QC

Mr. Speaker, on October 7, 2011, the Minister of National Defence introduced Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. The NDP believes that this bill is a step in the right direction in order to make the military justice system and the civilian justice system more uniform. Still, it does not address the key issues needed to reform the summary trial system and the grievance system. Today I will speak to the grievance system.

Significant amendments were made at the committee stage at the end of the last session of Parliament, but have not been included in Bill C-15. These include the NDP’s amendments concerning the authority of the Chief of Defence Staff in the grievance process, changes in the composition of the grievance board, and the provision that a person found guilty of an offence through a summary trial would not be unjustly burdened with a criminal record.

I want to say something about the last point. This bill proposes many important reforms. The NDP has long advocated the updating of the military justice system. Members of the Canadian Forces are subject to very high standards of discipline and, as Canadian citizens, they deserve a justice system that is subject to the same standards as those that apply to other Canadian citizens.

With regard to reforming the summary trial system, the amendments in Bill C-15 do not properly address the unfairness of summary trials. At present, a conviction at a summary trial in the Canadian Forces results in a criminal record. The accused is not able to consult counsel. There is no appeal and no trial transcript. In addition, the judge is the accused's commanding officer. That is unduly harsh for some members of the Canadian Forces who are convicted for minor offences.

Among those minor offences are insubordination, quarrels and disturbances, misconduct, absence without leave, drunkenness and disobeying a lawful command. They are very important for military discipline, but not worth a criminal record.

Bill C-15 provides an exemption so that some offences—with minor punishments or fines under $500—would not be put on a criminal record. This is one of the bill’s positive aspects. But we do not think it goes far enough.

In committee, in March 2012, the NDP proposed amendments to Bill C-41 that would have expanded the list of offences that could be considered minor and thus would not attract a criminal record if the offence in question received a minor punishment. The amendment also would have expanded the list of penalties that could be set by a tribunal without being noted in the criminal record.

That was progress in terms of summary trials, but since that amendment was not included in Bill C-15, we want it to be included now.

I want to mention Colonel Drapeau, a retired Canadian Forces colonel and an expert in military law. He testified before the Standing Committee on National Defence in February 2011. This is what he said about summary trials:

...I'll get right to the point. The answer is yes...Decriminalize the summary trial system. End of discussion. Remove today the custodial power of the commanding officer to send somebody to detention. If that needs to be done, then that person ought to be tried by court martial where all the rights are provided. So you remove that in the same way as Ireland has done it, as Australia has done it; you decriminalize it. There's no record.

The individual would not have that stigma attached to him just because he didn't shave that morning or he showed up late. Whether he gets a fine or a suspension of leave or he has to stay on the ship when alongside, I can live with that, and that would apply in Canada and abroad. And if there really is a requirement to prosecute someone because of the severity of the offence, then a court martial, and a court martial can be held any place in the world.

That results in a criminal record.

A criminal record can make life after a military career very difficult. Having a criminal record can make it difficult to find a job, lease an apartment, travel or obtain insurance.

I researched the effects of a criminal record on persons who do not go to court and found that it can affect a number of aspects of the person's daily life: employment, entering another country and insurance.

That is right. We can be refused insurance coverage if a member of our family, perhaps a child who was a soldier, has a criminal record because he did not shave his beard one morning.

People with criminal records have difficulty finding work, especially in security. Who better than a former soldier to work for a security company? But he would not get the job.

In general, two out of three employers require a criminal record check.

Under the Criminal Code, civilians can have a criminal record for such offences as assault, extortion, harassment, kidnapping, identity theft, murder, homicide, abuse and theft. That is not the case for our soldiers.

We are severely punishing certain Canadians. Our soldiers, members of our armed forces, receive harsher penalties.

The list of crimes against justice is a long one and includes corruption, failure to report a crime, obstruction and perjury. These are all good reasons to be in such a situation, but a young soldier arriving late for his shift is not a good reason.

Another witness at committee, the British Columbia Civil Liberties Association, said that military officers who impose penalties during a summary trial are often trying to set a disciplinary example within the unit in order to discourage future infractions, rather than burden the accused with the consequences that come with having a criminal record in civilian life.

The goal is to achieve discipline within our armed forces. I do not believe that the officer imposing the sentence necessarily wants to punish a young man who makes a mistake for his entire life. Soldiers simply want discipline within the military, and that is a good thing.

We therefore have a problem of basic fairness dominating a system that imposes harsh sentences on people who need increased procedural protection.

Colonel Drapeau went on to say:

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

The summary trial is by far the most commonly used form of service tribunal in the military justice system. The summary trial is designed to deal with minor service offences.

The NDP believes that Canadian Forces personnel must comply with extremely high standards of discipline and that, in return, they deserve a justice system that also meets standards similar to those applied to other Canadians.

Having a criminal record can make post-military life very difficult. It complicates everything from finding a job, to renting an apartment and so on.

We really want to see this bill improved and to ensure that the committee members' amendments will be included in the bill. That is why we plan to oppose it in the upcoming vote.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:55 a.m.

London North Centre Ontario

Conservative

Susan Truppe ConservativeParliamentary Secretary for Status of Women

Mr. Speaker, is my colleague aware of the changes that Bill C-15 would bring about with respect to time limits of the laying of charges that are dealt with at the summary trial? The National Defence Act currently provides that an accused person cannot be tried by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

Bill C-15 would also require that “the charge is laid within six months after the day on which the service offence is alleged to have been committed”, ensuring timeliness for the summary trial process.

Does the member not agree that ensuring a speedy trial for relatively minor offences ensures that less serious matters are dealt with quickly and fairly?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

11:55 a.m.

NDP

Paulina Ayala NDP Honoré-Mercier, QC

Mr. Speaker, I thank my colleague for her question.

That is not the issue. My criticism is not about short versus long trials. The trial must be clear, so the person involved can receive a sentence appropriate to the offence or wrongdoing. That is why we say a summary trial can be problematic. A quicker trial is not necessarily more effective. We want to be more effective, yes, but above all we want to achieve justice.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

Noon

NDP

Sadia Groguhé NDP Saint-Lambert, QC

Mr. Speaker, I would like to congratulate my hon. colleague on her remarks. She mentioned that the United Kingdom, Australia, New Zealand and other countries have decided to change their summary trial process.

That begs the question. We are debating Bill C-15. Why did the government wait so long before coming back to these issues?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

Noon

NDP

Paulina Ayala NDP Honoré-Mercier, QC

Mr. Speaker, we wonder the same thing, and I also wonder about something else. Why did no one listen to the very important recommendations made by criminal law experts working in the military? They know the members of the armed forces. Of course, these young people need discipline, since we are preparing them to defend our country. But that does not mean they should be punished for any reason whatsoever, using any method whatsoever.

In that context, why are we lagging behind, when other countries have been able to move forward and eliminate some internal problems at the legislative level? I believe we should be able to say, when we see these other countries, that although we are behind now, we too have what it takes to go forward and bring justice to our young soldiers.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

Noon

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Mr. Speaker, the Conservatives really have trouble with happy mediums and balanced approaches. One place where this is obvious is in the area of foreign policy, but we also see it in legislation. Just this week, we have again been presented with a mammoth bill that covers pretty much everything but the kitchen sink. And yet on a subject as important as military justice and the rights of the men and women who defend our country, the Conservatives have brought forth a mouse. I think there is room, somewhere between the mammoth and the mouse, for legislation that is a little more worthwhile.

In 2003, as we know, Justice Lamer submitted his report on the independent review of the National Defence Act. He made 88 recommendations relating to military justice, the Complaints Commission, the grievance procedure and the Canadian Forces provost marshal. We are talking about 88 recommendations. And here we are with a bill that covers only 28 of those recommendations. Once again, this is the approach the Conservatives always take: to pick and choose only the things and the testimony that suit them.

A lot of things are missing in this bill and I will not address them all, since that would take too long. However, I am going to focus on one aspect in particular where the bill does not go far enough: summary trials and the mark they leave on the lives of soldiers, in the form of a criminal record, even after they return to civilian life.

We know that a summary trial can be debatable. It is a judgment dealing with matters that can be as trivial as a quarrel or absence without leave. It may relate to misconduct, insubordination, and so on. But the point is this: someone can be convicted of a relatively minor offence and end up with a criminal record for the rest of their life. This is particularly troubling when the accused in a summary trial cannot be represented by counsel and cannot appeal. There is no transcript and the judge is too often, and very often, the accused’s commanding officer. In other words, the people who defend our rights and freedoms are not entitled to the protections under the Charter of Rights and Freedoms at summary trials. If this were merely a question of internal military discipline, we could always debate it, but the problem is that summary trials leave indelible marks on people’s lives in the form of criminal records.

We recognize that the bill makes a vague attempt to remedy the situation. However, it really does not go far enough. It proposes that five offences be considered minor and not result in a criminal record. That is all well and good for the offences in question—and I will not continue to harp on it—but much more could be done. In fact, Bill C-41, Bill C-15's predecessor in the last Parliament, was debated in committee and amended to expand the list of offences and the types of sentences that would not result in a criminal record. I do not know why the Conservatives did not keep this amendment.

What we want is to expand the list of offences from 5 to 27, and the committee already agreed to this. It is so important. As retired Colonel Michel Drapeau, an expert on military justice, said:

There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year.

Why? Because unless and until we, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted.

We must stand up for and respect our soldiers. As Colonel Drapeau went on to say, “From where I stand, I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial.”

Why should the consequences of relatively minor offences related to military discipline extend into the civilian lives of our men and women in uniform? Once again, we are not the ones saying this. I would like to quote the British Columbia Civil Liberties Association.

“Presiding officers in summary trials...are military officers...and their primary concern is likely to be unit discipline and deterring future violations, not the effect the sentence they impose will have on an accused in the civilian world.”

In short, we have a system that is not working and that needs to be reformed. This bill clearly does not go far enough to do that. Furthermore, in terms of reforming the system, our greatest allies—Great Britain, Australia and New Zealand—have changed their systems.

Our soldiers often participate in joint missions with the soldiers from those countries and are able to see first-hand the injustice that is being done to them, an injustice that this Parliament must agree to remedy today.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

12:05 p.m.

Ajax—Pickering Ontario

Conservative

Chris Alexander ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, I have two questions for my honourable friend. First, does she agree that Justice Dickson and Justice Lamer, former chief justices of the Supreme Court of Canada, have said the Canadian Forces' current summary trial system manages to protect charter rights as well as the principles of natural justice?

Second, given we all agree on the need to modernize the system, does she agree that the best way to reduce the number of convictions leading to a criminal record is to send the bill to committee and pass it? We have even offered to remove 27 offences that can lead to a criminal record upon summary conviction, which is quite a lot.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

12:10 p.m.

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Mr. Speaker, I sincerely thank my honourable colleague for the question.

Fundamentally, as several observers have pointed out, the issue here is that the military's internal disciplinary system has repercussions on civilian life. The rules that apply in that system are not the same as the rules that apply in regular civilian life.

The B.C. Civil Liberties Association has also stated that fundamental fairness requires that systems that impose serious penalties on individuals provide better procedural protection. Having a criminal record for the rest of one's life is a serious penalty in itself. Yet, the system that allows such criminal records to exist is lacking procedural protections.

The government is always talking about efficiency, saying we should cut debate short and move things along. This bill has been studied in committee and some perfectly adequate recommendations were made, but the government ignored them.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

12:10 p.m.

NDP

Matthew Dubé NDP Chambly—Borduas, QC

Mr. Speaker, I thank the member for her speech. I want to touch on what the member just said about committees. When we look at the former version of the bill, Bill C-41, we can see that a number of amendments were not only proposed, but were also passed by the committee representing members from all parties.

Although there was no legal obligation to retain these amendments once the bill died on the order paper as a result of the election, the government retained some amendments and got rid of others. I wonder why. Did the government change its mind all of a sudden? Did it decide to make fewer changes to the system because it now has a majority? Was it just appeasing the opposition at the time? We have a hard time understanding why the government would do this, especially since almost all of these amendments were in the report.

I would like my colleague to speak more to this lack of respect for the importance of committees.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

12:10 p.m.

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Mr. Speaker, I thank my colleague for his important question.

This is not the first time that the government has introduced a bill that ignores lengthy discussions in committee—a committee that heard from witnesses and whose members agreed to amend a bill. But the government does not respect that. We have to wonder whether the government respects the institution of Parliament, since committees are an essential part of that.

When we see something like this, combined with the fact that the government tries to muzzle us and accuses of requesting silly emergency debates, it raises some big questions.