Mr. Speaker, I must say first that Bill C-25 is not only sizeable, but also ambitious. It is ambitious because it seeks to change our military justice system. For those who followed the work of the commission of inquiry into the deployment of Canadian forces to Somalia, we know very well that the present system has serious problems that deserve some special attention.
The Bloc Quebecois is among those who believe that the role of members of Parliament in defence issues must be reinforced. This does not mean that we must play a huge role overseeing the conduct and business of the military, but that we must oversee them in such a way as to break down the walls of national defence and the Canadian armed forces, in the best interests of people in Quebec and Canada.
To be more effective in our role, we should have access to reports produced by non-political, independent organizations, such as those prepared by the auditor general. This is why, as the Létourneau commission recommended, we believe that an inspector general, working independently from the Canadian forces and accountable to Parliament, would ensure a fair, neutral and balanced analysis of the activities of the military, which the present bill will never be able to do.
As the Létourneau commission stated in its report “There is evidence that Canadians and members of the CF want a review process that is straightforward and independent. We also believe that a civilian inspector general, properly supported and directly responsible to Parliament, must form an essential part of the mechanism Canadians use to oversee and control the Canadian Forces”.
Even if soldiers give up some of their rights when they join the army, they still expect to be treated fairly. During the Létourneau commission, some soldiers complained that their commanding officers were often insensitive to their concerns and that those who dared to complain faced informal retaliation or even put their careers in jeopardy. The members of the armed forces who feel the need to complain are faced with a dilemma: to suffer in silence or to fight the system and deal with the consequences.
The creation of an office of the inspector general would unquestionably meet the need for a fairer complaint processing mechanism. Instead of implementing the recommendation of the Létourneau commission and in order to really confuse the public and give the impression that he was agreeing to some kind of inspection, the Minister of National Defence chose to set up a review committee made up of eight distinguished Canadians.
These people will review the implementation of announced changes within the department and the armed forces. However, they will not have anything to say about the conduct of the armed forces.
According to the minister, these eight distinguished people will serve as a window for Canadians, a window that will be closed in two years since the mandate of the review committee does not extend beyond that period.
What will we be left with in the end? Simply a few annual reports here and there to meet accountability requirements. In short, we will not know anything more about the important things that will continue to go on in this galaxy.
Like the Létourneau commission, we agree with the idea of appointing an inspector general of defence, who would be responsible for conducting investigations not only on the way the military justice system works, but also on any other aspect of national defence that he or she would deem appropriate.
Any member of the Canadian Forces and any employee of the Department of National Defence could contact the inspector general directly for any reason without having to obtain prior authorization from anybody else within the Canadian Forces or the Department of National Defence.
We know that, right now, civil employees of the department are worried about the proposal to privatize services within the Canadian Forces and the possible consequences of such a decision in terms of job security.
At the Longue-Pointe garrison, in Montreal's east end, it seems that the privatization process could result in the loss of 250 civilian and 150 military jobs. The same goes for the Saint-Jean-sur-Richelieu garrison, where 300 jobs could disappear.
The inspector general would be the most appropriate authority to review any privatization of services by the Department of National Defence. An inspector general could address the individual or general problems of all DND and Canadian Forces personnel without these people having to fear some form of punishment.
To be able to express oneself freely without fear of retaliation is fundamental to anyone who wants to expose a delicate situation. Therefore, a member of the military should not be required to indicate to his or her superior that he or she is filing a complaint, especially if the complaint is against the superior.
Inspections, checks, investigations or reports following a complaint by a member of the military should not give any indication whatsoever of the complainant's identity.
The threat of reprisal is not an imaginary concern. The hearings conducted by the Létourneau commission revealed that some members of the military had been threatened and badgered for their part in the commission's work.
Corporal Purnelle and Major Armstrong were among them. The latter, in fact, required physical protection while in Somalia after he had made serious allegations of misconduct to his commanding officers.
By refusing to follow through with a proposal to create a position of inspector general, the defence minister is clearly showing that the armed forces do not intend to clean up their act and instead are determined to keep on operating in isolation.
To justify his rejection of an independent review body, the minister said in the fall that the position of inspector general would cloud his authority before Parliament. It would make the responsibilities and accountability of the chief of the Defence staff and the deputy minister ambiguous.
The minister even said that the high command did not want an inspector general constantly looking over their shoulder. However, the civil authorities have the duty to look over the shoulder of the military.
Why are the defence minister and the Canadian armed forces afraid of an institution which has a proven track record in the United States, and with which the American armed forces get along well?
It is the whole concept of accountability that is at stake. And by refusing to allow an independent control, the minister is reinforcing the idea that the government and the military are accountable to no one.
With regard to the minister's promise to create an ombudsman position, something the military personnel are still waiting for, we must be clear. This position is not the same thing at all as an office of the inspector general. While the function of the ombudsman, or ombudswoman, if you will, is generally limited to receiving grievances and making recommendations in this regard, the inspector general would have wide ranging inspection, control, inquiry and assistance functions. The functions of the inspector would include those of the ombudsman.
Thus, as was recommended by the Létourneau commission, these two functions should be brought together and carried out by a single entity, that is the office of the inspector general.
Finally, if the national defence minister had really wanted to ensure greater openness in the military justice system, he would have supported the establishment of the position of inspector general. This would have indicated a clear willingness to make changes. So we can forget about openness.
As I mentioned a little earlier, the minister also stated, in his response to the recommendations of the Létourneau commission, that the implementation of the changes to the National Defence Act would increase the fairness and effectiveness of the military justice system.
We, in the Bloc Quebecois, believe that all military personnel must be treated fairly. They must, like any other Canadian citizen, be able to benefit from the constitutional guarantees provided by the Canadian Charter of Rights and Freedoms. As the Létourneau commission said, the military justice system should follow the civil justice system, except when there are clear reasons to depart from it.
Therefore, the question we must now ask ourselves is this: will the changes brought about by the bill ensure, as the defence minister is claiming, fairness in the military justice system?
In Canada, this system is administered according to two main types of procedures, namely the summary trial and the court martial. Summary trials are aimed at dealing with minor military offences. This type of trial is at the heart of the military justice system, since more than 90% of all offences committed by members of the armed forces are only heard summarily.
Usually, summary trials are presided by commanding officers. The purpose of such trials is to deal quickly with disciplinary offences within the unit and to send the offender back to his or her unit as soon as possible. We understand that the goal to keep order and discipline within the armed forces somehow justifies the summary nature of this type of trial.
However, during the hearings of the Special Advisory Group on Military Justice, chaired by former Chief Justice of the Supreme Court Brian Dickson, several members of the armed forces criticized the summary trial system of justice and even questioned its legitimacy, since it violates some of the fundamental rights guaranteed under the Canadian Charter of Rights and Freedoms.
The right to counsel and the right to be tried by an independent and impartial tribunal are both being violated. In that respect, this bill provides for minor changes to the summary trial process and appears to reinforce its constitutional validity.
In particular, the bill now prevents commanding officers from presiding at summary trials in which they are involved. Also, the accused person can have access to a lawyer before electing to be tried by court martial or by summary trial.
This does not mean that the accused has the right to counsel, only that he or she can consult with a lawyer. It is true that the commanding officer has the discretionary power to allow the accused to have access to a lawyer, but that is not a right granted to the accused, just a discretionary right enjoyed by the commanding officer.
The purpose of these few changes is quite simple. They are meant to change summary procedure just enough to let the commanding officers go on imposing their own discipline during summary trials. Even though this procedure still infringes on the constitutional rights of the accused to be heard by an impartial and independent court and to be represented by counsel, amendments in this bill will reduce the seriousness of these violations so that they can be reasonably justified under section 1 of the Canadian Charter of Rights and Freedoms.
This section states that rights and freedoms are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In this case, the purpose of the bill is to make minimal changes to the summary procedure so that it can withstand any challenge under the charter, even if commanding officers are in no way impartial and independent in the legal sense defined by the supreme court in the Généreux case.
While the objective of maintaining order and discipline within the armed forces is important enough in itself to justify denying a constitutional right under certain circumstances, in wartime for example, we do believe that under normal circumstances, when the freedom of the accused is at stake, violating the right to be heard by an impartial and independent tribunal and the right to counsel, which are guaranteed by the Canadian Charter, is not justified under section 1 of the Charter.
The constitutional guarantees provided by the Charter apply to all citizens, whether they are civilians or members of the military. In the absence of criminal sanctions, violating rights guaranteed under the Charter is not as serious an issue. It is, however, a different matter when the accused may lose his freedom.
In this respect, section 7 of the Charter states that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
This provision therefore guarantees the right to counsel of a person facing the risk of being deprived of his or her freedom. In addition, section 11(d) of the Charter entitles any person charged with an offence to a fair hearing. This right entails the right to counsel.
It is true that both the bill and the Queen's Regulations and Orders for the Canadian Forces provide that the accused may choose between summary and court martial proceedings when faced with a jail term.
The accused who chooses to be court martialled is entitled to counsel. Under the QR&Os, however, this right must be exercised within 24 hours. If the accused chooses a summary trial, can we honestly say that he knowingly relinquished his constitutional right to counsel and to be heard by an impartial and independent tribunal?
The choice between a summary trial and a court martial can have serious consequences. That is why we think the accused should be free to opt for a summary trial and have the right to counsel when faced with a jail term.
As for the right of the accused to be heard by an impartial and independent tribunal, section 11(d) of the Charter provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. So, in the case of disciplinary infractions punishable by detention, the accused should be heard by a totally impartial tribunal capable of making a decision on the sole basis of the evidence presented.
But can we seriously believe that, when a commanding officer presides over a summary trial, there is not a reasonable risk that the accused will be subject to prejudice? The commanding officer will be required to judge a member of his unit and will probably have extensive knowledge of the accused's professional record. Furthermore, since the commanding officer is responsible to his superiors for the maintenance of discipline within his unit, he has a direct professional interest in the outcome of the summary trial.
The person making the decisions should not be influenced by the parties, or by outside forces, except in so far as he is convinced by the arguments and pleadings on the questions of law at issue.
Finally, we believe that breaches of discipline that may result in the suspension of liberty should be treated differently than other disciplinary offences. In our view, only a more formal and independent tribunal offering the accused the right to call on the services of a lawyer, should have the power to hand down a 30-day detention. This having been done, the military justice system should provide the accused with procedural guarantees consistent with the charter. The only way for a summary trial to ensure the accused these guarantees would be to restrict summary trials to offences not likely to result in criminal charges.
The advent of the Canadian Charter of Rights and Freedoms obliged the Canadian forces to make adjustments to their military justice system in order to comply with charter rights and freedoms. When I say obliged, I am not exaggerating.
On reading a study by Martin Friedland on the handling of military misconduct, I was astonished to learn that the armed forces tried, in the past, to obtain a general exemption from the application of the charter, but that the Department of Justice was opposed. I admit that this says a great deal about how the military establishment viewed the charter. The armed forces therefore had no choice, and had to comply with the charter in order to ensure the survival of their military justice system.
In the Généreux case in 1992, the supreme court ruled that the court martial court in which this case was tried did not constitute an independent tribunal within the meaning of section 11(d) of the charter. Before the court could even bring down its decision, changes had already been made to the Queen's Regulations and Orders for the Canadian Forces, particularly to remedy the major shortcomings relating to the judiciary independence of the Judge Advocate.
These changes called for military judges to be appointed for a set period of up to four years, but no less than two. They also required the judges to hold no other duties for the duration of their mandate. These changes also called for the Chief Military Judge, and no longer the Judge Advocate General, to have the express power to appoint a judge advocate to the court martial.
Without running down the whole list of changes that have occurred since and the ones proposed by the bill, particularly those concerning the authority to call a court martial, we must admit that these amendments as a whole have considerably improved the military justice system.
We believe, however, that the bill could have gone further in order to ensure greater independence for the military judges. These must be officers who have been barristers or advocates of at least 10 years' standing at the bar of a province. According to the bill, they are appointed during good behaviour for a term of five years, and this is an improvement over the current situation.
Since military judges are appointed for only five years, unlike civilian judges who are appointed until they reach retirement age, there is no guarantee whatsoever that they would not be compromising their careers as military judges by bringing down judgments in favour of the accused rather than the prosecution. I believe that military judges, like civilian judges, ought to benefit from security of tenure, sheltering them from any possible type of interference.
In addition, the irremovability of military judges is threatened because they may be removed before the end of their term under the discretionary power of the governor in council.
On the matter of independence, the approach in the U.K. is different from ours. There, a civilian and totally independent judge advocate general appoints the court martial judge advocates. The judge advocate general holds office up to the age of 70. Like civilian judges, he may be relieved of his duties only for failure to carry them out or for improper conduct.
The various judge advocates are civilian lawyers who cannot be removed. We believe Canada should draw on the British practice and use civilian judges who are totally independent and without military ambitions.
The Létourneau commission made a recommendation in this regard that the chief military judge and all other judges appointed to decide on matters of military misconduct by civilians be appointed under the federal Judges Act.
In a real effort to ensure institutional separation between the prosecution and defence functions of the military justice system, the bill creates the new positions of director of military prosecutions and director of the defence counsel service.
Furthermore, the bill establishes more precisely the role of the judge advocate general. The various roles played by the office of the judge advocate general have raised a lot of questions as to its impartiality. The fact of providing legal advice at the investigation and charge laying states and of being part of the prosecution, the defence and the judgment on military offences have drawn attention to the conflicting nature of the various functions performed by this office.
The bill, to its credit, removes the office of the judge advocate general from the prosecution function, which it gives exclusively to the new director of military prosecutions. Under this bill, this person will decide the charges laid against individuals to be judged by court martials and conduct the prosecution.
Unfortunately, the institutional separation is only superficial, since the director of military prosecutions will be acting under the supervision of the judge advocate general, who may issue guidelines or provide instructions on prosecutions. So, there is a risk of interference from the judge advocate general that undermines the integrity and independence of the director of prosecutions.
Oddly enough, the same thing goes for the new position of director of defence counsel services set up under this bill. By establishing defence counsel services, the bill separates the prosecutors from the defence counsel, since the defence counsel services no longer report to the office of the judge advocate general.
However, since the director of defence counsel services works under the general direction of the judge advocate general, once again, the bill fails to create the arm's length relationship that could reassure the members of the armed forces.
To achieve the proper arm's length relationship, should the defence counsel services not work under the direction of some other authority?
Finally, I know that I have just skimmed over the bill and that several other changes included in this piece of legislation deserve consideration, but unfortunately I will not have the time to address them today.
However, for all the reasons I mentioned earlier, I will vote against Bill C-25. How sad to realize that what Georges Clémenceau used to say at the beginning of the century still rings true today. He said “Military justice is to justice what military music is to music”.
