Mr. Speaker, it is an honour to rise in the House today to speak to Bill C-15.
First, I would like to congratulate our national defence critic, the hon. member for St. John's East, who is doing an amazing and remarkable job on a file that can be difficult, given that we are dealing with a government that would rather act like G.I. Joe than seriously examine the country's national defence needs, analyze the cost to Canadian taxpayers and have a comprehensive view of Canada's defence role as it relates to the deployment of military personnel in our country and abroad.
I have tremendous respect for the Canadians who work for our Canadian Forces. I have met many of them, since there are obviously a number in my riding, it being in the national capital region. In my riding, it is not unusual for people to frequently come across Canadian Forces members. I really admire the work that they do, here, inside our borders, and around the world, especially in light of what has been going on. It takes a special person to put his or her life in danger to protect our values, rights and what we stand for every day.
That is why we cannot afford to let the government take so many years to introduce this bill. I said “so many years”, because in 2003, retired Chief Justice Lamer was asked to produce a report on the situation and to make recommendations regarding the bill.
The summary of Bill C-15, which was produced and which I will give a little background on shortly, states the following:
This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;
(e) modify the composition of a court martial panel according to the rank of the accused person; and
(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.
Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.
As I said a moment ago, I believe this quite lengthy bill has been long due since 2003. However, “long due” does not mean we should hand out blank cheques, even though the bill concerns national defence and our men and women working for the Canadian Forces. The NDP is not in the habit of handing out blank cheques.
This bill has previously appeared in a number of forms, as bills C-7 and C-45, which died on the order paper when Parliament was prorogued in 2007 and when the election was called in 2008. In July 2008, Bill C-60 was introduced and it came back with a vengeance. Bill C-60 simplified the structure of courts martial and established the method for selecting the type of court martial that would harmonize best with the civilian justice system. In 2009, the Standing Senate Committee on Legal and Constitutional Affairs examined the bill and recommended nine amendments to the National Defence Act.
This happened after 2003, when the Right Honourable Antonio Lamer tabled a report on his review of the National Defence Act, a report that contained 88 recommendations concerning military justice, the Military Police Complaints Commission, the grievance process and the Canadian Forces provost marshal.
Looking at Bill C-15 as it currently stands—because that is the one we have to consider—we realize that it is supposed to be a legislative response to those recommendations. However, only 28 recommendations have been included in the bill.
I will say it right away—and the critic said this—we will not support this bill at second reading because, in any case, the government will be referring it to committee. However, there are so many flaws, serious flaws, in this bill, and it is not because it should have been introduced so long ago that we should adopt any such poorly constructed legislation. That is our position on the matter.
In 2010, Bill C-41 was introduced in response to the 2003 Lamer report and to the Senate committee's 2009 report. It contained the military justice-related provisions respecting, for example, sentencing reform, judges, military panels, summary trials, the court martial panel, the Canadian Forces provost marshal and certain provisions respecting the Military Police Complaints Commission.
It can nevertheless be said, for those who were here at that time—I was not—that bills C-41 and C-15 resemble each other and are similar to what was introduced by the Senate committee during the last Parliament.
The amendments stood included those concerning the composition of a court martial panel, and security of tenure for military judges until retirement.
However, other important amendments—and I want to emphasize this—adopted at the committee stage at the end of the last parliamentary session were not included in Bill C-15. That includes the NDP's amendments respecting the authority of the Chief of Defence Staff in the grievance process—a direct response to a Lamer report recommendation—changes in the composition of the grievance committee so that 60 % of members would be civilians and the provision to ensure that a person guilty of an offence on summary conviction would not unfairly be given a criminal record. That is the amendment under clause 75 of Bill C-41.
We have been in favour of bringing the military justice system up to date for a long time now. There is no doubt about that and I do not want to hear anybody say otherwise in this House. Members of the Canadian Forces are known to be subject to extremely strict rules of discipline and they deserve a justice system that is subject to comparable rules.
I remember when I first started out as a lawyer, doing criminal law, that there was a judge in the Outaouais district—he is still there–near Gatineau, where I am a member of Parliament, who used to tell us, because he had a military background, that nothing could be as secret and closed as military justice. This is understandable, because it operates in accordance with a very closed system of discipline. It is understandable. I think that members of the Canadian forces voluntarily submit to these extremely strict rules of discipline.
They often have absolutely critical work to do, and the chain of command is not very tolerant of exceptions. All of that is understandable and yet, sometimes there are certain types of behaviour problems—I repeat, “behaviour problems”. And those who are not accustomed to this environment can be completely flabbergasted at what can lead to a criminal record for a member of the Canadian Forces. Anyone practising criminal law in civil society, or dealing with labour rights or grievances, will find provisions in these bills that are rather surprising.
To begin with, they mention reform. For us, the problem is that the reform under discussion is of the summary trials system. The amendments in bill C-15 do not adequately address the injustice of summary trials. At the moment, a summary trial conviction in the Canadian Forces means a criminal record. Some might say, “good for them”. However, summary trials are held without the accused being allowed to seek legal or other counsel. They have no recourse and there are no transcripts of the trial. Moreover, the judge is the accused's commanding officer. This is too harsh for some members of the Canadian Forces who are convicted for minor offences. Once again, some may say that there is no room for exceptions, but there are times when it is completely ridiculous.
I have had people come and consult me, but the problem was that everything had already been taken care of.
Let us put ourselves in the place of a member of the Canadian Forces who has committed an offence, for example, absence without leave or a quarrel with another member. The member’s own commanding officer tells him he will have a summary trial. We cannot seriously think that a member of the Canadian Forces is going to go against what his own commanding officer suggests. We cannot really call this transparency. That may be too harsh for some members of the Canadian Forces who are convicted of minor offences. I will say it again, because it is important to know what we are talking about. These minor offences include insubordination, quarrels, misconduct, absence without leave, drunkenness, disobeying a command, and so on. This is certainly very important for military discipline, and I am not saying otherwise, but does it call for giving someone a criminal record? It is important that we ask ourselves that question.
Having a record will have an effect when the member leaves the Canadian Forces. He may have trouble finding a job once he rejoins the civilian world. Bill C-15 does provide an exemption so that if there is a minor sentence handed down under the act or a fine of less than $500, certain offences are not entered on the person’s record. This is one of the positive aspects of the bill, but we think it does not go far enough. We hope the committee will do its job. I do not know whether the Standing Committee on National Defence is as extraordinary as the justice committee. At the Standing Committee on National Defence, even when self-evident amendments are moved, they are not adopted.
Last March, at committee stage, the amendments to Bill C-41 proposed by the NDP called for the list of offences that could be considered to be minor, and so would not merit a criminal record if a minor sentence were imposed for the offence in question, to be increased to 27 from five. The amendment also adds to the list of sentences that a tribunal may impose without them being entered on the record: for example, a severe reprimand, a fine equivalent to a month’s salary and other minor sentences.
This was an important step forward for summary trials. However, the amendment to Bill C-15 was not accepted. It is therefore entirely to be expected that we would want to include it again. A criminal record can make life after a person’s military career very difficult. It can mean losing a job, being refused housing, having trouble travelling, and so on. If Canadians knew that members of the military who served our country so courageously are being treated this way for the kinds of misconduct I have referred to, I think some of them would be in shock, as I was when I read the bill and what had gone on over the last 10 years in this regard.
There is also the question of reforming the grievance system. As a labour lawyer, I have always advocated the greatest possible transparency and independent arbitrators, because it affects the labour relations between the parties. The same is true when we talk about a Military Grievances External Review Committee. At this time, the Canadian Forces Grievance Board does not allow for external review. The people who sit on the Military Grievances External Review Committee are retired Canadian Forces employees and some very recent retirees. So if the Canadian Forces Grievance Board is to be seen as an external, independent civilian body, as it should, the appointment process definitely needs to be amended to reflect that. The committee should therefore be composed, in part, of civilian members.
The amendment that the NDP suggested, and that it will certainly suggest again when the bill is examined in committee, is that at least 60% of the grievance committee members never have been officers or members of the Canadian Forces. I repeat: it is the Military Grievances External Review Committee. The amendment was adopted in March 2011, for Bill C-41, but it was not incorporated into Bill C-15.
It is extremely important that people from the outside be part of the external review committee, and I am persuaded that my colleagues will agree with me. It is therefore important that the amendment be included again.
There is the whole question of the authority of the Chief of the Defence Staff in the grievance resolution process. There is a major weakness in the military grievance system. The Lamer report contained a recommendation concerning the fact that the Chief of the Defence Staff does not have the power to settle financial claims in grievances. In spite of the fact that the Minister of National Defence approved the recommendation, no concrete action has been taken in the last eight years to implement it.
The ministers responsible for certain portfolios who come before our committees need to agree to the amendments we recommend. When it comes time to amend legislation, those ministers need to remember what they have said.
During committee examination, the NDP proposed an amendment, which was adopted in March 2011. Nonetheless, the amendment was not incorporated into Bill C-15. If this bill is referred to committee, the NDP, under the leadership of the official opposition’s national defence critic, the member for St. John's East, will continue to fight for this.
There is also the question of strengthening the Military Police Complaints Commission. Very little has been said about granting that commission greater powers so that it acts as an oversight body. The commission’s powers must be expanded by legislation so that it is able to investigate legitimately and report to Parliament.
The NDP is not alone in making the case for the need to amend Bill C-15. A number of organizations support our positions, including the British Columbia Civil Liberties Association, which has said that fundamental fairness requires that systems that impose serious penalties on individuals provide better procedural protection.
In R. v. Wigglesworth, the Supreme Court of Canada, an arm of our democracy, confirmed that, if an individual is to be subject to penal consequences such as imprisonment, he or she should be entitled to the highest procedural protection known to our law. I believe that will come as a shock to no one.
That is often where the problem lies. Military justice is often opaque or not very transparent. No one knows exactly what goes on, except those curious individuals who want to know more. It is important that justice indeed be done. That is even more important for the members of our Canadian Forces who dedicate themselves body and soul to each and every one of us, to all the Canadians we represent. They go to other countries to promote fundamental values and rights, democracy, the right to a fair trial and so on. And yet, once back in Canada, those members, for all kinds of reasons, are sentenced without receiving the advice of counsel or being able to obtain a transcript. When a former Canadian Forces member consults a civilian lawyer, that lawyer has trouble representing the member because the member’s file contains absolutely nothing other than what he or she has said.
I would not go as far as my colleague from Scarborough—Guildwood, who spoke before me, but I believe that is a small step. Many years have elapsed since the Lamer report, and I believe the members of the Canadian Forces deserve a lot better than Bill C-15.
