Bill C-15: Strengthening Military Justice in the Defence of Canada Act

Backgrounder / June 21, 2013 / Project number: BG–13.022

On October 7, 2011, Bill C-15: An Act to amend the National Defence Act and to make consequential amendments to other Acts (short title: Strengthening Military Justice in the Defence of Canada Act) was introduced in the House of Commons by the Honourable Peter MacKay, Minister of National Defence. The legislation reflects a series of recommendations made in 2003 by the late Right Honourable Antonio Lamer, former Chief Justice of Canada, following his independent review of the National Defence Act, as well as those made in May 2009 by the Standing Senate Committee on Legal and Constitutional Affairs.  

The amendments in Bill C-15 cover changes to the military justice system, the grievance process and the Canadian Forces Provost Marshall Organization.

Military justice system changes will:

  • further enhance the independence of military judges;
  • expressly provide the purposes, principles and objectives of sentencing in the military justice system;
  • expand the pool of Canadian Armed Forces members eligible to serve on a court martial panel;
  • modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods; and
  • provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution orders, as well as the ability to submit victim impact statements at courts martial.

Grievance process amendments will:

  • enhance the effectiveness of the grievance system by authorizing the Chief of the Defence Staff to delegate his power as the final grievance authority when appropriate, thereby enabling grievances to be resolved more swiftly;
  • formally change the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee - a name that better reflects the Board’s independent status; and
  • empower the Chief of the Defence Staff to cancel the release of Canadian Armed Forces members as a remedy in the grievance system when it is discovered a member has been improperly released.

Canadian Forces Provost Marshal organization changes will:

  • legislate and formalize the position of the Canadian Forces Provost Marshal and specify the Provost Marshal’s responsibilities;
  • establish a timeline within which the Canadian Forces Provost Marshal is required to resolve conduct complaints. Moreover, it protects complainants from being penalized for submitting a complaint in good faith;
  • establish the necessary governance framework for the Provost Marshal in statute, which reflects the need to balance the important principle of police independence with the raison d’être of the Canadian Armed Forces - mission success in complex, dangerous and difficult environments.

The Strengthening Military Justice in the Defence of Canada Act received Royal Assent on June 19, 2013.

Bill C-25

Comprehensive amendments to the National Defence Act were made in 1998 by Bill C-25, An Act to amend the National Defence Act. Bill C-25 requires the Minister of National Defence to initiate an independent review of the provisions and operation of the Bill every five years, and to table a report of the review in Parliament.

Other changes to the Act dealt mainly with the military justice system, modernizing the Code of Service Discipline and promoting integrity and fairness within the system by:

  • clarifying the roles and responsibilities of its various actors;
  • clearly separating, on an institutional basis, the system's investigative, prosecutorial, defence and judicial functions;
  • completing summary trial reform;
  • strengthening oversight and review; and
  • eliminating the death penalty.

Bill C-25 also made a number of amendments to the Act in non-military justice areas, including:

  • a provision for the Vice Chief of the Defence Staff and acting Chief of the Defence Staff;
  • the creation of the Canadian Forces Grievance Board and the Military Police Complaints Commission;
  • a statutory provision for the performance of public service duties by the Canadian Armed Forces; and
  • a streamlined process for amending pay and allowances for Canadian Armed Forces members.

Most of the amendments came into force on September 1, 1999.

First Independent Review

Pursuant to the requirement in Bill C-25 that an independent review of the provisions and operation of that Act be conducted within five years of the Act receiving Royal Assent, in March 2003, the Minister of National Defence appointed Chief Justice Lamer to conduct the review.  Chief Justice Lamer submitted his report (the “Lamer Report”) to the Minister on September 3, 2003, and the Minister tabled the report in Parliament on November 5, 2003.

In his report, Chief Justice Lamer made 88 recommendations: 57 pertaining to military justice, 14 regarding the Canadian Forces Provost Marshal and the Military Police Complaints Commission, and 17 concerning the Canadian Forces grievance process. Chief Justice Lamer indicated that, as a result of the changes made by Bill C-25, “Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.” That being said, he also observed there remained room for improvement. It was in that spirit the Department of National Defence conducted a study of the recommendations.

Legislative Response

The Government’s legislative response to the recommendations made in the Lamer Report was first introduced in the House of Commons on April 27, 2006, as Bill C-7. Bill C-7 subsequently died on the Order Paper when Parliament was prorogued on September 14, 2007. A successor, Bill C-45, was introduced in March 2008. Bill C-45 also died on the Order Paper as the 39th Parliament was dissolved for a federal election. 

Bill C-41 was introduced in the House of Commons on June 16, 2010. Changes between Bill C-41 and Bill C-45 were reflective of the amendments made to the National Defence Act following the coming into force of Bill C-60 on July 18, 2008. The amendments responded to a number of recommendations made by the Standing Senate Committee on Legal and Constitutional Affairs following its study of the military justice system in 2009. Bill C-41 died on the Order Paper when Parliament was dissolved on March 26, 2011.

On October 7, 2011, Bills C-15 and C-16 were introduced in the House of Commons. The latter bill dealt specifically with the security of tenure of military judges following the Court Martial Appeal Court decision in R. v. Leblanc on June 2, 2011, where it was found the existing provisions providing for five-year renewable terms was unconstitutional. Bill C-16 was granted Royal Assent on November 29, 2011.

Bill C-15 essentially mirrors Bill C-41 with a few amendments.

Second Independent Review

In March 2011, Minister MacKay appointed former Chief Justice of the Ontario Superior Court, the Honourable Patrick J. LeSage, to conduct an independent review of the amendments to the National Defence Act. On June 8, 2012, Minister MacKay tabled the report of the second independent review in Parliament. In conducting the review, Chief Justice LeSage was asked to consider amendments contained in Statutes of Canada 1998, c.35 (“Bill C-25”), and Statutes of Canada 2008, c.29 (“Bill C-60”).

Although none of the four bills attempting to implement the recommendations of the first independent review authority (Bill C-7 in 2006, Bill C-45 in 2008, and Bill C-41 in 2010) passed into law, the Minister of National Defence decided it was nonetheless important to appoint the second independent review authority.

This review specifically involved consideration of the operation of aspects of the military justice system, the military police complaints process, and the Canadian Forces grievance process. It followed up on the work of late Chief Justices Brian Dickson and Antonio Lamer.

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