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.
