1st Session, 36th Parliament,
46-47 Elizabeth II, 1997-98

The House of Commons of Canada

BILL C-25

An Act to amend the National Defence Act and to make consequential amendments to other Acts

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. N-5; R.S., cc. 27, 31, 41 (1st Supp.), c. 34 (3rd Supp.), cc. 6, 22 (4th Supp.); 1990, c. 14; 1991, c. 43; 1992, cc. 16, 20; 1993, c. 34; 1995, cc. 11, 39; 1996, c. 19; 1997, c. 18

NATIONAL DEFENCE ACT

1. (1) The definitions ``Code of Service Discipline'', ``materiel'' and ``service convict'' in section 2 of the National Defence Act are replaced by the following:

``Code of Service Discipline''
« code de discipline militaire »

``Code of Service Discipline'' means the provisions of Part III;

``materiel''
« matériels »

``materiel'' means all public property, other than real property, immovables and money, provided for the Canadian Forces or for any other purpose under this Act, and includes any vessel, vehicle, aircraft, animal, missile, arms, ammunition, clothing, stores, provisions or equipment so provided;

``service convict''
« condamné militaire »

``service convict'' means a person who is under a sentence that includes a punishment of imprisonment for life or for two years or more imposed on that person pursuant to the Code of Service Discipline;

(2) Paragraphs (b) and (c) of the definition ``penitentiary'' in section 2 of the Act are replaced by the following:

      (b) includes, in respect of any punishment of imprisonment for life or for two years or more imposed outside Canada pursuant to the Code of Service Discipline, any prison or place in which a person sentenced to imprisonment for life or for two years or more by a civil court having jurisdiction in the place where the sentence is imposed can for the time being be confined, and

      (c) means, in any place outside Canada where there is no prison or place for the confinement of persons sentenced to imprisonment for life or for two years or more, a civil prison;

(3) The portion of the definition ``possession'' in section 2 of the Act before paragraph (a) is replaced by the following:

``possession''
« possession »

``possession'' by any person, for the purposes of the Code of Service Discipline and Part VII, includes

(4) Section 2 of the Act is amended by adding the following in alphabetical order:

``criminal organization''
« gang »

``criminal organization'' means any group, association or other body consisting of five or more persons, whether formally or informally organized,

      (a) having as one of its primary activities the commission of an offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, and

      (b) any or all of the members of which engage in or have, within the preceding five years, engaged in the commission of a series of such offences;

``criminal organization offence''
« acte de gangsté-
risme »

``criminal organization offence'' means

      (a) an offence under section 467.1 of the Criminal Code,

      (b) an offence under this Act, the Criminal Code or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more and that is committed for the benefit of, at the direction of or in association with a criminal organization, or

      (c) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, any offence referred to in paragraph (a) or (b);

``Grievance Board''
« Comité des griefs »

``Grievance Board'' means the Canadian Forces Grievance Board established by subsection 29.16(1);

``military judge''
« juge militaire »

``military judge'' means a military judge appointed under subsection 165.21(1);

1995, c. 39, s. 175(3)

(5) The portion of subsection 2(2) of the Act before paragraph (a), as enacted by subsection 175(3) of the Firearms Act, being chapter 39 of the Statutes of Canada, 1995, is replaced by the following:

Meaning of ``possession''

(2) For the purposes of the Code of Service Discipline and Part VII,

2. Sections 9 and 10 of the Act are replaced by the following:

Appointment

9. (1) The Governor in Council may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces.

Tenure of office

(2) The Judge Advocate General holds office during pleasure for a term not exceeding four years.

Re-
appointment

(3) The Judge Advocate General is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Legal adviser

9.1 The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.

Superinten-
dence of military justice

9.2 (1) The Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.

Regular reviews

(2) The Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.

Responsible to Minister

9.3 (1) The Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General's duties and functions.

Annual report

(2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.

Tabling in Parliament

(3) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

Rank

9.4 The Judge Advocate General holds a rank that is not less than brigadier-general.

Authority to act for Judge Advocate General

10. The powers of the Judge Advocate General may be exercised, and the duties and functions of the Judge Advocate General may be performed, by any other officer who has the qualifications set out in subsection 9(1) that the Minister may authorize to act for the Judge Advocate General for that purpose.

Non-
derogation

10.1 For greater certainty, section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act.

3. Section 11 of the Act is replaced by the following:

Delivery of materiel for sale or disposal

11. The Governor in Council may authorize the Minister to deliver to any department or agency of the Government of Canada, for sale or disposal to any countries or international welfare organizations and on any terms that the Governor in Council may determine, any materiel that has not been declared surplus and is not immediately required for the use of the Canadian Forces or for any other purpose under this Act.

R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 2)

4. Subsection 12(3) of the Act is replaced by the following:

Treasury Board's power to make regulations

(3) The Treasury Board may make regulations

    (a) prescribing the rates and conditions of issue of pay of military judges;

    (b) prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; and

    (c) providing for any matter concerning the pay, allowances and reimbursement of expenses of officers and non-commissioned members for which the Treasury Board considers regulations are necessary or desirable to carry out the purposes or provisions of this Act.

5. The Act is amended by adding the following after section 13:

Military Police Professional Code of Conduct

13.1 The Governor in Council may make regulations, to be known as the Military Police Professional Code of Conduct, to govern the conduct of members of the military police.

6. The Act is amended by adding the following after section 18:

Vice Chief of the Defence Staff

18.1 There shall be an officer appointed by the Chief of the Defence Staff to be the Vice Chief of the Defence Staff.

Absence or incapacity of Chief of the Defence Staff

18.2 In the event of the absence or incapacity of the Chief of the Defence Staff, the Vice Chief of the Defence Staff, or any other officer that is specified by the Minister or the Chief of the Defence Staff, has the control and administration of the Canadian Forces.

R.S., c. 31 (1st Supp.), s. 43

7. Section 29 of the Act and the heading before it are replaced by the following:

Grievances

Right to grieve

29. (1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

Exceptions

(2) There is no right to grieve in respect of

    (a) a decision of a court martial or the Court Martial Appeal Court;

    (b) a decision of a board, commission, court or tribunal established other than under this Act; or

    (c) a matter or case prescribed by the Governor in Council in regulations.

Manner and conditions

(3) A grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.

No penalty for grievance

(4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.

Correction of error

(5) Notwithstanding subsection (4), any error discovered as a result of an investigation of a grievance may be corrected, even if correction of the error would have an adverse effect on the officer or non-commissioned member.

Authorities for determina-
tion of grievances

29.1 (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

Different authorities

(2) The regulations may provide that different types of grievances may be considered and determined by different authorities.

Final authority

29.11 The Chief of the Defence Staff is the final authority in the grievance process.

Referral to Grievance Board

29.12 (1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council to the Grievance Board for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievance Board.

Material to be provided to Board

(2) When referring a grievance to the Grievance Board, the Chief of the Defence Staff shall provide the Grievance Board with a copy of

    (a) the written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;

    (b) the decision made by each authority in respect of the grievance; and

    (c) any other information under the control of the Canadian Forces that is relevant to the grievance.

Chief of the Defence Staff not bound

29.13 (1) The Chief of the Defence Staff is not bound by any finding or recommendation of the Grievance Board.

Reasons

(2) If the Chief of the Defence Staff does not act on a finding or recommendation of the Grievance Board, the Chief of the Defence Staff shall include the reasons for not having done so in the decision respecting the disposition of the grievance.

Delegation

29.14 The Chief of the Defence Staff may delegate to any officer any of the Chief of the Defence Staff's powers, duties or functions as final authority in the grievance process, except

    (a) the duty to act as final authority in respect of a grievance that must be referred to the Grievance Board; and

    (b) the power to delegate under this section.

Decision is final

29.15 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal or to review by any court.