Vol. 148, No. 12 — June 4, 2014

Registration

SI/2014-49 June 4, 2014

STRENGTHENING MILITARY JUSTICE IN THE DEFENCE OF CANADA ACT

Order Fixing June 1, 2014 as the Day on which Certain Provisions of the Act Come into Force

P.C. 2014-565 May 15, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of National Defence,

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsection 135(1) of the Strengthening Military Justice in the Defence of Canada Act, chapter 24 of the Statutes of Canada, 2013 (the Act), assented to on June 19, 2013, this Order in Council fixes June 1, 2014, as the day on which subsections 2(1) and (5), sections 4 to 9, 15, 18 and 21, subsection 22(2), sections 25, 26, 29, 30, 38, 48 and 49, subsection 52(2), sections 55, 60, 71, 72, 76 to 96, 98, 100 to 102, 107, 108, 117 and 129 to 131 of the Act come into force and pursuant to subsection 135(2) of the Act, this Order in Council fixes June 1, 2014, as the day on which sections 19, 68 and 126 to 128 of the Act come into force.

Objective

This Order in Council brings into force sections of the Act amending provisions of the National Defence Act (NDA) related to the administration of justice, such as those concerning the Canadian Forces Provost Marshal; the military police; grievances; inquiry committees; civil enforcement of fines; the Military Police Complaints Commission; and independent reviews.

Background

The Act amends the NDA by implementing the majority of the recommendations related to military justice, the grievance process, military police and the Military Police Complaints Commission of the First Independent Review Authority, the Right Honourable Antonio Lamer, the late former Chief Justice of the Supreme Court of Canada, in his report tabled in Parliament in September 2003 (the Lamer Report), and responding to a number of recommendations made by the Standing Senate Committee on Legal and Constitutional Affairs in its report of May 2009.

The Lamer Report noted that there are practical difficulties in the interpretation of laws and regulations regarding the Canadian Forces Provost Marshal given the absence of a statutory establishment of that position. In order to address these concerns, the NDA is amended to establish the position of the Canadian Forces Provost Marshal. Further, the amendments clearly define his or her responsibilities and enhance the accountability and transparency of the military police by setting out the legislative framework governing the relationship between the Canadian Forces Provost Marshal, the military police and the chain of command.

The Lamer Report noted that it is unworkable to require the Chief of the Defence Staff to personally decide all of the grievances that are evaluated by the Military Grievances External Review Committee. The amendments provide the Chief of the Defence Staff with the authority, subject to certain limitations, to delegate his or her powers, duties or functions as the final authority in the grievance process, including the duty to act as final authority in respect of a grievance that must be referred to the Military Grievances External Review Committee, to an officer who is directly responsible to the Chief of the Defence Staff.

Certain amendments made to the grievance process enhance the perception of the judicial independence of military judges by ensuring that an initial authority does not deal with their grievances. Rather, the Chief of the Defence Staff must refer such a grievance to the Military Grievances External Review Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance.

The amendments enhance the perception of the independence of the Director of Defence Counsel Services and the Canadian Forces Provost Marshal by requiring the recommendation of an inquiry committee prior to his or her removal from office for cause and ensure any inquiry is conducted in a fair and efficient manner by setting out the express powers, rights and privileges of the inquiry committees.

The provisions of the NDA that relate to complaints by or about the military police, as well as the process for dealing with such complaints were established in Bill C-25 (Statutes of Canada, 1998, chapter 35). In the Lamer Report, adjustments to these provisions were recommended to enhance the timeliness and fairness of the military police complaints process. Accordingly, the amendments to the NDA have established a timeline within which the Canadian Forces Provost Marshal is required to resolve conduct complaints as well as a means of protecting complainants from being penalized for submitting a complaint in good faith.

Bill C-25 required that an independent review of the provisions and operation of the NDA be carried out every five years. The amendments to the NDA confirm the continuing requirement to conduct independent reviews while focusing the reviews specifically on the military justice system, the military police complaints process, the role and mandate of the Canadian Forces Provost Marshal and the grievance process. Also, the timelines for conducting independent reviews, which are set to seven-year periods, were adjusted to ensure that a sufficient operative period is available to base the review and to take into consideration situations when certain provisions of the NDA have been reviewed and amended based on the previous independent review.

Consultation

Officials from the Department of National Defence led the legislative and regulatory initiatives surrounding these amendments. These initiatives have been undertaken in consultation with the Department of Justice, the Office of the Judge Advocate General, the Canadian Forces Provost Marshal and the Director General Canadian Forces Grievance Authority.

Departmental contact

For more information, please contact

Colonel R.F. Holman
Deputy Judge Advocate General — Military Justice
Office of the Judge Advocate General
National Defence Headquarters
Constitution Building, 11th Floor
305 Rideau Street
Ottawa, Ontario
K1A 0K2
Telephone: 613-995-2478
Email: Robin.Holman@forces.gc.ca