Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts (short title: Strengthening Military Justice in the Defence of Canada Act), was introduced in the House of Commons on 7 October 2011 by the Minister of National Defence. It passed second reading and was referred to the House of Commons Standing Committee on National Defence on 12 December 2012. The committee presented its report on 7 March 2013, and the bill passed third reading in the House on 1 May 2013.
The bill largely reproduces the provisions of the former Bill C-41, which received first reading on 16 June 2010 during the 3rd Session of the 40th Parliament, but which died on the Order Paper when Parliament was dissolved for the 41st general election.
Bill C-15 also takes into account the amendments to the National Defence Act (NDA)1 made by the former Bill S-3, which was passed into law in March 20072 and provides for a national databank for information about persons found guilty of military offences of a sexual nature. However, unlike the former Bill C-7,3 which was introduced in the House of Commons on 27 April 2006 but did not proceed past first reading, Bill C-15 does not spell out the responsibilities of the Military Police Complaints Commission, nor does it include the 60-day deadline for placing a Provost Marshal’s decision on a complaint before the Commission for review.4
Overall, Bill C-15 responds to many of the recommendations made by the Right Honourable Antonio Lamer, former Chief Justice of Canada, in his 2003 report on the first independent review of amendments made to the NDA in 1998 under the former Bill C-25 (Lamer Report).5
The amendments set out in Bill C-15 clarify the amendments introduced by the former Bill C-25.6 While Bill C-15 makes the military justice system more consistent with the justice system established in the Criminal Code,7 it also takes into account the unique nature of the military justice system, and therefore aims to provide a degree of flexibility, needed for maintaining discipline. The bill aims to enhance the effectiveness of the military justice system and provides greater independence and impartiality for the key players in that system, in particular military judges and the Director of Defence Counsel Services.
Bill C-15 was introduced into the House of Commons on the same day as Bill C-16, the Security of Tenure of Military Judges Act,8 which provides security of tenure for military judges until a fixed age of 60 years, subject only to removal for cause on the recommendation of an Inquiry Committee.9 Bill C-16 received Royal Assent on 29 November 2011.
The National Defence Act creates a separate system of military justice, including a system of military courts.10 The Act sets out a Code of Service Discipline, which includes specific military offences and incorporates all offences under the Criminal Code or any other Act of Parliament.11 The Code of Service Discipline applies to members of the Canadian Forces and, in limited circumstances enumerated in the National Defence Act, to specific categories of civilians.12
Since the Canadian Charter of Rights and Freedoms (Charter) came into force in 1982,13 Parliament and the courts have considered issues relating to the structure of the military justice system several times; as a result, the system has evolved considerably.14
The last comprehensive legislative reform of the military justice system occurred in 1998 with the passage of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts.
Bill C-25 made wide-ranging amendments to the National Defence Act. The bill responded to many of the recommendations made in:
The purpose of the amendments in Bill C-25 was to promote integrity and fairness within the system established by the NDA. The principal changes included:
The bill received Royal Assent on 10 December 1998. The various parts of the bill came into force between 1999 and 2000.
Clause 96 of Bill C-25 required that the minister undertake an independent review of the amendments to the NDA every five years following the bill’s coming into force. Accordingly, former Chief Justice Lamer began the first review in March 2003, and his report was tabled in Parliament by the Minister of National Defence, John McCallum, on 5 November 2003.
The independent review related solely to the provisions and operation of Bill C-25, and did not encompass the NDA as a whole.
In the conclusion to his report, Justice Lamer observed that “Canada’s military justice system generally works very well, subject to a few changes.” 18 To improve an already effective military justice system that provided a model on the international scene, he recommended that certain changes be made.
The 88 recommendations in the Lamer Report were primarily designed to provide better guarantees of the independence of key players, in particular military judges and the Director of Defence Counsel Services, and to improve the grievance and military police complaints process. The proposed amendments to the Code of Service Discipline reflected a desire to incorporate certain Criminal Code rules into the military justice system.
Bill C-7, An Act to amend the National Defence Act, was introduced on 27 August 2006. It did not go beyond first reading and died on the Order Paper at the end of the session. Bill C-45, An Act to amend the National Defence Act, which was virtually identical to Bill C-7, was introduced on 3 March 2008 but met the same fate as its predecessor when Parliament was dissolved for the 40th general election. Both bills proposed follow‑up on the recommendations in the Lamer Report, in the form of amendments to the NDA. If either of them had passed, a number of changes similar to those found in Bill C-15 would have been made to the NDA:
Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, received Royal Assent on 18 June 2008. Bill C-60 represented the legislative response to the decision of the Court Marshal Appeal Court of Canada in R. v. Trépanier.19
On 24 April 2008, in R. v. Trépanier, the Court Martial Appeal Court of Canada declared unconstitutional the provisions in the NDA enabling the Director of Military Prosecutions to choose the type of court martial for a given accused (section 165.14 of the NDA). Bill C-60 rectified this defect by amending the NDA to include a three-pronged system consistent with the requirements of the decision in Trépanier: In certain cases, the convening of a General Court Martial is mandatory; in certain cases, the convening of a Standing Court Martial is mandatory; and, in certain cases the accused can select the type of court martial to be instituted.20 Bill C-60 also responded to recommendations made in the Lamer Report and implemented amendments to the NDA that had been proposed in Bills C-7 and C-45.
Three significant amendments to the military justice system were introduced in Bill C‑60:
In a letter dated 17 June 2008, the Minister of National Defence asked the Standing Senate Committee on Legal and Constitutional Affairs to study the provisions and applications of Bill C-60 once the bill was enacted and to provide him with its observations and recommendations.21 The committee’s observations and recommendations were set out in its final report, Equal Justice: Reforming Canada’s System of Courts Martial, tabled in the Senate in May 2009.22 The committee issued nine recommendations relating to the conduct of courts martial and sentencing in the military courts.
The government’s response to this report, tabled in the Senate on 22 October 2009, indicated that the government accepted, or accepted in principle, all of these recommendations.23
Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts (short title: Strengthening Military Justice in the Defence of Canada Act), was introduced in the House of Commons on 16 June 2010 by the Minister of National Defence. The bill was reported back to the House of Commons following study by the House of Commons Standing Committee on National Defence,24 but it died on the Order Paper when Parliament was dissolved for a general election in March 2011.
The bill incorporated the core provisions proposed in bills C-7 and C-45 not included in Bill C-60. The amendments in Bill C-41 followed up on many of the recommendations in the 2003 Lamer Report as well as on those made in the May 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs.25
Unlike Bill C-7,26 Bill C-41 did not spell out the responsibilities of the Military Police Complaints Commission,27 nor did it include the 60-day deadline for requesting review of a decision of the Provost Marshal on a conduct complaint by the Commission.28 Appearing before the House of Commons Standing Committee on National Defence in February 2011, the Honourable Peter MacKay, Minister of National Defence, indicated that this omission was deliberate. Given the matters under consideration by the Commission at that time, the Minister explained that he did not want legislative changes to “impact or in any way impugn” an ongoing complaints process.29
The committee also heard evidence from a number of witnesses and received written submissions on Bill C-41. Witnesses expressed strong support for a number of the reforms enacted in the bill, in particular with respect to the wide-ranging sentencing reforms, stronger protections for the independence and impartiality of military judges and improved due process provisions for accused persons. The provision of a statutory basis for the duties and responsibilities of the Provost Marshal was also commended as a positive development.30
Some witnesses raised concerns regarding specific clauses in the bill, including:
A number of submissions to the committee suggested that while the bill was a very positive step, it ought to have gone further by, for example, reforming the summary trial system to include more procedural protections for accused persons or by diminishing the consequences of conviction before such tribunals.34 The lack of authority of the CDS to provide financial compensation when compensation is found to be due under the grievance process, and the failure to implement certain outstanding recommendations in the Lamer Report relating to the Grievance Board were also raised as concerns during the hearings.35
The committee reported the bill back to the House of Commons on 24 March 2011, with amendments to six clauses.36 Shortly thereafter, Parliament was dissolved and the bill died on the Order Paper. An amendment by the committee adding the duties and responsibilities of the Provost Marshal to the scope of future independent reviews of the military justice system was incorporated into Bill C-15. The committee’s other amendments were not retained.
On 2 June 2011, in the case of R. v. Leblanc,37 the Court Martial Appeal Court declared the current scheme for the appointment and tenure of military judges to be unconstitutional. The Court suspended the declaration of invalidity for six months to give Parliament an opportunity to amend the legislation. Bill C-16 was introduced in the House of Commons in October 2011, at the same time as Bill C-15.
The stated intention of Bill C-16 was to remove any impression of outside influence on the decisions of military judges in order to meet constitutional standards for judicial independence and impartiality. The bill was separated from the more comprehensive reforms to the military justice system envisioned in Bill C-15 in order to facilitate the swift passage of the amendments to the NDA in time to meet the deadline set out by the Court Martial Appeal Court in R. v. Leblanc.
During hearings before the Senate Standing Committee on National Defence, questions were raised regarding the constitutionality of the provision in the bill requiring military judges to retire at a fixed age of 60 years, even if the judge meets the physical fitness requirements for continued service in the Canadian Forces. Discussion centred on whether this provision violated legal prohibitions on discrimination on the basis of age in the Canadian Human Rights Act 38 and/or under section 15 of the Charter, guaranteeing the equality rights of all Canadians.39
Bill C-16 received Royal Assent on 29 November 2011.40 Coordinating amendments in Bill C-15 provide that the relevant provisions related to the appointment and security of tenure of military judges in Bill C-15 will replace those contained in Bill C‑16 if Bill C-15 receives Royal Assent.
In May 2011, the Minister of National Defence, the Honourable Peter MacKay, appointed the Honourable Patrick J. LeSage, retired Chief Justice of the Ontario Superior Court of Justice, to conduct the second independent review of Bill C-25 (first reviewed in the Lamer Report) and Bill C-60, passed in 2008.41 Section 96 of Bill C‑25, provides that the independent review should consider all of the provisions of that bill. However, in a letter dated 25 March 2011, Minister MacKay stated,
In order to maximize the utility of the second independent review, the review might most effectively be accomplished by focusing upon the Lamer Report recommendations which have already been implemented.42
The Second Independent Review authority was directed to provide a final report suitable for release to the public by 31 December 2011. The Report of the Second Independent Review Authority to the Honourable Peter G. MacKay Minister of National Defence was tabled in the House of Commons on 8 June 2012.43
Bill C-15 is part of an on-going process of reform of the military justice system. It incorporates the core provisions proposed in bills C-41, C-7 and C-45, while taking into account the amendments to the NDA upon passage of Bill C-60. The amendments in Bill C-15 implement many of the recommendations in the Lamer Report as well as several of those made in the May 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs. Among the proposed amendments are:
Before Bill C-25 came into force, the Office of the Judge Advocate General handled both prosecution services and defence services for accused persons. Bill C-25 eliminated those functions by creating two positions: the Director of Military Prosecutions (DMP) and the Director of Defence Counsel Services (DDCS). The DMP is primarily responsible for laying charges and conducting prosecutions in courts martial. The DDCS is mainly responsible for supervising and managing the provision of legal services to accused persons.
The minister appoints the DMP and the DDCS,44 and they have security of tenure for a maximum renewable term of four years. At present, however, the security of tenure enjoyed by the DMP differs from that of the DDCS. In order to remove the DMP, the minister must obtain a recommendation from an inquiry committee. The DDCS does not have that protection. Clause 71(1) changes the situation by amending section 249.18(2) of the NDA and providing that the DDCS may only be removed upon the recommendation of an inquiry committee.45
Neither the NDA nor the Queen’s Regulations and Orders for the Canadian Forces (QR&O) states how the remuneration of the DMP and the DDCS is established. To ensure that the process is transparent, clause 3(1) amends section 12(3)(a) of the NDA and provides that the pay of both directors shall be prescribed by Treasury Board regulation.46
Before the passage of Bill C-16, military judges were appointed by the Governor in Council with security of tenure for a term of five years. Military judges could be removed during their tenure only by the Governor in Council on the recommendation of the Inquiry Committee created under the NDA.47 Terms were renewable on the recommendation of the Renewal Committee until judges reached the age of retirement set out in regulations.48
In R. v. Leblanc, the Court Martial Appeal Court held that sections 165.21(2) to 165.21(4) of the NDA and articles 101.15, 101.16 and 101.17 of the QR&O, which together set out the procedure for the appointment and reappointment of military judges and their term of judicial tenure, breached the right of an accused to a trial before an independent and impartial tribunal under section 11(d) of the Charter.
To enhance judicial independence and impartiality, Bill C-15 reproduces amendments made in Bill C-16 to remedy the constitutional defect identified in R. v. Leblanc and makes additional amendments related to the remuneration and conditions of employment of military judges.
At present, military judges must take an oath before each trial.49 New section 165.21(2) of the NDA provides that they will henceforth take an oath when they are appointed.50
Clause 41 of Bill C-15 amends section 165.21 of the NDA to provide that military judges hold office until they request to resign, or until they reach the age of 60 years (new section 165.21(4) of the NDA). The bill also sets out the notification process for resignation by military judges (new section 165.21(5) of the NDA).51
Under the bill, a military judge may be removed for cause only on the recommendation of a Military Judges Inquiry Committee (new section 165.21(3) of the NDA).52
While the present NDA provides that the Governor in Council must obtain a recommendation of the Inquiry Committee to remove a military judge, the composition of the committee and the factors it must consider are set out only in the QR&O.53
The bill incorporates into new sections 165.31 to 165.32 of the NDA the essence of the rules set out in the QR&O.54 The members of the committee will still be judges of the Court Martial Appeal Court and be appointed by the Chief Justice of that Court (new section 165.31(1) of the NDA). At the request of the minister, the committee must commence an inquiry into whether a military judge should be removed from office (new section 165.32(1) of the NDA), and it has the discretion to inquire into whether a military judge should be removed from office as a result of any complaint or allegation that it receives in writing from any other source (new section 165.32(2) of the NDA).
On the other hand, the bill differs in some respects from the scheme established by the QR&O, in particular with regard to the number of members of the committee and the grounds for removal. While the QR&O required that the committee be composed of at least two judges of the Court Martial Appeal Court, new section 165.31(1) of the NDA requires that at least three judges sit on the committee. New section 165.32(7) of the NDA reiterates the four grounds for removal set out in the QR&O:
The bill adds a fifth ground: the fact that the military judge does not satisfy the physical and medical fitness standards applicable to officers. This last ground is currently considered by the Renewal Committee when renewing the appointment of a military judge.
The rates and conditions of issue of military judges’ pay are prescribed by the Treasury Board.55 At present, the NDA provides that judges’ remuneration must be reviewed regularly by a committee, but the composition of the committee and the factors it is to consider in its review are set out in the QR&O.56
Clause 45 incorporates into the NDA the rules regarding judicial remuneration that are currently set out in the QR&O.57 The Military Judges Compensation Committee remains composed of three part-time members: one is appointed by the minister, one is nominated by the military judges, and the chair is nominated by the other two members (new section 165.33(1) of the NDA). To determine whether military judges’ remuneration is adequate, the committee considers the same factors as currently set out in the QR&O, including the federal government’s economic position, the financial security of the military judiciary and the need to attract outstanding candidates to the military judiciary (new section 165.34(2) of the NDA).
The committee conducts its review of the military judiciary every four years (new section 165.34(3) of the NDA), and at any time at the request of the minister (new section 165.35(1) of the NDA).
Clause 46 stipulates that military judges represented before the committee by a lawyer shall be entitled to the costs of such representation.
The bill does not incorporate the Lamer Report’s recommendation that the annual salary of military judges be set out in the NDA, along with a formula for the periodic revision and update of salaries.58
The bill also clarifies the role of the Chief Military Judge. The Chief Military Judge, who must hold a rank no lower than colonel (new section 165.24(2) of the NDA), may, with the approval of the Governor in Council and following consultation with a rules committee appointed by the Governor in Council, make rules governing practice and procedure in courts martial. For example, rules may be made regarding pre-trial conferences, orders for release or detention, documents filed in court and the scheduling of trials (new section 165.3 of the NDA).
The Governor in Council may appoint a Deputy Chief Military Judge who can exercise the responsibilities of the Chief Military Judge in the event that the latter is absent or unable to carry out his or her duties, or the office is vacant (new sections 165.28 and 165.29 of the NDA).59
To ensure that more military judges will be available to meet the growing need for judicial services, clause 41 permits a Reserve Force Military Judges Panel to be established (clause 41; new section 165.22(1) of the NDA).
The Governor in Council may name to the panel any officer of the reserve force who has been an officer for at least 10 years and:
It is the Chief Military Judge who selects a reserve force officer named to the panel to perform the duties of a military judge (clause 41; new section 165.222(1) of the NDA).
The Supreme Court of Canada has held that the fact that a judge performs his or her duties part-time does not create a reasonable apprehension of bias.60 However, the judge’s activities outside his or her judicial functions may cause problems.61 Clause 41 provides that a part-time military judge shall not engage in any business or professional activity that is incompatible with his or her judicial duties (new section 165.223 of the NDA). As well, a part-time military judge may not be appointed the Chief Military Judge, exercise any delegated functions of the Chief Military Judge, or be appointed the Deputy Chief Military Judge (clauses 43, 44 and 45; new sections 165.24(1), 165.26, 165.28 of the NDA).
In addition, under clause 41, the name of a reserve force military judge will be removed from the panel upon retirement or upon release at his or her request from the Canadian Forces (new section 165.221(2) of the NDA).
Clause 42 expressly grants military judges the same protection from civil liability that the common law provides to civilian judges in superior courts which hear criminal cases.62
The Court Martial Administrator is responsible for convening the court martial, in response to a decision by the DMP, and appointing the members of a General Court Martial.63 Clause 40 amends section 165.19 of the NDA to provide that the Court Martial Administrator has the power to summon the accused person to appear before the court martial.64
The Court Martial Appeal Court in R. v. Gauthier,65 and the Federal Court of Appeal in Dulude v. The Queen,66 held that the Charter places limits, similar to those which apply under the Criminal Code,67 on the discretion to arrest without a warrant conferred in sections 154 to 156 of the NDA. Clauses 27 and 28 of Bill C‑15 essentially incorporate into the NDA the grounds set out in the Criminal Code for a lawful arrest without warrant.68 Under the bill, an officer, a non-commissioned member (clause 27) or a member of the military police (clause 28) may arrest a person without warrant only:
At present, the NDA allows an officer in the chain of command to review a custody review officer’s decision to release a person who has been arrested and to alter any release conditions that have been imposed on that person.70 Military judges may review any decision to detain an individual,71 but currently they do not have the power to review a decision to release, which includes the decision to impose conditions on release.
Clause 31 provides that a military judge may review release decisions of the custody review officer and the officer in the chain of command.72 As a result, military judges may also alter any release conditions that have been imposed. A military judge may also, after the expiry of 30 days (new section 158.7(3) of the NDA), review the earlier decision of a military judge and make a direction regarding release.
At present, a military judge may direct that a person be detained in custody before trial (pre-trial detention) where “any other just cause [to do so] has been shown.” 73 In the case of R. v. Hall, 74 the Supreme Court of Canada held that this ground, which also appears in the Criminal Code,75 was contrary to the Charter. Therefore, clause 32 replaces the expression “any other just cause has been shown” in section 159.2(c) of the NDA with the phrase “custody is necessary to maintain public trust in the administration of military justice.” 76 That ground was held to be valid in Hall.
Currently, the NDA does not clearly specify the point at which an order for retention in custody, or the conditions of release on bail, expire. Clause 33 provides that the circumstances in which orders for retention in custody or conditions of release terminate are to be prescribed by the Governor in Council.77 In his report, former Chief Justice Lamer noted that the Canadian Bar Association suggested that a custody order or conditions of release should expire 14 days after arrest, if no charge has been laid.78
The NDA does not currently require that a charge be laid within a reasonable time against a person who has been retained in custody or released.79 The Court Martial Appeal Court has held that the Charter nonetheless requires that charges under the NDA be subject to principles similar to those set out in the Criminal Code requiring that charges be laid without unreasonable delay.80 Clause 34 provides that a charge must be laid as expeditiously as circumstances permit.81
Clause 39 provides that a charge remains valid despite an irregularity, an informality or a defect. In addition, if the DMP decides not to prefer a charge against an accused, it may reverse that decision and file a charge against the accused later.82 At present, the NDA permits only the withdrawing of a charge already laid.83
The bill makes a number of changes to the NDA in respect of proceedings before service tribunals. The term “service tribunal” includes both a court martial and a person presiding over a summary trial.
At present, the NDA stipulates that a summary trial must begin within one year after the day on which the offence is alleged to have been committed.84 Once the limitation period is over, the charge must be tried by court martial. Clause 35 amends section 161(1.1) of the NDA to include the additional requirement that a charge be laid within six months of the day on which the offence is alleged to have been committed if it is to be tried by summary trial before a commanding officer. The clause would also allow an accused person to waive the one-year limitation period (new section 163(1.2) of the NDA).85 Clause 36 introduces the same requirements for charges laid in proceedings where a summary trial will be held before a superior commander (sections 164(1.1) and 164(1.2) of the NDA).
Currently, only officers below the rank of lieutenant-colonel are subject to summary trial. Clause 36(1) makes officers holding the rank of lieutenant-colonel subject to summary trial. Clause 36 also prevents military judges from being tried by summary trial (new section 164(1.3) of the NDA).
Clause 50 amends section 180 of the NDA to increase the range of proceedings before military judges that normally must be held in public. In addition to courts martial, which were already presumptively public under the NDA, Bill C-15 provides that the following types of proceedings will also be public (new section 180(1) of the NDA):
This change represents a step toward reducing the differences between military court proceedings and civilian criminal trials.
New section 180(2) of the NDA adds two new situations in which a court martial or a military judge may order that the public be excluded: cases that may cause injury to national defence or to national security.
Clause 47 changes the rank of the senior member of the five-member General Court Martial panel from colonel to lieutenant-colonel (section 167(2) of the NDA). Clause 47 consequently changes the rank of the senior member and of the other members of the panel depending on whether the accused person is a colonel (section 167(5) of the NDA), an officer of the rank of or below the rank of lieutenant-colonel (section 167(6) of the NDA), or a non-commissioned member (section 167(7) of the NDA).
Bill C-15 provides that a majority of those sitting on the panel trying a non-commissioned member will now be non-commissioned members themselves, rather than officers. Whereas the former Bill C-41 had required that only one of the three non-commissioned members be of or above the rank of sergeant, Bill C-15 requires that all non-commissioned members on the panel be of or above that rank (section 167(7) of the NDA).
In addition, unlike Bill C-41, Bill C-15 (clause 48), retains the NDA’s prohibition on officers below the rank of captain sitting on General Court Martial panels (section 168(e) of the NDA).86
Clause 54, like section 475 of the Criminal Code, deals with the case of an accused person who absconds during the course of his or her trial.87 Frequently, a person accused of a military offence fails to appear at trial.88 The military judge presiding over a court martial may now continue the trial and pass sentence in the absence of the accused. Counsel for the accused is not deprived of any authority he or she may have to represent an absconding accused. However, case law under the Criminal Code suggests that this clause will not confer any authority for counsel to continue to act for the accused, nor will it require counsel to do so.89
Clause 15 permits accused persons to raise the same legal defences to charges under the Code of Service Discipline as would be available in a trial before civilian courts (new section 72.1 of the NDA).
Clause 59 imports the procedure set out in the Criminal Code 90 regarding the holding of hearings concerning mental disorders, with a few adjustments. Currently, if an accused is declared to be unfit to stand trial or not responsible on account of mental disorder, the court martial will hold a hearing to decide whether to release the individual or order that the individual be detained in custody in a hospital. The amendments provide for greater participation by victims in proceedings and require that, in making a disposition, the court martial consider, among other things, any victim impact statement (new section 202.201(15) of the NDA). The court may order that the DDCS appoint counsel for an accused who is not already represented (new section 202.201(8) of the NDA).
The Lamer Report stated that the sentencing provisions in the NDA “require extensive reform” 91 and recommended that a more flexible range of punishments, similar to those found in the Criminal Code, be permitted. Clause 62 therefore adds a new division on sentencing to the NDA.92
New sections 203.1 to 203.4 of the NDA deal with the purposes and principles of sentencing.
Section 203.1(1) of the NDA stipulates that the fundamental purposes of sentencing are to promote the operational effectiveness of the Canadian Forces – in particular the maintenance of discipline, efficiency and morale – as well as respect for the law and the maintenance of a just, peaceful and safe society. In addition to the purposes stated in the Criminal Code,93 which include denunciation, deterrence and rehabilitation, section 203.1(2) of the NDA sets out certain purposes specific to the military justice system, including public trust in the Canadian Forces and the promotion of obedience to lawful commands and orders.
Sections 203.2 and 203.3 of the NDA are designed to prevent unduly harsh sentences from being imposed by service tribunals.94 These sections reiterate sentencing principles stated in the Criminal Code,95 including the important principle that the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. The new sections also adapt certain principles to the military justice system. For example, they require that a service tribunal96 impose the least severe sentence required to maintain discipline, efficiency and morale (new section 203.3(d) of the NDA). Section 203.3(e) of the NDA provides that a service tribunal must take into consideration any indirect consequences of the finding of guilt or of the sentence.
Section 203.3(a) of the NDA sets out the aggravating circumstances listed in the Criminal Code that must be taken into account when sentencing97 and adds a number of aggravating circumstances specific to the military justice system:
New section 203.5 of the NDA provides that when a court martial sentences an individual, a disputed fact must be proved on a balance of probabilities, which is the standard of proof in civil trials. However, the prosecution must always prove aggravating facts and previous convictions beyond a reasonable doubt.
New sections 203.6 to 203.8 of the NDA incorporate into the NDA the rules in the Criminal Code relating to victim impact statements in their entirety.98 The statement relates to the harm done to or loss suffered by the victim arising out of the perpetration of the offence and may be submitted to a court martial.
Under the definition in new section 203 of the NDA, a victim is a person to whom harm was done or who suffered loss as a direct result of the commission of the offence, and includes, if that person is incapable of making a statement, a relative, the spouse or common-law partner, or a caregiver.
The victim must be informed that he or she may prepare a statement. The court martial may adjourn the proceedings to permit a victim to prepare a statement (section 203.7 of the NDA).
The bill introduces three new types of sentences into the NDA that are also found in the Criminal Code: absolute discharge, intermittent sentences and restitution orders.99
Having regard to the best interests of the accused and to the public interest, a service tribunal may direct that an accused person who is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, be discharged absolutely (new section 203.8(1) of the NDA). These are the same criteria as are provided in the Criminal Code,100 although the Code also allows for a conditional discharge.
A discharged offender is deemed not to have been convicted (new section 203.8(2) of the NDA). However, a firearms prohibition order (clause 22), a restitution order (new section 203.9 of the NDA) or an order for restitution of property (clause 74) may be made.
New sections 203.9 to 203.94 deal with restitution orders, which a court martial may impose in addition to any other sentence imposed on an offender (service tribunals are not given the power to make restitution orders). A restitution order will require that the offender pay the victim an amount to cover property damage or bodily or psychological harm resulting from the offence (new section 203.9 of the NDA). For example, a victim may have lost income or, where the victim is a member of the offender’s household, had expenses for housing, food and transportation. Money found in the possession of the offender at the time of the arrest may be used to cover part of those expenses (new section 203.92 of the NDA). These rules are taken from sections 738 and following of the Criminal Code. The bill also provides for civil enforcement of restitution orders (new section 203.91 of the NDA).
The Criminal Code provides that an offender may be ordered to serve a sentence intermittently,101 which often means on weekends. If this were not possible, a reservist who had to serve a sentence of imprisonment or detention might lose his or her civilian employment.102
Clause 24 therefore allows a service tribunal that imposes a sentence of imprisonment or detention for 14 days or less103 to order that the offender serve the sentence intermittently (new section 148(1) of the NDA). During periods when the offender is not in confinement, he or she must comply with the conditions prescribed in the order. If the offender breaches a condition, the service tribunal may vary the conditions or add other conditions, or order that the offender serve the sentence on consecutive days (new section 148(5) of the NDA).
At present, the NDA allows a superior commander presiding at a summary trial of an officer cadet to impose three types of punishment only: severe reprimand, reprimand and fine.104 To allow the superior commander greater flexibility, clause 36(4) also allows him or her to impose a minor punishment.105 Former Chief Justice Lamer suggested that this kind of punishment would be effective for maintaining discipline in an educational environment.106
At present, to meet the needs of the military, the NDA allows a service tribunal and a “suspending authority” prescribed in regulations by the Governor in Council107 to suspend the execution of punishment of an offender sentenced to imprisonment or detention.108 The sentence is served at a later date. Currently, the “suspending authorities” listed are members of the military chain of command, not judges.
Clause 64 provides that the Court Martial Appeal Court also has this power (new section 215(1) of the NDA).109 Responding in part to concerns articulated in the Lamer Report that the suspension provisions in the NDA lacked adequate safeguards against abuse, clause 65 provides that the suspending authority may suspend a punishment only if there are imperative reasons relating to military operations or the welfare of the offender (new section 216(2) of the NDA).110
Where a punishment is suspended by a service tribunal or the Court Martial Appeal Court, certain conditions, including keeping the peace and being of good behaviour, must be imposed on the offender (new section 215(2) of the NDA). Other reasonable conditions may also be imposed (new section 215(3) of the NDA). The suspension of punishment may be revoked, if the offender breaches these conditions, by the offender’s commanding officer (for conditions imposed by summary trial), by a military judge (for conditions imposed by a court martial) or by a judge of the Court Martial Appeal Court (for conditions imposed by that Court) (new section 215.2 of the NDA).
Where punishment is suspended by a “suspending authority,” the suspension may also be revoked if:
The suspending authority must still review the suspension every three months. The suspending authority may, at the time of the review, remit the punishment, in accordance with regulations to be made by the Governor in Council, as provided by clause 66. The bill does not alter the provisions of the NDA that provide for automatic remission of punishments and detention in certain circumstances.111
While the current NDA allows a service tribunal to sentence an offender to pay a fine,112 it is silent as to recovery of unpaid fines. Clause 21 establishes a mechanism for the civil enforcement of fines.113
Clause 75 adds to the NDA new section 249.27(1), which provides that an accused who is convicted - or was convicted before the coming into force of the new section - of a service offence has not been convicted of a criminal offence in two situations:
When Bill C-15 was introduced in the House of Commons, the offences listed in new section 249.27(1)(a) were insubordinate behaviour;116 quarrels and disturbances;117 absence without leave;118 drunkenness;119 and conduct to the prejudice of good order and discipline,120 if these offences were punished by a minor punishment or a fine of $500 or less, or both.
The House of Commons Standing Committee on National Defence amended the bill to add additional service offences and a broader range of punishments to clause 75 (new section 249.27(1)(a)). The amendments added the following additional offences:
The additional offences were selected for inclusion on the basis of their gravity as reflected in the maximum penalty for each section, which is less than two years’ imprisonment.121
Under clause 75, a conviction for a listed service offence does not result in a criminal conviction so long as a second criterion is satisfied: the sentence imposed must be one of those listed in the clause. The amendments broaden the range of sentences that do not create a criminal conviction. The punishments of a severe reprimand and a reprimand are added. In addition, the maximum fine is increased from $500 to a fine not exceeding basic pay for one month. These punishments were added to clause 75 at the Committee stage to take account of the seriousness of the actual offence committed, as reflected in the punishment imposed.122
The stated intention of the amendments is to ensure that any person convicted in the past or in the future of a listed offence and sentenced to a listed punishment will not have a record of a criminal conviction under the Criminal Records Act or be required to apply for a record suspension.123
The bill makes it an offence to ask a question which requires an applicant to disclose a conviction for one of the above offences on any application form for enrolment in the Canadian Forces, or employment with the Department of National Defence or certain other federal departments, Crown corporations, or in any other business within the legislative authority of Parliament (clause 105). Anyone who asks such a question is liable to a maximum fine of $500 and imprisonment for up to six months, or both.
A person who appeals a decision of a court martial to the Court Martial Appeal Court or the Supreme Court of Canada may ask the Appeal Committee to have the DDCS provide him or her with the services of a defence lawyer. Currently, the Appeal Committee is mentioned only in the QR&O, and not in the NDA.124
The QR&O was amended in 2008 to reflect former Chief Justice Lamer’s recommendation that the committee be composed of three members and that its decisions be made by a majority vote.125 The membership of the Appeal Committee set out in the QR&O, however, is different than that suggested in the Lamer Report.126
The bill amends the NDA to refer expressly to the Appeal Committee in new section 249.211. The bill permits (but does not require) the Governor in Council to create the Appeal Committee under regulations established by the Governor in Council.127 The bill also requires that the factors the Appeal Committee must consider in determining whether to provide counsel be listed in the regulations.
Finally, new section 249.211(2) stipulates that members of the Appeal Committee shall enjoy immunity under civil and criminal law for actions performed in the exercise of their duties.
At present, the NDA does not clearly describe the role of the Provost Marshal,128 which is largely governed by the Vice Chief of Defence Staff/Canadian Forces Provost Marshal Accountability Framework (Accountability Framework), developed in 1998, which aimed “to ensure both the independence of the Provost Marshal as well as a professional and effective military police service.” 129 Clause 4 of the bill addresses the appointment and duties and functions of the Provost Marshal.130
The bill provides that the Provost Marshal, who must have been a member of the military police for at least 10 years and hold a rank that is not less than colonel, is appointed by the CDS for a term not exceeding four years. The Provost Marshal is eligible to be reappointed and may be removed by the CDS on the recommendation of an inquiry committee established under regulations (new section 18.3 of the NDA).
The main duties and functions of the Provost Marshal are listed in new section 18.4 of the NDA. The Provost Marshal’s responsibilities include the establishment of training standards applicable to candidates for the military police and of professional standards applicable to serving members of the military police. The Provost Marshal must ensure compliance with those standards. The Provost Marshal is also responsible for investigations assigned to any unit and investigations in respect of conduct inconsistent with professional standards applicable to the military police or the Military Police Professional Code of Conduct.131
The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff, who may issue general instructions or guidelines that are to be made public (new section 18.5(2) of the NDA), as well as instructions or guidelines in respect of a particular investigation that are to be made public unless the Provost Marshal considers that it is not in the best interests of the administration of justice to do so (new sections 18.5(3) to 18.5(5) of the NDA). The Provost Marshal must also submit an annual report for each fiscal year to the CDS concerning the activities of the Provost Marshal and the military police.132 The report is then submitted to the minister (new section 18.6 of the NDA).
A conduct complaint is made under section 250.18(1) of the NDA against a member of the military police and concerns the member’s conduct in the performance of his or her duties or functions.133 The Provost Marshal is responsible for dealing with conduct complaints.134
At present, the NDA requires that the Provost Marshal explain why any conduct complaint has not been resolved or disposed of within six months.135 To enhance the effectiveness of the process for resolving complaints against the military police, clause 83 provides that the Provost Marshal must resolve or dispose of a conduct complaint within one year after receiving it.136 However, the one-year time limit does not apply if the complaint results in an investigation of a service offence or a criminal offence.
The bill provides that a person may not be penalized for making a conduct complaint (new section 250.18(3) of the NDA) or an interference complaint (new section 250.19(3) of the NDA) in good faith.137
The grievance procedure under the NDA consists of two levels. A grievance is initially brought before the commanding officer or the next superior officer of the commanding officer of the person bringing the grievance.138 If the person bringing the grievance is not satisfied with the resolution of the grievance, he or she may submit the grievance to the CDS, who represents the final authority.139 Before the CDS may begin the review, certain grievances140 must be referred to an independent, external board for military grievances (the Grievance Board) for its findings and recommendations.141
In 2003, Justice Lamer noted that the grievance process “is not working properly,” 142 particularly because of the lengthy times taken for grievances to be disposed of: “Grievances still caught in the grievance process after ten and even twelve years are not unheard of, and those of two or more years at the level of the CDS seem to be the norm.” 143 As a result, Justice Lamer recommended a number of changes be made to the military grievance system. Bill C-15 implements a number of his recommendations.
The NDA requires that the Grievance Board deal with all matters as expeditiously and informally as the circumstances and fairness permit.144 Clause 6 places the same obligation on the CDS (new section 29.11 of the NDA).145
Under the present NDA, the CDS must personally handle grievances submitted to the Grievance Board,146 and may not delegate that responsibility. Clause 9 implements one of the solutions proposed by Justice Lamer147 to expedite the grievance process: permit the CDS to delegate this responsibility to an officer under his or her direct command and control. The CDS will therefore be able to delegate the task of disposing of a grievance, whether the grievance has been submitted to the Grievance Board or not. Nevertheless, a grievance submitted by an officer may be delegated only to an officer of equal or higher rank.
However, the CDS will not be able to delegate his or her power to dispose of grievances in certain cases:
Justice Lamer recommended that the CDS should personally dispose of any grievance that might have policy implications for the Canadian Forces, affect the capacity of the Canadian Forces, and/or have significant financial implications.148 While the bill would not prohibit delegation of such grievances, the CDS retains discretion to determine whether delegation is appropriate for a particular grievance.
Clause 6 provides that the CDS must personally deal with a grievance submitted by a military judge (new section 29.101 of the NDA). Under clause 7, before considering and determining a grievance submitted by a military judge, the CDS must refer it to the Grievance Board. The Grievance Board will provide the CDS with its findings and recommendations. However, a military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties (clause 5).149
Clause 12 amends section 30(4) of the NDA to expressly provide that the CDS has the power to cancel the improper release or transfer of a person who has brought a grievance.150 That person is therefore not required to re-enrol in the Canadian Forces and does not lose seniority.
In order to better reflect the independent nature of the Grievance Board, clause 11 amends section 29.16(1) of the NDA to give the body a new name: the Military Grievances External Review Committee.151
Clause 99 extends to two years (from six months) the time limit for bringing an action against the government for acts, neglect or default in execution of the NDA or any regulations or military or departmental duty or authority (section 269(1) of the NDA). The new limitation period applies only to acts, neglect or default occurring after the coming into force of this clause (clause 114).
Under clause 101, the minister shall cause an independent review of certain provisions of the NDA to be undertaken every seven years, including those provisions relating to the Provost Marshal, the grievance process, the Code of Service Discipline and complaints by or about the military police.152 The five-year independent review requirement incorporated into Bill C-25 (and which applied only to the provisions of that bill) is repealed (clause 129).
With the exception of certain specified clauses, including provisions relating to military judges, the bill will come into force on a day or days to be fixed by order of the Governor in Council (clause 135).
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(1.1 MB, 134 pages), submitted to the Minister of Defence on 3 September 2003. See also the following legislative summary: Dominique Valiquet, Bill C-7: An Act to amend the National Defence Act, Publication no. LS-529E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 13 June 2006. [ Return to text ] (887 kB, 95 pages), Publication B‑GG‑005‑027/AF‑023, Department of National Defence, Ottawa (code of conduct applicable to Canadian Forces personnel taking part in military operations outside Canada). [ Return to text ] (67 kB, 17 pages), Publication no. 96-1E, Parliamentary Information and Research Service, Library of Parliament of Canada, Ottawa, 22 January 1997. [ Return to text ] (724 kB, 47 pages), Final Report, 2nd Session, 40th Parliament, May 2009. [ Return to text ] (260 kB, 7 pages) 31 January 2011, p. 3. For opposing arguments, see NDDN, Evidence, 3rd Session, 40th Parliament, 2 March 2011 (Vice Admiral Bruce Donaldson, Vice-Chief of the Defence Staff, Department of National Defence, and Colonel Timothy Grubb, Canadian Forces Provost Marshal, Department of National Defence). [ Return to text ] (327 kB, 4 pages) Canadian Military Journal, Vol. 12, No. 2, Spring 2012, p. 61. [ Return to text ] (252 kB, 32 pages), 2011 CMAC 2 [Leblanc]. [ Return to text ] (490 kB, 96 pages), 1st Session, 41st Parliament, 8 June 2012, p. 9093. [ Return to text ]an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code. [ Return to text ]
I recommend that the National Defence Act be amended to provide that the authority to suspend a custodial sentence shall reside with a military judge or judge of the Court Martial Appeal Court in the first instance, subject only to situations of military exigency when the decision to suspend a sentence may be taken by the chain of command and approved at the earliest opportunity by a military judge. [ Return to text ]
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