Mr. Speaker, as our government made clear when we tabled Bill C-77, Canada's military justice system is both unique and necessary. It contributes significantly to the ability of the Canadian Armed Forces to achieve its missions in Canada and around the world. However, it must also continue to evolve in order to represent Canadian values.

I would like to take this opportunity to reflect for a moment on the many different facets of our Canadian Armed Forces, including the facets that are manifest in our communities.

I would like to give particular thanks to two organizations in my riding of Mississauga—Lakeshore, the Army, Navy & Air Force Veterans Branch 262 and the Royal Canadian Legion, Branch 82. I have watched them both work tirelessly to cultivate an environment where current and past members of the Canadian Armed Forces receive the support they need and deserve, while at the same time promoting a culture of leadership, respect and honour for all members of the Canadian Armed Forces. This is exactly who we are putting first with this new bill.

Today, many of my colleagues spoke of the benefits of the set of amendments being made to strengthen the legislation. Allow me to take this important opportunity to provide context to this discussion by giving an overview of the current military justice system, some of its elements and how they actually work in practice.

The first thing parliamentarians, and indeed all Canadians, should appreciate is that Canada's military justice system, while unique, forms part of a larger Canadian justice system, sharing many of the same underlying principles. It is subject to the same constitutional framework, including Canada's Constitution and of course our Charter of Rights and Freedoms. Exactly like the civilian system, its overall role is to ensure that justice is administered fairly and with respect for the rule of law.

Military members are liable for their conduct under both the code of conduct service discipline and provisions of the Criminal Code of Canada. However, the military justice system has a second purpose. It is also designed to promote the operational effectiveness of the Canadian Armed Forces. It does so by supporting the maintenance of discipline, efficiency and morale among military members.

The operational realities of military life mean that service members are often held to a higher standard of conduct than what would be expected of a civilian. That is because military personnel are often required to risk injury or even death in the performance of their duties, both inside and outside Canada. This necessitates discipline within and cohesion of military units.

The chain of command must have a legal mechanism it can employ to investigate and sanction disciplinary breaches. These breaches require a formal, fair and prompt response, one that ensures the culture of the Canadian Armed Forces reflects Canadian social values. Even though members of the Canadian Armed Forces are held to the highest standards of conduct, they do not give up the rights that are afforded to them under Canadian law, including under the Constitution. However, an individual's rights coexist with the basic obligations of military service.

The Canadian Armed Forces' capacity to operate effectively depends on the ability of its leadership to instill and maintain that discipline. This is a balancing of rights against the need to maintain a disciplined and effective armed force. It is important to understand this when considering the Canadian military justice system. The challenges of the armed forces are profound and are not shrinking in magnitude, both domestically and overseas.

These realities of military life and service have been acknowledged by the Supreme Court of Canada. On multiple occasions, the court has directly addressed the importance of a distinct military justice system to meet the specific needs of the Canadian Armed Forces and its serving members.

In 1997, former chief justice of Canada, the Right Hon. Brian Dickson, conducted an independent inquiry of the military justice system. In his report, he concluded that “the need for a separate and distinct military justice system is inescapable” and that the chain of command is central to this justice system.

The military justice system also enables Canada to respect its international obligation to hold members of the military accountable for their actions during naval, ground, and air operations, including those that fall under the law of armed conflict.

Two other independent inquiries of the military justice system have been carried out: one, by another former chief justice of Canada, the Right Hon. Antonio Lamer, in 2003; and the other, by the Hon. Patrick LeSage, former chief justice of the Ontario Superior Court of Justice, in 2011.

Justice Lamer concluded, and Justice LeSage agreed, that “...Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.”

I want to assure my hon. colleagues that leadership and training are central to maintaining discipline, and furthermore that disciplinary action involving the military justice system is not to be taken lightly.

The military justice system ensures that military decision-makers act appropriately and within their authority when making decisions affecting a service member's rights. Such decisions must conform to the law and be just. A lack of fairness can seriously undermine cohesion, morale and discipline and it can adversely impact unit effectiveness.

While these disciplinary actions are not to be taken lightly, each year hundreds of service members find themselves before the military justice system. It is a system that is used and it is a system that must be effective and efficient.

When there are reasons to believe there has been an offence, an investigation is conducted to determine whether there are sufficient grounds to lay a charge. If the complaint is of a serious or sensitive nature, the Canadian Armed Forces National Investigation Service examines the complaint and then investigates as appropriate. Otherwise, investigations are conducted by military police or at the unit level. With the exception of certain service offences of a minor nature, legal advice is required before a charge may be laid.

The military justice system employs a two-tiered tribunal structure. More serious matters are addressed at court martial where a military judge presides, whereas minor matters maybe dealt with at summary trial, where there are qualified officers who preside. Both tribunals can be held wherever the Canadian Armed Forces are deployed and this is an operational necessity.

Courts martial are formal military courts and they are presided over by independent military judges. These tribunals are designed to deal with more serious offences and they are similar to Canadian civilian criminal courts.

The accused person is entitled always to be represented at a court martial by defence counsel from the director of defence counsel services at no cost or by a civilian counsel at his or her own expense. There are two types of courts martial. A standing court martial is conducted by a military judge who sits alone and who is responsible for the finding on the charges and imposing a sentence if the accused person is found guilty. For the most serious offences, or if chosen by the accused person, a general court martial will be convened where the case is presided over by a military judge and the verdict is decided by a panel of five other members of the Canadian Armed Forces.

Summary trials are designed to deal with relatively minor offences. That is important for the maintenance of military discipline and efficiency at the unit level. These trials are presided over by officers from within the accused person's chain of command, including commanding officers, delegated officers to whom a commanding officer has delegated his or her powers and superior commanders. All presiding officers are trained in a curriculum established by the judge advocate general and are certified to perform their duties. Summary trials allow military commanders to administer discipline, enabling members to return to duty as soon as possible.

An offender may request a review of the findings of a summary trial by a review authority. If he or she remains unsatisfied, the offender may then appeal for judicial review by the Federal Court of Canada.

In each and every case, an accused has the right to be tried in the official language of her or his choice and, in each and every case, an offender convicted at a court martial has the right to appeal to the Court Martial Appeal Court of Canada, a civilian court comprised of three judges selected from the Federal Court of Canada. These decisions can in turn be appealed to the Supreme Court.

The military justice system remains a vital facet of the Canadian Armed Forces. It must also continue to evolve to meet the expectations of Canadians and the needs of the Canadian Armed Forces. This is precisely what Bill C-77 sets out to do.

Sven Spengemann

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