moved that Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, be read the second time and referred to a committee.
Mr. Speaker, I am pleased to be in the Chamber this morning to speak to this important bill that would amend the National Defence Act.
The bill would ensure that our military justice system remains one in which Canadians can have trust and confidence and find truly accurate administration of justice within the country.
I want to begin by thanking members of the opposition and the Parliamentary Secretary to the Minister of National Defence from Edmonton Centre for their cooperation and hard work in expediting the movement of the bill.
The bill is aimed specifically at enhancing fairness in the military justice system, both from the perspective of the accused person and the Canadian public. It would also ensure that members of the Canadian Forces enjoy a right to choose how they will be tried that parallels the rights that are currently found in the Canadian civilian criminal justice system and that it is charter compliant.
By remedying an impasse that was created by an appellant court judgment, the bill would ensure that justice can continue to be done for an accused person as well as for victims. It is meant to avoid onerous and perhaps deadly delay that might result. Members may be aware of an old legal maxim that says “justice delayed is justice denied”. The deadliest form of denial is apparent when a person is not able to have his or her case heard in a timely fashion.
The bill attempts to preserve the viability of the military justice system in fulfilling its key role of maintenance of discipline efficiency and morale upon which the Canadian Forces depend.
In particular, the bill would more closely align procedures for the selection of the type of trial for a court martial, as well as court martial decision making with the approach that is currently taken in the civilian criminal justice system. It would also preserve the attributes that are essential to satisfy the unique needs of the Canadian military justice system.
Before speaking to the particular amendments proposed in the bill, I would first like to briefly address the overarching issue of the necessity for a separate Canadian military justice system. It begins with defining what differentiates the current system in the civil sense as compared to our military justice system.
The system of Canadian military justice was instituted in order to deal with military offences in a prompt and fair manner, in Canada and abroad, while respecting the Canadian Charter of Rights and Freedoms and meeting Canadians' expectations.
As we know, the National Defence Act establishes the legal basis for the Canadian military justice system—the Code of Service Discipline. Among other things, the code determines who is subject to the military justice system as well as setting out military offences such as striking a superior, disobeying a lawful command and being absent without authority . The code also encompasses offences under the Criminal Code of Canada and other federal laws and establishes two types of military tribunals for military offences—trial by summary conviction and court martial.
The need for a separate system of military tribunals distinct from the civilian criminal justice system has deep historic roots in our country and was affirmed by the Supreme Court of Canada in 1992 in the case of the Queen v. Généreux.
The Canadian military justice system has been designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale. However, first and foremost, it must ensure that the members of the Canadian Forces are dealt with fairly.
Key to ensuring this over time is the supervisory justice jurisdiction of civilian appellate courts, such as the Court Martial Appeal Court and the Supreme Court of Canada.
As with any justice system, these appellate courts sometimes highlight the need for modernization adjustments in our military justice system. Clearly, as with all systems, there is an evolution and court decisions can create new precedent.
Such is the case today with the handing down of the Court Martial Appeal Court's decision on April 24, 2008 in the case of the Queen v. Trépanier.
The court found that the exclusive power of the director of military prosecutions to choose the type of court martial that will try an accused person and the duty of the court martial administrator to convene the type of court martial thus selected violates an accused person's constitutional right to make full answer and defence and to control the conduct of the defence.
The court held that these provisions of the National Defence Act violate the charter and are of no force and effect, specifically section 7 and 11(d) of the charter.
Importantly and, in large part, adding to the urgency of the passage of this legislation, the court refused to stay its decision, effectively removing the authority to convene courts martial, an essential step in the bringing of a matter to trial. The crux of the matter is that this could suspend trials and, in many cases, cause a backlog which already exists on the docket.
Leave to appeal the decision in Trépanier is being sought from the Supreme Court of Canada, along with a stay of execution for the decision. However, neither the appeal nor the stay which is being sought will provide a clear, timely or certain solution to the delays and dilemmas created by the Trépanier decision.
Left unaddressed, trials by court martial cannot be conducted. Simply put, serious offences may go unpunished and victims may not see justice done.
Bill C-60 now before this House is the government's legislative response to the court martial appeal's decision in Trépanier. It would bring clarity and stability to the court martial convening process and would allow the process to continue to function.
First, the bill would simplify the court martial structure by reducing the number of types of court martial from four to two. The remaining types of court martial would be the standing court martial, a military judge sitting alone, and the general court martial, a military judge sitting with a panel of five members.
Second, the bill would establish a comprehensive framework for the selection of the type of court martial. It sets out which serious offences must be tried and the general court martial and standing court martial respectively and in all other cases permits the accused person to choose one of the two processes.
Finally, the bill would strengthen court martial decision making by providing military judges with authority to deal with pre-trial matters at an earlier stage in the process and would enhance the reliability of verdicts by requiring key decisions of the panel at a general court martial to be made unanimously by a unanimous vote, rather than by a majority vote as is the present case. This mirrors exactly what we would find in the criminal trial process in Canada.
Mr. Speaker, the proposed amendments are a clear and decisive response to the concerns raised by the Court Martial Appeal Court. The amendments establish a legal framework for the choice of type of court martial in accordance with the provisions of the Criminal Code. In addition, they specify the circumstances in which it is appropriate to permit an accused person to choose the type of court martial that will be convened.
The bill will also clarify certain provisions of the National Defence Act that were interpreted in an unexpected way by the Court Martial Appeal Court in R. v. Grant.
Specifically, the bill will clearly establish that there can be no exception to the one-year limitation period for holding summary trial; that when the Court Martial Appeal Court allows an appeal, it shall direct a new trial by court martial; and that when charges are laid, the authorities are required to act expeditiously under the Code of Service Discipline.
The reform of the military justice system is ongoing. Simply put, the bill before us today would move closely to align the military justice system with the processes in the current criminal court system while preserving the system's capacity to meet essential military requirements.
It would respond to the concerns expressed by the court martial appeal decision and the recommendations that have been received. It also would promote charter values and enhance the fairness in our justice system in both the eyes of the accused and members of the Canadian public.
The amendments to the National Defence Act, in short, Canada's military justice system, continues to have the trust and confidence of Canadians. Again, I thank members opposite for supporting the expediting of this process.
