Mr. Speaker, it gives me great pleasure to speak to the bill, I guess, in part, because I spent my first career in the military. I always took particular interest in the justice system within the military, realizing it was somewhat different. I am glad to say that I did not have too many encounters with that justice system during my time in the navy.
However, let me summarize some of the key points the Liberal party feels are important to talk about with respect to Bill C-15.
The Liberal Party certainly understands the need to reform the Canadian court martial system to ensure that it remains effective, fair and transparent. At the same time, our party believes that Canadian citizens who decide to join the Canadian Forces, as I did, should not, thereby, lose part of their rights before the courts.
The Liberal Party understands that rights and equality are universal. Without an effective means for appeal and no recorded proceedings, the current summary trial system is unbalanced and does not respect the basic rights of the Canadian Forces members. The Liberal Party of Canada does not believe that introducing a criminal record for Canadian Forces members for certain service offences is fair and just, as the means for pardoning offences has been recently removed by the current government.
Finally, the Liberal Party of Canada finds it problematic that the VCDS, the Vice Chief of the Defence Staff, can intervene and give direction in military police investigations. The VCDS is also subject to the Code of Service Discipline.
I will provide some background.
There are a number of disparities between the military and civil justice systems that should be narrowed as much as possible. While we recognize that updates to the military criminal justice system must be made, the government is missing a real opportunity to make these changes properly.
Many aspects of the military justice system would inexplicably remain unimproved or would provide unnecessary powers. For example, Bill C-15 would enshrine in law a list of military offences that would now carry a criminal record, some of which are hardly necessary. Without the pardon system recently revoked by the Conservative government and with the summary trial being set up as it is, with no record and no means of meaningful appeal, Canadian Forces members would be left haunted by a record and unable to find employment upon release.
As Colonel Michel Drapeau noted in his committee testimony:
...someone accused before a summary trial has no right to appeal either the verdict or the sentence. This despite the fact that the verdict and sentence are imposed without any regard to minimum standards of procedural rights in criminal proceedings, such as a right to counsel, the presence of rules of evidence, and a right to appeal.
Further quoting him:
In Canada, these rights do not exist in summary trials, not even for a decorated veteran, yet a Canadian charged with a summary conviction offence in civilian court, such as Senator Patrick Brazeau, enjoys all of these rights. So does someone appearing in a small claims court or traffic court.
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 quasi-criminal law process with the possibility of loss of liberty through detention in military barracks.
I would like to also quote from former Justice Gilles Létourneau, who provided further criticism of the summary trial system which remains largely unaddressed by the modernized version of the current bill:
This form of trial has been found to be unconstitutional in 1997 by the European Court of Human Rights because it did not meet the requirements of independence and impartiality set out in Article 6 of the European Convention on Human Rights.
As a result of this decision and others, the British Parliament enacted legislation which now provides guarantees to an accused soldier. These provisions include the following
(a) the accused may be represented by counsel;
(b) the accused is entitled to an Appeal to the newly created Summary Appeal Court;
(c) the Summary Appeal Court is presided by a civilian judge, assisted by two military members who are officers or warrant officers; and
(d) as a general rule, imprisonment or service detention cannot be imposed where the offender is not legally represented in that court or in a court martial.
To further quote Judge Létourneau:
As a result, the British Parliament has gone a long way to ensure a fair treatment of soldiers facing summary trials. Similar changes have taken place in Ireland, Australia, New Zealand as well as France, Belgium, Austria, Czech Republic, Germany, Lithuania and Netherlands, to name a few. However, despite the fact the requirements of independence, impartiality, fairness and justice are the same in Canada, and if anything they are more compelling because, in Canada, they are entrenched in the Constitution, our men and women in uniform are still denied fair treatment at a summary trial.
Furthermore, Bill C-15 gives the Vice Chief of the Defence Staff power to intervene and give direction in investigations. This is troubling, considering that he is also subject to the code of service discipline and could technically intervene on his own behalf.
Colonel Drapeau notes:
The proposed new paragraph 18.5(3) in C-15 would, in my estimation, make the current lack of independence worse by now granting authority to the Vice Chief of the Defence Staff (VCDS) to issue “instructions or guidelines in respect of a particular investigation”.
This is very troubling indeed.
Quoting again from Colonel Drapeau:
Keep in mind that already the CDS and the VCDS has the power to call in the NIS to conduct an investigation on any issue which is of concern to them—and, frankly, under the existing command arrangements it is most unlikely that the NIS would ignore such a request. Also, the CDS does not feel inhibited to comment publicly on an open NIS investigation.
To now give the VCDS the authority to issue instructions or guidelines in respect of a particular military police investigation will remove any pretense that the Military Police is independent from the chain of command. Lest we forget, the CDS, the VCDS and, for that matter, the JAG, are each subject to the Code of Service Discipline. None of them should have the power to direct or influence either the initiation, the suspension or the conduct of a particular police investigation let alone to issue instructions or guidelines as to the conduct of a specific investigation.
Soldiers are citizens and should enjoy the same Constitutional and charter rights as every other citizen. As Judge Létourneau so eloquently puts it:
We as a society have forgotten, with harsh consequences for the members of the armed forces that a soldier is before all a Canadian citizen, a Canadian citizen in uniform. So is a police officer; he is a Canadian citizen in uniform, but he's not deprived of his right to a jury trial. Is that what we mean by “equality of all before the law”? Is not the soldier who risks his life for us entitled to at least the same rights and equality before the law as his fellow citizens when he is facing criminal prosecutions?
The answer, of course, for all of us must be a resounding “yes”.