Oct 25 2012

Strengthening Military Justice in the Defence of Canada Act


Tuesday, October 23, 2012

Speaker: The Honourable Andrew Scheer

Government Orders

Strengthening Military Justice in the Defence of Canada Act

The House resumed from October 22 consideration of the motion that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee, and of the motion that this question be now put.


Mr. Mike Sullivan (York South—Weston, NDP):


Mr. Speaker, the genesis of the act to amend the National Defence Act and to make consequential amendments to other acts, or the strengthening military justice in the defence of Canada act, which is before us, actually commenced over nine years ago, when Justice Lamer, in September 2003, as a result of a required review of the act, wrote 88 recommendations that needed to be acted on immediately to strengthen the National Defence Act. What has happened so far? Nothing has taken place.


First, we had a Liberal government that chose to ignore it and not do anything during the time it was in power.


Then we had a Conservative government, which, to its credit, actually brought forward a bill. However, not to its credit, the Conservative government decided to prorogue Parliament, so the bill died on the order paper. That was Bill C-7, and that was back in 2007. At that point, we were now four years from these recommendations having been made.


In 2008, we had Bill C-45. Again, the Conservatives brought forward a bill, but they then called a snap election, in violation of their own election law. That ended up killing that bill on the order paper again.


Finally, in 2010, Bill C-41 came forward. At the committee stage, the government and all parties agreed on amendments to Bill C-41. Why we are standing and talking about this so vociferously is that those amendments have been removed by the government.


It is audacious. It is arrogant. It is not in keeping with the good practices of Parliament that when we reach agreement on issues we can agree upon, they are removed. The Conservatives have done this over and over again. They have done it with the refugee system. They have done it with this act. It seems as though the government does not want to pay attention to what all Canadians are saying but only to what those sitting opposite are saying.


We have specific issues with this bill. One is the authority of the Chief of the Defence Staff in the grievance process. We recommended in Bill C-41 that more authority be provided, which was a direct response to Justice Lamer’s recommendation. That was agreeable to the government two years ago. It is not agreeable to it now. What is going on?


There were changes to the composition of the grievance committee to include 60% civilian membership. Again, in Bill C-41, clause 11 was amended. The government agreed to it, and we thought we could go forward with it. Again, it has been removed. What does the government have against that kind of agreement?


I was a union representative for many years, way too many years. A grievance process is something that has to be seen to have a just end. To have a just end, there has to be a final and binding resolution given independently of the two parties that are at odds. In the normal employment relationship, it is the employer and the employee. In this kind of employment relationship, it is the military and the soldier.


When soldiers have a grievance, they take it to the military. We believe that they need to see that this grievance process will be done in a timely fashion and that it will have a final and binding end, which will be a non-partisan decision. That decision, as in a labour arbitration by an arbitrator, will be made by someone who is independent of the two parties. As long as the government and the military can keep appointing members and ex-members of the military to be part of that final process, it will not be seen to be justice.


Maybe in the long run we can come up with these changes. We might have a better chance of making these changes in 2015. For now, we are astounded that the government would agree, and then only two years later choose not to agree.


Finally, we requested changes to clause 75 in Bill C-41 to ensure that a person convicted of an offence during a summary trial is not unfairly subjected to a criminal record.


For those who are non-military, a summary trial is much like what goes on between the boss and an employee. An employee screws up and he or she is hauled into the boss’s office and the boss has a whole range of disciplinary measures that can be meted out. That person can be sent home without pay or demoted. Ultimately if it is severe enough and has happened often enough, the employee can be fired or can be sent for help. There is a whole range of options as to what can be done.


That is very similar to what goes on with a summary trial. The individual is not usually entitled to legal representation when hauled into the boss’s office. There are no notes kept or record of this trial. The only record might be of the decision to cause a penalty. In large measure, a summary trial is very much like what goes on in a workplace. The trouble is that in the military a summary trial can cause a person to have a permanent criminal record.


That could never happen in anybody else’s employment anywhere in Canada. There is nowhere that a person could gain a criminal record without having been through a criminal trial with the right to representation, the right to not incriminate oneself, the right to be heard in front of a judge and the right to a jury if necessary. Those kinds of things go on in criminal trials. They are the kinds of things that our democracy stands for, and for which these soldiers go into battle to try to create in other countries. Here we are telling them they are not entitled to them themselves, that they are not entitled to the same protections that other Canadians are entitled to.


A criminal record carries with it some very severe consequences. It is very difficult for people to find a job when they come out of the military if they have a criminal record. It is very difficult to travel. As we know, recently at the border Canada has stopped people who have criminal records from coming into Canada. These people will have difficulty getting into other countries if they have criminal records.


It is not just and it is not right that from what is basically a meeting in the boss’s office, people are labelled for the rest of their life as having a criminal record. That is the kind of thing that we need to remove from the bill. We understand that the government has moved some way toward that, but it has not gone the whole hog. It has not gone to the same level of decisions that we suggest do not deserve a criminal record in a summary trial.


I want to give an example of how the current military grievance process is not effective. I am trying to assist a person in my riding who had a grievance against the military, who had left the military because he was told that the best way to get what he needed done was to leave and come back. When he tried to go back, he was refused and he grieved it.


He wrote to the commanding officer who said, “I can’t do anything until you grieve it”, so he filed a grievance. The response to his grievance was that he was out of time and should have filed it months ago. However, now he had an answer so he wrote to the boss and the boss said, “You’re right. That rule that says you should be able to come back was what was in place at the time so we should have let you back. I’m now changing that rule retroactively so you can’t come back”.


That is the kind of military justice, the kind of end to a grievance process that happens in the armed forces right now, and it makes a mockery of the system. Why call it a grievance process if that is what can happen? We might as well not have one.


There is a grievance process for good reason. It is because there are times when people need to sit down and talk out what happened. People need to sit down and actually work out that a promise was made and not kept or that a decision was taken that was not just, and find a way around that. However, at the end of that process, there needs to be an impartial decision-making body.


Justice Lamer recommended it and we agreed. We proposed an amendment in the last Parliament and the government agreed to our amendment, but it is not here. The only excuse I have heard from the Conservatives so far has been that it would be disenfranchising 700,000 people who were former members of the military from being on this tribunal. That leaves 34 million other people to be on that tribunal. There are lots of people to choose from.


Mr. Claude Gravelle (Nickel Belt, NDP):


Mr. Speaker, when the bill was called Bill C-41, the Conservatives agreed to many amendments to the bill, but that was when they were a minority Parliament. Now that we are in a majority Parliament, it seems that the amendments they agreed to are irrelevant.


Why have the Conservatives taken this attitude? Is it because they have a majority government now and they do not care, or it is just Conservative arrogance?


Mr. Mike Sullivan:


Mr. Speaker, power corrupts and absolute power corrupts absolutely. It is true. That is what we have seen. They have a majority government, a strong, stable majority government in the words the Conservatives keep using, so they can do this, not because it is right but just because they can.


Clearly the Conservatives agreed in 2010 that something else was right to do. Why change it? Why bring it back differently?


To me it means that there is a level of arrogance and a level of unparliamentary behaviour on the part of the other side that is not in keeping with the good traditions of this Parliament, where we discuss, we work out differences and we come to agreements. When those agreements are thrown out by members of the Conservative side, it does not speak well of them.





Ms. Irene Mathyssen (London—Fanshawe, NDP):


Mr. Speaker, I would like to ask my colleague a question in regard to what the B.C. Civil Liberties Association told this Parliament in February. Basically that was that military officers who give out sentences in summary trials are concerned with showing unit discipline and deferring future violations, not the effect imposed on an accused in the civilian world with a criminal record.


I wonder if the member agrees that there must be discipline at all costs is perhaps one of the things that creates a situation where criminal charges are laid and that it does indeed impede the future of that individual who has been charged.


Mr. Mike Sullivan:


Mr. Speaker, I agree with my colleague from London—Fanshawe that there is a balance that we need to achieve within the ability to swiftly, in the case of a summary trial, create unit discipline and deter future violations.


There is no question about the need for that ability. No one is disagreeing that it is a special aspect of the military that needs to be maintained.


What does not need to be maintained is the future effect that those actions have on that individual. That is the issue here. It is not whether or not discipline needs to be maintained or whether the commander has the right to discipline as he sees fit. The issue is that it should not carry consequences that are outside the norm of consequences for those same actions in the real world, when in the future that person ultimately leaves the military as most Canadian soldiers eventually do.


Ms. Libby Davies (Vancouver East, NDP):


Mr. Speaker, I want to focus again on the fact that the NDP is opposed to the bill in principle because it is so lacking in amendments that should have been a part of this bill.

I want to agree with the member when he said there is a level of arrogance from the government, in that it would bypass very important amendments that were included in the previous bill. I wonder if he would comment on that.


Mr. Mike Sullivan:


Mr. Speaker, I agree that is what we are seeing here. We have seen this in other bills that have come before this Parliament where there was all-party agreement in the past. In one case, the refugee bill, the government chose to turf it out. It was already enacted, and the government chose to turf it out and go backwards.


We in the NDP do not wish to take Canada backwards.



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