Mr. Speaker, may I say at the outset that we are generally supportive of this bill? It is a wonderful opportunity to move military justice from the 19th century into the 21st century.
Regrettably, for some reason or another, the government stopped at the 20th century. The debate that has been going on for the better part of an hour is somewhat typical of the government's resistance to, in effect, moving a military system all the way up into the 21st century, so that a soldier, sailor or airman or airwoman is entitled to the same rights and protections as those to which we, as civilians, are entitled. As one witness said, just because they put on a uniform, it does not mean they lose their rights as Canadians.
The parliamentary secretary is quite correct to say that this bill has seen a lot of reiterations prior to its arrival here on the floor of the House. Some of the reasons it is here at this very late stage are good, and some of the reasons it is here now are not so good. However, I am not going to spend my time criticizing who actually controls the pace of legislation in this House.
It is not very often that we get an opportunity to reform our military justice system, and it is kind of disappointing on the part of the government to reach for mediocrity. In the words of Winston Churchill, it is “The Tory fault--a yearning for mediocrity”.
It is a bit of a shame, because we expect so much of our men and women in uniform. I think they should have every right to expect from us an attitude where we give them the best possible justice system. They should be entitled to equal treatment before the law. If we said that to people out on Wellington Street, they would reply that of course they are entitled to equal treatment before the law.
In fact, men and women in uniform have a higher burden. It is kind of ironic that we ask them to risk their lives, and they have an unlimited liability, yet we do not give them the same basic procedural fairness that we, ourselves, expect when we go before a judge in certain circumstances.
The additional burden that men and women in uniform bear is with respect to service offences. I do commend the government for actually having moved on this. The core issue was that service offences, which run all the way from wearing the military uniform in an improper manner right through to treason, are difficult offences, additional burdens that civilians do not bear.
At both ends of the spectrum, the most serious and the least serious, the treatment is probably appropriate. It is the stuff that is in between that is somewhat problematic.
All investigations start with a police investigation of some kind or another. Members would take the view that police investigations should be free from political interference.
Mr. Speaker, I know you are from the beautiful town of Haliburton. We know that is one of the most beautiful places in all of Ontario, if not all of Canada. You and I share that view. Nevertheless, it would be improper for the mayor of that community to phone up the local police chief and say that the chief can do this investigation but not that one, or that if the chief does the investigation, it should only go here and not there. We would rightly regard that as interference in a police investigation.
However, the clause we have been talking about here actually retains that power. The Vice Chief of the Defence Staff may issue instructions or guidelines in writing. We would never allow a bylaw or a law in civil justice to say that the mayor or the premier, or the Prime Minister for that matter, may issue instructions or guidelines in respect of a particular investigation.
This, of course, caught the attention of the current ombudsman and the former one. The former ombudsman said:
My very brief summary submission is that if Bill C-15 is passed into law in its present form, inclusive of the new [subsection] authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada at late as 1999...I can tell you internationally in developed countries, which recognize the importance of police independence [they] prohibit police service boards or similar executive bodies from giving directions [or instructions].... It would also effectively contradict, even repudiate, the notion of improper interference by the chain of command as established in the oversight jurisdiction of the Military Police Complaints Commission and thereby effectively eliminate oversight by statutory authorization.....
This is not merely a speculative issue. We have heard references previously made to Somalia. Somalia was an accident. It was a grotesque accident that did not reflect well on the military. The only reason that it got any kind of investigation at all, which ultimately resulted in an inquiry, was by happenstance. The happenstance was that there were reporters present at the time doing what reporters normally do. Otherwise it never would have seen the light of day.
What made that investigation quite problematic was the interference of the chain of command who did not want it to occur. If it was going to occur, they wanted it to occur in a particular way and they certainly did not want any kind of inquiry. That is what drove this issue and ultimately resulted in a protocol. The protocol essentially said that one cannot interfere in a police investigation. This has been the protocol that has been in existence since the Somalia inquiry.
However, the government seems to want to appropriate back to itself the right of the Vice Chief of the Defence Staff, Chief of the Defence Staff, the minister or the Prime Minister the opportunity to give instructions and guidelines with respect to a particular investigation on any particular situation. Reference has been made as to whether this is charter proof or not. Certainly the government's line is that it is charter proof because it says it is charter proof, which is inadequate. There certainly is no proof that it is.
I had suggested to witnesses that this is similar to the government painting a big target on its forehead and saying: “Sue me. Challenge us in court”. However, the problem is that the investigation on which it will be launched, which I think is a certainty, will be a horrible fact situation. It will be on an awful fact situation that some defence lawyer will challenge this section, and if it is overturned, then the whole investigation will go sideways and justice may not be done.
We have suggested on the opposition side that the government stay with the current protocol. “If it ain't broke, don't fix it”. Currently, it is working. The military police feel perfectly free to conduct investigations as and when it sees fit.
The government has made this crazy argument that this is for operational requirements and all that sort of stuff. That is just nonsense. Most military police do not go into live fire zones to conduct an investigation. They do not interfere with exercises and all of the other things that our men and women in uniform do for us. Therefore, the government's arguments are thin indeed.
Unfortunately, I have not been able to talk about several other elements of the testimony. I regret that we were not able to get into the basic concept that we should treat our men and women in uniform in exactly the same manner as we expect to be treated, absent of compelling reasons to the contrary. On the absence of a compelling reason to the contrary, the burden is on the military, i.e., the government, to justify either interference in a police investigation or interference in a solider's or sailor's rights.