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Legislative Summary LS-529E BILL C-7: AN ACT TO AMEND THE NATIONAL DEFENCE ACT Dominique Valiquet Law and Government Division 13 June 2006 Library of Parliament Bibliothèque du Parlement Parliamentary Information and Research Service LEGISLATIVE HISTORY OF BILL C-7 HOUSE OF COMMONS SENATE Bill Stage Date Bill Stage Date First Reading: 27 April 2006 First Reading: Second Reading: Committee Report: Report Stage: Third Reading: Second Reading: Committee Report: Report Stage: Third Reading: Royal Assent: Statutes of Canada N.B.
Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

Legislative history by Peter Niemczak CE DOCUMENT EST AUSSI PUBLIÉ EN FRANÇAIS TABLE OF CONTENTS Page BACKGROUND ................................................................................................................... A.
Purpose of the Bill......................................................................................................... B.

Bill C-25........................................................................................................................ C. Lamer Report................................................................................................................. D. Principal Amendments in Bill C-7................................................................................
DESCRIPTION AND ANALYSIS ....................................................................................... A.

Director of Military Prosecutions and Director of Defence Counsel Services ............. 1.

Removal for Cause (Clause 74) .................................................................................. 2.

Remuneration (Clause 2) ............................................................................................ B.
Court Martial Administrator (Clause 38) ...................................................................... C. Military Judges.............................................................................................................. 1.

Oath of Military Judges (Clause 39)........................................................................... 2.

Security of Tenure of Military Judges (Clause 39)..................................................... 3.
Military Judges Inquiry Committee (Clause 43) ........................................................ 4.

Military Judges Compensation Committee (Clause 43) ............................................. 5.

Rules of the Chief Military Judge (Clause 43) ........................................................... 6.

Part-time Judges (Clauses 1, 39, 41, 42 and 124)....................................................... 7.
Immunity of Military Judges (Clause 40)................................................................... 1 1 2 3 3 4 4 4 5 5 5 5 6 6 7 8 8 9 D. Court Martial................................................................................................................. 1.

Decisions of Court Martial Panel by Unanimous Vote (Clauses 52 and 53).............. 2.
Public Access to Judicial Proceeding (Clause 47)...................................................... 9 9 10 E. Appeal Committee (Clause 76) ..................................................................................... 10 F. Code of Service Discipline ............................................................................................ 1.

Arrest Without Warrant (Clauses 26 and 27) ............................................................. 2.
Pre-trial Release and Retention in Custody of a Person 10 11 11 Who Has Been Arrested (Clauses 30, 31 and 32) ...................................................... 3.

Laying Charges (Clauses 33, 37 and 50) .................................................................... 12 ii 4.

Absconding Accused (Clause 54)............................................................................... 13 5.
Mental Disorder (Clause 61)....................................................................................... 13 13 6.

Sentencing (Clause 64) ............................................................................................... 13 a.

Purposes and Principles............................................................................................ b.
Evidence................................................................................................................... 14 c. Victim Impact Statement.......................................................................................... 15 15 d. New Sentences ......................................................................................................... 15 1) Absolute Discharge............................................................................................... 2) Restitution............................................................................................................. 16 3) Intermittent Sentences (Clause 23)....................................................................... 16 7.
Suspension of Imprisonment or Detention (Clauses 67, 68 and 69)........................... 17 8.

Enforcement of Fines (Clause 20) .............................................................................. 18 18 9.

Officer Cadets and Lieutenant-Colonel (Clause 34)................................................... 10.
Criminal Record (Clauses 78, 113 and 121)............................................................. 18 G. Complaints About or By Military Police ...................................................................... 19 1.

Canadian Forces Provost Marshal .............................................................................. 19 a.

Appointment and Duties and Functions (Clause 3) ................................................. 19 b.
Conduct Complaint (Clauses 88 and 89) ................................................................. 20 2.

Members of the Military Police Attached or Seconded 21 to the Canadian Forces (Clauses 81 and 82) .............................................................. 3.

Military Police Complaints Commission.................................................................... 21 a.

Referral to the Military Police Complaints Commission (Clauses 87, 90 and 94)..... 21 22 b.
No Penalty for Complaints (Clauses 81 and 82)...................................................... c. Investigation in the Public Interest (Clause 97) ....................................................... 22 d. Complaint by Chairperson of the Military Police Complaints Commission (Clause 81)...................................................................... e. Completion of Duties by Members Who Cease to Hold Office (Clause 80)........... 23 23 24 H. Grievance Procedure ..................................................................................................... 24 1.
Duty of the Chief of Defence Staff to Act Expeditiously (Clause 5) ......................... 2.

Power of the Chief of Defence Staff to Delegate (Clause 8)...................................... 24 3.

Grievance Submitted by a Military Judge (Clauses 4, 5 and 6).................................. 25 4.

Reinstatement of a Member of the Canadian Forces (Clause 11) .............................. 25 26 5.

Annual Report by the Grievance Board (Clause 10) .................................................. 6.
Completion of Duties When Members of the Grievance Board Cease to Hold Office (Clause 9).................................................... 26 I.

Limitation Period (Clause 107) ...................................................................................... 26 J.
Coming Into Force and Independent Review of the NDA (Clauses 109 and 128) ........ 26 COMMENTARY................................................................................................................... 27 BILL C-7: AN ACT TO AMEND THE NATIONAL DEFENCE ACT* BACKGROUND A.

Purpose of the Bill 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.
* (1) Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force.

It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both Houses of Parliament, receive Royal Assent, and come into force.
The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D.

of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of the Statutes of Canada 1998, c. 35, Submitted to the Minister of National Defence, 3 September 2003, http://www.forces.gc.ca/site/reports/review/index_e.asp.
(2) Bill C-25: An Act to amend the National Defence Act and to make consequential amendments to other Acts, received Royal Assent in December 1998 and came into force on 1 September 1999.
For an overview of the military justice system and the changes made to the military regime, see David Goetz, Bill C-25: An Act to amend the National Defence Act, LS-311E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 25 November 1998, http://lpintrabp.parl.gc.ca/lopimages2/PRBpubsArchive/ls1000/361c25-e.asp.

(3) R.S.

1985, c. C-46 B.
Bill C-25 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: • abolition of the death penalty; • application of common law provisions concerning ineligibility for conditional release; • creation of the Canadian Forces Grievance Board (Grievance Board), an independent body responsible for the impartial disposition of grievances in the Canadian Forces; • establishment of the Military Police Complaints Commission (MPCC), to provide independent oversight of complaints about the conduct of the military police and allegations of interference in investigations conducted by the military police; • creation of new positions within the military justice system, the Director of Military Prosecutions and the Director of Defence Counsel Services, thus segregating the functions of investigation, prosecution and defence of accused persons; • clarification and limitation of the functions of the Judge Advocate General, the Minister of National Defence and the members of the chain of command; and • strengthening of the independence of military judges, by amending the provisions relating to their appointment, powers and tenure.
(4) Report of the Special Advisory Group on Military Justice and the Military Police Investigation Services, March 1997.

The second part of the report, filed in July 1997, dealt with the quasi-judicial role of the Minister of National Defence under the National Defence Act, R.S., 1985, c. N-5.

(5) Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair, June 1997.
(6) Report to the Prime Minister on Leadership and Management in the Canadian Forces, released by the Minister of National Defence in March 1997 C. Lamer Report 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.
D. Principal Amendments in Bill C-7 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: • removal of the Director of Defence Counsel Services for cause only; • security of tenure for military judges until retirement, and appointment of part-time military judges; • description of the Military Judges Inquiry Committee and the Military Judges Compensation Committee in the provisions of the NDA; • unanimous decisions by a court martial panel, essentially in relation to guilt; (7) Lamer Report, p. 113.
(8) The recommendations made by Justice Lamer also relate to the Queen’s Regulations and Orders for the Canadian Forces, which are key subordinate legislation (http://www.smafinsm.forces.gc.ca/qr_o/intro_e.asp), and certain administrative provisions.
• statement of sentencing principles; • inclusion of new sentences: absolute discharge, intermittent sentences and restitution; • greater consistency with the rules in the Criminal Code, including in relation to arrest, preventive custody and victim impact statements; • clarification of the duties and functions of the Canadian Forces Provost Marshal; • application of specific deadlines for processing a complaint regarding military police misconduct; and • delegation of the powers of the Chief of Defence Staff (CDS) in relation to the grievance process.
DESCRIPTION AND ANALYSIS A.

Director of Military Prosecutions and Director of Defence Counsel Services 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.

1.

Removal for Cause (Clause 74) 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 (9) Sections 165.1 and 249.18, respectively, of the NDA.

(10) This amendment is a response to recommendation 3 in the Lamer Report 2.
Remuneration (Clause 2) 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 B.
( )11 B.

Court Martial Administrator (Clause 38) response to a decision by the DMP, and appointing the members of the General Court Martial( or Disciplinary Court Martial.

( The Court Martial Administrator is responsible for convening the court martial, in )12 )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 C. Military Judges 1.


Oath of Military Judges (Clause 39) 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 (11) This amendment is in response to recommendations 2 and 4 of the Lamer Report.

(12) “General Courts Martial – may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.
A General Court Martial is composed of a military judge and a panel of five members, and has the power to order a maximum punishment of imprisonment for life” (Lamer Report, p. 34).

(13) “Disciplinary Courts Martial – may try any officer of or below the rank of major or any non- commissioned member who is liable to be charged, dealt with and tried on a charge of having committed a service offence.
A Disciplinary Court Martial is composed of a military judge and a panel of three members and may not pass a sentence that includes a punishment higher in the scale of punishments than dismissal with disgrace from Her Majesty’s service” (ibid., pp.

34-35); s. 165.19 of the NDA.

(14) This amendment is in response to recommendation 19 of the Lamer Report.

(15) Section 251 of the NDA.

(16) See the Lamer Report, p. 21 2.
Security of Tenure of Military Judges (Clause 39) At present, military judges are appointed with security of tenure for a term of five )18 In making a )17 The term is renewable on recommendation of a Renewal Committee.

( years.

( 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 )19 In the view of non-judicial capacity, and the military judge’s physical and medical fitness.
( 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 3.
( )21 3.

Military Judges Inquiry Committee (Clause 43) 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 )23 The members of the Committee will still be judges of the Court Martial Appeal the NDA.
( 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).

(17) Section 165.21 of the NDA.


(18) The three members of the Renewal Committee are appointed by the Governor in Council: a judge of the Court Martial Appeal Court, a civilian lawyer nominated by the Minister of Justice and another civilian nominated by the Minister of National Defence (subsection 15(2) of the QR&O).

(19) Subsection 101.17(2) of the QR&O.

(20) Lamer Report, p. 19.

(21) This amendment is in response to recommendation 5 of the Lamer Report.

(22) Sections 101.13 and 101.14.


(23) This amendment is in response to recommendation 6 of the Lamer Report 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: • infirmity; • having been guilty of misconduct; • having failed in the due execution of his or her judicial duties; • having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties.

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.

4.

Military Judges Compensation Committee (Clause 43) The rates and conditions of issue of military judges’ pay are prescribed by )24 At present, the NDA provides that judges’ remuneration must be reviewed Treasury Board.

( 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 )26 The Committee is always composed of three part-time members appointed by the Governor in Council and Clause 43 of the bill reiterates the rules set out in the QR&O.

( 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).

(24) Paragraph 12(3)(a) and subsection 165.22(1) of the NDA.

(25) Sections 204.23 to 204.27.

(26) This amendment is in response to recommendation 9 of the Lamer Report.
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).

5.

Rules of the Chief Military Judge (Clause 43) 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.

6.

Part-time Judges (Clauses 1, 39, 41, 42 and 124) 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, )27 with the notable difference that that Act requires that the reserve force officer have 2002,( previously performed the duties of a military judge in order to be named to the panel.

her duties part-time does not create a reasonable apprehension of bias.

( activities outside his or her judicial functions may cause problems.
( The Supreme Court of Canada has held that the fact that a judge performs his or )28 However, the judge’s )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).

(27) S.C. 2004, c. 15 (Bill C-7).


Section 77 of that Act is not in force (see, on this point, D. Goetz et al., Bill C-7: Public Safety Act, 2002, LS-463E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 12 February 2004, http://www.parl.gc.ca/common/Bills_ls.asp?lang=E&ls=C7&source=library_prb&Parl=37&Ses=3#dres ervetxt.

(28) R. v. Lippé, [1991] 2 S.C.R.

114.

(29) Lamer Report, pp.

21 and 32.
114.

(29) Lamer Report, pp.

21 and 32 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).

7.

Immunity of Military Judges (Clause 40) Clause 40 of the bill expressly grants military judges protection from civil liability.

( )30 D. Court Martial 1.


Decisions of Court Martial Panel by Unanimous Vote (Clauses 52 and 53) Under the present rules, in the case of a General Court Martial or Disciplinary )31 and the judge presiding at the Court Martial, the court martial panel pronounces the verdict( 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 )34 The unanimous vote rule to stand trial or not responsible on account of mental disorder.

( 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.

(30) This amendment is in response to recommendation 12 of the Lamer Report.

(31) Subsection 192(1) of the NDA.

(32) Section 193 of the NDA.

(33) Subsection 192(2) of the NDA.

(34) This amendment is in response to recommendation 24 of the Lamer Report.
(35) See the Lamer Report, quoting, on p. 39, Working Paper 27 published by the Law Reform Commission of Canada entitled The Jury in Criminal Trials, Minister of Supply and Services Canada, Ottawa, 1980, p. 30 10 2.
Public Access to Judicial Proceedings (Clause 47) 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.
E. Appeal Committee (Clause 76) 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 )38 Justice Lamer recommended that the QR&O be amended to decisions by unanimous vote.

( provide, among other things, that the Committee be composed of three members and that its decisions be made by majority vote.

( )39 F. Code of Service Discipline 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.

(36) Section 101.21.

(37) This amendment is in response to recommendation 29 of the Lamer Report.

(38) Subsection 101.21(6).

(39) Recommendations 26 and 27 of the Lamer Report 11 1.
Arrest Without Warrant (Clauses 26 and 27) To comply with the decision of the Court Martial Appeal Court in R. v. )41 which )40 and the decision of the Federal Court of Appeal in Delude v. The Queen,( Gauthier,( 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 )43 into the NDA.
An officer, a non-commissioned Code( )42 for a lawful arrest without warrant( member or a member of the military police (clause 27 of the bill) can now arrest a person )44 if the arrest is in the public interest (for without warrant only in the case of a serious offence,( 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.

2.
2.

Pre-trial Release and Retention in Custody of a Person Who Has Been Arrested (Clauses 30, 31 and 32) decision made by the custody review officer to release a person who has been arrested.

( At present, the NDA allows an officer in the chain of command to change the )45 Clause 30 of the bill provides that a military judge may review the decision of the custody )46 A military judge may also, after the review officer and the officer in the chain of command.
( expiry of 30 days (new subsection 158.7(3)), review the earlier decision of a military judge and make a direction regarding release.

trial detention) where there is “any other just cause.”( A military judge may direct that a person be retained in custody before trial (pre- )48 the Supreme )47 Given that in Hall( (40) [1998] C.M.A.J.

No.

4, CMAC-414.

(41) [2001] 1 F.C.

545 (FCA).

(42) Subsection 495(2).

(43) This amendment is in response to recommendation 32 of the Lamer Report.
(44) Subsection 2(1) of the NDA defines a serious offence: “an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code.” (45) Subsection 158.6(2).

(46) This amendment is in response to recommendation 34 of the Lamer Report.

(47) Paragraph 159.2(c) of the NDA.

(48) [2002] 3 S.C.R.

309.
(48) [2002] 3 S.C.R.

309 12 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 )51 The Canadian Bar Association (CBA) suggested be prescribed by the Governor in Council.
( that a custody order or conditions of release should expire 14 days after arrest, if no charge has been laid.

( )52 3.

Laying Charges (Clauses 33, 37 and 50) The NDA does not at present require that a charge be laid within a reasonable )53 Clause 33 time against a person who has been retained in custody or released with conditions.

( 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.

(49) Paragraph 515(10)(c).


(50) This amendment is in response to recommendation 36 of the Lamer Report.

(51) However, Justice Lamer proposed that the circumstances be specified in the NDA (see recommendation 37 of the Lamer Report).

(52) Lamer Report, p. 55.

(53) The Criminal Code allows for 24 hours in the case of a person in custody (para.

503(1)(a)).

In the case of a person who has been released from custody, an information must be laid as soon as practicable (para.

505(b) of the Criminal Code).


(54) This amendment is in response to the recommendation of the Canadian Bar Association, reiterated in recommendation 33 of the Lamer Report.

(55) This amendment is in response to recommendation 38 of the Lamer Report.

(56) Subsection 165.12(3).

 13 4.

Absconding Accused (Clause 54) an accused person who absconds during the course of his or her trial.
( accused of a military offence fails to appear at trial.

( Clause 54 of the bill, like section 475 of the Criminal Code, deals with the case of )57 Frequently, a person )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.

5.
5.

Mental Disorder (Clause 61) 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).

6.

Sentencing (Clause 64) The Lamer Report stated that the sentencing provisions “require extensive )60 As well, the current powers of punishment are not adequate.
Clause 64 of the bill reform.”( therefore adds a new division to the NDA on sentencing.

( )61 a.

Purposes and Principles New sections 203.1 to 203.4 of the NDA deal with the purposes and principles of sentencing.

(57) This amendment is in response to recommendation 20 of the Lamer Report.

(58) Lamer Report, p. 33.

(59) Section 672.5.

(60) Lamer Report, p. 65.

(61) This amendment is in response to recommendation 52 of the Lamer Report.
14 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 )62 which include denunciation, deterrence addition to the purposes stated in the Criminal Code,( 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.
stated in the Criminal Code( such as the fact that a service tribunal( Sections 203.2 and 203.3 of the NDA also reiterate the sentencing principles )63 and add certain principles specific to the military justice system, )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.
the Criminal Code( Paragraph 203.3(a) of the NDA sets out the aggravating circumstances listed in )65 and adds a number of aggravating circumstances specific to the military justice system: • abuse of rank (subpara.

203.3(a)(i)); • substantial harm to the conduct of a military operation (subpara.

203.3(a)(v)); and • offence committed in a theatre of hostilities (subpara.

203.3(a)(vi)).

b.
203.3(a)(vi)).

b.

Evidence 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.

(62) Section 718.

(63) Except paras.


718.2(c) (“where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”) and 718.2(e) (“all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”).

(64) Includes a court martial or a person presiding at a summary trial (subsection 2(1) of the NDA).

(65) Paragraph 718.2(a).


 15 c. Victim Impact Statement Code relating to victim impact statements into the NDA in their entirety.

( New sections 203.6 to 203.8 of the NDA incorporate the rules in the Criminal )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.
d. New Sentences( )67 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.

1) Absolute Discharge 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 (66) Sections 722 to 722.2.
(67) At present, subsection 139(1) sets out the scale of punishments: imprisonment for life; imprisonment for two years or more; (a) (b) (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) (h) (i) (j) (k) (l) minor punishments.
reduction in rank; forfeiture of seniority; severe reprimand; reprimand; fine; and 16 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 )68 although the Criminal NDA).

These are the same criteria as are provided in the Criminal Code,( 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.

2) Restitution 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.

3) Intermittent Sentences (Clause 23) The Criminal Code provides that an offender may be ordered to serve a sentence )69 which often means on weekends.

If this were not possible, a reservist who had intermittently,( 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 )71 to order that the offender serve the sentence imprisonment or detention for 14 days or less( 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).

(68) Subsection 730(1).

(69) Section 732.

(70) Lamer Report, p. 66.

(71) Ninety days, in the case of the Criminal Code (subsection 732(1)).

 17 7.
Suspension of Imprisonment or Detention (Clauses 67, 68 and 69) “suspending authority” prescribed in regulations by the Governor in Council( execution of punishment of an offender sentenced to imprisonment or detention.

( At present, to meet the needs of the army, the NDA allows a service tribunal and a )72 to suspend the )73 The sentence will be served later.

power (new subsection 215(1) of the NDA).


( Clause 67 of the bill provides that the Court Martial Appeal Court also has this )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 offender has breached the conditions of the order suspending execution of punishment; the imperative reasons relating to military operations or the welfare of the offender no longer exist; or the conduct of the offender is inconsistent with the reasons for which the punishment was suspended.
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.

(72) They include the Chief of the Defence Staff and an officer commanding a command (subsection 114.02(3) of the QR&O).

(73) Sections 215 and 216.

(74) This amendment is in response to recommendation 31 of the Lamer Report.
(75) See recommendation 10 of the Lamer Report: “I recommend that the National Defence Act be amended to provide that the authority to suspend a custodial sentence shall reside with a military judge or judge of the Court Martial Appeal Court in the first instance, subject only to situations of military exigency when the decision to suspend a sentence may be taken by the chain of command and approved at the earliest opportunity by a military judge.” 18 8.
Enforcement of Fines (Clause 20) While the present NDA allows a service tribunal to sentence an offender to pay a )76 it is silent as to recovery of unpaid fines.

Clause 20 of the bill establishes a mechanism fine,( for the civil enforcement of fines.

( )77 9.
( )77 9.

Officer Cadets and Lieutenant-Colonel (Clause 34) 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 )78 To allow the superior commander greater flexibility, subclause 34(4) of the bill also fine.

( )79 This kind of punishment would be effective allows him or her to impose a minor punishment.

( for maintaining discipline in an educational environment.
( )80 major are covered by the summary trial scheme at present.

( officers of the rank of lieutenant-colonel subject to the summary trial provisions as well.

( As well, only non-commissioned members and officers of or below the rank of )81 Subclause 34(1) of the bill makes )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).

10.
10.

Criminal Record (Clauses 78, 113 and 121) 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: • the person was convicted of one of the five listed offences (insubordinate behaviour;( quarrels and disturbances;( )83 )86 and conduct to the )84 absence without leave;( )85 drunkenness;( (76) Paragraph 139(1)(k).

(77) This amendment is in response to recommendation 53 of the Lamer Report.

(78) Section 164(4).


(79) These punishments are: confinement to ship or barracks; extra work and drill; stoppage of leave; and caution (subsection 104.13(2) of the QR&O).

(80) This amendment is in response to recommendation 51 of the Lamer Report.

(81) Paragraph 164(1)(a) of the NDA.

(82) This amendment is in response to recommendation 42 of the Lamer Report.

(83) Section 85 of the NDA.

(84) Section 86 of the NDA.

(85) Section 90 of the NDA.

(86) Section 97 of the NDA.
(86) Section 97 of the NDA 19 prejudice of good order and discipline( fine of $500 or less, or both; )87 ) and has been sentenced to a minor punishment or a • the person was convicted of an offence punishable by ordinary law( “contravention” by regulation of the Governor in Council.
( )89 )88 and designated as a 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.

G. Complaints About or By Military Police 1.

Canadian Forces Provost Marshal( )90 a.


Appointment and Duties and Functions (Clause 3) 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 (87) Section 129 of the NDA.

(88) Section 130 of the NDA.


(89) Section 2 of the Contraventions Act, S.C. 1992, c. 47, defines “contravention” as “an offence that is created by an enactment and is designated as a contravention by regulation of the Governor in Council.” (90) The bill replaces the expression “prévôt” with the expression “grand prévôt” in the French version of the NDA (see, inter alia, clause 114 of the bill).

(91) This amendment is in response to recommendation 58 of the Lamer Report.
20 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.

b.
b.

Conduct Complaint (Clauses 88 and 89) 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 )94 The Provost Marshal is responsible for dealing with conduct duties or functions.

( complaints.

( )95 complaint has not been resolved or disposed of within six months.
( At present, the NDA requires that the Provost Marshal explain why any conduct )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 )97 However, the one-year time limit does not apply if the complaint year after receiving it.

( results in an investigation of a service offence or a criminal offence.

(92) SOR/2000-14, 16 December 1999.


At present, the Provost Marshal is the Commanding Officer of the Canadian Forces National Investigation Service, which is responsible for laying charges as a consequence of investigations into serious or sensitive service offences (Lamer Report, p. 74).

(93) This amendment is in response to recommendation 59 of the Lamer Report.

(94) Part IV of the NDA provides for two types of complaints: conduct complaints and interference complaints.
An interference complaint is made under subsection 250.19(1) of the NDA by a member of the military police against an officer, non-commissioned member or senior official who is alleged to have interfered in an investigation.

(95) Section 250.26 of the NDA.

(96) Subsection 250.3.

(97) This amendment is in response to recommendation 66 of the Lamer Report.
21 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 2.
( )99 2.

Members of the Military Police Attached or Seconded to the Canadian Forces (Clauses 81 and 82) 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).

3.
3.

Military Police Complaints Commission a.

Referral to the Military Police Complaints Commission (Clauses 87, 90 and 94) makes a conduct complaint and wishes to refer the decision of the Provost Marshal( Under the present NDA, there is no time limit within which a complainant who 102 to the ) MPCC must act.

To make the procedure more effective, clause 94 of the bill requires that a 103 On application by a complainant act within 60 days (new subsection 250.31(1) of the NDA).
( ) complainant, stating reasons, the Chairperson of the MPCC (the Chairperson) may extend that (98) This amendment is in response to recommendation 68 of the Lamer Report.

(99) Lamer Report, p. 84.

(100) With respect to a complaint against a member of the Royal Canadian Mounted Police, see Parts VI and VII of the Royal Canadian Mounted Police Act, R.S., 1985, c. R-10.

(101) Recommendation 71 of the Lamer Report.


(102) The decision by the Provost Marshal may be that no attempt at informal resolution be started or that no investigation be started, or may relate to the findings of an investigation or any action to be taken with respect to disposition of the complaint (subsection 250.31 of the NDA).

(103) This amendment is in response to recommendation 66 of the Lamer Report.
22 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 104 As well, clause 94 of the bill expressly provides that the Provost Marshal will the MPCC.
( ) 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 105 The parties to a complaint that is the bill, adding new subsection 250.27(7) to the NDA).
( ) resolved informally may, however, consent to disclosure.

b.

No Penalty for Complaints (Clauses 81 and 82) The bill provides that a person may not be penalized for making a conduct (new subsection 250.18(4) of complaint subsection 250.19(3) of the NDA) in good faith.

( 106 ) the NDA) or interference complaint (new c. Investigation in the Public Interest (Clause 97) Justice Lamer recommended that Part IV of the NDA be amended to correct inconsistencies between the French and English language versions.
( 107 ) (104) This amendment is in response to recommendation 67 of the Lamer Report.

(105) This amendment is in response to recommendation 65 of the Lamer Report.

(106) This amendment is in response to recommendation 63 of the Lamer Report.

(107) Recommendation 69 of the Lamer Report.
(107) Recommendation 69 of the Lamer Report 23 Chairperson of the MPCC may intervene in a case relating to a complaint at any time,( At present, under the English version of subsection 250.38(1) of the NDA, the 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 109 referred the complaint to the MPCC for review.

( ) Subsection 97(1) of the bill amends the English version to make it consistent with the French version.
( 110 ) d. Complaint by Chairperson of the Military Police Complaints Commission (Clause 81) 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 ) e. Completion of Duties by Members Who Cease to Hold Office (Clause 80) 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 ) (108) The English version of subsection 250.38(1) reads as follows: “If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.” [Emphasis added] (109) The French version of subsection 250.38(1) reads as follows: “S’il l’estime préférable dans l’intérêt public, le président peut, à tout moment en cours d’examen d’une plainte pour inconduite ou d’une plainte pour ingérence, faire tenir une enquête par la Commission et, si les circonstances le justifient, convoquer une audience pour enquêter sur cette plainte.” [Emphasis added] (110) The new English version of subsection 250.38(1) of the NDA, as it appears in subclause 97(1) of the bill, reads as follows: “If the Chairperson considers it advisable in the public interest, the Chairperson may, at any time while conducting a review of a conduct complaint or an interference complaint, cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into the complaint.” [Emphasis added] (111) Subsection 250.18(1).
(112) This amendment is in response to recommendation 62 of the Lamer Report.

(113) This amendment is in response to recommendation 70 of the Lamer Report 24 H. Grievance Procedure 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 ) 115 must be referred to the Canadian Before the CDS may begin the review, certain grievances( 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 ) 1.

Duty of the Chief of Defence Staff to Act Expeditiously (Clause 5) 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 ) 2.

Power of the Chief of Defence Staff to Delegate (Clause 8) the Grievance Board,( implements one of the solutions proposed by Justice Lamer( Under the present NDA, the CDS must personally handle grievances submitted to 121 and may not delegate that responsibility.

Clause 8 of the bill 122 to expedite the grievance process ) ) (114) Section 29.11 of the NDA.
(115) For example, grievances relating to pay, allowances, conflict of interest and harassment (section 7.12 of the QR&O).

The CDS may also refer any other grievance to the Grievance Board (section 29.12 of the NDA).

(116) Section 29.12 of the NDA.

However, the findings and recommendations of the Grievance Board are not binding on the CDS.

(117) Lamer Report, p. 86.

(118) Ibid.

(119) Subsection 29.2(2).

(120) This amendment is in response to recommendation 75 of the Lamer Report.
(121) Section 29.14.

However, the CDS may delegate this task in the case of a grievance that need not be referred to the Grievance Board.

(122) Recommendation 72 of the Lamer Report.

The other solutions are to eliminate the grievance backlog, place an overall time limit on the grievance process and increase the resources available for reviewing grievances (Lamer Report, pp.

98 et seq.).
98 et seq.).

 25 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: • a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; • a grievance may not be delegated to an officer who is in a conflict of interest; and • a grievance submitted by a military judge may not be delegated.
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 ) 3.

Grievance Submitted by a Military Judge (Clauses 4, 5 and 6) 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).

4.
4.

Reinstatement of a Member of the Canadian Forces (Clause 11) grievor who has been improperly released from the Canadian Forces.

( Clause 11 of the bill expressly provides that the CDS has the power to reinstate a 125 The grievor is ) therefore not required to re-enrol and does not lose seniority.

(123) Recommendation 72 of the Lamer Report.


(124) Justice Lamer recommended that the Grievance Board be awarded jurisdiction to issue a final decision in respect of a grievance submitted by a military judge (recommendation 11 of the Lamer Report).

(125) This amendment is in response to recommendation 80 of the Lamer Report 26 5.
Annual Report by the Grievance Board (Clause 10) Clause 10 of the bill provides that the Chairperson of the Grievance Board must 126 ) 127 The Grievance Board had argued that this would be submit an annual report to the Minister within three months after the end of each fiscal year,( instead of on 31 March of each year.

( better management practice.

( 128 ) ) 6.


Completion of Duties When Members of the Grievance Board Cease to Hold Office (Clause 9) As in the case of members of the MPCC, members of the Grievance Board whose term has expired may complete their caseload.

( 129 ) I.
( 129 ) I.

Limitation Period (Clause 107) 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.

J.

Coming Into Force and Independent Review of the NDA (Clauses 109 and 128) 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.

(126) This amendment is in response to recommendation 86 of the Lamer Report.

(127) Subsection 29.28(1) of the NDA.

(128) Lamer Report, p. 108.

(129) This amendment is in response to recommendation 85 of the Lamer Report.
27 COMMENTARY 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 131 A thorough review would have taken 9 to 12 months.
The 6 months – was not sufficient.

( ) CBA also argued that there should be an independent review of the entire NDA, and not only of 132 While Justice Lamer noted that a review of the provisions of the NDA amended by the bill.
( ) the Office of the Ombudsman for the Department of National Defence and the Canadian Forces 133 – since the Office was not created by Bill C-25 – the was outside the scope of his mandate( ) CBA recommended that the duties and functions of the Office be expressly set out in the NDA.
( 134 ) (130) Department of National Defence, “DND Acting Upon Recommendations to Amend the National Defence Act,” News Release, 27 April 2006, http://www.forces.gc.ca/site/newsroom/view_news_e.asp?id=1918, quoted by Canadian Press.

(131) Mike Blanchfield, “Lawyers say DND whitewashing review of military justice,” CanWest News, 26 June 2003, p. 1.

(132) Lamer Report, p. 9.


See also the letter to Justice Lamer from Eugene Fidell, President of the National Institute of Military Justice in the United States, reproduced in Annex F to the Lamer Report.

(133) Lamer Report, p. 9.

(134) Blanchfield (2003).

At present, the legal basis for the Office’s operations is set out in Ministerial Directives and Defence Administrative Orders and Directives.

The Ombudsman is appointed by Order in Council.
The Ombudsman is appointed by Order in Council 28 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 136 and imposing an overall time limit of 12 months for a decision respecting a ) rank,( grievance.

( 137 ) (135) Recommendation 13 of the Lamer Report.

(136) Recommendation 23 of the Lamer Report.


(137) Recommendation 74 of the Lamer Report.

Recommendation 6 by the Subcommittee on Veterans Affairs of the Standing Senate Committee on National Security and Defence was to the same effect: the Committee recommended that “The Department of National Defence limit to 12 months the length of time the Canadian Forces take to complete the Redress of Grievance procedure.
This period should include the time required for the Chief of Defence Staff to make a final decision, but exclude those times during which the grievance is awaiting action by its originator.
If this limit cannot be met, the person who initiated the grievance must be informed in writing of the reasons for the delay and must be given a not-later-than date for a final decision by the Chief of Defence Staff” (Fixing the Canadian Forces’ Method of Dealing with Death or Dismemberment, Eighth Report, 2nd Session, 37th Parliament, April 2003).

The Royal Canadian Legion proposed a two-year time limit (Lamer Report, p. 102).
Justice Lamer also recommended that if the time limit was not met, the grievor should be allowed to apply to the Federal Court (recommendation 74 of the Lamer Report).