House of Commons Hansard #143 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was agreements.


Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:15 p.m.


Christine Moore NDP Abitibi—Témiscamingue, QC

Madam Speaker, I am pleased to speak to Bill C-15, An Act to amend the National Defence Act. This bill would amend the structure of the Canadian Forces military justice system.

I would like to explain that members of the military are subject to two justice systems: the civilian system and the military system. Although most of the time they are subject to the military system, on some occasions and for some offences, they are subject to the civilian system. However, I will not address these issues in my speech on this bill.

Because of the nature of the soldier's job and the role members of our military play, the Canadian Forces, of course, sometimes need rules that are specific to that job. However, even though the military justice system has specific rules, we must not forget that it is part of the Canadian justice system as a whole. The two systems must therefore be compatible, and we must ensure that our soldiers are obviously treated fairly and equitably.

We must therefore ensure that even though the military justice system differs from the civilian system, it is consistent with our overall system of justice, which reflects what Canadians want. This means that the rule of law must always be respected. The military justice system exists not only for members of the military who have committed offences that have to be dealt with, but also as a command element to ensure that the rule of law is respected in all circumstances.

In addition, the Canadian Forces rely a great deal on discipline, which is certainly one of the pillars of a soldier’s job. The military justice system therefore reflects the need for discipline, and that is why we need it. Military justice is not perfect, however, and it needs to be updated when problems are identified. We must also not forget that members of the military are citizens, and that while their role in the military calls for a distinct justice system, that system should be as close as possible to the civilian justice system.

Obviously, military justice must reflect the protections guaranteed by the Charter of Rights and Freedoms as closely as possible. Although we recognize the need to have distinct provisions within the military system, that need must not outweigh the fundamental principles of justice.

Proceedings in the military justice system have to be efficient, so that discipline problems or issues can be resolved speedily when the situation calls for it, so the member can return to work as quickly as possible, for example. Speed does not, however, mean overstepping the fundamental principles of justice and the law.

I think we owe it to the members of our military, who put themselves in harm’s way for our country, for Canada, and for their fellow Canadians, to provide them with a justice system that is fair and just. We cannot expect the discipline and dedication that we need from our military without a military justice system that is completely fair to them.

Bill C-15 is in fact a step in the right direction for reforming the military justice system and making it a system that, for one thing, is more in line with the civilian system. This bill has its limitations, however, and it does not solve certain important problems, such as reforming summary conviction trial proceedings, reforming the grievance system and strengthening the Military Police Complaints Commission.

During the last Parliament, reasonable and fair amendments to the equivalent bill, Bill C-41, were negotiated in committee, including by my colleague, the hon. member for St. John's East. Unfortunately, those amendments have disappeared from this new version of the bill. They were approved by the committee, by parliamentarians. What is more, some had been proposed by the judge advocate general as compromises to correct the system in an acceptable manner. Now, because of the government, we have to redo the work that was done during the previous Parliament.

One purpose of those amendments was to remove certain offences from the list of those that result in a criminal record. That is mainly what I will be talking about.

Military justice includes a number of proceedings. Everyone has seen clips of trials by court martial on television. Those shows are fictional, but they give a good idea of what a trial by court martial is like. However, there are other types of trials, namely summary trials where the military's chain of command is authorized to judge soldiers under its responsibility directly. These trials are held without lawyers, without a jury, without a system of evidence, and without solid witnesses as in a formal court.

This proceeding is useful in a number of cases. It is used for minor offences regarding discipline in the army and does not require any intervention by a court.

Nonetheless, with a summary trial, soldiers can end up with a criminal record that they will continue to have once they return to civilian life.

I will elaborate on these minor offences, which include absence without leave and drunkenness.

Here is a simple example. One of your colleagues on the base is celebrating his birthday, and, like all his colleagues, you offer him a drink to celebrate. You are young. This also happens in civilian life. It is not unusual to be offered a birthday drink. Unfortunately, the next day, your colleague, who might have accepted a few too many drinks, is absent because he is sick. Or maybe he was caught drunk by one of his superiors when he returned to the dormitory.

On a military base, this is a breach of discipline. It is natural to expect exemplary discipline from our men and women in uniform, in light of the job they do.

I was a member of the Canadian Forces. I understand very well that discipline is part and parcel of our everyday lives. We adapt and it is fine. However, from time to time, for example, on a birthday when we party too much, there can be breaches.

In civilian life, this person would likely call his boss in the morning to say that he could not go to work. He would take a taxi home that night and go to sleep in his own bed.

Such conduct on a military base is dealt with by summary trial. I am not suggesting that a guy who calls in sick because he partied too hard the night before is behaving responsibly. People can be reprimanded, suspended or even fired if this kind of thing happens too often in the civilian world. That makes sense because the behaviour is not acceptable. Still, I am sure we can all agree that a guy who misses work because he drank too much on his birthday probably does not deserve to have a criminal record. But that is what happens to soldiers.

This soldier, who might have been 19 or 20, did not really understand what was going on. He did not understand the military justice system. He got his summary trial. Fifteen years later, as a civilian retired from the armed forces, he had a criminal record. His case was treated the same way as other much more serious offences that do deserve that kind of treatment.

A soldier should not end up with a criminal record for an offence that is nothing more than lack of discipline and certainly not a criminal matter.

He will end up with a criminal record without ever getting a real trial as set out in the Charter of Rights and Freedoms. His basic rights will not be respected. This kind of trial happens very quickly.

Bill C-15 does not take into account this kind of problem that, in practice, can have consequences.

I think that such cases are not rare. I do not have the latest numbers, but I reviewed the numbers in the annual reports of the judge advocate general to the Department of National Defence on the administration of military justice in the armed forces and the statistical reports on summary trials.

In 2009-10, 20,054 trials took place. Nearly 95% of them—the vast majority—were summary trials. During that same period, 98% of summary trials resulted in a guilty verdict. Charges of absence without leave accounted for 28% of the summary trials and drunkenness for 7%.

These are things that, in civilian life, do not deserve a criminal record. Although it warrants a slap on the wrist, it does not warrant a criminal record.

In the previous version of this bill, which was the subject of a compromise reached in committee during the last Parliament, the section on exemptions for a criminal record listed 27 sections of the National Defence Act. The current version contains only five exemptions.

In short, for Bill C-41:

(1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to

(i) a severe reprimand,

(ii) a reprimand,

(iii) a fine not exceeding basic pay for one month, or

(iv) a minor punishment;

In Bill C-15, however, we see that many of these sections are suddenly missing. It reads:

(a) an offence described in section 85, 86, 90, 97 or 129 for which the offender is sentenced to a minor punishment or a fine of $500 or less, or both;

It quickly becomes clear that a lot of things have unfortunately disappeared from the bill that should have remained.

Members will recall that there was consensus on Bill C-41 and that both the opposition parties and the government had reached an agreement.

I want to remind members that the offences and excluded penalties for inclusion in a criminal record would be far more broad under C-41, and the fine included did not exceed one month of basic pay and minor penalties.

Currently, the exemptions include only fines of less than $500 and minor sentences. In most cases, it exceeds a minor penalty or a $500 fine. The restrictions are too limited and will mean that that too many military members will end up with a criminal record.

For example, in one of the cases mentioned in the 2010 JAG report, one case of absence without leave was penalized by five days behind bars and a $1,500 fine. In others the sentence was 30 days in prison. These cases would not qualify as exemptions to inclusion in a criminal record, and yet they constitute cases of absence without leave.

Other cases concerning drunkenness—still from the same report–were punished with a severe reprimand and a $5,000 fine. Once again, this does not fall into the category of permitted exemptions. These exemptions are no longer as broad. The previous version, negotiated in committee by my colleague from St. John's East, must be consulted.

I should clarify that I am not questioning the appropriateness of the commanders' penalties. I have had the experience of discipline in the Army. I understand that discipline is important. However, there is a big difference between a disciplinary case on a military base and having a criminal record, which normally signifies a criminal offence. In this particular case, ending up with a criminal record for something that is more akin to foolish behaviour, is not a path that I want us to go down.

According to a Department of National Defence publication, the guide for the accused and officers designated to help them, “Summary trials are designed to provide prompt and fair justice in dealing with service offences that are relatively minor in nature but which have an important impact on the maintenance of military discipline and efficiency...”

This is not referring to criminal offences or major offences. It refers to minor offences that have an impact on military discipline.

Military discipline is something quite unlike what is found in civilian life. It is a mistake to put breaches of military discipline and civilian criminal offences on the same footing.

If a civilian did something equivalent to the vast majority of cases of breaches of military discipline, he would not be subject to any legal ramifications. It is not fair to impose consequences on the military that will have repercussions in their civilian lives, when most of the facts involve solely military issues.

Furthermore, the summary trial can cause notes to be made in a criminal record, even though the process has no judge who is adequately or professionally trained, nor a sound process for evidence and witnesses, nor defence counsel. It is not right that a summary trial for a minor offence should lead to a criminal record.

It should also be mentioned that a procedure that guarantees none of a person's fundamental rights, as is clearly the case with summary trials, should not have consequences that are as serious as a criminal record for the person who committed the offence. The procedure followed in a summary trial is simplified for the obvious reason that, in a conflict situation, military justice must be swift and efficient. Discipline must be administered smoothly so that things get back to normal very quickly.

In the case of minor offences, a breach of rules or a breach of discipline, a soldier’s chain of command— his superior—has the authority to judge. This is a swift and efficient procedure. However, the superior knows the accused and is therefore not entirely neutral. He may feel favourably toward him, or he may have an unfavourable bias against him. Even though he has some training, it does not change the fact that the superior knows the accused. There is no system for verifying the evidence and hearing witnesses. In the case of minor offences, the commander also knows the witnesses very well, and is therefore able to give more or less credibility to the witnesses according to his judgment and the esteem that he has for the people involved. There is no counsel to ensure that the rights of the accused are respected.

However, these courts, these summary trials may lead to fines as high as several thousand dollars, and especially to up to 30 days imprisonment or even a demotion. I think that one month’s imprisonment, without an impartial court or an adequately trained judge, is important enough that we should pay some attention to what the bill will do.

These procedures, which are found in a civil trial, are there for another purpose: to ensure that an individual's fundamental rights are respected. I can already hear members opposite claim that the NDP wants to protect criminals. I was a member of the military and I know that there is nothing criminal with most breaches of military discipline or rules. As a soldier, one has to abide by military discipline. However, as a civilian, one should not be exposed to consequences such as those that currently exist.

I also want to point out that an individual should be presumed innocent until proven guilty. We have to respect the impartiality and the independence of the judiciary. We should not be guided by impressions and biases and we should not rush to judgment. We must let the facts speak. An impartial and independent justice system is essential to people's confidence.

In the military, knowing that one cannot be judged impartially is not conducive to putting our trust in the military system. We accept that system and we trust that our superiors will be fair and just. Most of the time, they are to the extent that it is possible. However, we must set strict and strong limits to these summary trials and to the impact they will have later on in civilian life. Bill C-15 obviously does not do that, or does not do it any longer, because the sections added by Bill C-41 are not included in it.

I would like to conclude by reminding hon. members that having a criminal record makes things very difficult in civilian life. Once they go back to civilian life, soldiers will have to appear before the Parole Board of Canada, request a pardon, wait for five years after the summary trial and incur costs to erase their criminal record.

I think that is unacceptable, and I sincerely believe that the current bill should include amendments and other measures to avoid the situation described in my speech.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:35 p.m.


Andrew Cash NDP Davenport, ON

Madam Speaker, I would like to thank my hon. colleague for her speech tonight. She can speak with a measure of authority that many of us cannot because she has been in the Canadian Forces. She is also a young person who can understand the issues that relate to minor variances from discipline in the forces.

We ask a lot of our soldiers, our young men and women in uniform. Many of them come from regular working families right across Canada, from big cities, small towns or rural municipalities. They are in this situation and we expect a lot from them.

As we have heard many times in this House, veterans of our military are faced with very tough times. I wonder if my colleague could comment further on the detrimental effects of the use of summary trials when young people end up with these criminal records, and how they have to deal with that later on in life and the difficulties they could have.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:35 p.m.


Christine Moore NDP Abitibi—Témiscamingue, QC

Madam Speaker, I am going to provide an answer to the hon. member for Davenport by giving the example of a recruits' course.

We often have recruits who may be 16 or 17. They have just begun their adult life. A recruits' course is intensive. It is very demanding. It tests soldiers, who are often very tired and even exhausted. They can make unintentional mistakes that will lead to a summary trial. For example, it can be the accidental discharge of a firearm. Nobody does it intentionally, but it can happen. The individual will have a summary trial and may even end up with a criminal record.

I once knew a colleague who was really tired. He was not paying attention and, unfortunately, he raised the flag upside down. He really did not do that on purpose, but he ended up with a summary trial. What he did was a mistake and it is something unacceptable in the military. That was simply caused by fatigue. That offence may also lead to a criminal record.

A 16- or 17-year-old does not understand the justice system. They do not think about what will happen when they leave the armed forces in 20 years. They leave 15, 20 or 30 years later and finally realize that they have a criminal record because they did not really understand what was happening.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:40 p.m.


Tyrone Benskin NDP Jeanne-Le Ber, QC

Madam Speaker, the military is often like a world of its own. With summary trials, military officers are thinking of one thing, discipline, and how to make sure the incident does not happen in the ranks again. That is fine for the military. However, those young recruits leave after putting in their tour, and some of them leave with a criminal record. I would think that would have a very strong psychological effect on young people who have given of their time to their country.

Would the member care to comment on the downside and the ill effects, and the recurring effect, that would have on these young people leaving the military with a criminal record?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:40 p.m.


Christine Moore NDP Abitibi—Témiscamingue, QC

Madam Speaker, after serving in the armed forces for a certain period of time, a member may decide to leave and return to civilian life, so they apply for a job. Most people know that you have to declare whether or not you have a criminal record. Most employers ask for that information. So, the soldier has to say yes.

Naturally, the prospective employer will ask what happened. That is, if they look at the application, because simply checking yes may mean that the CV will not even be kept. The employer will have the person explain why they have a criminal record. It can be embarrassing to tell a future employer about a silly mistake that was made. Furthermore, the employer may have a slightly unrealistic view of the veteran, the former soldier trying to return to civilian life.

It can be very detrimental. Everyone knows that, for any job, even to work at McDonald's, you are now asked if you have a criminal record.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:40 p.m.


Laurie Hawn Conservative Edmonton Centre, AB

Madam Speaker, I too spent some time in the military, on both sides of the justice system, and I did not leave with a criminal record. I disciplined a number of people under my command in my time in the service, for things the member suggests would carry a criminal record. None of them are carrying criminal records. The member is overstating that case tremendously.

Another colleague on the other side mentioned that it is all about discipline. It is not. It is about efficiency. Discipline is part of efficiency, with the emphasis on efficiency not discipline.

If I heard my colleague correctly, and I may have heard her wrong, she thinks the summary trial system somehow takes away the constitutional rights of the accused person. In fact, we have Supreme Court decisions that point out it does not. Charter rights and freedoms are preserved under that system. A member gets to choose whether he or she undergoes summary trial or court martial.

I may have heard my colleague wrong. I am not sure.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:40 p.m.


Christine Moore NDP Abitibi—Témiscamingue, QC

Madam Speaker, I would like to make it clear that I do not believe that a summary trial violates the fundamental rights of a soldier. However, I believe there is a problem because being tried for a minor offence as a civilian would not result in a criminal record. However, this summary trial for a minor offence does result in a criminal record for the soldier, who may not be very aware of the potential consequences. We must try to improve Bill C-15 to prevent such situations from occurring.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:40 p.m.


Lysane Blanchette-Lamothe NDP Pierrefonds—Dollard, QC

Madam Speaker, I would like to thank the hon. member for her rather informative speech. I am not as aware as she is of the reality of the people serving in the Canadian Forces. She brought up some very interesting points.

Can the hon. member tell us, if she knows, how receptive members have been, to date, to the potential amendments to this bill? Could she provide us with an example of another relevant case that would help us to better understand the scope of the amendments, such as the ones she proposed?

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:45 p.m.


Christine Moore NDP Abitibi—Témiscamingue, QC

Madam Speaker, to date, I have not had the opportunity to discuss with my colleagues on the government side what amendments they would be prepared to accept. However, I would like to believe that, since a consensus was reached on the amendments that were submitted during the previous examination of Bill C-41 and everyone seemed to agree on them, the government members will be prepared to go back to the same point where we were before with this bill. We are therefore prepared to deal with the same situation as with Bill C-41.

With regard to examples, there is just one thing that I would like to clarify for people who do not know what a summary trial is. The way it works is very impressive. When a person is young, they are lined up with four people who accompany them to the commander's office for the summary trial. The soldiers have to march at a rate of 120 steps a minute. The accused has to remove his beret but those accompanying him do not.

Even the way we enter the commander's office is rather impressive. This can be pretty interesting for a young soldier. When we were lucky or unlucky enough to accompany some colleagues before it was our turn, at least we knew what to expect. However, when we did not know what it was like, it was very impressive and we were already a bit unsettled when we entered the commander's office.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

8:45 p.m.


Matthew Kellway NDP Beaches—East York, ON

Madam Speaker, I am happy to rise today to speak about Bill C-15, the strengthening military justice in the defence of Canada act. As per its title, Bill C-15 is intended to amend the National Defence Act on matters related to military justice.

There is a substantial context to the bill. It has a fairly long history and iterations of the bill have come before this House, many iterations in fact.

The bill is a legislative response to the 2003 report of the former Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer, and subsequent to that, the May 2009 report of the Senate Standing Committee on Legal and Constitutional Affairs.

Chief Justice Lamer's report was a very comprehensive and independent review of the National Defence Act, which arrived at 88 recommendations pertaining to the military justice system, suggesting there are a lot of issues that need to be corrected.

However, to date only 28 of these recommendations have been implemented in the form of legislation, regulations or even change in practice. Clearly, much work remains to be done.

Other efforts to respond to the chief justice's report preceded the bill before us tonight. Bills C-7 and C-45 died on the order paper, in 2007 and 2008 respectively.

Bill C-60 made a dent in Chief Justice Lamer's recommendations, in 2008. Bill C-41 was introduced in 2010. It went through committee stage with agreement for some positive amendments, but it too eventually died on the order paper.

This bill, Bill C-15, seeks to accomplish a great deal in response to Justice Lamer's report and the Senate committee report.

Among other things, the bill would provide for 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, modify the limitation period applicable to summary trials and allow an accused person to waive the limitation period. It clarifies the responsibilities of the Canadian Forces provost marshal, and, finally, it make amendments to the delegation of the Chief of the Defence Staff's powers as the final authority in the grievance process.

The bill is a step in the right direction, in that it would move the military justice system more in line with the civilian justice system. This much is true. However, it falls too short on some of the key objectives, those being reforming the summary trial system, reforming the grievance system, and strengthening the military complaints commission.

Curiously, the bill even falls short of Bill C-41 as amended by the committee. In our view, it is not worthy of the support of this House as currently drafted.

This view is informed most fundamentally by the principle that the men and women of our Canadian Forces are entitled to the same rights that we send them to fight for around the world. What a terrible and bitter irony it would be if we, as Canadians, were to stand aside and allow the men and women of our Canadian Forces to become effectively second-class citizens in our midst, particularly when we have intervened around the world in deadly conflicts to uphold basic human rights and systems of rule or law that ensure such rights are protected.

These rights to which we are so committed, for which we are prepared to put at risk the lives of young Canadians, in fact do not permit the kind of treatment to which we subject the men and women of our Canadian Forces under our current military justice system.

This requires a bit of an explanation about military systems of justice, in that military justice is a bit different from the justice system that prevails in the rest of civil society because of the primacy attached to the issue of discipline and efficiency in the military.

Retired Colonel Michel Drapeau is an expert in military justice and law and is the author of the only really significant military legal text in Canada. He had this to say about the implications to military justice of the centrality of discipline to the functioning of the military:

Few professions are as dependent on discipline as is the military. Discipline is fundamental to military efficiency, cohesion and esprit-de-corps, permitting commanders to control the use of violence so that the right amount and type of force can be applied in exactly the right circumstances, the right time and in the right place. At the personal level, discipline ensures also that in times of great danger and risk, the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise. Likewise, group and individual discipline ensures adherence to laws, standards, customs and values of civilian society, even during combat operations.

Another statement reads, “Therefore, discipline is integral not only to the maintaining of an efficient armed forces but also to ensuring that the rule of law predominates within the military, particularly when engaged in great peril and danger in combat.”

In 1980 and 1992, the Supreme Court of Canada examined the constitutionality of certain aspects of the military justice system. On both occasions it affirmed that a separate system of justice was needed to meet the unique requirements of military discipline. This is especially so because certain actions, like being absent without leave, which are offences in the military, are not obviously civil offences.

However, there is a tension here in the military justice system that must be resolved through legislation. There must be, on the one hand, speedy response to breaches of discipline. On the other hand, there must be adherence to law and as far as possible, that means adherence to the Charter of Rights and Freedoms and principles of natural justice. That is, principles that suggest that any system of justice should be heard and decided by a neutral impartial body and that, in the most general terms, the hearing be fair. That is, provide notice, the opportunity to examine evidence, to speak, to answer and so on. At this point this tension remains unresolved.

The B.C. Civil Liberties Association commented on the interests influencing the system. It said that military officers who give out sentences in summary trials are concerned with showing unit discipline and deterring future violations, not the effect they impose on an accused in the civilian world with a criminal record, for example.

We believe this tension is resolvable. We do not believe that the need for an efficient military justice system is inconsistent with, and therefore needs to take the place of, fundamental principles of justice for the members of our Canadian Forces. We believe that the bill is potentially salvageable with the necessary amendments at committee.

At the core of the issue before us is the matter of summary trials. In the context of the Canadian armed forces, summary trials are disciplinary actions which are generally less serious than courts martial. They are designed to deal with minor service offences with limited possible punishments. Offences can range from insubordination and drunkenness to being absent without leave. Actions like this, while destructive to the flow of military life, are less serious in the civilian world.

Retired Colonel Michel Drapeau testified before the national defence committee that summary trials continue to be the dominant disciplinary method used to try offences by the Canadian military. In 2008-09, there were a total of 1,865 cases determined by summary trial, and only 67 heard by court martial.

A 2008 CBC study found that military charges against Canadian Forces members had risen dramatically in the years since Afghanistan. Post-Afghanistan, disciplinary charges had increased by as much as 62% in certain areas.

Just 10 years previous, there were only 1,300 summary charges laid, compared to 2,100 in the midst of the Afghan conflict in 2006-07.

Most Canadians are likely unaware that the summary trial procedure exposes soldiers to penalties, including imprisonment and even more seriously the potential that following convictions they will have a criminal record that will continue through to their civilian lives.

While subsequent Judge Advocate General annual reports have indicated that the frequency of convictions has declined since the high point of the Afghanistan conflict, what is being left behind and what continues are convictions under this very inadequate form of justice. Canadian Forces personnel were still punished, and depending on the sentences, will have criminal records for the rest of their lives.

It is not news that having a criminal record can make life after the military very challenging. Ordinary things like getting a job, travelling, or renting an apartment become very difficult. Most Canadians would be shocked to learn that our soldiers, who bravely served our country, can get a criminal record from a system of justice that lacks the due process usually required in civilian criminal courts.

The objective of summary trials is to promote and maintain unit discipline. Therefore, the focus is on dealing with alleged offences expeditiously and returning the member to service as soon as possible. Fairness and justice, which are guaranteed in civil criminal trial, take a back seat to discipline and deterrence. In summary trials the accused do not have access to counsel. There are no appeals or transcripts of the trial and the judge is the accused person's commanding officer.

Through proposed and accepted amendments to Bill C-41, an iteration of this bill in the previous Parliament, we had gone much further down the road of reconciling this tension in the military justice system of expediency and the inclusion of fundamental legal principles. For example, a key New Democrat amendment to Bill C-41 was the provision ensuring military personnel convicted of offences during a summary trial would not be subject to a criminal record. We believed then, and we still believe, that those who bravely serve our country should not be deprived of the rights and protections that other Canadians enjoy.

It should be noted that Bill C-15 makes an exemption for a limited number of offences, if they carry a minor punishment which is defined under the act or a fine less than $500, to no longer result in a criminal record. This is a positive aspect of Bill C-15, but it does not in our view go far enough.

A New Democrat amendment to Bill C-41 also expanded the list of offences that could be considered less serious and would therefore merit less severe punishments and no carry-over of records to an individual's civilian life. That too had been accepted through committee with Bill C-41. This is one of the amendments that we would like to see included in Bill C-15.

Another area in which Bill C-15 falls short is with respect to grievance committees. In his 2003 report, Chief Justice Lamer described for us the grievance process in the military. Having spent about 20 years involved with grievance proceedings in the workplace context, I was surprised to learn about a grievance process in the military. However, Chief Justice Lamer stated in his report:

Grievances involve matters such as benefits, personnel evaluation reports, postings, release from the Canadian Forces, [et cetera] all matters affecting the rights, privileges and other interests of CF members.... Unlike in other organizations, grievors do not have unions or employee associations through which to pursue their grievances.... It is essential to the morale of the CF members that their grievances be addressed in a fair, transparent, and prompt manner.

That is not happening presently in the Canadian Forces.

The grievance committee, under this system, is a group which is intended to be an independent civilian oversight body to be composed entirely of non-Forces members. In fact, it is composed entirely of retired Canadian Forces officers, and some just recently retired. Like the summary trials system, there is obviously an apprehension of bias in this system. As it is the purpose of this body to have an outsider perspective on matters such as benefits and personnel evaluations, it should be obvious that former Canadian Forces soldiers are not capable of bringing, or are not seen to bring, an objective and independent viewpoint to their task. This seems like a very obvious breach of the rule against bias.

The New Democrats have proposed that at least 60% of the grievance committee members must never have been an officer or a non-commissioned member of the Canadian Forces. This amendment, too, was accepted as part of Bill C-41 and should also be a part of Bill C-15.

Finally, Bill C-15 would fail to strengthen the Military Police Complaints Commission. While Bill C-15 would amend 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 protect complainants from being penalized for filing good faith complaints, nothing has been done to effectively empower the commission to act as an oversight body. We believe it is necessary that the Military Police Complaints Commission be empowered by a legislative provision that would allow it rightfully to investigate and report to Parliament.

In conclusion, I will bring it back to Colonel Drapeau for the final word on this matter. He said, in part:

...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 will leave the government side to ponder that question.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

9 p.m.


Laurie Hawn Conservative Edmonton Centre, AB

Mr. Speaker, I listened to my colleague's speech with interest, and I do believe they are trying to make the system better. I do not dispute that. However, I will point out a couple of things that may have been glossed over or misrepresented a bit.

When the member talks about the number of charges during a period of very active conflict, versus a period of peacetime, it is natural that the number of charges would increase in that period. Chief Justice Lamer, whom he puts great stock in and I agree, said:

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. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s security.

And, I would add, threats to themselves, while they are in a conflict.

The member brought up the fact that only 28 of 88 recommendations by Lamer had been enacted. That is true. However, what is also true is that 72 were accepted by government, 11 partially accepted and only 3 rejected. The reason that the others have not been carried is because we have been trying since 2006 to get this legislation through and, as happens with minority Parliaments, governments fall and we are back to square one.

I believe this to be the case. I hope it is the opposition's intention to simply pass this and get it on to committee where the issues that my colleague brought up, and other issues that people may want to discuss, can be dealt with quickly and efficiently, and let us get on with it.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

9:05 p.m.


Matthew Kellway NDP Beaches—East York, ON

Mr. Speaker, I am gratified that my colleague listened with interest and not amusement, as he commented previously with one of my colleagues.

With respect to the numbers, I raise the issue of the numbers to show how much of the military justice system is processed through summary trials as opposed to courts martial. Over 95% of the issues are dealt with by way of summary trial. Therefore, the issue of the summary trial looms large in this discussion. Obviously, many amendments need to be made to that process.

With respect to the fact that these charges are being laid in the context of battle, literally in the heat of battle, I think that it is understandable and agreeable that there be limited exception to the kind of justice system that is imposed in the context of battle. However, the real challenge here is that so much of the military justice system lays these charges and processes discipline through the summary trial process outside of battle where there is no excuse in fact for the kind of exceptionalism that prevails in the summary trial system.

On trying to get the legislation through, what puzzles me is that we have already been down this path a number of times. We went to committee and at committee we agreed to a number of amendments. As a matter of good faith, if the government were really interested in moving this legislation, why would it take out what we had already agreed to in the committee process in the last Parliament?

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9:05 p.m.


Jean-François Larose NDP Repentigny, QC

Mr. Speaker, being an ex-member myself, I have seen trials that colleagues and friends have gone through and the impact they can have to ruin careers and leave people looking at the military in a certain way but not necessarily understanding the system. I have seen summary trials put onto military personnel in such a way that they were used as a training tool. I think there is a serious problem with this.

The question that goes through my mind when I see the attitude of the government is where its desire is to actually get something more constructive into play.

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9:05 p.m.


Matthew Kellway NDP Beaches—East York, ON

Mr. Speaker, frankly, I cannot explain the absence of desire to move this through.

The Lamer report goes back to 2003. A subsequent statutory review was completed by Justice LeSage recently. I cited the substantial historical context leading up to Bill C-15. If the government were truly interested in moving this through in an expeditious fashion, one would have thought it would have picked up Bill C-41 in its post-committee state, with agreement from all parties on some amendments, and put that back in front of the House so that we could move forward on something that we had all agreed to already.

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9:10 p.m.


Laurie Hawn Conservative Edmonton Centre, AB

Mr. Speaker, I just want to point out one quick thing that I pointed out to the previous speaker. Yes, the majority of cases are settled by summary trial because in the majority of cases that is the option chosen by the soldier, sailor, airman or airwoman.

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9:10 p.m.


Matthew Kellway NDP Beaches—East York, ON

Mr. Speaker, that is very interesting. If these things are done by choice, which may be the case, I would question whether it is an informed choice.

One of the challenges with the military justice system is that soldiers who are going through discipline do not even have a right to representation. I think they are provided access to another officer to assist them but that officer is not legally trained and would seem to be in no better position to provide advice on what are obviously complex legal matters with very lasting effects on the men and women of the armed forces going through this process.

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9:10 p.m.


Jack Harris NDP St. John's East, NL

Mr. Speaker, the member mentioned Justice LeSage's report. In it he says that he went around the country and was shocked to find that many of the Canadian Forces members and lawyers he talked to were not even aware that service offences could attract criminal offences. He noted that, even for minor service offences, there was the requirement of a three year wait before someone can apply for a pardon because it is under the Criminal Records Act. The government says that pardons can no longer be granted, that it can only be a suspension of record.

Does the member find it surprising that in this day and age, with the expectations about disciplinary matters, that is still the case, as Justice LeSage pointed out?

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9:10 p.m.


Matthew Kellway NDP Beaches—East York, ON

Mr. Speaker, I am surprised. I was surprised, when I wrapped my head around this issue and this bill, to discover that criminal convictions can come out of summary trial proceedings. That is a very serious consequence for the careers of people within the Canadian Forces and, obviously, after a career in the Canadian Forces as well.

In the context of the absence of representation and absence of informed choice, those have very serious consequences in our country where we adhere to the principles of natural justice, one of which suggests that when people go into legal proceedings there is a legitimate expectation of what will transpire and what the potential outcome will be. Frankly, I do not think in this century in Canada there can be a legitimate expectation that people go into summary trials with so very few protections, no guarantee of a fair hearing and come out with such a serious consequence.

To answer my colleague, yes, I in fact do find it extremely surprising that this state of justice actually exists in our military system today.

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9:10 p.m.


Tarik Brahmi NDP Saint-Jean, QC

Mr. Speaker, first I would like to say that I am very honoured to participate in the debate today on Bill C-15, which would strengthen the military justice system, for a number of reasons.

I had the honour of being elected as the member of Parliament for the riding of Saint-Jean in Quebec. I realize that I have never had the opportunity to talk about this riding, which has many ties to national defence.

First, I will say that it is because of the military installation at the base, for example, with which all Canadian soldiers are familiar due to an important part of their basic training that takes place and also the Royal Military College in Saint-Jean, from which most of our senior military personnel graduated. Second, Saint-Jean is also an important centre for the defence industry, including Rheinmetall, Cadex and Mil-Quip, which contribute significantly to the regional economy.

Finally, for historical reasons, this year we will commemorate the bicentennial of the War of 1812, part of which took place in Lacolle, in the riding. In November 1812, a very small group of 200 Canadian regulars were able to hold off more than 1,200 American soldiers and were eventually able to chase them back into the United States. We are fortunate that the wooden blockhouse, which is called the Lacolle Mill, which protected the Canadian soldiers is still standing and is one of the most significant and interesting historical buildings in Canada. If members or people listening are in the region this summer, this building is absolutely a must see.

On a more personal note, I worked in the military exactly 20 years ago, from 1992 to 1993. I did mandatory military service in the French army. As a signaller in the signals company of the 4e Régiment d'hélicoptères de commandement et de manoeuvre of the French army's Force d'action rapide, I was directly confronted with the reality of military discipline and with the consequences that arise if anyone disobeys the kind of rules we are debating today regarding Bill C-15.

I can say that I feel privileged, compared to the majority of members who have had a chance to examine this bill, either to debate it in the House or to study it more carefully in committee. I and my colleague from Abitibi—Témiscamingue, who is also a member of the Standing Committee on National Defence, have worked in the military.

Let us get back to Bill C-15. This bill is substantive in terms of both quantity and quality. It has 90 pages and addresses complex legal notions.

This is actually the fourth time this bill has been introduced. The third time it was introduced, as Bill C-41, it was referred to the Standing Committee on National Defence, which studied the bill during eight sessions lasting over two hours each, the last of which took place not long ago on March 23, 2011.

It is important to point out that, in addition to the 16-plus hours of formal meetings during which witnesses were called and questioned by members of the Standing Committee on National Defence, hundreds of hours of work were devoted to finding reasonable solutions to real problems. Now that is all being thrown in the trash.

During the 40th Parliament, Bill C-41 included specific clauses about the independence of military judges. This is now the 41st Parliament, and given the urgency of the matter, the government decided to remove those provisions to create a new bill, Bill C-16, which the members of the Standing Committee on National Defence studied last fall and the NDP supported at all stages.

Clearly, Bill C-15 is not an omnibus bill, like the ones introduced in 2011 and 2012, but it nevertheless amends several parts of the National Defence Act. First of all, it amends part III of the act, which serves as the Code of Service Discipline. There is also part IV, which has to do with complaints concerning the military police, and finally, there is an addition regarding the position of the Canadian Forces provost marshal.

I would like to begin by addressing one very important aspect of this bill, that is, the question of discipline. In an excellent speech delivered on March 29, 2012, the hon. member for St. John's East did a fine job addressing the issue of discipline, reminding us how important it is to any military organization, because soldiers' lives depend on it. He quoted retired Colonel Michel Drapeau, and I quote:

Discipline is fundamental to military efficiency...permitting commanders to control the use of violence so that the right amount and type of force can be applied in exactly the right circumstances, the right time and the right place. At the personal level, discipline ensures that...the soldier can and will carry out orders even if his natural instinct for self-preservation and fear tells him otherwise.

As a non-commissioned soldier myself once, I was trained to understand that military justice is inexorably different from civilian justice because it must fulfill two additional requirements: discipline and swiftness.

I can say that people who wear a uniform are subjected to pressure that does not exist in the civilian world, if only because of the existence of a chain of command that must be obeyed—obviously, as long as those commands are lawful. During my military training, in fact, I remember learning about the particular problem posed by illegal commands. Even so, experience shows that when an individual is subjected to this particular pressure, he can be motivated to commit acts that he would never commit in civilian life.

Next, I would like to speak a little about the procedural aspect of the question we are addressing today. Our role as parliamentarians is to study bills in detail, however complex they may be. Our responsibility as elected representatives, however, is also to summarize our work and explain to Canadians how their government is conducting itself in a specific case. When we provide Canadians with those explanations, they do not understand why their government, the same government that sets itself up artificially as a good manager of the money that Canadians have earned with the sweat of their brow, could be trashing the hours of work that have been put into improving this same bill on three occasions. Instead of starting from the last version of this bill, the government is using its position of power and starting over from zero. That is what Canadians do not understand.

The saddest thing is that the last version of Bill C-41 was the product of discussion, dialogue and consensus. Unfortunately, we get the feeling that this government does not understand the word “consensus”, and that is what is sad.

I would like to start by talking about points that the NDP believes are a step in the right direction. I will then address the points where we disagree, or rather where we think improvements should be made.

In general, we support all the measures that are designed to create greater uniformity between the military and civilian justice systems.

A typical example is the question of the jurisdiction of the court. Sometimes, offences, or crimes, are committed in a military precinct. In that case, the military court will have jurisdiction, although the crime is in no way connected with the operational side of the job performed by a member of the military. Instead, the case should go before a civilian court, so the accused has the benefit of all the civilian protections guaranteed by the Charter of Rights and Freedoms.

What are the points on which we think the government can do a better job in its reforms? There are three main points. There are the summary trial system, the Canadian Forces Grievance Board and the MPCC, which is the Military Police Complaints Commission.

Let us first talk about the summary trial aspect. This is a very important one, because, as we have heard in various speeches, 80% of military offences are dealt with by summary trial. The concern raised by my colleague from St. John's East in his work in committee is that, contrary to what happens in the civilian justice system, the proceedings in summary trials do not protect the rights of the accused adequately. He also introduced amendments to address this point.

As he pointed out, one of the general principles of natural justice lies in procedural fairness, and one of the things this means is the right to be tried by an impartial person. It will be agreed that in a summary trial, when a person is tried by their superiors, that is not the case.

Another interesting case and one which we should take as an example is the case of countries whose legal system comes from the common law, but that have had to change their legislation to achieve that well-known procedural fairness. The reason for it is that the European Court of Justice has ruled that military summary trials violated the European Convention on Human Rights. This is the case in the United Kingdom, a country that had to amend its legislation.

As was mentioned earlier, if Commonwealth countries, such as Ireland, Australia and New Zealand, have been able to make these legislative amendments, why should Canada still not be able to do so?

To end on this point, I would say that we cannot discuss summary trials without looking into the issue of criminal records. I will take a few minutes to speak about this particular issue.

One of our main concerns is that military personnel should not be treated less fairly than civilians are and that the treatment a soldier receives should not have unfair repercussions in his civilian life. Why? Because after a certain period, our military return to civilian life once again.

What we are concerned about is the direct link that currently exists between a summary trial in the military environment and the risk of a criminal record under the Criminal Records Act in the civilian world. It was mentioned earlier that a criminal record is becoming even more important in everyday life, not only in crossing a border, the case that first comes to mind, but also in looking for work. It is a good thing in itself, on condition that the process that led to the criminal record has been as rigorous and as fair in the military context as the equivalent in the civilian context.

One of the solutions to this issue could have been to provide that anyone found guilty in a military context during a summary trial may not have a criminal record in the civilian environment. Unfortunately, the solution was not accepted.

Let us take the example of being under the influence of a drug and behaving in a manner that is likely to discredit Her Majesty's service. This is a punishable offence in the military, while in civilian life, it is not even an offence.

We could look at the example of someone claiming to have an illness that they do not actually have. This can be punishable by life imprisonment in exceptional operational circumstances, for example, if it put the lives of other soldiers at risk. However, in the civilian world, this is not even punishable as a criminal offence.

These are practical examples that would result in a criminal record for a criminal act committed in the military world, but that would not have a consequence in the civilian world.

The second item that should be improved in this bill is the Canadian Forces Grievance Board.

At present, this board consists exclusively of retired members of the Canadian Forces. We would like to have more civilians on this board.

Initially, we even supported having only civilians on the board. My colleague from St. John's East introduced an amendment in that regard. During discussions in the previous Parliament, members of the committee had found a compromise solution whereby at least 60% of the members of the Canadian Forces Grievance Board would be civilians. That amendment was adopted by the committee. We wonder why the Conservatives deleted this particular provision from Bill C-15.

Another issue that was debated in detail during the meetings of the Standing Committee on National Defence was the Chief of the Defence Staff's authority to make financial decisions.

This has been a problem for many years and Justice Lamer asked that it be rectified in 2003. That was almost 10 years ago. This issue has been raised on a regular basis not only by the Canadian Forces ombudsman, but also by the chair of the Canadian Forces Grievance Board.

For the sake of clarity, I will try to explain what is meant by that. What we find unfair is that National Defence's Chief of Defence Staff does not have the authority to render a decision. He only has the authority to issue a notice that the applicant must use to try to get paid by National Defence. That is what we want to correct because we find it to be unfair.

Next, we would like the Military Police Complaints Commission, the MPCC, to become a real oversight body. I noticed that we have not talked very much about the MPCC during the various debates because we were focused on the summary trials, which are the most important aspect. However, I would like to provide a bit of historical background. The MPCC was established by the Parliament of Canada in the wake of the Somalia inquiry because MPs felt the need to strengthen civilian control over how the army operates.

We think that this reform is not ambitious enough and does not go far enough.

I would like to come back to the question that the hon. member for Edmonton Centre asked the hon. member for Abitibi—Témiscamingue as to why summary trials are not constitutional at this time.

I will simply read a ruling by the Supreme Court of Canada, which confirmed in Wigglesworth:

If an individual is to be subject to penal consequences such as imprisonment...then he or she should be entitled to the highest procedural protection known to our law.

That was the ruling made by the Supreme Court. I do not know whether the hon. member for Edmonton Centre will have the opportunity to say more about this, but that is indeed why we are against summary trials.

In closing, I would like to say that, for all the reasons I have mentioned, the NDP will not be supporting Bill C-15 at second reading, not because we are opposed to most of the provisions in the bill, but because we cannot condone the government's strategy of deliberately ignoring the recommendations that had been made by parliamentarians during the previous sessions.

We are asking the government to amend its bill, in order to take into account the hundreds of hours of work done in the Standing Committee on National Defence during previous parliaments.

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9:30 p.m.


Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, having served in the Canadian Forces for a number of years, I understand and appreciate the differences between civilian life and military life. Many members of the forces see that. There is a great dependency on discipline within the military and a need to follow orders. People in the military have an obligation unlike people outside the military.

People outside the military if they do not feel like working, they can leave, but they might not have a job at the end of the day. They can call in sick without any real consequences. If they do not like what the boss is saying, they can quit or in some instances talk back.

People in the military do not have these options. There needs to be a consequence in order to have an effective force. The discipline factor and the need to follow orders is absolutely critical for the Canadian Forces sheer existence.

There is a need for changes to the legislation. It needs to be modified to the degree where it would probably be more effective.

In principle, why would the NDP prevent the legislation from passing? There is a need to make some changes to it and amendments would most likely be welcome, but why would that party oppose the bill in principle and its passage?

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9:35 p.m.


Tarik Brahmi NDP Saint-Jean, QC

Mr. Speaker, I want to thank the hon. member for his interesting question. He mentioned the example of malingering, and the fact that there must be consequences.

As I said at the beginning of my speech, discipline is one of the pillars of the entire military organization because the lives of the other soldiers depend on discipline and its enforcement. We do not deny that. No one is denying the importance of discipline nor the fact that, as he said, anyone found guilty of malingering or faking must suffer the consequences.

We are not saying that there should be no consequences to lying. What we are saying is that when a soldier is charged for faking an illness, for example, the military justice process that applies must not be less fair than the same process that would operate in the civilian world, under the Criminal Records Act.

It is not a question of removing the guilt associated with the act or playing down the seriousness of it, since as I said earlier, the act of malingering can result in the loss of other soldiers' lives, because one soldier did not honour his commitment to stand guard, for instance. The best example is standing guard. If a soldier falls asleep or pretends to be sick in order to leave his guard post, his fellow soldiers could be killed as a result. We are not denying that. What we are saying is that it is a question of processes.

Once the act is committed, regardless of the consequences, and the soldier has been arrested, the process must be as fair as the corresponding process in the civilian world.

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9:35 p.m.


Rosane Doré Lefebvre NDP Alfred-Pellan, QC

Mr. Speaker, I thank my colleague for his excellent speech. He is a very eloquent speaker. This is very interesting, especially coming from someone who represents a riding that has many military institutions and who knows military institutions, having served in the military himself in Europe. It was very interesting for a neophyte like myself to learn a little more about how things work internally.

My question will be very simple. I found my colleague's comments very interesting and I would like to know a little more about the whole issue. Knowing that amendments could be proposed, how does he think this bill could be improved?

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9:35 p.m.


Tarik Brahmi NDP Saint-Jean, QC

Mr. Speaker, I thank my colleague from Alfred-Pellan for her question.

As I mentioned, this is the fourth time this bill has come before the House. We have therefore had plenty of time to discuss it. There have been negotiations and discussions. However, I should note that during the previous Parliament, the Conservatives who were members of the Standing Committee on National Defence did not have a majority, so they were forced to agree to a certain number of compromises. Now they are in a position of power and they have a majority on the Standing Committee on National Defence, so it seems to me—I am speculating here—that they want to use their position of power to thumb their noses at all of the negotiations that took place in committee during previous Parliaments.

To answer the question about what can be done, I would say that we should pick up where we left off with Bill C-41 during the 40th Parliament and not remove the amendments that were negotiated and agreed to by members of the Liberal Party, the Bloc Québécois and the Conservative Party.

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9:40 p.m.


Andrew Cash NDP Davenport, ON

Mr. Speaker, we hear so much rhetoric and blather from the other side about law and order and lock them down, punish them and pick them up by their bootstraps and all the other baloney. It is nice to hear from a member who actually knows what he is talking about, who has served in the military, who understands that an institution is not just some hollow vessel but it is filled with people, in many senses, young people who are in a context, and it is a bit of a rarefied context. We are asking them to do things and to give of themselves in a way that is really extraordinary. When they occasionally run afoul with the law, they are not given the kind of due process that anyone would expect. I think many Canadians would be surprised that in this context, and for certain infractions, those in the military are not given due process.

Would my hon. colleague comment on the general context in which the government is tabling the bill, stripping out some of the more reasonable amendments that had already been negotiated and leaving just the ones that follow its lock them down law and order baloney?

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9:40 p.m.


Tarik Brahmi NDP Saint-Jean, QC

Mr. Speaker, I really feel the government, the Conservative Party, is using the position it holds right now to take a completely different approach from what it had taken under the previous legislation just because it has that majority. The Conservatives are claiming that they have a strong majority, but this is not true. Forty per cent of the votes is not a strong majority. Therefore, if we take the perspective of the voters, this is not a strong majority. It is not a majority at all. It is just here in this place that the members of the Conservative Party are using and abusing this position.

I am very sad. The Conservatives could have taken the previous amendments that had been negotiated under the previous legislation. Now they are scrapping all that and starting anew. Frankly, Canadian taxpayers do not understand why we have to pay so many people and spend so many hours doing things and redoing them.