Bill C-7, An Act to amend the National Defence Act, was introduced in the House of Commons on 27 April 2006 by the Minister of National Defence (the Minister). In general, the bill is a response to the recommendations made by the Right Honourable Antonio Lamer, the former Chief Justice of Canada, in his 2003 report (Lamer Report).(1)
Essentially, the amendments set out in the bill clarify the amendments introduced in 1998 by Bill C-25(2) and make substantial improvements to the military justice system. While that system is made more consistent with the system established in the Criminal Code,(3) the bill, overall, also recognizes the unique nature of the military system, in order to provide the degree of flexibility that is needed for maintaining discipline. As well, the bill enhances the effectiveness of the military justice system and provides for the major players in that system, in particular military judges and the Director of Defence Counsel Services, to be more independent and impartial.
Bill C-25, assented to in 1998, reflected most of the recommendations made in the Report of the Special Advisory Group on Military Justice and the Military Police Investigation Services, chaired by Brian Dickson (Dickson Report).(4) Other provisions of the bill had been written in response to some of the recommendations made in the report of the Somalia Commission of Inquiry (Somalia Report)(5) and the Report to the Prime Minister on Leadership and Management in the Canadian Forces.(6)
Bill C-25 made far-reaching amendments to the National Defence Act (NDA). The purpose of the amendments was to promote integrity and fairness within the system established by the NDA. The principal changes made by that major reform included:
Clause 96 of Bill C-25 required that the Minister undertake an independent review of the amendments to the NDA every five years following the bill’s coming into force. Accordingly, former Chief Justice Lamer began the first review in March 2003, and his report was tabled in Parliament by the then Minister of National Defence, John McCallum, on 5 November 2003.
The independent review related solely to the provisions and operation of Bill C-25, and did not encompass the NDA as a whole.
In the conclusion to his report, Justice Lamer observed that “Canada’s military justice system generally works very well, subject to a few changes.”(7) To improve an already effective military justice system that provides a model on the international scene, he recommended that certain changes be made.
The recommendations made in the Lamer Report were primarily designed to provide better guarantees of the independence of key actors, in particular military judges and the Director of Defence Counsel Services, and to improve the grievance and military police complaints process. The proposed amendments to the Code of Service Discipline expressed a desire to incorporate certain Criminal Code rules into the military justice system.
Bill C-7 implements most of the recommendations in the Lamer Report relating to amendments to be made to the NDA.(8) The most significant amendments include:
Before Bill C-25 came into force, the Office of the Judge Advocate General handled both prosecution services and defence services for accused persons. Bill C-25 eliminated those functions by creating two positions: the Director of Military Prosecutions (DMP) and the Director of Defence Counsel Services (DDCS). The DMP is primarily responsible for laying charges and conducting prosecutions in courts martial. The DDCS is primarily responsible for supervising and managing the provision of legal services to accused persons.
The Minister appoints the DMP and the DDCS,(9) and they have security of tenure for a maximum, renewable term of four years. At present, however, the security of tenure enjoyed by the DMP differs from that of the DDCS. In order to remove the DMP, the Minister must obtain a recommendation from a committee of inquiry. The DDCS does not have that protection. Clause 74 of the bill remedies that situation by giving the DDCS the same protection.(10)
Neither the NDA nor the Queen’s Regulations and Orders for the Canadian Forces (QR&O) provide for how the remuneration of the DMP and the DDCS is established. To ensure that the process is transparent, subclause 2(1) of the bill provides for the pay of both directors to be prescribed by Treasury Board regulation.(11)
The Court Martial Administrator is responsible for convening the court martial, in response to a decision by the DMP, and appointing the members of the General Court Martial(12) or Disciplinary Court Martial.(13) Clause 38 of the bill provides that the Court Martial Administrator shall make an order fixing the date, time and place of a trial before the court martial and directing the accused to appear.(14)
At present, military judges must take an oath before each trial.(15) New subsection 165.21(2) of the NDA provides that they will now have to take an oath when they are appointed.(16)
At present, military judges are appointed with security of tenure for a term of five years.(17) The term is renewable on recommendation of a Renewal Committee.(18) In making a recommendation, the Renewal Committee considers the requirements of the Office of the Chief Military Judge, any compelling military requirement to employ the military judge in a non‑judicial capacity, and the military judge’s physical and medical fitness.(19) In the view of Justice Lamer, accused persons might believe that a judge’s desire to be renewed would influence his or her judicial decisions.(20)
To avoid any impression of outside influence on the decisions of military judges, new subsection 165.21(4) of the NDA provides that a military judge holds office until retirement from the Canadian Forces.(21)
While the present NDA provides that the Governor in Council must obtain a recommendation of an Inquiry Committee to remove a military judge, the composition of the Committee and the factors it must consider are set out only in the QR&O.(22)
Bill C-7 therefore incorporates the essence of the rules set out in the QR&O into the NDA.(23) The members of the Committee will still be judges of the Court Martial Appeal Court and be appointed by the Chief Justice of that Court (new subsection 165.29(1) of the NDA). As well, the Committee must commence an inquiry as to whether a military judge should be removed from office at the request of the Minister (new subsection 165.3(1) of the NDA), and it may inquire into any complaint or allegation made against a military judge (new subsection 165.3(2) of the NDA).
On the other hand, the bill differs in some respects from the scheme established by the QR&O, in particular in respect of the number of members of the Committee and the grounds for removal. While the QR&O required that the Committee be composed of at least two judges of the Court Martial Appeal Court, new subsection 165.29(1) of the NDA requires one more. New subsection 165.3(7) of the NDA reiterates the four grounds for removal set out in the QR&O:
It adds a fifth ground: the fact that the military judge does not satisfy the physical and medical fitness standards applicable to officers. This last ground is currently considered by the Renewal Committee when renewing the appointment of a military judge.
The rates and conditions of issue of military judges’ pay are prescribed by Treasury Board.(24) At present, the NDA provides that judges’ remuneration must be reviewed regularly by a committee, but the composition of the committee and the factors it is to consider in its review are set out in the QR&O.(25)
Clause 43 of the bill reiterates the rules set out in the QR&O.(26) The Committee is always composed of three part-time members appointed by the Governor in Council and nominated by the military judges, the Minister and the members of the Committee (new subsection 165.31(1) of the NDA). To determine whether military judges’ remuneration is adequate, the Committee has regard to the same factors as the QR&O, including the federal government’s economic position, the financial security of the military judiciary and the need to attract outstanding candidates (new subsection 165.32(2) of the NDA).
The Committee conducts its review every four years (new subsection 165.32(3) of the NDA), and at any time at the request of the Minister (new subsection 165.33(1) of the NDA).
New section 165.28 of the NDA provides that the Chief Military Judge may, with the approval of the Governor in Council, make rules governing practice and procedure in courts martial. For example, rules may be made regarding pre-trial conferences, orders for release or detention, documents filed in court and the scheduling of trials.
In order that more military judges be available to meet the growing need for judicial services, clause 39 of the bill permits a Reserve Force Military Judges Panel to be established (new subsection 165.22(1) of the NDA). The Governor in Council may name any officer of the reserve force to the panel where he or she has been both an officer and a lawyer for at least 10 years. The Chief Military Judge selects a reserve force officer who has been named to the panel to perform the duties of a military judge (new subsection 165.222(1) of the NDA).
Clause 39 of the bill essentially reiterates section 77 of the Public Safety Act, 2002,(27) with the notable difference that that Act requires that the reserve force officer have previously performed the duties of a military judge in order to be named to the panel.
The Supreme Court of Canada has held that the fact that a judge performs his or her duties part-time does not create a reasonable apprehension of bias.(28) However, the judge’s activities outside his or her judicial functions may cause problems.(29) Clause 39 of the bill provides that a part-time military judge may not engage in any business or professional activity that is incompatible with his or her judicial duties (new section 165.223 of the NDA). As well, a part-time military judge may not be the Chief Military Judge (clauses 41 and 42 of the bill).
In addition, under clause 39 of the bill, the name of a reserve military judge will be removed from the panel on retirement (new subsection 165.221(2) of the NDA).
Clause 40 of the bill expressly grants military judges protection from civil liability.(30)
Under the present rules, in the case of a General Court Martial or Disciplinary Court Martial, the court martial panel pronounces the verdict(31) and the judge presiding at the court martial determines the sentence.(32)
The panel’s decisions are made by majority vote of its members.(33) Given that a guilty verdict may have serious consequences, clause 52 of the bill institutes the unanimous vote rule for decisions of a court martial panel in respect of a finding of guilty or not guilty, unfitness to stand trial or not responsible on account of mental disorder.(34) The unanimous vote rule would help to create a climate more conducive to discussion, in which the members would pay more attention to the minority opinion.(35)
Clause 53 of the bill provides that if the members of a panel are unable to agree on a finding, the military judge presiding at the court martial may discharge the panel. The Court Martial Administrator will then convene a new court martial.
Clause 47 of the bill provides that proceedings before military judges, including proceedings relating to release from custody and sentencing, and courts martial, will be public proceedings (new subsection 180(1) of the NDA).
New subsection 180(2) of the NDA adds two situations in which a court martial and a military judge may order that the public be excluded: cases that may cause injury to national defence or national security.
A person who appeals a decision of a court martial to the Court Martial Appeal Court or the Supreme Court of Canada may ask the Appeal Committee to have the DDCS provide him or her with the services of counsel. The Appeal Committee is mentioned only in the QR&O, and not in the NDA.(36)
New section 249.211 of the NDA refers expressly to the Appeal Committee.(37) As well, the QR&O provides that the Committee, which is composed of two members, makes decisions by unanimous vote.(38) Justice Lamer recommended that the QR&O be amended to provide, among other things, that the Committee be composed of three members and that its decisions be made by majority vote.(39)
The bill introduces into the NDA a number of rules modelled on the Criminal Code. Other amendments specify the powers and responsibilities of the actors in the military justice system.
To comply with the decision of the Court Martial Appeal Court in R. v. Gauthier,(40) and the decision of the Federal Court of Appeal in Delude v. The Queen,(41) which held that the power to arrest without warrant conferred by section 156 of the NDA was unconstitutional, clause 26 of the bill essentially incorporates the grounds set out in the Criminal Code(42) for a lawful arrest without warrant(43) into the NDA. An officer, a non-commissioned member or a member of the military police (clause 27 of the bill) can now arrest a person without warrant only in the case of a serious offence,(44) if the arrest is in the public interest (for example, to identify the person or preserve evidence) or there are reasonable grounds to believe that the person will attempt to evade prosecution if he or she is released.
At present, the NDA allows an officer in the chain of command to change the decision made by the custody review officer to release a person who has been arrested.(45) Clause 30 of the bill provides that a military judge may review the decision of the custody review officer and the officer in the chain of command.(46) A military judge may also, after the expiry of 30 days (new subsection 158.7(3)), review the earlier decision of a military judge and make a direction regarding release.
A military judge may direct that a person be retained in custody before trial (pre-trial detention) where there is “any other just cause.”(47) Given that in Hall(48) the Supreme Court of Canada held that this ground, which also appears in the Criminal Code,(49) was contrary to the Canadian Charter of Rights and Freedoms, clause 31 of the bill replaces the expression “other just cause” with “public trust in the administration of ... justice” in paragraph 159.2(c) of the NDA.(50) That ground was held to be valid in Hall.
The NDA does not clearly specify the point at which an order for retention in custody, or the conditions of release on bail, expire. Clause 32 of the bill provides that the circumstances in which an order for retention in custody or conditions of release terminate are to be prescribed by the Governor in Council.(51) The Canadian Bar Association (CBA) suggested that a custody order or conditions of release should expire 14 days after arrest, if no charge has been laid.(52)
The NDA does not at present require that a charge be laid within a reasonable time against a person who has been retained in custody or released with conditions.(53) Clause 33 of the bill provides that a charge must be laid as expeditiously as the circumstances permit.(54)
As well, clause 37 of the bill provides that if the DMP decides not to prefer a charge against an accused, the DMP may reverse that decision and file a charge against the accused later.(55) At present, the NDA permits only the withdrawing of a charge already laid.(56)
In addition, clause 50 of the bill provides that once a charge has been preferred, a military judge may determine any question or matter of objection in respect of a charge.
Clause 54 of the bill, like section 475 of the Criminal Code, deals with the case of an accused person who absconds during the course of his or her trial.(57) Frequently, a person accused of a military offence fails to appear at trial.(58) The military judge presiding over a court martial may now continue the trial and pass sentence in the absence of the accused. An accused who is absent may, however, be represented by counsel.
Clause 61 of the bill imports the procedure set out in the Criminal Code(59) regarding the holding of hearings concerning mental disorders, with a few slight differences. Once the accused is declared to be unfit to stand trial or not responsible on account of mental disorder, the court martial may decide whether to release the individual or order that the individual be detained in custody in a hospital. In making a disposition, the court martial will consider, among other things, the statement of any victim (new subsection 202.201(15) of the NDA). The court may appoint counsel for an accused who is not already represented (new subsection 202.201(8) of the NDA).
The Lamer Report stated that the sentencing provisions “require extensive reform.”(60) As well, the current powers of punishment are not adequate. Clause 64 of the bill therefore adds a new division to the NDA on sentencing.(61)
New sections 203.1 to 203.4 of the NDA deal with the purposes and principles of sentencing.
Subsection 203.1(1) of the NDA states that the fundamental purposes of sentencing are to promote the operational effectiveness of the Canadian Forces, in particular the maintenance of discipline and morale, and respect for the law for the protection of society. In addition to the purposes stated in the Criminal Code,(62) which include denunciation, deterrence and rehabilitation, subsection 203.1(2) of the NDA sets out certain purposes specific to the military justice system, including public trust in the Canadian Forces.
Sections 203.2 and 203.3 of the NDA also reiterate the sentencing principles stated in the Criminal Code(63) and add certain principles specific to the military justice system, such as the fact that a service tribunal(64) must impose the least severe sentence required to maintain discipline, efficiency and morale (para. 203.3(d) of the NDA). Paragraph 203.3(e) of the NDA provides that a service tribunal must take into consideration any indirect consequences of the finding of guilty or the sentence.
Paragraph 203.3(a)of the NDA sets out the aggravating circumstances listed in the Criminal Code(65) and adds a number of aggravating circumstances specific to the military justice system:
New section 203.5 of the NDA provides that when a court martial sentences an individual, a disputed fact must be proved on a balance of probabilities. However, the prosecution must always prove aggravating facts and previous convictions beyond a reasonable doubt.
New sections 203.6 to 203.8 of the NDA incorporate the rules in the Criminal Code relating to victim impact statements into the NDA in their entirety.(66) The statement relates to the harm done to or loss suffered by the victim arising out of the perpetration of the offence.
The victim must be informed that he or she may prepare a statement. If that is not done, the court martial may adjourn the proceedings to permit a victim to prepare a statement (subsection 203.8 of the NDA).
Under the definition in the new section 203 of the NDA, a victim is a person to whom harm was done or who suffered loss as a direct result of the commission of the offence, and includes, if that person is incapable of making a statement, a relative, the spouse or a caregiver.
The bill introduces three new types of sentences into the NDA that are also found in the Criminal Code: absolute discharge, intermittent sentences and restitution orders.
Having regard to the best interests of the accused and to the public interest, a service tribunal may direct that an accused person who is found guilty of an offence other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life be discharged absolutely (new subsection 203.9(1) of the NDA). These are the same criteria as are provided in the Criminal Code,(68) although the Criminal Code also allows for conditional discharge.
A discharged offender is deemed not to have been convicted (new subsection 203.9(2) of the NDA). However, a firearms prohibition order (clause 21 of the bill), a restitution order (new section 203.91 of the NDA) or an order for restitution of property (clause 77 of the bill) may be made.
New sections 203.91 to 203.95 deal with restitution orders, which a court martial may impose in addition to any other sentence imposed on an offender. A restitution order will require that the offender pay the victim an amount to cover property damage or bodily or psychological harm resulting from the offence (section 203.91 of the NDA). For example, a victim may have lost income or, where the victim is a member of the offender’s household, had expenses for housing, food and transportation. Money found in the possession of the offender at the time of the arrest may be used to cover part of those expenses (section 203.93 of the NDA). These rules are taken from sections 738 et seq. of the Criminal Code.
The Criminal Code provides that an offender may be ordered to serve a sentence intermittently,(69) which often means on weekends. If this were not possible, a reservist who had to serve a sentence of imprisonment or detention might lose his or her civilian employment.(70)
Clause 23 of the bill therefore allows a service tribunal that imposes a sentence of imprisonment or detention for 14 days or less(71) to order that the offender serve the sentence intermittently (new subsection 148(1) of the NDA). During periods when the offender is not in confinement, he or she must comply with the conditions prescribed in the order. If the offender breaches a condition, the service tribunal may vary the conditions or add other conditions, or order that the offender serve the sentence on consecutive days (new subsection 148(5) of the NDA).
At present, to meet the needs of the army, the NDA allows a service tribunal and a “suspending authority” prescribed in regulations by the Governor in Council(72) to suspend the execution of punishment of an offender sentenced to imprisonment or detention.(73) The sentence will be served later.
Clause 67 of the bill provides that the Court Martial Appeal Court also has this power (new subsection 215(1) of the NDA).(74) Clause 68 provides that the suspending authority may suspend a punishment only if there are imperative reasons relating to military operations or the welfare of the offender (new subsection 216(2) of the NDA).(75)
As well, a service tribunal, a court martial (new para. 215.2(2)(a) of the NDA) and a suspending authority (new subsection 216(2.2) of the NDA) may revoke the suspension and commit an offender, if:
The suspending authority must still review the suspension every three months. The suspending authority may, at the time of the review, remit the punishment, in accordance with regulations to be made by the Governor in Council, as provided by clause 69 of the bill.
While the present NDA allows a service tribunal to sentence an offender to pay a fine,(76) it is silent as to recovery of unpaid fines. Clause 20 of the bill establishes a mechanism for the civil enforcement of fines.(77)
At present, the NDA allows a superior commander presiding at a summary trial of an officer cadet to impose three types of punishment only: severe reprimand, reprimand and fine.(78) To allow the superior commander greater flexibility, subclause 34(4) of the bill also allows him or her to impose a minor punishment.(79) This kind of punishment would be effective for maintaining discipline in an educational environment.(80)
As well, only non-commissioned members and officers of or below the rank of major are covered by the summary trial scheme at present.(81) Subclause 34(1) of the bill makes officers of the rank of lieutenant-colonel subject to the summary trial provisions as well.(82) However, the superior commander presiding at the summary trial of a lieutenant-colonel must be of or above the rank of colonel, and may not try a military judge (subclause 34(2) of the bill).
Clause 78 of the bill provides that an accused who is convicted of an offence has not been convicted of a criminal offence in two situations:
Asking a question in the course of a hiring process that requires an applicant to disclose a conviction for one of the above offences is an offence (clause 113 of the bill). Everyone who asks such a question in relation to an application for employment in a federal government department, a federal Crown corporation, the Canadian Forces or an undertaking that is within federal jurisdiction is liable to a fine of not more than $500 and imprisonment for not more than six months, or both. Clause 121 of the bill provides that this offence is retroactive.
At present, the NDA does not clearly describe the role of the Provost Marshal. Clause 3 of the bill therefore addresses the appointment and duties and functions of the Provost Marshal.(91)
The Provost Marshal, who must have been a member of the military police for at least ten years and hold a rank that is not less than colonel, is appointed by the CDS for a term not exceeding four years. The Provost Marshal is eligible to be reappointed and may be removed by the CDS on the recommendation of an inquiry committee established under regulations (new section 18.3 of the NDA).
The main duties and functions of the Provost Marshal are listed in the new section 18.4 of the NDA. The Provost Marshal’s responsibilities include the establishment of training standards applicable to candidates for the military police and of professional standards applicable to serving members of the military police. The Provost Marshal must ensure compliance with those standards. The Provost Marshal is also responsible for investigations assigned to any unit and investigations in respect of conduct inconsistent with professional standards or the Military Police Code of Professional Conduct.(92)
The Provost Marshal acts under the general supervision of the Vice Chief of Defence Staff, who may issue general instructions or guidelines in respect of a particular investigation (new section 18.5 of the NDA). The Provost Marshal must also submit an annual report to the CDS concerning the activities of the Provost Marshal and the military police (new section 18.6 of the NDA).(93) The report is then submitted to the Minister.
A conduct complaint is made under subsection 250.18(1) of the NDA against a member of the military police concerning the member’s conduct in the performance of his or her duties or functions.(94) The Provost Marshal is responsible for dealing with conduct complaints.(95)
At present, the NDA requires that the Provost Marshal explain why any conduct complaint has not been resolved or disposed of within six months.(96) To enhance the effectiveness of the process for resolving complaints against the military police, clause 89 of the bill provides that the Provost Marshal must resolve or dispose of a conduct complaint within one year after receiving it.(97) However, the one-year time limit does not apply if the complaint results in an investigation of a service offence or a criminal offence.
On another point, clause 88 of the bill provides that the CDS is responsible for dealing not only with a conduct complaint implicating the Provost Marshal, but also with a conduct complaint where the Provost Marshal was involved.(98) Justice Lamer used the example of an order issued by the Provost Marshal that allegedly led to the conduct complained of.(99)
Clause 81 of the bill expressly provides that a conduct complaint may not be made under the NDA against members of the military police working for the Canadian Forces who come from a foreign force or a civilian police service (new subsection 250.18(5) of the NDA).(100) However, Justice Lamer recommended that persons seconded to the military police be treated in the same way as any member of the Canadian Forces military police.(101)
Under clause 82 of the bill, an interference complaint may not be made against a member of any class of officers or non-commissioned members attached or seconded to the Canadian Forces that is prescribed in regulations made by the Governor in Council (new subsection 250.19(4) of the NDA).
Under the present NDA, there is no time limit within which a complainant who makes a conduct complaint and wishes to refer the decision of the Provost Marshal(102) to the MPCC must act. To make the procedure more effective, clause 94 of the bill requires that a complainant act within 60 days (new subsection 250.31(1) of the NDA).(103) On application by a complainant, stating reasons, the Chairperson of the MPCC (the Chairperson) may extend that time by up to 120 days (new subsection 250.311(1) of the NDA). Failure to act within the time allowed will result in the decision of the Provost Marshal becoming final (new section 250.312 of the NDA), unless the Chairperson nonetheless permits the complainant to refer the complaint to the MPCC, in the public interest (new subsection 250.311(2) of the NDA).
Clause 94 of the bill clarifies the types of documents that the Provost Marshal must provide to the MPCC (new subsection 250.31(2) of the NDA). The MPCC will no longer have access to the entire record prepared by the Provost Marshal on receipt of the complaint (clause 87 of the bill), and the entire content of the investigation record will not be provided to the MPCC.(104) As well, clause 94 of the bill expressly provides that the Provost Marshal will not provide the MPCC with information or documents protected by a privilege under the law of evidence, such as solicitor-client privilege. In addition, if the complaint is resolved informally, only a document stating that the complaint has been resolved informally will be provided to the MPCC (clause 87 of the bill); the details of the resolution will remain confidential (clause 90 of the bill, adding new subsection 250.27(7) to the NDA).(105) The parties to a complaint that is resolved informally may, however, consent to disclosure.
The bill provides that a person may not be penalized for making a conduct complaint (new subsection 250.18(4) of the NDA) or interference complaint (new subsection 250.19(3) of the NDA) in good faith.(106)
Justice Lamer recommended that Part IV of the NDA be amended to correct inconsistencies between the French and English language versions.(107)
At present, under the English version of subsection 250.38(1) of the NDA, the Chairperson of the MPCC may intervene in a case relating to a complaint at any time,(108) in the public interest, before the Provost Marshal has completed the investigation and the complaint is referred to the MPCC. The Chairperson may then, on his or her own initiative, hold a hearing into the complaint.
According to the French version of that subsection of the NDA, the Chairperson may intervene in the public interest and hold a hearing only if the complainant has already referred the complaint to the MPCC for review.(109)
Subsection 97(1) of the bill amends the English version to make it consistent with the French version.(110)
At present, the NDA permits any person to make a conduct complaint.(111) The new subsection 250.18(3) provides that the Chairperson of the MPCC may make a conduct complaint only if there are reasonable grounds to investigate the complaint.(112)
The new subsection 250.1(4.1) of the NDA provides that a person who ceases to hold office as a member of the MPCC may continue to do the work in order to complete his or her caseload.(113)
The grievance procedure consists of two levels. A grievance is initially brought before the commanding officer of the grievor, or the commanding officer’s next superior officer. Next, the grievor may refer the grievance to the CDS, who represents the final authority.(114) Before the CDS may begin the review, certain grievances(115) must be referred to the Canadian Forces Grievance Board (Grievance Board) for its findings and recommendations.(116)
Justice Lamer noted that the grievance process “is not working properly,”(117) particularly because of the lengthy times taken for grievances to be disposed of: “Grievances still caught in the grievance process after ten and even twelve years are not unheard of, and those of two or more years at the level of the CDS seem to be the norm.”(118)
The NDA requires that the Grievance Board act expeditiously and informally.(119) Clause 5 of the bill assigns the same duty to the CDS (new section 29.11 of the NDA).(120)
Under the present NDA, the CDS must personally handle grievances submitted to the Grievance Board,(121) and may not delegate that responsibility. Clause 8 of the bill implements one of the solutions proposed by Justice Lamer(122) to expedite the grievance process by permitting the CDS to delegate this responsibility to an officer under his or her direct command and control. The CDS will therefore be able to delegate the task of disposing of any grievance, whether the grievance has been submitted to the Grievance Board or not.
However, the CDS will not be able to delegate his or her power to dispose of grievances in certain cases:
Justice Lamer recommended that the CDS should personally dispose of any grievance that might have policy implications for the Canadian Forces, affect the capacity of the Canadian Forces, and/or have significant financial implications.(123)
Clause 5 of the bill provides that the CDS must personally deal with a grievance submitted by a military judge (new section 29.101 of the NDA). Under clause 6 of the bill, before considering and determining a grievance submitted by a military judge, the CDS must refer it to the Grievance Board. The Grievance Board will provide the CDS with its findings and recommendations.(124)
However, a military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties (clause 4 of the bill).
Clause 11 of the bill expressly provides that the CDS has the power to reinstate a grievor who has been improperly released from the Canadian Forces.(125) The grievor is therefore not required to re-enrol and does not lose seniority.
Clause 10 of the bill provides that the Chairperson of the Grievance Board must submit an annual report to the Minister within three months after the end of each fiscal year,(126) instead of on 31 March of each year.(127) The Grievance Board had argued that this would be better management practice.(128)
As in the case of members of the MPCC, members of the Grievance Board whose term has expired may complete their caseload.(129)
Clause 107 of the bill lengthens the deadline for bringing an action against the government for acts, neglect or default in execution of the NDA or any regulations or military or departmental duty or authority to two years from six months.
The bill will come into force on a day or days to be fixed by order of the Governor in Council (clause 128 of the bill).
Under clause 109 of the bill, the Minister shall cause a review of certain provisions of the NDA to be undertaken every five years; those provisions include the grievance process, the Code of Service Discipline and military police complaints.
To date, there has been little comment in the media. When the bill was introduced, Canadian Press reported the comments of Brigadier-General Ken Watkin, Judge Advocate General:
“This legislation is the culmination of a great deal of effort on the part of many people… . Extensive analysis was undertaken both within and outside DND to ensure that the changes proposed are reflective of current Canadian values and legal standards while still meeting military requirements.”(130)
On the question of independent review of the amendments made to the National Defence Act by Bill C-25, the Canadian Bar Association considered that the time that the Department of National Defence gave Justice Lamer to prepare his report – slightly less than 6 months – was not sufficient.(131) A thorough review would have taken 9 to 12 months. The CBA also argued that there should be an independent review of the entire NDA, and not only of the provisions of the NDA amended by the bill.(132) While Justice Lamer noted that a review of the Office of the Ombudsman for the Department of National Defence and the Canadian Forces was outside the scope of his mandate(133) – since the Office was not created by Bill C-25 – the CBA recommended that the duties and functions of the Office be expressly set out in the NDA.(134)
Bill C-7 implements most of the recommendations made by Justice Lamer. However, the recommendations that have not been acted on include important proposals for improving the military justice system, such as establishing a permanent military court of record,(135) modernizing the types of courts martial, with no distinction made on the basis of rank,(136) and imposing an overall time limit of 12 months for a decision respecting a grievance.(137)
(a) imprisonment for life;
(b) imprisonment for two years or more;
(c) dismissal with disgrace from Her Majesty’s service;
(d) imprisonment for less than two years;
(e) dismissal from Her Majesty’s service;
(f) detention;
(g) reduction in rank;
(h) forfeiture of seniority;
(i) severe reprimand;
(j) reprimand;
(k) fine; and
(l) minor punishments.
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