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LS-311E

 

BILL C-25:  AN ACT TO AMEND
THE NATIONAL DEFENCE ACT

 

Prepared by David Goetz
Law and Government Division
18 February 1998
Revised 25 November 1998

 


 

LEGISLATIVE HISTORY OF BILL C-25

 

HOUSE OF COMMONS

SENATE

Bill Stage Date Bill Stage Date
First Reading: 4 December 1997 First Reading: 11 June 1998
Second Reading: 31 March 1998 Second Reading: 18 June 1998
Committee Report: 15 May 1998 Committee Report: 24 November 1998
Report Stage: 10 June 1998 Report Stage: 25 November 1998
Third Reading: 11 June 1998 Third Reading: 1 December 1998


Message to House of Commons:          1 December 1998
Concurrence in Senate Amendments:  7 December 1998

Royal Assent:   10 December 1998
Statutes of Canada 1998, c.35







N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

 

 

 

TABLE OF CONTENTS

BACKGROUND

   A.  Present Situation

   B.  Reasons for Change

DESCRIPTION AND ANALYSIS

   A.  Changes to the Military Justice System

      1.  Roles and Responsibilities

         a.  Minister of National Defence

            1)  Pre-Trial Custody

            2)  Appointment of Superior Commanders

            3)  Appointment of Military Judges

            4)  Convening General and Disciplinary Courts Martial

            5)  Approval of Certain Sentences

            6)  Suspension of Detention or Imprisonment

            7)  Review and Alteration of Convictions and Sentences

            8)  Discretion to Dispense with New Trial after Appeal

            9)  Final Decision on Grievances

         b.  Office of the Judge Advocate General

            1)  The Judge Advocate General

            2)  Director of Defence Counsel Services

            3)  Director of Military Prosecutions

         c.  Court Martial Administrator

         d.  Military Judges

      2.  Code of Service Discipline

         a.  Extending Military Jurisdiction

            1)  Amendment of Limitation Period for the Code of Service Discipline

            2)  Sexual Assault to be Triable as Service Offence

         b.  Offences Relating to the Administration of Justice

            1)  Breaching Conditions of Pre-Trial Release or Release Pending Appeal

            2)  Offences Relating to Tribunals

         c.  Arrest and Pre-Trial Custody

            1)  Arrest and Committal to Custody

            2)  Initial Review by Custody Review Officer

            3)  Judicial Review of Pre-Trial Custody

         d.  Commencement of Proceedings

         e.  Summary Trials

            1)  Reduced Powers of Punishment

            2)  Officer May Be Precluded from Presiding

            3)  Referral of Charges to Director of Military Prosecutions

         f.  Courts Martial

            1)  Composition of Panels

            2)  Punishment Jurisdiction

            3)  Powers to Control Proceedings

            4)  Death or Incapacity of Presiding Military Judge

         g.  Changes to Sentencing Regime

            1)  Abolition of the Death Penalty

            2)  Eliminating Automatic Accompanying Punishments

            3)  Maximum Period of Detention to Be Lowered

            4)  Forfeiture of Seniority Punishment Only by Court Martial

            5)  Abolishing $500 Maximum Fine for Civilians

            6)  Incorporating Civilian Parole Ineligibility Provisions

            7)  Abolishing Recommendations for Clemency by Courts Martial

         h.  Proceedings after Trial and Sentence

            1)  Remission of Suspended Sentences of Detention

            2)  Automatic Review of Courts Martial by Judge Advocate General Abolished

            3)  Restrictions on Substituted Punishments

            4)  Appeals

               a)   Certain Court Martial Appeal Court Rules

               b)   Release Pending Appeal

            5)  Petition for New Trial

   B.  Military Police Complaints

      1.  Code of Conduct

      2.  New Complaints Commission

         a.  Creation and Organization of the Military Police Complaints Commission

         b.  Who Could Complain

         c.  Initial Procedures

         d.  Conduct Complaints

            1)  Disposal of Complaints by the CF Provost Marshal

               a)   Informal Resolution

               b)  Obligation to Investigate Complaint and Exceptions

               c)  Status Reports

               d)  Report to Commission Chair

            2)  Review by Complaints Commission

         e.  Interference Complaints

         f.  Investigation and Hearing by the Complaints Commission

            1)  Decision by Chair for Commission Investigation or Hearing

            2)  Commission Hearings

            3)  Commission Report

         g.  Review by Military or Departmental Authorities

         h.  Final Report by Commission Chair

   C.  Changes to the Grievance System

      1.  Availability of Grievance Process and Prohibition on Retaliation

      2.  Who Would Decide Grievances

      3.  A New Canadian Forces Grievance Board

         a.  Establishment and Organization

         b.  Powers and Duties

   D.  Changes to Boards of Inquiry

   E.  Miscellaneous

      1.  Clarifying the Potential Domestic Duties of the Canadian Forces

      2.  Formalizing Vice Chief of the Defence Staff Post

      3.  Setting Pay Rates and Conditions

      4.  Broadening Minister’s Power to Dispose of Surplus Materiel

      5.  Disposition of Canadian Forces Members’ Property in Cases of Death or Abandonment

      6.  Enforceability of Performance and Payment Bonds

      7.  Abolition of Defence Research Board

   F.  Review and Report on This Act after Five Years

COMMENTARY

 


BILL C-25:  AN ACT TO AMEND
THE NATIONAL DEFENCE ACT

BACKGROUND

   A.  Present Situation

Bill C-25 was introduced in the House of Commons and given first reading on 4 December 1997. The bill proposes the most extensive set of amendments to the National Defence Act(1) ("the Act" or "NDA") since its enactment in 1950. The main focus of the bill – and a key focus of the Act (currently accounting for eight of its 14 Parts) – is the military justice system, the distinct system of penal law applicable to members of the Canadian Forces ("CF") and other persons subject to Canadian military jurisdiction. The eight Parts of the Act comprising the statutory basis for service (i.e., military) offences and the procedures for enforcing, investigating, prosecuting, trying and punishing those who commit them are called the Code of Service Discipline. Service offences under the Code of Service Discipline naturally include infractions that relate uniquely to military service; however, the Code of Service Discipline also incorporates offences against the Criminal Code and other federal Acts and, with a few notable exceptions, allows the military justice system to have jurisdiction over persons who commit them while subject to the disciplinary jurisdiction of the CF.

The military justice system (like the other aspects of the NDA) is also, to a significant degree, governed by delegated legislation in the form of regulations and standing orders. The Governor in Council, the Treasury Board, the Minister of National Defence ("the Minister") and the Chief of the Defence Staff all have the power to make regulations or orders governing the CF, their activities and operations, or certain aspects thereof. The most important subordinate laws with respect to the military justice system are the provisions contained in Volume 2 of the Queen’s Regulations & Orders for the Canadian Forces ("QR&O"). The QR&O significantly amplify and expand upon topics and provisions found in the NDA.(2) Where possible, this summary refers to relevant QR&O provisions, as well as current practice, in order to help put certain proposed amendments into perspective.

   B.  Reasons for Change

As indicated above, the prime focus of Bill C-25 is on the military justice system, which in recent years has been under increasing scrutiny and pressure for change. A number of factors have contributed to this.

One factor is undoubtedly the extended and unprecedented period of time since Canada was last involved in a major war and the perception that the chances of such involvement are now remote. This situation tends to lead people, both inside and outside the military, to be less tolerant of any perceived systemic unfairness in the system and its retention of punishments perceived as excessive or anachronistic.

Another factor has been the adoption of the Canadian Charter of Rights and Freedoms. This constitutional change has brought the military justice system – as well as the Canadian legal system generally – under increased scrutiny as regards procedural safeguards for accused persons and principles of fairness and equality of treatment generally. Particular attention has been drawn to aspects of the military justice system that reflect a disparity of treatment between soldiers and civilians or among military personnel, such as the lack of certain traditional criminal law safeguards at summary trials; the fact that only junior ranks (privates and corporals(3)) and non-commissioned officers (master-corporals and sergeants) can be summarily sentenced to detention or reduction in rank; the considerable discretion of commanding officers in deciding to proceed with or dismiss charges, possibly including even very serious criminal charges; and the fact that persons exercising judicial functions (or what would be judicial functions in the civilian system) are often members of the chain of command who have no legal training and who have other apparently conflicting responsibilities for administering the Code of Service Discipline.

In the last few years, such issues and concerns have been brought to the forefront by various high-profile cases, such as those relating to misconduct by some CF members in Somalia and Bosnia, and the cases of Lieutenant-Commander Marsaw and Corporal Purnelle. Moreover, the 1997 reports of both the Commission of Inquiry into the Deployment of Canadian Forces to Somalia ("the Somalia Inquiry") and the Special Advisory Group on Military Police and Investigation Services ("the Dickson Panel")(4) recommended a series of changes to the military justice system. There have also been a number of other internal and external studies about possible reforms to the military justice system.(5)

Bill C-25 is intended, at least in part, as a response to the findings and recommendations of the Somalia Inquiry and the Dickson Panel;(6) however, the bill also deals with other matters. Some other military justice reforms (such as a new National Investigation Service) that are being implemented by regulatory or other action and are not necessarily reflected in this bill.

Perhaps not surprisingly, in light of the foregoing, a key theme of the changes proposed in the bill is the reduction of discrepancies between the military justice system and the civilian criminal justice system. The key elements of the bill are:

  • the elimination of many of the quasi-judicial responsibilities of the Minister in the military justice system;

  • greater segregation of the different, and somewhat conflicting, responsibilities of the Office of the Judge Advocate General in the military justice system by the creation of the new semi-autonomous offices of Director of Military Prosecutions and Director of Defence Counsel Services;

  • a reduction in the judicial and quasi-judicial duties of the chain of command in the military justice system by further limiting the summary jurisdiction of commanding officers and superior commanders and by transferring powers to a Director of Military Prosecutions and to military judges;

  • reform of the sentencing regime by eliminating certain punishments (death and imprisonment at hard labour); eliminating most automatic accompanying punishments to a sentence of imprisonment or detention; and incorporating the current civilian parole ineligibility scheme; and

  • the creation of two new bodies outside the CF and Department of National Defence ("the Department" or "DND") to advise the chain of command on the disposition of grievances (the Canadian Forces Grievance Board) and complaints about the conduct of Military Police and about interference in Military Police investigations (the Military Police Complaints Commission).

.DESCRIPTION AND ANALYSIS

   A.  Changes to the Military Justice System

      1.  Roles and Responsibilities

         a.  Minister of National Defence

The bill would eliminate or transfer to other officials many existing quasi-judicial responsibilities of the Minister, particularly with respect to the military justice system.(7)

            1)   Pre-Trial Custody (section 159)

Petitions to the Minister for release from pre-trial custody in section 159 would be abolished (clause 42). Pre-trial custody would instead be reviewed by military judges with an appeal to the Court Martial Appeal Court.

            2)  Appointment of Superior Commanders (section 164)

The Minister would no longer appoint superior commanders for summary trial purposes. This power would be transferred to the Chief of the Defence Staff (clause 42).

            3)  Appointment of Military Judges

Clause 42 would transfer power to appoint military judges from the Minister to the Governor in Council.

            4)   Convening General and Disciplinary Courts Martial (section 165)

The Minister would no longer have the power to order courts martial or to designate other persons who would have this power. Under clause 42, courts martial would be convened by the new Court Martial Administrator on the recommendation of the new Director of Military Prosecutions.

            5)   Approval of Certain Sentences (section 206)

Clause 59 would eliminate the current requirement for ministerial approval of sentences of dismissal from Her Majesty’s service and dismissal with disgrace. The death penalty would be abolished by clauses 24-28 and 35 of the bill.

            6)   Suspension of Detention or Imprisonment (sections 215 and 216)

Clause 60 would redraft sections 215 and 216 of the Act so as to eliminate the power of the Minister to suspend punishments of imprisonment or detention, or to appoint other officials for this purpose. Clause 60 would give the power to suspend the execution of these sentences to the service tribunals that had imposed them (a power they already have in the regulations) and to authorities designated in regulations by the Governor in Council. Clause 60 would add a new section 216(4) which would make suspension of a sentence of detention mandatory in circumstances to be prescribed by the Governor in Council in regulations.

            7)   Review and Alteration of Convictions and Sentences (sections 208-212)

Currently, section 208 of the Act permits the Minister of National Defence to quash any conviction of a service tribunal. Section 209 of the Act permits the Minister to substitute a conviction on any other charge which is supported by the evidence before the service tribunal. Section 210 of the Act permits the Minister to order a new trial where a person has been convicted by a service tribunal and where the Judge Advocate General certifies that a new trial is advisable because of any irregularity in the first trial. Through section 211, the Minister of National Defence can substitute a new punishment for any illegal punishment ordered by a service tribunal and, under section 212, the Minister has the general authority to mitigate, commute or remit any sentence passed by a service tribunal.

Clause 59 would repeal the above provisions of the Act. The authority of the Minister in section 210 to order a new trial due to irregularities would be abolished. Under clause 82, however, the other powers described above (those in sections 208, 209, 211 and 212 of the Act) would be transferred, essentially unchanged, from the Minister to, in the case of summary trial convictions, the Chief of the Defence Staff (and such other military authorities prescribed in regulations(8)); and, in the case of court martial convictions, the Governor in Council. In the case of court martial convictions, such review would be only on application of the accused or the Chief of the Defence Staff.

            8)  Discretion to Dispense with New Trial after Appeal (section 211(3))

Clause 59 would repeal section 211(3) of the Act which gives the Minister the discretion to dispense with any retrial ordered by the Court Martial Appeal Court or the Supreme Court of Canada.(9)

            9)  Final Decision on Grievances (section 29 and QR&O)

Clause 7 would make the Chief of the Defence Staff the final authority in the grievance system.(10)

         b.  Office of the Judge Advocate General

            1)   The Judge Advocate General

Clause 2 would amend sections 9 and 10 of the Act in order to clarify the qualifications and responsibilities of the Judge Advocate General of the Canadian Forces and to strengthen the office’s independence from the chain of command by providing for some security of tenure for the post.

The amended section 9 would specify that the Judge Advocate General designate would have to be an officer in the Canadian Forces (this is not currently specified in the Act, although it is the practice); the Judge Advocate General would also have to be a lawyer qualified in Canada for at least 10 years; and the appointment would be for renewable terms of up to four years each (currently, no period is specified for the appointment). However, the Judge Advocate General would continue to serve "during pleasure," meaning that an incumbent could be removed or replaced by the authority that had made the appointment(11) – in this case, the Governor in Council. Under a new section 9.3(1), the Judge Advocate General would be responsible to the Minister of National Defence in the performance of the duties of the position. A new section 9.4 would stipulate that the Judge Advocate General would have to hold at least the rank of brigadier-general, consistent with current practice. Clause 2 would also amend section 10 of the Act to require any officer authorized to act as a substitute of the Judge Advocate General to have the same minimum professional qualifications as the Judge Advocate General.

Clause 2 would also set out in the Act the general duties of the Judge Advocate General to be legal adviser on matters of military law to the Governor General, the Minister of National Defence, the Department of National Defence and the Canadian Forces; and to perform general oversight of the administration of military justice in the Canadian Forces. More specifically, the Judge Advocate General would regularly have to review and report on the administration of military justice and would be responsible for the preparation of an annual report on this subject to the Minister of National Defence, who would, in turn, be required to table the report in Parliament.(12)

            2)  Director of Defence Counsel Services

Clause 82 would create a new official, the Director of Defence Counsel Services, who would be responsible for the provision of legal services to accused persons subject to the Code of Service Discipline (see new sections 249.18 to 249.21). Currently, both defence and prosecution services are provided by the Office of the Judge Advocate General. The new Director of Defence Counsel Services would still be subject to the general supervision of the Judge Advocate General, who could issue general instructions or guidelines governing the provision of defence counsel services so long as those instructions or guidelines were available to the public. However, the Director of Defence Counsel Services would be appointed by the Minister for renewable terms of up to four years and so would enjoy a certain autonomy from the Judge Advocate General as well as from prosecuting counsel.(13)

The Director of Defence Counsel Services would have to be an officer with at least 10 years standing as a qualified lawyer in Canada and could be assisted by civilian lawyers.

            3)  Director of Military Prosecutions

Clause 42 would create a new official in the military justice system, the Director of Military Prosecutions, who would be responsible for all court martial prosecutions and would decide which type of court martial should be held. The Director of Military Prosecutions would also make the ultimate determination of whether, in fact, there should be a court martial at all. The Director of Military Prosecutions would have the authority to withdraw charges (without prejudice) and to refer cases back to the chain of command for summary trial where such powers of punishment were deemed adequate. Currently, the decision to convene a court martial, and which type of court martial, is the responsibility of senior officers in the chain of command called "convening authorities." The prosecutor assigned to a court martial is the agent of the convening authority and has no independent authority to decide not to proceed to trial by court martial, to amend the charge, or to opt for a different type of court martial.(14)

The Director of Military Prosecutions would be an officer with at least 10 years experience as a qualified lawyer in Canada and would be appointed by the Minister of National Defence for renewable terms of up to four years. The incumbent would be removable for cause on the recommendation of an Inquiry Committee, established under regulations, which would be deemed to have the powers of a court martial. In addition to court martial responsibilities, the Director could also act as counsel for the Minister on appeals when so instructed. The Director could be assisted and represented in all these duties by officers who were qualified lawyers. The Director of Military Prosecutions would act under the general supervision of the Judge Advocate General who could issue general instructions or guidelines to the Director as well as specific instructions in respect of a particular prosecution. All instructions from the Judge Advocate General would have to be in writing and available to the public (unless the Director of Military Prosecutions considered that it would not be contrary to the best interest of military justice) with copies to the Minister of National Defence.

         c.   Court Martial Administrator

Clause 42 would also create a new Court Martial Administrator who would convene courts martial in accordance with the determination made by the Director of Military Prosecutions.(15) In the case of a General or Disciplinary Court Martial, the Court Martial Administrator would appoint the panel members. The Court Martial Administrator would act under the general supervision of the Chief Military Judge.

         d.  Military Judges

Clause 42 would create new military judges who would have responsibility for presiding at courts martial and performing other judicial functions. The existing military trial judges already officiate at Disciplinary Courts Martial(16) and General Courts Martial.(17) Special General Courts Martial are presided over by a judge alone, but not necessarily a military judge.(18) Standing Courts Martial are presided over by an officer who is a lawyer of at least three years’ standing appointed by the Minister for fixed and renewable terms.(19)

The existing military judges are, in fact, officers who are qualified lawyers and are appointed to be military trial judges by the Minister of National Defence for fixed and renewable terms. Under clause 42, the Act would stipulate that all military judges would be officers with at least 10 years’ experience as qualified lawyers. Special General Courts Martial would be presided over exclusively by the new military judges. Moreover, the job of appointing military judges would be transferred from the Minister to the Governor in Council. Military judges would hold office for renewable five-year terms, but could be removed for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council which would be deemed to have the powers of a court martial.(20) Reappointment of judges would be on the recommendation of a Renewal Committee established under regulations made by the Governor in Council. Rates and conditions of pay for the judges would be prescribed by the Treasury Board; however, their remuneration would be reviewed regularly by a Compensation Committee established under regulations made by the Governor in Council. Military judges would cease to hold office on reaching the retirement age prescribed in the regulations.

As is currently the case under the regulations,(21) the judges would be assigned to particular cases by the Chief Military Judge (currently, the Chief Military Trial Judge) who would be designated by the Governor in Council. With the concurrence of the Chief Military Judge, military judges would also be eligible to conduct boards of inquiry.

Currently, in courts martial where there is a panel (i.e., Disciplinary and General Courts Martial), the presiding military judge (called the judge advocate) decides and gives instructions to the panel on all issues of law, just like a judge in a civilian jury trial.(22) It is the panel, however, that is in charge of the proceedings and the president or senior member of the panel who decides such administrative matters as adjournments (except for remedial adjournments, for example, where the prosecution has not provided adequate particulars of the charge to the defence) and the exclusion or admission of members of the public. Moreover, unlike the case in a civilian jury trial, it is the panel, not the judge advocate, who determines and imposes the sentence. Finally, all decisions of the panel, including the verdict and sentence (except in death penalty cases) are based on a majority of members, in contrast to a civilian criminal jury trial where unanimity is required for a verdict.

Bill C-25 would change the current system such that military judges would actually preside at all courts martial (clause 42); this means that they, and not the members of the court martial panel, would conduct the proceedings and would make all decisions of law or mixed law and fact in the proceedings (clause 46). Specifically, it would be the military judge who could order the exclusion of the public from the proceedings (clause 43); correct technical defects in charges (clause 46); and grant all adjournments (clause 46). Moreover, the presiding military judge would determine and impose the sentence (clause 46) and could grant release pending appeal (clause 75). Thus, the role of the court martial panel would be made similar to that of a jury in a civilian criminal trial and the president of the panel (whose title would be changed to the "senior member" of the panel) would be more like the foreperson of a civilian jury.(23)

      2.   Code of Service Discipline

         a.  Extending Military Jurisdiction

            1)   Amendment of Limitation Period for the Code of Service Discipline

Clause 21 of the bill would amend section 69 of the Act so as to abolish the current three-year limitation period for the trying of service offences. Charges pertaining to civilian criminal offences would be subject to the applicable Criminal Code limitation periods; charges to be dealt with by way of summary trial under the Code of Service Discipline would be subject to a one-year limitation period. Thus there would be no limitation period with respect to purely military offences, so long as the Director of Military Prosecutions was prepared to proceed by way of court martial.(24)

            2)  Sexual Assault to be Triable as Service Offence

Clause 22 would amend section 70 by removing the sexual assault offences from the list of offences subject to the exclusive jurisdiction of the civilian criminal justice system.

         b.  Offences Relating to the Administration of Justice

            1)   Breaching Conditions of Pre-Trial Release or Release Pending Appeal

Clause 29 would add a new section 101.1 to the Act and would create a new military offence of failure to comply with release conditions imposed by a custody review officer or pursuant to a condition or undertaking imposed by a military judge or a judge of the Court Martial Appeal Court. Equivalent offences exist in the Criminal Code in respect of the civilian criminal justice system.

            2)  Offences Relating to Tribunals

Clause 32 would amend section 118(1) of the Act in order to add the proposed Canadian Forces Grievance Board, Military Police Complaints Commission and the Inquiry Committees on the conduct of military judges and the Director of Military Prosecutions, as tribunals for the purposes of the service offences of contempt (section 118(2)) and the giving of false evidence (section 119). Similarly, clause 90 would amend section 302 of the Act to cover such conduct in relation to these proposed new bodies as well as boards of inquiry and all proceedings under the Code of Service Discipline. Section 302 of the Act creates an offence of contempt of court which is primarily intended to deal with civilians who are not subject to the disciplinary jurisdiction of the Canadian Forces, such as witnesses, counsel or spectators. Clause 90 would also abolish the current requirement in section 302 for the court to prepare a certificate setting out the facts of the contempt as a condition for referral of the matter to the civilian courts. Clause 90 would also specify the punishment for such contempt cases: on summary conviction, a fine of up to $500 and/or imprisonment for up to six months.

Clause 32 would also amend section 118(2)(a) to make it clear that it would be an offence for a witness to fail to remain at a proceeding to which he or she had been duly summoned or ordered to appear. As currently worded, section 118(2)(a) only makes it an offence to fail to show up in the first place, although it is arguable that the general contempt offence in section 118(f) already covers the situation where a witness leaves before being excused by a tribunal. Clause 32 would also add a new section 118.1 to the Act which would explicitly make it an offence for accused persons to fail to appear or to remain at proceedings before a service tribunal when summoned or ordered to do so. This addition would ensure that accused persons no longer subject to the Code of Service Discipline (for example, through release) would still be liable for failing to attend or remain before a service tribunal.

Clause 32 would also effectively repeal section 118(3) which deals with power of a court martial to summarily order imprisonment or detention for contempts committed against it. The contempt powers of courts martial would be dealt with in a new section 179(1) (see clause 42, discussed below).

         c.   Arrest and Pre-Trial Custody

Clauses 40 to 42 aim to align the arrest and pre-trial custody provisions in the National Defence Act more closely with those of the Criminal Code.

            1)  Arrest and Committal to Custody

Clause 41 would amend section 156 to permit military police to arrest, without a warrant, persons believed on reasonable grounds to be about to commit a service offence. This scenario is currently not included in section 156, although it is found in the equivalent provision governing the warrantless arrest powers of peace officers in respect of Criminal Code offences (Criminal Code section 495(1)(a)).

Clause 42 would amend section 158(1) of the Act, which sets out the criteria for retaining a person in custody after arrest. The new section 158(1) would omit the current reference to "the interest of the public or the Canadian Forces" in the opening part of that subsection. Presumably, the specific considerations enumerated in paragraphs (a) to (f) are deemed to be sufficient. Currently, the criteria for post-arrest detention include the seriousness of the alleged offence; the need to establish the identity of the person under arrest; the need to secure or preserve evidence; the need to prevent the continuation or repetition of the offence alleged, or the commission of another offence; and the need to ensure the safety of the person under arrest or any other person. Clause 42 would add to this list the need to ensure the appearance of the person arrested before a service tribunal or civil court to be dealt with according to law. This addition would more closely mirror the pre-trial custody policy in the civilian criminal justice system where the concern that the accused may fail to attend court to deal with the allegation is in fact the primary ground for pre-trial detention (Criminal Code section 515(10)).

Clause 42 would also replace section 158(1.1) with a new section 158(2) which would require that an arrested person who was not to be released would have to be committed to either service or civil custody.(25) This rewording would have the effect of eliminating the existing third option of delivering the detained accused to his or her unit or to another CF unit.

Where persons arrested were committed to service custody, clause 42 would, in a new section 158.1(3)(a), add a requirement for the person detained to be provided with copies of the account in writing(26) and the report of custody.(27) Furthermore, new sections 158.1(3)(b) to (5) would specifically require that the accused be given the opportunity to make representations with respect to release and that any such representations be taken down or recorded and forwarded to the officer reviewing the accused’s custody. Currently, the Act requires only that the reviewing officer consider any such representations; it does not expressly require that there be an opportunity to make them, nor does it require any of the other specific steps proposed above in relation to the accused’s representations on custody.

            2)  Initial Review by Custody Review Officer

The first stage in reviewing the pre-trial custody of the accused in the military justice process would continue to be the accused’s commanding officer or designate. A proposed section 158.2(1) refers to a "custody review officer," as defined in clause 40. However, under the definition of this new term, where it was not practical for the accused’s commanding officer or a designate to act, then the commanding or designated officer of the unit or element where the accused was in custody would be the custody review officer. This is presumably intended to avoid undue delay in reviewing custody in cases where the proper official from the accused’s own unit was not easily available. The new section 158.2(1) would then require the custody review officer to complete a review of the report of custody and accompanying documents within 48 hours of the arrest of the accused. Currently, the custody review officer is required to make a decision within 24 hours of the receipt of the required documentation.

The proposed section 158.2(2) would then require that the accused be released immediately unless there were reasonable grounds to believe that the accused would have to be detained, having regard to all the circumstances, including those set out in the new section 158(1) (see above). The general default presumption in favour of release already exists (see section 158(4) of the Act). Clause 42 would, in a new section 158.3, enact provisions currently found in the regulations which establish that a custody review officer whose assessment of the need to detain the accused changes at any time prior to the accused’s appearance before a military judge must release the accused.(28) Moreover, also as currently required in the regulations,(29) where a charge has not been laid within 72 hours, the custody review officer would be specifically required to determine why this had not been done and to reconsider the necessity of continuing to detain the accused in custody (proposed new section 158.5).

In the proposed section 158.6, clause 42 would provide that a custody review officer who decided to release an accused could do so with or without conditions analogous to those in the bail regime of the civilian criminal justice system. Pre-trial release conditions could include requiring the accused to remain under military authority; report at specified times to a specified military authority; remain within the confines of a certain location or geographical area; refrain from going to any specified place; abstain from communicating with any witness or specified person; or comply with any other reasonable conditions specified.

The decision of the custody review officer to release the accused with or without conditions could, on application, be reviewed by the applicable commanding officer, where the custody review officer was a designated officer; or by the custody review officer’s immediate superior, where the custody review officer was a commanding officer. On such a review, the superior officer in question would have to give the accused an opportunity to be heard and the superior reviewing officer would be able to make any direction that the custody review officer could make.

Notwithstanding the foregoing, under the proposed section 158.4 in clause 42, the custody review officer would be required to detain the accused in custody where the accused was charged with a "designated offence." A "designated offence" is defined in clause 40 and would refer, in essence, to those civilian criminal offences that have historically been in the exclusive jurisdiction of the superior courts;(30) serious drug offences punishable by life imprisonment;(31) criminal organization offences;(32) any offence under the Code of Service Discipline that would carry a mandatory life sentence;(33) or any offence under the Code of Service Discipline that was punishable by at least imprisonment for less than two years where the accused was already on release for another offence.

            3)  Judicial Review of Pre-Trial Custody (Clause 42: New Sections 159 to 159.9)

Clause 42 would also provide that, where the custody review officer did not direct the release of the accused, the accused’s custody would have to be reviewed by a military judge. This is a clear departure from the existing system where military judges have no role in the pre-trial phase. Pre-trial custody under the Code of Service Discipline is currently a matter for the chain of command, including the Minister (see sections 158 and 159 of the Act).(34)

Proposed sections 159 and following would require the custody review officer to cause the detained accused to be taken before a military judge as soon as practicable (taking into account the operational circumstances, including location, of the unit where the accused was in custody); a hearing would then determine whether the accused was to remain in custody or could be released with or without conditions. Where the benefits outweighed the potential prejudice to the accused, the military judge could direct the custody hearing be conducted via a telecommunications device. A custody hearing before a military judge might be adjourned, but only for a maximum of three clear days, unless the accused consented to a longer adjournment.

Unless the accused was charged with a designated offence (see above), the burden of proof at the custody hearing would be on the prosecution (i.e., the Canadian Forces). The military judge would have to order the accused’s release unless the prosecution could persuade the judge that the accused’s further detention in custody was required to ensure the accused’s attendance at subsequent proceedings in relation to the charge; for the protection of the public; or for any other just cause having regard the circumstances, including, the nature and circumstances of the offence and the potential for a lengthy term of imprisonment in the case. An accused charged with a designated offence would have to persuade the judge that continued detention was not justified.

Where the accused was released on conditions by the military judge or by the custody review officer, those conditions could be varied by a military judge, on application, or by the written consent of the accused and the Director of Military Prosecutions.

Where the trial of an accused in custody had not commenced within 90 days of that person’s last appearance before a military judge, the Director of Military Prosecutions would be required to cause the accused to be brought before a military judge for another custody hearing.

At any time prior to the commencement of the accused’s trial, a military judge’s direction detaining or releasing the accused with or without conditions could, on application, be reviewed by a judge of the Court Martial Appeal Court.

         d.  Commencement of Proceedings (Clause 42: New Sections 160 to 162.2)

Sections 160 to 162 of the Act would be replaced by new sections 160 to 162.2. The key changes from the existing system in this area would be the proposed elimination of the requirement for an investigation after the laying of a charge (see section 161 of the Act) and the proposed elimination of the commanding officer’s power to summarily dismiss charges under the Code of Service Discipline (see section 162 of the Act).(35)

Currently, a commanding officer has the authority to dismiss, at the outset, any charge under the Code of Service Discipline. This includes not only all offences of a military nature, but also all civilian offences incorporated by reference into the Code of Service Discipline (see sections 130 and 70 of the Act), regardless of whether or not the commanding officer would have the authority to try the accused on the charge.(36) Pursuant to section 66(1) of the Act, the effect of a decision by a commanding officer to dismiss a charge is that no other authority –military or civil – can thereafter proceed against the accused on the charge or any substantially similar offence arising out of the same facts.(37)

The proposed elimination of the post-charge investigation requirement is, at least in part, related to the proposed elimination of the commanding officer’s power to dismiss charges at the outset. The requisite post-charge investigation can take any form that the person conducting the investigation deems appropriate in the circumstances.(38) It can, for example, consist simply of the review of the results of the pre-charge investigation.(39) It has, therefore, been noted that the primary purpose of the post-charge investigation is to ensure that the commanding officer has some evidentiary basis for deciding whether or not to proceed with the charge and, if so, how to proceed with it (i.e., summary trial within the unit or referral to the next higher authority with or without a recommendation for trial by a court martial).(40)

Clause 82 would add a new section 249.17 to the Act which would expand the statutory right of the accused to representation under the Code of Service Discipline. The new section 249.17, which would effectively replace the current section 179, would allow for the expansion of this right to include situations beyond actual proceedings before a service tribunal. However, the new section would leave the precise extent and manner of that representation to be determined by the Governor in Council in regulations.

         e.  Summary Trials (41)

            1)   Reduced Powers of Punishment

Clause 42 would reduce the punishments available at summary trials. The maximum period of detention that could be awarded by a commanding officer would be reduced from 90 days to 30 days. A commanding officer’s power to sentence a subordinate to reduction in rank would be limited to a reduction of one rank level. Finally, commanding officers and superior commanders would no longer be able to impose forfeiture of seniority. In fact, these changes are already reflected in new regulations.(42)

In consequence of this diminished disciplinary power, clause 42 would eliminate the existing requirement that certain punishments be approved by a higher authority. The punishments available to a commanding officer at summary trial which require prior approval by higher authority are detention of a person above the rank of private; detention in excess of 30 days; and reduction in rank (see section 163(2) of the Act).(43)

            2)  Officer May Be Precluded from Presiding

Under clause 42, commanding officers or superior commanders who had laid the charge against the accused, or caused it to be laid, would be prohibited from presiding at the summary trial of an accused, unless it was impractical for another officer to conduct the trial. This would enshrine in law existing Canadian Forces policy(44) and new regulations to this effect.(45) Under section 163(1.1) of the Act, a commanding officer who carried out or directly supervised the investigation of the offence, or who issued a search warrant in respect of the matter is already precluded from presiding at a summary trial.

            3)   Referral of Charges to Director of Military Prosecutions

Clause 42 would add new sections 163.1 and 164.1 to ensure that, once charges were laid, they would be brought to trial. A commanding officer or superior commander, as the case might be, who did not try the accused, would have to refer the case to another officer who had the authority to summarily try the accused; or an officer authorized by the regulations to refer charges to the Director of Military Prosecutions.(46) New sections 163.1(2) and 164.1(2) would stipulate that the decision by a commanding officer or a superior commander that a charge should not proceed would not preclude proceeding with the charge in the future. Furthermore, where a commanding officer or superior commander decided not to proceed with a charge, the person who laid the charge would, in circumstances to be prescribed in regulations, be allowed to refer the charge to an officer authorized to refer charges to the Director of Military Prosecutions.

Pursuant to the foregoing, an officer authorized to refer charges to the Director of Military Prosecutions would be required to so refer a charge referred by a commanding officer or superior commander, along with any recommendations deemed appropriate for its disposal. However, an authorized officer who disagreed with a commanding officer or superior commander that their powers of punishment were inadequate for dealing with the charge summarily could refer the charge back to the commanding officer or superior commander for summary trial.

         f.  Courts Martial

            1)   Composition of Panels

In a break with tradition, clause 42 would amend the National Defence Act to allow senior non-commissioned members (warrant officer or above) to serve on panels for General and Disciplinary Courts Martial where the accused was a non-commissioned member.(47)

Clause 42 would also amend the list of persons ineligible to sit on court martial panels. Some amendments to this list are consequential to other changes proposed in the bill. Since the job of convening courts martial would be transferred from officers in the chain of command to the Director of Military Prosecutions and the Court Martial Administrator, the officers who currently perform this function would be removed from the ineligibility list. Clause 42 would also clarify that all Canadian Forces members with the power to arrest as set out in section 156 of the Act, would also be ineligible. Existing practice would also be confirmed by the exclusion from court martial panels of military personnel from other armed forces who are attached, seconded or on loan to the Canadian Forces. Clause 42 would also clarify that officer-cadets are not eligible to sit on Disciplinary Court Martial panels (with respect to General Court Martial panels, one must be at least a captain in any event). Clause 42 would also exclude CF members who are lawyers from court martial panels; this is consistent with the laws governing civilian juries.

            2)   Punishment Jurisdiction

With respect to Disciplinary Courts Martial, clause 42 would amend section 172 of the Act to remove the power to make regulations further limiting the punishment that could be awarded by this service tribunal. However, the Governor in Council would retain its general authority, under section 147, to make regulations limiting the powers of punishment of service tribunals. The maximum punishment available at a Disciplinary Court Martial would be fixed in the Act at dismissal with disgrace.

With respect to Standing Courts Martial, clause 42 would raise the maximum punishment available at this service tribunal from imprisonment for less than two years to dismissal with disgrace.

With respect to Special General Courts Martial, clause 42 would clarify that this tribunal could impose only sentences that included a fine or imprisonment.

Where a court martial imposed a fine, clause 39 would amend section 145 in order to give the court martial (i.e. the military judge) the authority to set the terms of payment. Currently, this is within the discretion of the accused’s commanding officer in all cases.

            3)   Powers to Control Proceedings

Clause 42 would, in a new section 179, ensure that courts martial and military judges in the performance of their judicial duties had all the necessary powers of a civilian superior court of criminal jurisdiction with respect to the attendance, swearing and examination of witnesses; the production and inspection of documents; the enforcement of its orders; and all other necessary and proper matters, including the power to punish for contempt. Clause 43 would amend section 180(2) to add the maintenance of order and the proper administration of justice as grounds for excluding the public from court martial proceedings.

Clause 82 would, in a new section 249.23, permit courts martial to issue arrest warrants in order to enforce the attendance of accused before them.

Clause 82 would also, in a new section 249.22, provide for the summoning of witnesses to give evidence and produce documents before courts martial by a military judge, the Court Martial Administrator or the court martial itself. Currently, this power rests with the accused’s commanding officer, the convening authority for the court martial or the president of the court martial panel. While the bill would not alter the commanding officer’s duty to procure witnesses – for either the prosecution or the defence – the proposed change would reduce the chain of command’s responsibilities in this area.

            4)   Death or Incapacity of Presiding Military Judge

Clause 47 would add a new section 196 dealing with the death or incapacity of a military judge presiding at a court martial. These proposed provisions would complement existing provisions in relation to members of court martial panels.(48)

         g.  Changes to Sentencing Regime

Clause 36 would make a number of changes to the sentencing rules of the Code of Service Discipline. The general thrust of the changes is to add more flexibility and to eliminate some punishments that are seen as excessively harsh.

            1)   Abolition of the Death Penalty

Currently, the death penalty is applicable to the following offences under the Code of Service Discipline:

Misconduct of Commanders in Presence of Enemy

1. failure of a commander in action to properly engage, resist or pursue the enemy (s. 73);

Misconduct in Presence of Enemy

2. improperly delaying or discouraging action against the enemy (s. 74(a));

3. going over to the enemy (s. 74(b));

4. failure to diligently carry out an operation of war, when so ordered (s. 74(c));

5. improperly abandoning or delivering up one’s post to the enemy (s. 74(d));

6. assisting the enemy with materiel, or improperly abandoning materiel in the presence of the enemy (s. 74(e) and (f)));

7. improperly doing or omitting to do anything which results in the capture of persons by the enemy or the capture or destruction of materiel by the enemy (s. 74(g));

8. leaving, sleeping or being drunk at one’s post, while on watch when in the vicinity of the enemy (s. 74(h));

9. cowardice before the enemy (s. 74(i));

10. generally, doing or omitting to do anything with the intent of imperilling the success of Her Majesty’s Forces or any cooperating forces (s. 74(j));

Security Offences

11. improper communication with the enemy (s. 75(a));

12. improperly giving intelligence to the enemy (ss. 75(a) through (d));

13. using the wrong password, countersign or identification signal (s. 75(e));

14. improper alteration of or interference with any signal (s. 75(f));

15. improperly causing false alarms (s. 75(g));

16. improperly leaving or being drunk or asleep at one’s post while acting as sentry or lookout (s. 75(h));

17. forcing a safeguard or forcing or striking a sentinel (s. 75(i));

18. generally, doing or omitting to do anything with the intent to prejudice the security of any of Her Majesty’s Forces or any cooperating forces (s. 75(j));

Misconduct when Captured by the Enemy

19. deliberately or negligently becoming a prisoner of war (s. 76(a));

20. failure by a prisoner of war to rejoin Her Majesty’s service when able to do so (s. 76(b));

21. serving with or aiding the enemy (s. 76(c));

Spying

22. spying for the enemy (s. 78);

Mutiny

23. participation in a mutiny with violence (s. 79);

24. being the ringleader of a mutiny without violence (s. 80);

Misconduct in Naval Convoys by Officers

25. failure to defend a vessel or goods under convoy (s. 105(a));

26. refusal to fight in defence of a vessel in one’s convoy when it is attacked (s. 105(b)); and

27. cowardly abandoning or exposing a vessel in one’s convoy to hazards (s. 105 (c)).

With respect to the infractions described in numbers 1 through 21 (above), the death penalty is mandatory where the person "acted traitorously." With respect to the offences relating to misconduct by commanders in action (number 1 above): where the offence was motivated by cowardice, the death penalty is discretionary; otherwise, the maximum punishment is dismissal with disgrace. With respect to the offences relating to misconduct by a person other than a commander in the presence of the enemy (numbers 2 through 10 above): where the offences occurred in action, the death penalty is discretionary; otherwise, the maximum punishment is life imprisonment. In all of the other cases listed above, the death penalty is discretionary.

Clauses 24 through 28 would amend sections 73 through 76 and 78 through 80 of the Act so as to replace all existing mandatory death penalties with mandatory life sentences and all discretionary death penalties with discretionary life sentences. However, clause 28 would lower the maximum punishment in section 80 for participation in a mutiny without violence from life imprisonment to 14 years’ imprisonment.(49)

Clause 30 would repeal section 105 of the Act, which deals with offences in relation to naval convoys (numbers 25 to 27 above). It is felt that this section is redundant as the offences relating to misconduct in the presence of the enemy in sections 73 and 74 of the Act (numbers 1 through 10 above) are sufficiently broad to cover the offences relating to convoys.

Consequential to the proposed abolition of the death penalty in the Code of Service Discipline – the only remaining death penalties in Canadian law – clauses 119 to 121 would amend sections of the Criminal Code which continue to refer to offences punishable by death. The Criminal Code offences of perjury (section 132), attempting to commit a criminal offence (section 463), being an accessory to a criminal offence (section 463), and conspiracy to prosecute an innocent person (section 465(b)) all currently provide for a higher maximum punishment where they are committed in relation to an offence punishable by death or by either death or life imprisonment.

Clause 36 would replace section 140 of the Act with new sections 140 to 140.4. The new section 140 would essentially amend the current section 140(a) to make it clear that a person subject to a mandatory life sentence under the Code of Service Discipline, as amended by this bill, could not be sentenced to a lesser term of imprisonment. The change is essentially consequential as it is necessary to accommodate the proposed creation of mandatory life sentences to replace the mandatory death penalties. Currently, under the Act, all life sentences are maximum discretionary punishments.

            2)   Eliminating Automatic Accompanying Punishments

Clause 36 would also eliminate section 140(g) which deems all sentences of imprisonment to be accompanied by "hard labour." The punishment of imprisonment with hard labour is considered an anachronism.(50)

Clause 36 would also change the rules with respect to the application of dismissal from Her Majesty’s service and dismissal "with disgrace" as accompanying punishments.(51) Currently, section 140(b) provides that where an officer receives a sentence of imprisonment for two years or more, the punishment of dismissal with disgrace from Her Majesty’s service is automatically added to such a sentence. Section 140(c) provides that an officer sentenced to imprisonment for less than two years is also automatically subject to dismissal from Her Majesty’s service. For non-commissioned members, however, dismissal with disgrace (in the case of imprisonment for two years or more) and dismissal from Her Majesty’s service (in the case of imprisonment for less than two years) as accompanying punishments to a sentence of imprisonment are discretionary (see sections 140(d) and (e)). In a new section 140.1, clause 36 would end the automatic accompaniment of dismissal with disgrace or otherwise for officers; they would instead be covered by the same regime as currently applies to non-commissioned members in this regard.

Currently, under section 140(f) of the Act, where a non-commissioned member above the rank of private receives a punishment of imprisonment, it is deemed to include reduction in rank to private. The same goes for a sentence of detention as per section 142(c). Clause 36 would add a new section 140.2 which would make reduction in rank discretionary in cases of imprisonment. The proposed section 140.2 would also extend this to officers. Reduction in rank as an accompanying punishment to imprisonment in the case of officers is not included in the current Act since, as indicated above, officers are subject to automatic dismissal in such cases. In the case of detention, clause 38 would, in a new section 142(2), limit the reduction in rank to the period of detention.(52) This would not be applicable to officers since they are not subject to detention (current section 142(b); proposed section 142(1)(b)).

            3)   Maximum Period of Detention to Be Lowered

Clause 38 would also amend section 142 to reduce the maximum period of detention under the Code of Service Discipline from two years to ninety days.

            4)   Forfeiture of Seniority Punishment Only by Court Martial

Clause 39 would amend section 144 so that only a court martial could impose a punishment of forfeiture of seniority.

            5)   Abolishing $500 Maximum Fine for Civilians

Clause 39 would also amend section 145 to remove the current quantitative limits on fines. The amendment would also effectively eliminate the existing distinction between Canadian Forces members and civilians who are subject to the Code of Service Discipline. Currently, Canadian Forces members may be fined up to an amount equal to three months’ basic pay, while civilians are subject to a maximum fine of only $500.

            6)   Incorporating Civilian Parole Ineligibility Provisions

Clause 39 would add new sections 140.3 and 140.4 to the Act which would introduce into the Code of Service Discipline a scheme of parole ineligibility analogous to that found in the Criminal Code (sections 745 to 745.5). Section 130 of the Act incorporates all Criminal Code offences and their prescribed punishments into the Code of Service Discipline; however, the Act does not incorporate the Criminal Code’s provisions on automatic parole ineligibility for persons convicted of first or second degree murder or high treason. This leaves a disparity of treatment between the civilian and military systems. While the civilian system has exclusive jurisdiction over murder committed in Canada pursuant to section 70(a) of the Act, the military system retains concurrent jurisdiction with respect to high treason committed in Canada and has exclusive jurisdiction over any offence committed outside Canada. Clause 39 would eliminate this disparity and would incorporate into the Code of Service Discipline the automatic parole ineligibility rules of the Criminal Code. Clause 39 would also apply these automatic parole ineligibility rules to the new minimum life sentence offences to be created to replace the existing mandatory death sentence offences (sections 73 to 76 of the Act) by clauses 24 to 27.

Thus, under the new section 140.3 proposed in clause 39, those subject to a mandatory minimum sentence of life imprisonment for traitorous misconduct in the presence of the enemy (sections 73 and 74), traitorous breaches of security (section 75), traitorous misconduct as a prisoner of the enemy (section 76), high treason (section 47(1) of the Criminal Code), first degree murder (section 235(1) of the Criminal Code), or second degree murder (section 235(1) of the Criminal Code) where the person had previously been convicted of murder, would be automatically ineligible for parole for a period of 25 years. Persons convicted of second degree murder without a previous murder conviction would be automatically ineligible for parole for at least 10 years (with the sentencing court martial having the discretion to substitute a greater period of parole ineligibility to a maximum of 25 years). Furthermore, such military offenders would have access to the special "judicial review" procedure for seeking a reduction of parole ineligibility in section 745.6 of the Criminal Code.

Under the Corrections and Conditional Release Act, the civilian criminal justice system also provides for the discretionary imposition of parole ineligibility periods by a sentencing court in certain cases. Clause 39 would enact a new section 140.4 which would give similar powers to courts martial in such cases. These cases are those that involve serious crimes of violence,(53) serious drug offences,(54) or criminal organization offences,(55) where the person is sentenced to imprisonment for two years or more (except in cases of a mandatory life sentence; i.e., where there would already be an automatic period of parole ineligibility). Normally, offenders are entitled to be considered for parole after serving the lesser of one-third of their term or seven years. Under these provisions, sentencing courts could order that the offender serve the lesser of one-half of the sentence or 10 years in the above situations, provided that the court was satisfied that the goals of deterrence and the expression of society’s denunciation required such an order having regard to the circumstances of the commission of the offence and the character and the circumstances of the offender.

Since clause 36 would eliminate the remaining differences in parole eligibility between the National Defence Act and the Criminal Code and the Corrections and Conditional Release Act, it would no longer be necessary to qualify the grant of jurisdiction to the National Parole Board in section 222(2) of the National Defence Act over service convicts by reference to the National Defence Act. Clause 63 would, therefore, amend section 222(2) of the Act to eliminate a qualifying reference to the National Defence Act.

Clauses 108 to 118 of the bill would make consequential amendments to the Corrections and Conditional Release Act to insert references to the National Defence Act in various sections in order to include persons who could be sentenced under the Code of Service Discipline (as revised by this bill) to imprisonment with a period of parole ineligibility.

            7)   Abolishing Recommendations for Clemency by Courts Martial

Clause 47 would repeal the current section 196 of the Act and would thus eliminate recommendations for clemency by sentencing courts martial. Section 196 applies only to cases where there has been a conviction for an offence that carries a mandatory punishment of death or dismissal with disgrace.

         h.  Proceedings after Trial and Sentence

            1)   Remission of Suspended Sentences of Detention

Clause 61 would amend section 217(3) to expand the current provision for automatic remission of sentences of detention after one year to include sentences of detention in excess of 30 days.

            2) Automatic Review of Courts Martial by Judge Advocate General Abolished

Currently, in court martial convictions where no appeal is taken, sections 246 and 247 require the Judge Advocate General to review the proceedings to determine whether any of the findings or sentences of the court martial are illegal. Where the Judge Advocate General certifies that such is the case, he is to refer the minutes of the court martial proceedings to the Chief of the Defence Staff for appropriate action under the Act. Clause 73 of the bill would abolish this practice.(56)

            3)   Restrictions on Substituted Punishments

As indicated at page 5 above, certain officials in the chain of command (review authorities) would retain the authority to alter sentences imposed by service tribunals where they were illegal; where the review authority exercised its authority to impose a conviction on a different charge; or pursuant to an act of clemency.

Section 213 of the Act sets out limits on punishments which may be imposed in substitution for those imposed by a service tribunal by the review authorities. The key principles in section 213 are that any such new or amended punishment must itself be legally available in respect of the charge for which the accused was convicted, which conviction has not been quashed or set aside on review. The new punishment may not be more severe than the one imposed by the service tribunal; and where a sentence of imprisonment is replaced with detention, that detention cannot exceed the period remaining in the term of imprisonment at the time of the change and, in any case, cannot exceed two years. Under section 214, a substituted punishment has the same effect as if it had been imposed by the convicting service tribunal in the first place, except that, in the case of a substituted punishment involving incarceration, the term of incarceration commences from the date of the substitution.

Under clause 82, these conditions on substituted punishments would be largely retained; however, the maximum period of detention that could be ordered as a substitute punishment for a term of imprisonment would be reduced from two years to 90 days.

Sections 238(3)(b), 239(2)(b), 240 and 241.2 of the Act extend the conditions on substituted punishments to new sentences ordered by the Court Martial Appeal Court. As this is thought to represent an undue fettering of the discretion of an appellate court, clauses 68 to 71 would eliminate the application of these conditions to the Court Martial Appeal Court.

            4)   Appeals

               a)   Certain Court Martial Appeal Court Rules

Under section 244, the Chief Justice of the Court Martial Appeal Court has the power, with the concurrence of the Governor in Council, to make rules with respect to its proceedings. Section 244(1)(h) allows for the making of rules for the payment of counsel fees for an appellant. This provision is intended to allow the Court Martial Appeal Court to provide for the payment of counsel for the accused on an appeal. However, the wording does not reflect the fact that, pursuant to section 230.1 of the Act, the Minister of National Defence (i.e., the prosecution) may now also appeal from court martial decisions. Thus, the accused could be the appellant or the respondent in a court martial appeal. Clause 72 would amend section 244(1)(h) to allow rules providing for the payment of counsel for the accused, whether appellant or respondent.

Clause 72 would also add a new section 244(1)(h.1) which would allow for rules of court for the regulation and awarding of costs in an appeal for or against either side. Such a rule would parallel equivalent authority in civilian appeal courts.

               b)   Release Pending Appeal

In both the civilian and military criminal justice systems, where someone is sentenced to a period of incarceration, that incarceration goes into effect immediately. A person who wishes to challenge his or her conviction and/or sentence, however, may apply for release from custody pending appeal. A requirement for release pending appeal may be that incarceration during the appeal would cause the appellant unnecessary hardship. In the Criminal Code (see section 679), however, this point need be established only where the appeal is against sentence only. Currently, under section 248.3 of the Act, this consideration applies to an application for release pending any appeal by the accused. Clause 75 would amend sections 248.3(a)(ii) and 248.3(b)(ii) of the Act to bring the rule into conformity with the Criminal Code.

Clause 81 would add a new section 248.91 which would provide that persons released from custody pending appeal might, at any time, surrender themselves into custody to begin or continue serving their sentences.

            5)   Petition for New Trial

Currently, under section 248 of the Act, every person convicted by a court martial has the right to petition for a new trial where new evidence is discovered after conviction. Currently, the petition must be delivered within a year of conviction, or execution of sentence, whichever is later. Such petitions are decided by the Chief of the Defence Staff after obligatory referral to, and recommendations from, the Judge Advocate General. Clause 82 would, in a new section 249.16, change this process by eliminating the limitation period for delivering such petitions and by transferring responsibility for dealing with them from the Chief of the Defence Staff to the Minister. Moreover, clause 82 would replace the mandatory referral of such petitions to the Judge Advocate General with discretionary referral to the Court Martial Appeal Court.

   B.  Military Police Complaints

      1.  Code of Conduct

Clause 5 would authorize the Governor in Council to make regulations governing the conduct of military police – such regulations to be known as the Military Police Professional Code of Conduct.(57)

      2.  New Complaints Commission

Clause 82 would create a new Part IV of the Act (consisting of new sections 250 to 251.2) to establish a formal and distinct process for dealing with complaints by or against Military Police. Such police complaints processes currently exist for civilian police forces.

         a.  Creation and Organization of the Military Police Complaints Commission

The Commission would consist of a Chair plus up to six other full-time or part-time members. The Chair and the Commission members would be appointed for renewable terms of up to five years by the Governor in Council. Canadian Forces members and employees of the Department of National Defence would not be eligible for appointment to the Commission. As is typical for such bodies, members and agents of the Commission would enjoy criminal and civil immunity for acts done or statements made in the good faith performance of their duties.

Two types of complaints could be dealt with by the Commission: "conduct complaints," which are the standard type for police complaint commissions, and are complaints about the conduct of a Military Police member; and "interference complaints," which are complaints by Military Police about interference with an investigation. In dealing with complaints, the Commission would be under a duty to act as expeditiously and informally as the circumstances and considerations of fairness permitted. The Commission Chair would be required to submit an annual report to the Minister of National Defence on the Commission’s activities and recommendations, if any. The Minister would be required to table these reports in Parliament.

As a consequence of the proposed creation of this new body, clauses 106, 122, 123 and 125 would add the Military Police Complaints Commission to Schedule I to the Access to Information Act, Schedule I.1 to the Financial Administration Act, the Schedule to the Privacy Act and Part I of Schedule I to the Public Service Staff Relations Act.

         b.  Who Could Complain

Any person could make a conduct complaint about a member of the Military Police, whether or not the complainant was affected by the alleged misconduct.

Only a member of the Military Police who conducted or supervised an investigation and who reasonably believed that a CF member or a senior official of the Department of National Defence had improperly interfered with that investigation could make an interference complaint. For greater certainty, improper interference would include intimidation and abuse of authority.

Unless the Chair of the Commission decided that an extension was reasonable, complaints would have to be made within a year of the events giving rise to them.

         c.  Initial Procedures

Complaints could be made orally or in writing to the Commission Chair, the Judge Advocate General or the Provost Marshal. Conduct complaints could also be made to any Military Police member.

If not already in writing, complaints would have to be put into writing by the recipient and would have to be acknowledged as soon as practicable. Notice of all complaints would have to be forwarded as soon as practicable to the Chair of the Commission and the CF Provost Marshal. Interference complaints would also be forwarded to the Judge Advocate General and, in the case of alleged interference by a CF member, to the Chief of the Defence Staff, or, in the case of a complaint concerning a senior official of the Department of National Defence, to the Deputy Minister. Unless it might adversely affect an investigation under the Act, the person who was the subject of the complaint would also have to be notified of the complaint as soon as practicable.

A complaint could be withdrawn by a complainant by sending written notice to the Chair of the Commission.

         d.  Conduct Complaints

            1)   Disposal of Complaints by the CF Provost Marshal

The Provost Marshal for the Canadian Forces would be responsible for dealing with conduct complaints about members of the Military Police. Where the Provost Marshal was the subject of the complaint, the Chief of the Defence Staff would be responsible for dealing with the complaint in the same manner.

               a)   Informal Resolution

Unless the complaint was of a type to be prescribed in regulations, an attempt would first have to be made to see if it could be resolved informally, with the consent of the complainant and the subject of the complaint. However, where the Provost Marshal felt that the complaint was frivolous or in bad faith or could be more appropriately dealt by some other forum or mechanism, he or she could direct that no attempt at informal resolution start or continue. In this case, the Provost Marshal would have to send the complainant a notice to this effect, including reasons for the direction and indicating the right of the complainant to refer the complaint to the Complaints Commission. Statements made during attempts at informal resolution process would not be admissible in any proceedings, except a proceeding respecting an allegation of knowingly making a false statement. If a conduct complaint were resolved informally, the details of the resolution would have to be set out in writing with the written agreement of the complainant and the subject of the complaint. The Provost Marshal would have to notify the Commission Chair of such informal resolution.

               b)   Obligation to Investigate Complaint and Exceptions

Absent informal resolution, the Provost Marshal would be obliged to investigate a conduct complaint as soon as practicable. The Provost Marshal could direct that no investigation be started or continued, on the grounds that the complaint was frivolous; was in bad faith; could be more appropriately dealt with by some other mechanism; required no further investigation; or that such investigation was not reasonably practicable. In this case, the Provost Marshal would have to send a notice to the complainant similar to that described above in respect of a decision to discontinue informal resolution attempts.

               c)   Status Reports

Unless the complaint was already resolved or disposed of, the Provost Marshal would, within 60 days of being notified of the complaint, and then every 30 days thereafter, have to send reports on the status of the complaint to the complainant, the subject of the complaint, and the Chair of the Commission. Where the complaint was not resolved or disposed of within six months, the Provost Marshal would have to indicate in each subsequent status report the reason for the delay, unless this information would adversely affect an investigation under the Act.

               d)   Report to Commission Chair

On completion of an investigation into a conduct complaint, the Provost Marshal would have to send a report on the matter to the complainant, the subject of the complaint, and the Chair of the Commission. This report would have to include: a summary of the complaint; the findings of the investigation; a summary of any action taken, or to be taken, to dispose of the complaint; and an indication of a dissatisfied complainant’s right to refer the complaint to the Complaints Commission.

            2)   Review by Complaints Commission

A complainant who was not satisfied with the Provost Marshal’s disposition of a conduct complaint would be able to refer the complaint in writing to the Commission for a review. In such a case, the Commission Chair would send a copy of the complaint to the Provost Marshal and the Provost Marshal, who would in turn have to supply copies of all directions and reports and all other relevant material on the complaint to the Chair.

The Commission Chair would be obligated to review such a complaint as soon as practicable. In conducting the review, the Chair could investigate any matter relating to the complaint. In such cases, the Commission Chair would be subject to requirements to send status reports to the complainant and the subject of the complaint on the same basis as the Provost Marshal (see above).

At the completion of the review, the Chair would have to send a report to the Minister, the Chief of the Defence Staff and the Provost Marshal setting out his findings and recommendations with respect to the complaint.

         e.  Interference Complaints

The Complaints Commission Chair would be responsible for dealing with interference complaints. However, the Chair would be able to ask the Provost Marshal to investigate an interference complaint, where the Chair considered it appropriate. The Provost Marshal could refuse to do so, but would have to provide written reasons for the refusal.

The duties of the Commission Chair in handling interference complaints would be similar to those described above for the Provost Marshal for conduct complaints: there would be a duty to investigate such complaints as soon as practicable; an authority to decline or discontinue an investigation in certain circumstances; a requirement to send status reports; and a duty to report on the complaint with findings and recommendations at the completion of the investigation. Unlike the situation in the conduct complaints process described above, however, there would be no express provision for informal resolution; status reports on outstanding complaints would have to be sent to the Judge Advocate General and the Provost Marshal (in addition to the complainant and the subject of the complaint); and the final investigation report would be sent to the Minister; either the Chief of the Defence Staff or the Deputy Minster, depending on whether the subject of the complaint was a CF member or a senior official of the Department; the Judge Advocate General; and the Provost Marshal (in addition to the complainant and the subject of the complaint).

         f.  Investigation and Hearing by the Complaints Commission

            1)   Decision by Chair for Commission Investigation or Hearing

If the Chair considered it advisable in the public interest, he or she could, at any time, have the Commission conduct an investigation into a complaint, including one that had been withdrawn. If warranted, the Chair could also hold a hearing into any complaint. After deciding to have the Commission investigate a complaint, the Chair would have to notify the complainant, the subject, the Minister, the Chief of the Defence Staff or the Deputy Minister (as the case might be), the Judge Advocate General and the Provost Marshal. However, if the Chair felt it would adversely affect an investigation under the Act, such a notice would not be sent to the subject of the investigation. If the Chair decided to commence a Commission investigation or hearing into a conduct complaint, the Provost Marshal’s duties to deal with such a complaint would be suspended until the Provost Marshal received the final report on the complaint by the Chair.

Where, on completion of a Commission investigation, it had been decided not to proceed with a hearing into the complaint, the Chair would have to prepare a report on the investigation, including findings and recommendations about the complaint, to be sent to the Minister, the Chief of the Defence Staff or the Deputy Minister (as the case might be), the Judge Advocate General and the Provost Marshal.

            2)  Commission Hearings

If the complaint related to conduct that was also the subject of disciplinary or criminal proceedings before a tribunal of first instance, any Complaints Commission hearing would have to await the completion of such proceedings.

When conducting a hearing, the Complaints Commission would have the power to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents or other relevant evidence under their control that the Commission considered necessary for the full consideration of the matters before it; administer oaths; and accept any evidence and information that it saw fit, whether admissible in a court of law or not. The Commission would be entitled to pay fees and allowances to witnesses summoned to attend before it who were not CF members or employees of the Department. Currently, the Act only provides for the compensation of such witnesses at courts martial (see section 249).

The Commission could not, however, receive the following evidence: anything subject to a privilege under the law of evidence; any answer or statement made to a board of inquiry or summary investigation; any incriminating statement given during the Military Police complaint process in connection with another complaint; any statement before a court or tribunal; or any statement made during attempts at informal resolution of a Military Police complaint. No witnesses would be excused from answering a question in a Commission hearing on the ground that the answer might incriminate them. However, such an answer would not be admissible in any other disciplinary, criminal, administrative or civil proceeding, except in respect of an allegation of giving false evidence by the witness in respect of the answer.

Commission hearings would be public unless the Commission felt that any of the following information was likely to be disclosed during them: information injurious to the defence of Canada or an ally or injurious to the detection, prevention or suppression of subversive or hostile activities; information injurious to the administration of justice and law enforcement; or information affecting a person’s privacy or security interests where those interests outweighed the public’s interest in the information.

The Complaints Commission would be required to give a full and ample opportunity to the complainant, the subject of the complaint and any other persons who could satisfy the Commission that they had a direct and substantial interest in the hearing, to present evidence, cross-examine witnesses and make representations, either personally or through counsel.

            3)  Commission Report

On completion of a hearing, the Commission would have to prepare a report on the complaint in which it set out its findings and recommendations. The report would be sent to: the Minister, the Chief of the Defence Staff or the Deputy Minister (as the case might be), the Judge Advocate General and the Provost Marshal.

         g.  Review by Military or Departmental Authorities

The Provost Marshal would have to review a conduct complaint in light of the findings and recommendations in a report by the Complaints Commission. Interference complaints would be so reviewed by the Chief of the Defence Staff or the Deputy Minister, as the case might be. Where the Provost Marshal was the subject of the complaint, the complaint would be reviewed by the Chief of the Defence Staff. Where the subject of the complaint was the Chief of the Defence Staff or the Deputy Minister, the review would be done by the Minister.

The reviewing official would be required to notify the Minister and the Commission Chair in writing of any action taken, or to be taken, concerning the complaint. This notice would have to include reasons for not acting on any of the Commission’s findings and recommendations.

         h.  Final Report by Commission Chair

After receiving and considering the notices from the applicable reviewing official, the Commission Chair would prepare a final report setting out final findings and recommendations about the complaint. This final report would be sent to the Minister, the Deputy Minister, the Chief of the Defence Staff, the Judge Advocate General, the Provost Marshal, the complainant, the subject of the complaint and anyone given standing at a Commission hearing into the complaint.

   C.  Changes to the Grievance System

Clause 7 would set out in statutory form a revised grievance process for members of the Canadian Forces. The grievance process is the accepted forum in which members of the military who feel aggrieved by the actions of their superiors can challenge those actions. Currently, this mechanism – whereby members can have decisions that adversely affect them reviewed and reconsidered at successively superior levels – is confined to officials in a member’s chain of command. The Canadian Forces grievance process is provided for in section 29 of the Act and the process is set out in the Queen’s Regulations and Orders for the Canadian Forces (QR&O), which, in turn, are amplified by the Canadian Forces Administrative Orders (CFAO). Clause 7 would enshrine in statute certain existing rules and practices and would alter the process, most notably through the establishment of an external body to investigate and advise on the disposition of certain grievances.

      1.  Availability of Grievance Process and Prohibition on Retaliation

Clause 7 would amend section 29 to clarify the situations where the grievance process would be unavailable: where another process for redress was provided under the Act; in respect of decisions of a court martial or the Court Martial Appeal Court in respect of a decision of any court, board, commission or tribunal established outside the Act; and in any other cases prescribed in regulations by the Governor in Council. The amended section 29 would also add to the Act provisions already in the regulations that explicitly prohibit the penalizing of members for exercising their right to submit grievances, although allowance is expressly made for the correction of any errors discovered as a result of investigating a grievance – even if the correction would adversely affect the grieving member.(58)

      2.  Who Would Decide Grievances

A new section 29.1 would allow the Governor in Council to designate the authorities responsible for considering and determining grievances and would permit the handling of different types of grievances by different authorities.

A new section 29.11 would stipulate that the final authority for all grievances would be the Chief of the Defence Staff.(59)

A new section 29.12 would require the Chief of the Defence Staff to refer certain types of grievances (to be specified in regulations by the Governor in Council) to a new Canadian Forces Grievance Board for its review and recommendation. The Chief of the Defence Staff would also have the option of submitting any other grievance to the new Grievance Board. For cases referred to the Grievance Board, in addition to the written submissions made by a grieving member and the decision of each authority in respect of a grievance, the Chief of the Defence Staff would be obliged to furnish the Board with any other information under the control of the Canadian Forces that was relevant.

A new section 29.13 would stipulate that the Chief of the Defence Staff would not be bound by the recommendations of the Grievance Board, but would have to indicate the reasons for not having followed those recommendations.

A new section 29.14 would permit the Chief of the Defence Staff to delegate to another officer any of the duties or powers in the grievance process except the duty to act as the final authority in respect of grievances which, pursuant to the new section 29.12 (above) and regulations made thereunder, would have to be referred to the Grievance Board; and the power to further delegate such duties and powers.

A new section 29.15 would establish that a decision of a final authority in the grievance process would be final and binding, subject only to judicial review under the Federal Court Act.

      3.  A New Canadian Forces Grievance Board

         a.  Establishment and Organization

Clause 7 of the bill would establish the Canadian Forces Grievance Board, which would be outside the chain of command and the Department of National Defence. The Board would consist of a Chairperson and at least two Vice-Chairpersons and any other members appointed by the Governor in Council. Each member of the Board would be appointed for a renewable term of up to four years and would be removable only for cause.

Clauses 106, 122, 123 and 125 would add the Canadian Forces Grievance Board to Schedule I to the Access to Information Act, Schedule I.1 to the Financial Administration Act, the Schedule to the Privacy Act and Part I of Schedule I to the Public Service Staff Relations Act.

         b.  Powers and Duties

The Grievance Board would be required to deal with all matters referred to it in as expeditious and informal a manner as circumstances and fairness permitted. In dealing with the grievances before it, the Board would have the power to summon and enforce the attendance of witnesses and compel them to give evidence on oath and to produce any document or thing under their control which it considered necessary to the full investigation and consideration of the grievance; and to receive and accept any evidence or information which it saw fit, whether or not it would be admissible in a court of law – except where evidence would be inadmissible in a court due to a privilege recognized under the law of evidence. Witnesses would not be excused from answering any relevant question on the ground that their answer might incriminate them. However, answers or statements given by members in such circumstances would be inadmissible against them in any other proceeding (except in proceedings against the witness for having knowingly made a false statement). Pursuant to a new section 251.2 proposed in clause 82, the Board would be entitled to pay fees and allowances to witnesses summoned to appear before it who were not CF members or employees of the Department. Currently, the Act provides only for the compensation of such witnesses at courts martial (see section 249).

The Chairperson would have the power to make rules for the conduct of investigations and proceedings before the Board.

Hearings of the Grievance Board would be held in private unless, having regard to the public interest and the interests of the persons involved, the Chairperson directed that a hearing be held in public.

Members of the Grievance Board would be immune from liability for anything done or said in the good faith performance of its functions.

The Chairperson of the Grievance Board would be required to submit an annual report to the Minister of National Defence on the activities of the Board during that year and the Board’s recommendations, if any. The Minister, in turn, would be required to table the report in Parliament.

   D.  Changes to Boards of Inquiry

Clause 13 would amend section 45(2) of the Act to set out more fully the powers of CF boards of inquiry. Specifically, clause 13 would give such boards the additional power to summon any persons, including civilians, to appear and require them to give evidence under oath and produce documents and other things necessary for the full investigation of the matters before them; receive on oath or by affidavit any evidence or information that the board saw fit, including evidence or information that would not be admissible in a court; and to examine any record and make any inquiry that the board considered necessary. Pursuant to a new section 251.2 proposed in clause 82, a board of inquiry would be entitled to pay fees and allowances to witnesses summoned to appear before it who were not CF members or employees of the Department. Currently, the Act provides only for the compensation of such witnesses at courts martial (see section 249).

Clause 14 would make it clear that witnesses would not be excused from answering any relevant question on the ground that the answer to the question might tend to incriminate them or subject them to any proceeding or penalty. However, answers or statements given by a witness in such circumstances would be inadmissible against the witness in any other proceeding (except for proceedings against the witness in respect of such an answer for giving false evidence).

   E.  Miscellaneous

      1.  Clarifying the Potential Domestic Duties of the Canadian Forces

Clauses 8 and 87 seek to clarify the scope of duties that could be carried out by the Canadian Forces and formally broaden those duties beyond traditional military operations and aid to the civil power.

Clause 87 would add a new section 273.6 to the Act to permit the Governor in Council or the Minister to authorize the Canadian Forces to perform any duty involving a "public service." Furthermore, at the request of any federal cabinet minister, the Governor in Council or the Minister of National Defence would be able to issue directions authorizing the Canadian Forces to assist in any law enforcement matter, provided that such assistance was considered to be in the national interest; the matter could not be effectively handled otherwise; and the assistance was not limited to minor logistical, technical or administrative support. The authority that would be conferred on the Minister of National Defence by this new section 273.6 would be subject to any directions issued by the Governor in Council.

In accordance with clause 87, clause 8(1) would amend section 33(2)(b) of the Act to change the characterization of the potential service obligations of reserve force members from the performance of "any military duty" to "any lawful duty." Clause 8(2) would add a new section 33(4) to define "duty" in section 33 to include the "public service" duties proposed in clause 87.

Given the proposed addition of the concept of "public service" duties, section 34 of the Act, which deals with the potential liability of the Canadian Forces to perform duties in relation to a "national disaster," would no longer be necessary. Therefore, clause 9 proposes the repeal of that section of the Act.

      2.  Formalizing Vice Chief of the Defence Staff Post

Clause 6 would add new sections 18.1 and 18.2 to enshrine in the Act the already existing position of Vice Chief of the Defence Staff. The Vice Chief, or another officer specified by the Minister of National Defence or the Chief of the Defence Staff, would have the control and administration of the Canadian Forces during the absence or incapacity of the Chief of the Defence Staff.

      3.  Setting Pay Rates and Conditions

Under clause 10, section 35 of the Act would be amended to allow Treasury Board to set pay and allowances for CF members generally by administrative directive instead of by regulation. However, clause 4 would preserve the more formal format of a regulation for setting of rates and conditions of pay for military judges. The new section 12(3)(b) in clause 4 would also preserve the regulation requirement for prescribing authorized deductions and forfeitures from members’ pay or allowances.

      4.  Broadening Minister’s Power to Dispose of Surplus Materiel

Clause 3 would amend section 11 of the Act to expand the existing authority of the Governor in Council to authorize the Minister of National Defence to dispose of surplus materiel. Currently, the Governor in Council is authorized to allow the Minister to deliver such materiel to another government department for sale to other countries or to international welfare organizations on such terms as the former sees fit. The amended wording would have the effect of allowing for the trading or donation of such materiel to foreign countries and international welfare organizations.

      5.  Disposition of Canadian Forces Members’ Property in Cases of Death or Abandonment

Clauses 11 and 12 would amend sections 42 and 44, respectively, in order to facilitate the administration and disposition of abandoned property of Canadian Forces personnel and the property of members who die outside Canada. Clause 11 would amend section 42(2)(e) of the Act so as to eliminate the monetary limit (currently $10,000) for personal or movable property located outside Canada that can be included in the service estate of a member who dies while outside this country.(60) Clause 12 would amend section 44 to enable Canadian Forces authorities to dispose of lost or abandoned personal or movable property found on a defence establishment. Currently, section 44 is limited to the property of members who are absent without leave.

      6.  Enforceability of Performance and Payment Bonds

Clause 16 would amend section 54 of the Act to provide for the enforceability of bonds entered into before military judges for the purposes of securing a payment or the performance of a duty or act required or authorized under the Act or the regulations.

      7.  Abolition of Defence Research Board

Clause 17 would repeal Part III of the Act which deals with the Defence Research Board, which no longer functions since its activities have been incorporated within the Department of National Defence. Consequently, clauses 124 and 126 would delete the Board from the schedules to the Public Service Staff Relations Act and the Public Service Superannuation Act.

   F.  Review and Report on This Act after Five Years

Clause 96 would require the Minister of National Defence to undertake a review of the provisions and operation of the National Defence Act and table a report on this review before the Senate and House of Commons within five years of the coming into force of this clause.(61)

The Standing Senate Committee on Legal and Constitutional Affairs reported the bill back to the Senate with one amendment on 24 November 1998. This amendment to clause 96 would require the Minister to cause an independent review of the provisions and operation of the Act to be undertaken within five years. The Minister would be required to table the report in each House of Parliament within five years after the Act came into force. Similar reports would be required every five years thereafter.

COMMENTARY

At this time, there appears to have been little public, media or interest group reaction to Bill C-25.

As indicated above in the Background segment, this bill was, at least partly, intended to address concerns raised by the Somalia Inquiry and the Dickson Panel, both of which made recommendations on changes to the military justice system in 1997. Generally speaking, the bill is consistent with the thrust of the recommendations of both the Dickson Panel and the Somalia Inquiry with respect to the military justice system. In the case of the Dickson Panel, almost every recommendation requiring amendment of the NDA is adopted in the bill. However, it appears that the Somalia Inquiry Commissioners would have gone further in certain areas, such as further reduction in the punishment jurisdiction of summary trials; stronger measures to isolate the Military Police and military judges from possible influence by the chain of command; and a stronger emphasis on general mechanisms of external accountability, such as the Inquiry’s proposal for an Inspector General.(62)

 


(1) R.S.C. 1985, c. N-5, as amended.

(2) By sections 15(1) and (3) of the Statutory Instruments Regulations, C.R.C., c. 1509, the QR&O are exempt from publication in the Canada Gazette and so cannot be accessed on the same basis as other most other regulations of comparable scope and application. They are, however, available from the Department of National Defence and at certain libraries.

(3) Whenever ranks are referred to in this paper (or, for that matter, in the laws, regulations, rules and orders relating to the Canadian Forces) the rank terminology from the Land and Air elements is usually used; however, the Maritime element equivalent should be understood to be included unless otherwise indicated.

(4) The Dickson Panel divided its report to the Minister into two parts. The first, hereinafter referred to as "Dickson I," was submitted on 14 March 1997 and contained the panel’s findings and recommendations on military police and the military justice system generally. The second, hereinafter referred to as "Dickson II," was submitted on 25 July 1997 and contained findings and recommendations with respect to the quasi-judicial responsibilities of the Minister of National Defence under the National Defence Act.

(5) Dickson I, p. 17.

(6) DND Press Release, 4 December 1997.

(7) These changes reflect the adoption of most of the recommendations of the Dickson Panel in this area. See recommendations 1 through 4, 6, 10 through 13 and 15 of Dickson II.

(8) As per QR&O article 108.45, these additional review authorities are: in respect of a summary trial by a delegated officer, the commanding officer; and, in respect of summary trial by the commanding officer, the commanding officer’s superior in matters of discipline. Before making their decisions, review authorities must obtain the advice of a legal officer.

(9) It is unclear whether the overall effect of the bill in this regard would be to remove the Minister from this exercise of prosecutorial discretion, or whether the discretion to dispense with a new trial in such cases would be eliminated entirely. The intent may have been that the discretion would simply fall to the new Director of Military Prosecutions as part of the implicit duties and powers of a prosecutor. However, if this is the intent, it may be complicated by section 241.3 of the Act (which would not be affected by the bill) which provides that, "[w]here the Court Martial Appeal Court directs a new trial on a charge … the accused person shall be tried again as if no trial on that charge had been held." Section 241.3 is also applicable to new trials ordered by the Supreme Court of Canada pursuant to section 245(3).

(10) It was also recommended by the Somalia Inquiry that the Minister have no adjudicative role in the grievance process (see Inquiry recommendation 40.34).

(11) Interpretation Act, R.S.C. 1985, c. I-21, s. 24(1).

(12) Describing the duties of the Judge Advocate General in the NDA and requiring that the Judge Advocate General’s annual report to the Minister be made public were recommendations of the Dickson Panel (5 and 6 in Dickson I).

(13) This proposed semi-autonomous office of the Director of Defence Counsel services responds to recommendations by the Somalia Inquiry and the Dickson Panel (see recommendation 40.35 in the Somalia Inquiry Report and recommendation 7 in Dickson I).

(14) The creation and role of the Director of Military Prosecutions proposed in clause 42 would effectively adopt recommendation 8 in Dickson I and recommendation 4 in Dickson II. It would also address recommendations 40.2, 40.22 and, in part, 40.35 in the Report of the Somalia Inquiry. However, the bill does not propose that the results of investigations would be sent directly to the Director of Military Prosecutions or that that official would be given the authority to initiate the laying of charges (unless the Director is to be added to the list of persons in QR&O who would have that authority), as recommended by the Inquiry (see Inquiry recommendations 40.18, 40.19 and 40.21).

(15) This change would address recommendation 4 in the second report of the Dickson Panel.

(16) Disciplinary Courts Martial consist of a panel of three officers and a judge advocate and may try anyone under the rank of major. They may impose a maximum sentence of two years’ imprisonment; however, they may not impose minor punishments (i.e., confinement to barracks, extra work and drill, stoppage of leave, or a caution). See sections 171 to 176 of the Act and Q.R.&O. articles 111.35 and 111.36.

(17) General Courts Martial can try any member of the Canadian Forces on any charge in the Code of Service Discipline and their punishment jurisdiction is unlimited. General Courts Martial are composed of a panel of five officers and a judge advocate. See sections 166 to 170 of the Act.

(18) Special General Courts Martial have exclusive jurisdiction to try civilians who are to be tried by court martial. They have the same powers and procedures as a General Court Martial and are composed of a judge alone (see section 178 of the Act).

(19) See section 177 of the Act. Standing Courts Martial can try cases where the prosecution is seeking less than two years’ imprisonment and where the accused is below the rank of colonel.

(20) Such a committee already exists in respect of the existing military trial judges (see QR&O articles 101.13 to 101.16).

(21) QR&O article 111.22.

(22) See section 192(3) of the Act and QR&O article 112.06.

(23) Dickson I recommended that the sentencing function at courts martial be transferred to the presiding judge (see recommendation 28). Dickson II recommended that the Minister continue to appoint military judges for fixed terms (see recommendation 5), although clause 42 would, in fact, transfer their appointment to the Governor in Council. On the other hand, the Somalia Inquiry recommended that military judges should not be in the military at all, but rather, should be civilians appointed under the Judges Act who would thereby have the security of tenure of superior court judges (i.e., appointment until a fixed retirement age, subject to removal by Parliament). See Inquiry recommendation 40.35(d).

(24) This change would adopt recommendations 31 and 32 from the first report of the Dickson Panel.

(25) Where practical, however, QR&O article 105.17(2) directs that the accused should be placed in service custody.

(26) Prepared by the person committing the accused to custody and which sets out the reason for the committal (see section 158(2) of the Act; and the proposed section 158(4) in clause 42 of the bill).

(27) Prepared by the person into whose custody the accused is committed and which includes the name and rank of the accused, an account of the offence alleged, and the name and rank of the person who committed the person into custody (see section 158(3) of the Act; and the proposed sections 158.1(1) and (2) in clause 42 of the bill).

(28) QR&O article 105.22.

(29) QR&O article 105.23.

(30) As per section 469 of the Criminal Code: treason; alarming Her Majesty; intimidating Parliament or a legislature; inciting to mutiny; seditious offences; and piracy and piratical acts; attempting or conspiring to commit any of the foregoing; murder and conspiring to murder; being an accessory after the fact to treason or to murder; and bribery on the part of a judicial officer.

(31) As per sections 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act. These offences refer to trafficking, possession for the purposes of trafficking, importation/exportation, or production of the narcotics listed in Schedules I or II of that Act.

(32) Defined in section 2 of the Criminal Code as an offence punishable by imprisonment for five years or more which is committed (attempted, assisted, conspired or counselled) "for the benefit of, at the direction of or in association with a criminal organization." A "criminal organization" is defined as any group of five or more persons which includes as one of its primary activities conduct that constitutes indictable offences punishable by imprisonment for five years or more. These concepts are part of a new scheme in the Criminal Code to deal with gangs and other criminal organizations which was enacted by the last (35th) Parliament (S.C. 1997, c. 23). Clause 1 of the bill would add these definitions to section 2 of the National Defence Act.

(33) See clauses 24-28.

(34) The elimination of the Minister from this process and the transfer of custody review powers to military judges would be in accordance with recommendation 1 of the second report of the Dickson Panel.

(35) Elimination of the authority of commanding officers and superior commanders to summarily dismiss charges and the transfer to a Director of Military Prosecutions of the final decision on whether to proceed with a charge would address recommendations in the Somalia Inquiry report (recommendation 40.24). Under the Inquiry’s recommendations, however, commanding officers and superior commanders would have retained the authority to summarily dismiss "minor disciplinary misconduct," which it defined as misconduct that did not amount to an offence under applicable civilian law and was not so serious as to warrant detention, imprisonment or dismissal from the CF (see recommendations 40.24, 40.21 and 40.1).

(36) QR&O article 106.11.

(37) New amendments to the regulations require a commanding officer to obtain an opinion from a legal officer prior to deciding whether to dismiss any charge in situations where the former would not have jurisdiction to try the accused or where the accused could elect trial by a court martial. A commanding officer who does not follow the advice of the legal officer must, within 30 days, state in writing the reasons for not doing so and provide a copy to his or her superior and the legal officer. See QR&O article 106.10 (effective 30 November 97).

(38) Former QR&O, article 107.05(2) (repealed – effective 30 November 1997).

(39) James B. Fay, "Canadian Military Criminal Law: An Examination of Military Justice," Part II (1975) 23 Chitty’s Law Journal 156, 159.

(40) Ibid.

(41) While summary trials under the Code of Service Discipline must respect fundamental principles of justice, they are much less formal and offer fewer protections to an accused than a court martial or any trial under civilian penal law. Witnesses or other evidence must be presented to prove facts and the accused can speak on their own behalf, question any witness and are entitled to an assisting officer (a CF member, usually an officer, assigned to assist in the defence of the accused). Moreover, the officer conducting the trial must reach a verdict only on the evidence presented and the same standard of proof for a conviction which applies in the civilian system and at courts martial applies at summary trials: proof of guilt beyond any reasonable doubt (QR&O articles 108.15, 108.32(1) and 110.07). The Military Rules of Evidence (a codification of the laws of evidence applicable at courts martial) do not apply at summary trials, the accused has no right to counsel and there is no appeal from a summary trial conviction or sentence (see "Government of Canada Brief for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia: Military Justice," Commission of Inquiry Exhibit P-35, Tab F, p. 12-13.

However, the accused may challenge the decision of a summary trial through the CF grievance process or may apply for review of the conviction or for mitigation or remission of the sentence by designated officials in the chain of command: the commanding officer, the officer commanding the command, the Chief of the Defence Staff and the Minister (sections 208, 209 and 212 NDA and QR&O articles 114.15(2), 114.17(2), 114.27 and 114.55). The accused’s commanding officer, superior commander, the Chief of the Defence Staff and the Minister have the power to change any sentences that are illegal (section 211 NDA and QR&O article 108.45). (Note: under clause 82 of this bill (see below), the Minister would be relieved of these review responsibilities.)

(42) QR&O article 108.24 (effective 30 November 1997).

(43) The reduction of the maximum period of detention following summary trial from 90 to 30 days, the restriction to reduction of one rank level for the punishment of reduction of rank following summary trial, and the related abolition of the requirement for prior approval by higher authority of certain punishments, mirror recommendations 16, 19 and 20 of the first Dickson report. The Somalia Inquiry recommended that any sentence of detention should only be imposed by a court martial (see recommendation 40.1). The Inquiry also recommended, however, that the standard of proof at summary trials be reduced from the current criminal standard to the civil standard of proof on a balance of probabilities and that accused be compellable witnesses at summary trials (recommendation 40.29).

(44) Former QR&O article 106.01, note B.

(45) QR&O article 108.05 (effective 30 Nov 97). A formal prohibition on permitting such officers to preside in those circumstances was also recommended by the Dickson Panel (see Dickson I, recommendation 25).

(46) A major reason why a commanding officer or superior commander would not summarily try an accused is that the accused is too high in rank to be so tried (a commanding officer cannot try a commissioned officer or a non-commissioned member above the rank of sergeant; a superior commander cannot try anyone above the rank of major). Another reason for not summarily trying an accused is that the officer feels that his or her powers of punishment would be inadequate with regard to the gravity of the offence charged (a commanding officer is limited to a maximum punishment of 90 days detention [clause 42 would lower this to 30 days] and a superior commander is limited to a maximum of a severe reprimand and a fine of 60% of the accused’s monthly basic pay). See NDA sections 163 and 164 and QR&O chapters 108 and 110.

An accused may, however, also elect to be tried by court martial in any case where the charge represents a criminal offence or if the possible punishment is greater than a fine in excess of 25% of one month’s pay, with the exception of a charge of : insubordinate behaviour (section 85), quarrelling and disturbances (section 86), absence without leave (section 90), drunkenness (section 97), or conduct to the prejudice of good order and discipline (section 129 – but only with respect to: training; maintenance of personal equipment, quarters or work space; or dress or deportment). See QR&O article 108.17.

(47) This was also recommended in the first Dickson Panel report (see recommendation 29).

(48) See section 190 NDA and QR&O article 112.64.

(49) Abolition of the remaining capital offences in the Code of Service Discipline was also recommended by the Dickson Panel (see Dickson I, recommendation 30).

(50) This change was also recommended by the Dickson Panel (see Dickson II, recommendation 9).

(51) Dismissal with disgrace means that the person so dismissed is ineligible to serve Her Majesty again in any military or civil capacity, except in an emergency (section 141(2) of the Act).

(52) This was also the approach to reduction in rank to private as an automatic accompaniment to a sentence of detention recommended by the Dickson Panel (see Dickson I, recommendation 18).

(53) See Schedule I to the Corrections and Conditional Release Act.

(54) See Schedule II to the Corrections and Conditional Release Act.

(55) See note 32 above.

(56) This was also recommended by the Dickson Panel (see Dickson I, recommendation 34).

(57) The development of such a code was recommended by the Somalia Inquiry (recommendation 40.14).

(58) QR&O articles 19.26(20) and (21).

(59) The removal of this responsibility from the Minister would be consistent with recommendations of the Somalia Inquiry (see Inquiry recommendation 40.34). The Dickson Panel recommended only that the Minister have no role in handling grievances flowing from summary trial findings (Dickson II, recommendation 15).

(60) Pursuant to section 42 of the Act and QR&O chapter 25, the estates of deceased CF members are, at least initially, administered by the CF through an officer appointed to be the Director of Estates.

(61) Both the Somalia Inquiry and the Dickson Panel recommended that the laws governing the Department of National Defence and the CF be the subject of a review every five years. The Somalia Inquiry recommended that these periodic reviews be conducted by Parliament (see Inquiry recommendation 16.5). The Dickson Panel simply recommended that such reviews be "independent" (see Dickson II, recommendation 17(b)).

(62) See Somalia Inquiry recommendations 16.1 and 40.36 to 40.38.