Mr. Speaker, Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, seeks to address problems with military justice under the National Defence Act. It follows up on the 2003 report by the former chief justice of the Supreme Court, the Right Hon. Antonio Lamer, and the 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs.
In Canada, we have a separate military justice system that includes military tribunals, and this is not a unique situation. Under the National Defence Act, there is a code of military discipline that includes specific military offences and all offences under the code or any other federal legislation. This code of discipline applies to members of the Canadian Forces. The system has evolved significantly since the Canadian Charter of Rights and Freedoms came into force, because some provisions violated the fundamental rights of our men and women in uniform.
Military justice must be a part of Canada's justice system as a whole. We must ensure that military justice laws are consistent with other laws in our broader justice system, at least when it comes to the fundamental principles of law. We need to understand that there are differences between military law and the rest of the legal system, and with good reason. The military justice system recognizes the relationship between the justice system and discipline within the armed forces.
Discipline is very important in the army. I will quote an expert in military law, retired colonel Michel Drapeau, who is a lawyer in private practice and has considerable experience in the military. He is also the author of the only significant military legal text in Canada, an annotated book on the military aspects of the National Defence Act. It is quite a useful source of information. This is what Mr. Drapeau says about the importance of discipline in military law:
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.
The military justice system is important for two reasons. It serves not only to quickly and severely punish those who break the law or disobey the rules of discipline but also to allow recourse to different procedural rules in the military context. Furthermore, it is extremely important that everyone adhere to the rule of law when engaged in a combat situation.
Our country certainly wants its troops to be capable of using force in a lawful manner, regardless of the circumstances or great peril they might face. As a result, the military justice system does not just exist to punish wrongdoers; it is also key to command, discipline and morale.
The reform of the military justice system set out in this bill is problematic. First, there is the summary trial process or, rather, the possible consequences of a summary trial conviction. This makes a big difference. According to the Canadian Forces' own information, which is available on their website, the summary trial is by far the most important and most commonly used form of service tribunal. When a solider is accused of a service offence, a summary trial is the simplest way of dealing with it.
The other advantage of the summary trial process is that it allows problems to be resolved within the unit. The trial is usually presided over—and this is important—by a superior officer. Right now, a summary trial conviction can result in a criminal record. We are talking about a trial before a superior officer who, by National Defence's own admission, does not need any legal training, where no lawyers are present, and that can lead to a criminal record for soldiers.
What is more, there is no transcript of the trial. The consequence is too severe for disciplinary measures. A criminal record will make life difficult for our soldiers when they return to civilian life. A criminal record is a barrier to finding employment, renting a place to live and even taking a week's vacation in the United States.
The bill does contain a few good things. It defines offences that will be considered minor and therefore will not result in a criminal record. However, when the previous bill, Bill C-41, was examined in committee, the NDP proposed that the list of minor offences be expanded from 5 to 27.
Let us be honest: offences such as insubordination, quarrels, misconduct, absence without leave, drunkenness and disobeying an order warrant disciplinary action but not a criminal record. The Minister of National Defence himself told the committee studying the former Bill C-41 that:
...the summary trial system strikes the necessary balance between meeting the unique disciplinary needs of the Canadian Forces and the needs to respect the rights of individual members of our military.
I think he is right, but his bill does not achieve this balance. Colonel Michel Drapeau, a military expert, agrees that summary trials are problematic. He said:
I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.
A number of countries have already made changes to their military justice system to better regulate summary trials. These countries, which have a lot in common with Canada, include Ireland, Great Britain, Australia and New Zealand. We must also make changes, and the sooner the better.
Many Canadians would be surprised, and probably shocked, to learn that the people who have served our country with such valour can have a criminal record under a system that does not have the procedural regularity that is ordinarily required in the civilian criminal courts. They would be horrified to see the kind of problems this can cause in careers and lives post-military.
The government already does not give veterans the services they deserve, so we should at least be fair to the people who are serving the country right now.
