NDVA Committee Meeting
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STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS
COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS
[Recorded by Electronic Apparatus]
Monday, May 11, 1998
The Chairman (Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.)): Ladies and gentlemen, welcome to our afternoon session.
This afternoon we have two witnesses and we will be dealing with the study of Bill C-25, an act to amend the National Defence Act and to make consequential amendments to other acts.
We have as a witness the Right Honourable Brian Dickson, former Chief Justice of Canada. It's very nice to have you here this afternoon, sir.
We also have with us Lieutenant General Charles Belzile.
Gentlemen, we have roughly 20 to 25 minutes for your presentation and then we'll go to question period from the different members who are here this afternoon. If that is okay with you, we'll proceed immediately.
Whenever you're ready, sir, you can go ahead.
Right Hon. Brian Dickson (Chief Justice of Canada (Retired): Thank you, Mr. Chairman.
Good afternoon, ladies and gentlemen.
In January of last year I accepted the minister's request to chair a special advisory group to examine military justice and military police investigation services.
Later in the year, the minister asked us to review his quasi- judicial responsibilities under the National Defence Act in order to eliminate potential conflict between his responsibilities as justice minister and his obligation to answer questions raised by his colleagues in Parliament.
In our view, if it were not critical for the minister to exercise these powers, someone else should.
I am pleased to be joined in these difficult assignments by two very distinguished Canadians, one of whom, Lieutenant-General Charles Belzile, a former commander of the Canadian army, brought with him a vast experience of military life, in particular, in operational command functions both in Canada and abroad.
Mr. Bud Bird, a well-known, respected former politician, an active businessman from New Brunswick, added to the team his extensive parliamentary experience and the practical views of an average Canadian citizen. Unfortunately, Mr. Bird is unable to be with us today. However, he sends his greetings to the committee.
That group also included three very good advisers, one of whom was retired RCMP Assistant Commissioner Thomas, whose participation was particularly helpful when we dealt with the military police investigation services. Another is Ms. Lise Maisonneuve, who practises criminal law with considerable experience, representing police officers in disciplinary matters. Finally, there is our counsel, Mr. Guy Pratte. He gained an extensive knowledge of the military when he was counsel for the special commission on the restructuring of the reserves, which I chaired as well.
During our studies, we took great care to listen to all points of view, especially to consult with all ranks of the Canadian Forces. We have been gratified by the openness and the candour with which Canadian Forces personnel expressed themselves to us and by their eagerness to assist in our difficult task.
In contrast to the often negative view presented in public in recent times, we found them all to be devoted to their cause and articulate in presenting their views. Many Canadian citizens also wrote to express their opinions. Our report reflected their genuine concern and recommended significant adjustments to the military justice system, the military police investigation services and the minister's quasi-judicial powers, most of which have found their way, as appropriate, into Bill C-25, which your committee is now studying.
It's important to remember that the Canadian Forces have the unique responsibility and ultimate purpose of defending the nation. Even at peacetime many members of the forces must perform in extremely demanding and often unusual circumstances where their lives may well be endangered, and at such times the integrity of the chain of command can only be preserved if discipline is instilled at each level of the military hierarchy and if there exists a system of justice specifically designed to respond to these unique needs. Code of service discipline is the embodiment of that objective. A military justice system, as important as it is, must be compatible with our Constitution and the law of the land, particularly the Charter of Rights and Freedoms.
The judge advocate general assumes roles related to military justice in the Canadian Forces that must be set out in regulations. Some of these roles, such as providing legal advice to accused members while also conducting the prosecution on behalf of the forces, may seem to be in conflict. Each role should be institutionally separated so that they are performed with the requisite degree of independence.
With regard to the actual disposition of disciplinary or more serious offences, about 98% of infractions to the code of service discipline are dealt with by summary trials rather than by a court martial. Summary trials are relatively informal proceedings intended for the more minor disciplinary problems that directly affect a unit. They're usually presided over by a commanding officer or an officer to whom this authority has been delegated. The summary trial remains an essential instrument to maintain discipline within the Canadian Forces, therefore any concern over the constitutional validity of this process must be resolved.
We believe this can be achieved by reducing the severity of punishment, by enhancing the right to legal assistance, and by improving the knowledge and training of presiding officers. Unlike summary trials, courts martial are formal proceedings reserved for the more serious infractions to the code of service discipline.
A number of recent changes to the court martial process have increased the independence of the military judges. Nevertheless, the institutional independence of the office of chief military trial judge must be enhanced. Further, it is also important to ensure that the respective roles of the court members and the trial judge are appropriately discharged. In particular, it should be the trial judge, having the requisite experience, who would pass sentence after determination of guilt. We also feel the senior non-commissioned officers of appropriate rank should be permitted to serve on courts martial when a non-commissioned member is being tried.
The military police have a myriad of roles, most of which are related to the support of military operations and should be controlled by the chain of command. However, we are concerned that these command and control arrangements may invite conflict with the investigative role of the military police.
We therefore recommended that the military police investigators have a structure that is independent from the chain of command and under the supervision of an enhanced national investigation service. That service should be intended to report to a new position, Canadian Forces provost marshal, who would report to the vice-chief of the general staff.
Bill C-25 provides for the creation of a Military Police Complaints Commission, whose responsibilities would be to investigate allegations of military police misconduct or interference in the investigative process by the chain of command.
In summary, we believe the recommendations in both our reports, submitted in March and July of last year, will enhance the independence, fairness, transparency, and effectiveness of military justice in the Canadian Forces. We are satisfied that they are, for the most part, reflected in the bill before you. The enactment of the bill into law will assist the Canadian Forces and their leadership in the maintenance of discipline and the accomplishment of their tasks on behalf of Canada.
Mr. Chairman, we welcome your questions.
The Chairman: Thank you very much, sir.
General, did you have a presentation?
Lieutenant General Charles Belzile (retired): No, Mr. Chairman. This is a joint presentation.
The Chairman: Thank you very much. We will move right to questions starting with Mr. Hanger from the Reform Party. You have 10 minutes.
Mr. Art Hanger (Calgary Northeast, Ref.): Thank you, Mr. Chairman.
Thank you, Chief Justice, for appearing here today and for your presentation.
We've been particularly interested of course in the military justice theme and have proposed certain alternatives ourselves. I do realize that there have been some changes with the structure. With the investigative services, at least with the provost marshal's office as an overseer, do you feel that's far enough removed from the chain of command to be able to independently investigate any complaint that may fall into their purview?
Mr. Brian Dickson: The answer is yes. This whole amending process in Bill C-25 is intended to make this independent of other branches and people within the military system. I think it will be effective. I think the new provost marshal, as he will be called if you enact this legislation, will feel that he is free to investigate whoever it may be if there are misdeeds of any sort.
Mr. Art Hanger: Just so that I can understand, as for the investigative services that are going to be developed, it has been argued that many of the military police don't have the skills, for instance, to conduct criminal investigations. These investigation should be actually farmed out, as they have been in the past, if I understand correctly, to local police departments, and sometimes the RCMP, for investigation. What is the intent on the part you see that would be necessary to bring up a certain level or standard so that those investigators are going to be able to do the job that's before them?
LGen Charles Belzile: If I may, Mr. Chairman, I'll take this one on.
There's absolutely no doubt that there's really not enough crime in the military of a serious nature to warrant a vast or large investigative capability. The difficulty is—we talked to all of the other police forces, including our advisers from the RCMP—that in the other police forces there's a lack of understanding of the context, if you wish, under which the military operates. The military is often abroad and in countries without any adequate jurisdiction, or adequate police forces for that matter, to take on their own jurisdiction even if they had a proper government.
The military are particularly well qualified to do that because, by and large, they have spent a lot of years in there. The RCMP, if I remember, requires some 12 to 15 years of an investigator's life to become an adequate, skilful investigator. Obviously, in the military, people have to accept that if they get into that field, they will need to have a career that is somewhat limited in order to become that kind of investigator. We've also very much encouraged exchanges between the RCMP and other police forces and military officers of the NIS so as to operate with them in order to gain this kind of experience.
With this, we have very little doubt that they will be adequate to do the job. There's nothing now that would prevent them from seeking assistance from other police forces. As you know, by jurisdiction, certain offences, when committed in Canada, are not even within the jurisdiction of the military justice system. Other police forces would automatically fall into them anyway around a base in Canada or what have you.
The RCMP, OPP, and Sûreté du Québec have been involved in that sort of thing. It's a natural flow between the two of them, and we think that this exchange will be beneficial.
At the same time, obviously, you would wish that investigative services will really be manned by people who have special skills and are prepared to spend years at it and go to police colleges and that sort of thing to gain the required knowledge. We have no reason to believe they can't do that.
Mr. Art Hanger: That was going to be one of my points, too: how will this training become a reality? If it's going to be through police colleges, certainly that's going to be a beginning. As for the experience side, there's no question that this is where it all lies.
Here's another thing that was brought to my attention by present military police officers. They fall into a setting, if they're located and posted to a base, where they become very familiar with the culture of that base. I guess each base has its own culture, and people there become very familiar with what goes on around them.
Now, am I to believe that NIS will be operating completely independent of any base? They will be located somewhere else, and then they will have to move into a base to conduct an investigation. Of course, they weren't there to begin with to really see what has been established.
LGen Charles Belzile: It's my understanding that it's not very different from that of other police forces. Other police forces that are on the site are either on patrol or are the first to receive a complaint or to witness something taking place. They immediately judge whether this is something within their purview. If it's not within their purview, they'll call the homicide squad or whichever specialist organization they require.
The same thing will occur on bases. The military police on bases will obviously start most investigations, but if it's a murder, if it's something very serious, it won't take them very long to call for help.
As for that help—you're right, Mr. Hanger—it will not be resident on that base. We didn't get into the internal workings, but our understanding was that they would have four or five sites across Canada where these people would be situated. They would obviously also have constant contact with civilian police forces and military police on bases and would interface with them on a constant basis. I don't think there will be much of a cultural problem for them to move into a base.
Mr. Art Hanger: I can understand that arrangement.
Here's another point in question. The base commanders frequently are concerned about the authority they're losing. They have authority to say that—even if it's to the military police—they want them in there, and say look at this, look at that. Again, my understanding is that it won't necessarily be under that direction in that sense where the military police will be operating, but it will be outside that and taking total direction from the provost marshal.
LGen Charles Belzile: That's correct.
Mr. Art Hanger: So the base commander or others, how will they—or will they not—be able to interfere as far as the chain of command is concerned?
LGen Charles Belzile: The direction is that he will not be able to interfere. Once the NIS is into an investigation, it becomes directly a police investigation that's answerable only to the provost marshal, who in turn answers to the vice-chief of the defence staff. The base commander, other than being informed, is not mixed up in it at all. As a matter of fact, he should avoid being mixed up in it.
Incidentally, if I may just do a little bit of clarification, the base commander per se is not really that involved in the military justice system. Commanding officers of units have by and large the powers and the interest. The base commander is somewhat like a mayor or overseer of a base, all of its support capabilities, its infrastructure, and that sort of thing. He has very little direct command of the troops that are on the operational network.
Mr. Art Hanger: Yes.
LGen Charles Belzile: Ideally, there should be no interference. If there is, the Military Police Complaints Commission would have to investigate it.
Mr. Art Hanger: So the NIS per se will be able to investigate officers, as well as NCOs, as well as those right down to the bottom. Their authority will be totally provided through the office of the provost marshal.
LGen Charles Belzile: That's correct. Added to that is a power on their part like their civilian police counterparts to be able to lay charges themselves. Therefore, they have to make sure that all the rules of evidence and that sort of thing are taken care of because they will have to be in court themselves to assist in the prosecution of whatever offence is decided on. That will not be the commanding officers, it will be the NIS member.
Mr. Brian Dickson: We wanted to enhance the position of the military police. The fact that they couldn't lay charges, for example, was something negative to their position. Empowering them now to lay charges is important. The fact of increasing their training—they're getting this—and the intercourse with other police forces are things that I think will improve the position of the military police within the armed forces.
The Chairman: Madame Venne.
Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Justice Dickson, I would like to know what you think about having an Office of the Civilian Inspector General whose duties would include that of ombudsman instead of having a surveillance committee. In fact, I think you know that this suggestion was made by the Létourneau Commission. I would like to hear your opinion on that.
Mr. Brian Dickson: The inspector general has been recommended, as you say, by Judge Létourneau of the Somalia inquiry. We considered that for a good deal of time. In the end, we decided that at this time, in any event, we would not recommend an inspector general. We think there's enough external supervision of the Canadian Forces without adding another element and group of people who are there to look into, criticize, and make life sometimes difficult.
The changes we recommended were major ones. We have the Court Martial Appeal Board, military prosecution defence counsel services, military judges, chief military judges, the National Investigation Service, Canadian Forces Grievance Board, and Military Police Complaints Commission. All of these are going to require a great deal of study, a great deal of planning, a great deal of personnel. And to put on top of that another body seems to us to be superfluous, at least at this time.
As you know, we have recommended amendments every five years. Five years from now, perhaps your committee will decide it would be a good idea to have an inspector general. But at the moment we have a fairly small—60,000—armed forces in all the three services, which is very small, and to put on top of that an inspector general and a big staff seemed to us to be superfluous. We decided against it.
Ms. Pierrette Venne: I was talking about the Office of the Civilian Inspector General that would have replaced the surveillance committee, which, in fact, was set up by Bill C-25. It's an example of where the role of inspector general could easily be combined with that of ombudsman. No other structures would be required. The newly created surveillance committee could be replaced. That is what I was referring to.
I will move on to my next question, unless Lieutenant General Belzile wants to comment.
LGen Charles Belzile: No.
Ms. Pierrette Venne: My other question is also on the work done by the Létourneau Commission since it made a number of recommendations. As I was saying earlier, one of them was that the chief military trial judge and all other judges appointed to rule in cases of military misconduct should be civilians appointed under the federal Judges Act. I would like to know what you think of that and whether you think military judges should have security of tenure that would protect them from any possible interference. Right now, they are appointed for a five-year term, unlike civilian judges who are appointed until retirement age. I would also like to hear your views on that.
LGen Charles Belzile: Mr. Chairman, we have thoroughly examined all these issues. For the reasons I mentioned earlier, for the specialized military police investigators, the context is important, as well as knowledge of the attitudes, concept and military life. Crimes or offences committed in civilian surroundings as opposed to military surroundings have a totally different context. If someone is found guilty, in many respects a military judge is better prepared than a civilian judge to pass the sentence.
In some cases of offences that are considered particularly serious in Canada, the jurisdiction is automatically taken away from military authorities. However, the jurisdiction is maintained abroad for the reasons I explained earlier. Many countries maintain jurisdiction for all crimes committed in their country, unless there is a prior agreement, such as the SOFA we signed with other NATO countries. They are satisfied with our way of proceeding. Our military justice system is sufficiently compatible with theirs for them to agree that most offences be dealt with by judges or military juries. We didn't see any need whatsoever to have civilian judges in the military context because we felt they would probably be less prepared than military judges.
As for your question about the length of the mandate, it is not limited to five years. The act says that the mandate is renewable. If a military judge is particularly qualified and it is felt that he should stay in the position, his mandate can be renewed...
Ms. Pierrette Venne: The appointment is for a five-year term.
LGen Charles Belzile: It is for five years.
Ms. Pierrette Venne: That is why I asked whether it wouldn't be better to just have an appointment, as they do for civilians, that would be valid until retirement and would mean that the incumbent does not run the risk of being fired from one day to the next.
LGen Charles Belzile: I think that something very similar will happen in practice because there really is no administrative advantage to constantly changing judges.
Ms. Pierrette Venne: On the other hand, you say that military judges are better prepared to pass sentences or make rulings, but free will can also be quite useful. That is what I think. I wanted to run that by you and get your opinion. Thank you.
The Chairman: Thank you very much.
Mr. George Proud (Hillsborough, Lib.): Thank you very much, Mr. Chairman.
Welcome, gentlemen. I have a couple of questions.
During the work of your special advisory group, and I know Chief Justice Dickson mentioned it this afternoon, you considered the range of punishments that should be available at summary trial to achieve the main objective of a commanding officer, namely the restoration and maintenance of discipline. Your group recommended that the 30-day detention be retained as possible punishment at summary trials. The Somalia commission, on the other hand, recommended that the commanding officers not have the power to award detention. Would you elaborate as to why you believe and why you're convinced that commanding officers should retain that power? Would you do that for the record for me?
Mr. Brian Dickson: I think it's vital to a commanding officer to retain that power. I served five and a half years in the army and was in Europe, in France, and many times our commanding officer was called upon to deal with summary trials. For example, our cook was selling chickens and meat to the civilians in the town of Colchester, where we happened to be stationed for a while. He was caught at this and brought before the commanding officer and was sentenced to 30 days in the glass house at Aldershot. He lost about 30 pounds while he was there. He came back and he was a very much subdued cook.
Mr. George Proud: Were the meals better?
Mr. Brian Dickson: That was just one example of a summary trial. And who else in the world could have done that? Do you bring in somebody from Canada to France or to Africa to deal with these summary trials? To talk about bringing civilians in I think is just unrealistic. I don't know where you'd get the civilians, to begin with. And if you're talking about a force that is serving in other parts of the world, how you bring a civilian from wherever to deal with criminal offences or quasi-criminal offences I'm at a loss to know.
LGen Charles Belzile: May I, Mr. Chairman?
To add to Chief Justice Dickson's very eloquent word about the effect of capabilities to put someone in detention, I would like to echo his sentiment, because I've lived them also.
Perhaps I would like to add that when people recommended—and that included some of the recommendations we did not totally agree with, and hence our adjusted recommendation, if you want—they wanted to create something called “corrective custody”, which would put the individual with a limit of 28 to 30 days into a retraining process.
In operations, and particularly outside the country, a retraining process is the last thing you need to try to discipline people. What do you teach again to a soldier who's been under action, who has been in two operations for the last five or six months and has done something stupid? Then presumably you deal with him by detention.
Where we had a big argument on detention was on the number of days, namely 90, that used to exist and that still exists in the code of service discipline. Ninety days was only instituted in the Canadian Forces as a follow-on to the navy during the unification process. Only the navy had 90 days. The air force and the army had 28 days. Our allies at the same level have kept it to 30 days. And we're satisfied that we can keep the conditions to make it defensible, if you want, even in front of human rights legislation.
The point that over 14 days, the tradition right now— There's nothing in the act that says that. It is served in a central prison. The central prison is in Edmonton right now. When we visited it there was one customer, with a staff of 29 custodial people from the military police. Now, if you're looking for a difficult way to do things, that's the way to do it.
The other important thing from a disciplinary point of view is that the prisoner must be seen by his cohorts and by his colleagues. He is normally marched left, right, left, right, left to his meals. He's got a big “P” on his back, and everybody around knows what he's doing. He's brushing the floor if he has to. The idea of self-inflicting oneself with a wound to avoid a difficult patrol—people would welcome the patrol after that kind of detention in the field.
We feel very strongly that this must be kept in the arsenal of commanding officers; otherwise he loses total control.
Mr. Brian Dickson: Mr. Chairman, I would just add one more thing. In connection with this 30 days, that was recommended in the hope and expectation that the summary trial would stand up before the Supreme Court of Canada on a constitutional challenge. To reduce it from 90 to 30 was a step in that direction.
It was the same thing recommending that the commanding officer who had investigated or laid a charge should not sit as a judge on the summary trial. That's another step with the expectation that the summary trial would stand up if and when it comes before the Supreme Court.
In the Généreux case, which you are probably all familiar with, the court, with Chief Justice Lamer, struck down a general court martial because the judges were not sufficiently independent. We hoped by two or three recommendations that we would improve the situation vis-à-vis summary trials.
Mr. George Proud: Thank you.
It appears that much of your report is present in this bill, particularly the abolition of the transfer to other authorities of the minister's quasi-judicial responsibilities. Initially I was very skeptical of these changes. However, after reviewing the matter more fully and having been somewhat convinced, I'm a bit more supportive.
My question for you is whether you think the bill accurately reflects the recommendations you made. Because occasionally, when a good idea is translated into legal text it is lost in that translation and we are left with something less than what was intended. Can you tell us today if this has happened anywhere in the bill that you've seen, that it's not the way you intended?
Mr. Brian Dickson: I think the answer is yes. I admire the work that was done between July 25, when we submitted our second report, and I think December 4, when all of this came out in Bill C-25. I thought it was a remarkable bit of work on the part of the JAG branch and the people who were assisting him in the preparation of this bill.
As far as our report number one, we came in with 35 recommendations, and 33 of those have found their way purely in Bill C-25. The two that don't I don't think are really very important. One was a recommendation that the bill on service offences should be a separate act of Parliament, rather than part of the National Defence Act. That was not adopted for certain legal reasons, which we accept.
So 99% of our recommendations, both in report number one and report number two, are now reflected in Bill C-25. You may recall the report Mr. Young, then Minister of National Defence, sent to the Prime Minister, in which he said that he had received this number one report and that he recommended that it be implemented in full. I think it virtually has.
LGen Charles Belzile: Mr. Chairman, in the case of the quasi-judicial powers of the minister, there's really only one that is not reflected, which perhaps deserves mentioning. We had recommended that military trial judges remain the purview of being named by the minister, by the executive. National Defence and the Department of Justice, I presume, which participated in the writing of the new NDA, have decided to put that in the hands of the Governor in Council instead of the minister, which means the minister goes one step higher and justifies the person in front of cabinet. That caused absolutely no ripple, in our view. In fact, they tightened it up even more than we recommended.
The Chairman: Thank you, Mr. Proud.
Mr. David Price (Compton—Stanstead, PC): Thank you, Mr. Chairman.
Chief Justice Dickson and General Belzile, welcome to our committee. We're honoured to have you here, particularly since you can give us a lot more in-depth insight into this bill that we are studying. You are the experts in it.
I wanted to follow up on a question that Mr. Proud started with. You seem generally satisfied with the bill as it stands, but maybe what I'm looking for is—I'll give you an example. In chapter 1 of your report you state:
We have not been persuaded that
it is workable or desirable to design a system of
military justice that functions radically differently
depending on the particular context
Instinctively I agree with this, and the arguments you found that were most convincing of this— In line with that, it's my impression that Bill C-25 moves military justice a little closer to the civilian courts. Is that what you intended?
Mr. Brian Dickson: Yes, it was, in part because of the Charter of Rights and Freedoms, which affects not only non-military people but also military people. It's something that we were thinking about every day, particularly in the drafting of these reports. So the more we can bring it, from a practical point of view, in line with the civilian practice, I think the better, but recognizing that the Canadian Forces, whether army, navy or air force, are likely to be serving in other parts of the world, and those facts have to be taken into account.
Mr. David Price: That's the part I was looking at. Reading between the lines, I had the feeling you were—in other parts of the world you tend to be in war zones, and the rules tend to change in areas like that. Are you comfortable with the way it fits together?
Mr. Brian Dickson: I think so. Having served in war zones, I think this is a good, practical and workable solution. That was why we would like to maintain a good standard and a good deal of power with the commanding officer, because he's on the spot. To talk about bringing in civilians and all this sort of thing, we just don't agree with that.
Mr. David Price: It didn't go too far anyway.
The other thing I want to talk about was the office of the JAG and military judges. On the Somalia commission, which lasted two years, the commissioners recommended a civilian JAG. In your opinion, why would the commissioners reach a conclusion like that and then it gets put aside?
Mr. Brian Dickson: Because this is a military context. To bring in somebody who's served 10 years in the military and with legal training—it's the JAG. To have somebody come in from civilian life without having served one day in any of the forces just seems to us to be impractical.
Mr. David Price: But you don't think there's a danger that the military is going to protect itself? I guess that's the bottom line.
Mr. Brian Dickson: Is there anything wrong with that?
Mr. David Price: It all depends on what is happening.
Mr. Brian Dickson: I think the military has a right to defend itself and has a right to the bottom line, and I think they've done that very well in spite of some of the comments one reads.
The JAG is an extremely important position in the military hierarchy because he is called upon to give legal advice to the Governor General, to the Chief of the Defence Staff, to everybody, including us. He did it and does it well, so I can't see any reason for changing and saying we're going to take somebody from civilian life and make him JAG. If you had the two people, one with 10 years in the military and the other with none, I don't think it would be difficult to decide which one you would likely appoint to be the JAG.
General Belzile may want to add something, Mr. Chairman.
LGen Charles Belzile: Thank you, sir. I really don't have anything to add except to endorse what the Chief Justice just said.
A point to remember and to perhaps reinforce the position of the JAG is that the JAG, like the Chief of the Defence Staff, like a deputy minister, is the third of only three positions in National Defence that are Order in Council appointments. It is not made by the military. Sure, they make the recommendations because presumably they know the people with the legal training and the experience, but the actual appointment of the JAG is an Order in Council appointment. It is not made by the Chief of the Defence Staff and he is not protected by the Chief of the Defence Staff. In fact, he really doesn't work for him.
So we really didn't see the problem.
Mr. David Price: Another of your recommendations states:
the Judge Advocate General's duty to report annually
to the Minister of National Defence and Chief of
the Defence Staff on the overall effectiveness of the military
justice system in the Canadian Forces.
You also state:
We recommend the Judge Advocate General annual report
to the Minister of National Defence and the Chief of
the Defence Staff be released to the public.
This didn't get into the legislation. Do you think it's something we should put forward? I think it's a good idea and I'm suggesting we put it through as an amendment.
Mr. Brian Dickson: We thought it was a good idea. Whether it should go in Bill C-25 may be a question of debate from a lawyer's point of view, but it may not be necessary to write it into Bill C-25 in order to make it public.
Mr. David Price: We find most things usually end up having to be put into something.
Section 3, chapter 6 of your report talks about officer training. Your recommendation 23 states:
We recommend that increased training and education
be introduced for all commanding and delegated officers to
ensure that they are knowledgeable about their roles in the
military justice system and competent to perform them.
But for exceptional circumstances, those officers
should not be permitted to preside at a summary trial
unless certified to do so by the Judge Advocate General.
When the minister was here a couple of weeks ago, I made the point that this recommendation is not part of the legislation. His reply was that it was not the type of thing that would be addressed in a piece of legislation, that it could be something like— Again, I'd feel much more comfortable if it was addressed. What would your comments be on that? Should it be part of the legislation?
LGen Charles Belzile: I'm not a trained lawyer—
Mr. David Price: Neither am I.
LGen Charles Belzile: —but a lot of recommendations have been actioned, both as a result of our reports and as a result of the report by the Somalia commission, that are not part of the act. They are regulatory in nature and that is why the Queen's regulations and orders exist—to amplify the act.
I can only assume people do not feel these are the kinds of things you need to put into the law, because you're talking about availability of training and exceptional circumstances, and exceptional circumstances will be judgmental in one way or the other. An exceptional circumstance would be where a commanding officer gets killed in action and number two is immediately in the spot. If he gets killed 20 minutes later, then number three is in the spot. There won't be any time to give this person the training he would require to get the certification.
Wouldn't regulations be a better way to operate this and to do it as fast as possible? As I said, as a person not trained in the law, I would be quite happy to see that in regulations as opposed to the law.
Mr. David Price: My next question was that: what would you call exceptional circumstances? That I can very well understand, but I think the judge started off by saying that 98% of trials were summary, so shouldn't we have something very solid that there should be some training to take care of that 98%? The training should be in legislation. It should be much more solid.
LGen Charles Belzile: I am not aware of any training being in legislation in any other field.
Mr. John Richardson (Perth—Middlesex, Lib.): All officers, from the very first course they take—there's military law and its observance at every course level right up to staff college. So I think it's just rolling and rolling, the higher rank you get. NCOs get this training program, so there is some understanding of the military justice system and military law at every level.
Mr. David Price: Okay.
The Chairman: Is that it, David?
Mr. David Price: Thank you.
The Chairman: We now go to the five-minute round. Mr. Hanger.
Mr. Art Hanger: Thank you, Mr. Chairman.
I want to go back to comments made by my colleague Mr. Price, and it deals with both the investigative and the JAG's office. Looking at it from a practical point of view, Judge, you sat on how many trials listening to people testify, examining cases, evidence, testimony—
We're fortunate to have you sitting here. You're probably more of an analyst of human nature and have seen more than any of us here. When people commit acts and if they're part of a group, they're going to want to protect themselves, and you mention that there. You said the military has a right to protect itself. They do to a point, but if they do something wrong, they better be found out about. Fair enough.
Two recent examples have come before us. I'm going to use this on a practical level here, because I think that is what we're talking about when we talk about the independence of an office to investigate, to try—that they can't be touched or influenced by those at the top.
For instance, Colonel Vanier was found guilty of fraud. It was right to have found him guilty of fraud, but what happened to him? Doesn't he deserve the full force of military justice if he's tarnished the rank and the military by his actions? Shouldn't he be subject to a dishonourable discharge? Who decides that? Is a dishonourable discharge the appropriate action to take against that man?
I am suggesting that here you have a colonel sitting in his position of great influence, and then you have all the ranks down below. They're going to be subject to the full force of military justice for the most part, and so they should be if they commit those kinds of acts. But seeing what happened to him isn't necessarily a message to be delivered to the lower ranks.
Then we have General Roy, who embezzled money, but he was just asked to pay it back. Nobody knows if he's paid the money back, and he's still kind of under investigation because he has a credit card that doesn't belong to him. Everybody else would look at that and say he's getting away with that. Shouldn't there be someone in place who's going to investigate him, no questions asked, and he's going to go down the tube?
What guarantee do we have, with this new legislation before us, that this is going to happen? The investigative office is not independent. It's still in the chain of command. It's still subject to influence.
So those are my questions. Who is going to ensure that those kinds of examples do not happen?
Mr. Brian Dickson: It's a very important question that you have asked. I think it would be improper for us to comment on anything General Vanier may be facing, because his case is under appeal, as you know.
Mr. Art Hanger: Yes, I do.
Mr. Brian Dickson: So for us to talk about it now might not be the wisest thing.
But speaking generally to your question, which refers to in effect a two-tiered system of justice, a great deal of what you say has been repeated in the newspapers and magazines, commenting that military people are very well aware that there should not be a two-tiered system. We have recommended in our report that the military of all ranks should be treated the same way, should receive the same severity of punishment, and should be dealt with in an appropriate fashion.
All I can say is I hope that will be brought into effect and is going to be in the legislation. I think military people are well aware of the criticism that has been directed at them in, let's say, the Vanier case, which is now under appeal, as I've said. As for the other case, I don't what its status may be.
Mr. Art Hanger: Can you specifically point out recommendations in reference to this act that will prevent that from happening or ensure that what you're saying—
Mr. Brian Dickson: No, you can't prevent it, because punishments—
Mr. Art Hanger: Investigative, though.
Mr. Brian Dickson: In the civilian world, you can point to this case and that case where somebody seemed to get a real break and somebody else didn't, on more or less the same set of facts. It happens. You can call that a two-tiered system or whatever you like, but it will happen, unfortunate as it may be. Nobody wants it to happen, I don't think.
Mr. Art Hanger: Well, they may not, and it's certainly going to be a morale issue too.
Mr. Brian Dickson: Right.
Mr. Art Hanger: But it's also going to be a discipline issue, in the sense that you have troops, and if they see that their rank and their group are being disciplined to the fullest extent of military law and those officers up there are not, are they not going to show contempt?
Mr. Brian Dickson: I think it's appalling.
Mr. Art Hanger: I wasn't so much referring to the judgment. If it goes before the judge, whoever that may be, and he makes a decision and he does reflect differences, that's one thing. It's gone before the judge.
Mr. Brian Dickson: Right.
Mr. Art Hanger: But if it doesn't get there— What assurances are there in this legislation that it's going to get there, that the investigation and the evidence— As in the case of General Roy, that took place, and yet no follow-up was done, even in the criminal investigation.
Mr. Brian Dickson: Well, we have the National Investigation Service, which is being established—
Mr. Art Hanger: I know.
Mr. Brian Dickson: —I think for that very purpose, or that's one of the purposes. It's independent; it's dealing with sensitive, difficult cases. If it does what we hope it's going to do, it may be at least a partial answer to your question.
Charlie, do you want to—
LGen Charles Belzile: No, I don't think so. I agree with you, Chief Justice. The investigation in the case—
Without discussing the individuals, if somebody is out of the forces now, what's to prevent the RCMP from investigating?
Mr. Art Hanger: But why should that be the case? This situation developed—-
LGen Charles Belzile: You mentioned one person specifically who is no longer in the service.
Mr. Art Hanger: Well, he was when all that was going on, and the service knew about it.
LGen Charles Belzile: I don't know, but there's nothing that prevents the RCMP from doing another investigation anyway.
Mr. Art Hanger: So who's going to ask them to do it? Shouldn't it be the responsibility of the military? That's where it all lies. Why should it be a separate investigation all of a sudden in civilian life, when it was a breach when he was in a position of authority in the military and they all knew about it? That's why he was out on the street. That's my question.
There's nothing in any of this legislation to prevent that complaint going before an independent group. I know, Judge, you mentioned that the provost marshal and the NIS were going to be independent. They're not quite independent.
LGen Charles Belzile: There's the Military Police Complaints Commission. What would happen to an officer in the RCMP in the same circumstances?
Mr. Art Hanger: That's a good question.
LGen Charles Belzile: There's the RCMP Complaints Commission, which anybody can make a complaint to, not only people in the military.
Mr. Art Hanger: We'll see how it works in the military.
The Chairman: Thank you, Mr. Hanger.
Mr. John Richardson: Thank you, Mr. Chairman, and again welcome, former Chief Justice and General Belzile. I want to thank you for the amount of work you've done since 1994 until now in helping restructure and reorganize the forces as we have scaled down.
I have two or three things I'd like to bring to your attention. Someone mentioned the responsibility of the judge advocate. The judge advocate general—I thought I missed this, but in case not—shall report annually to the minister on the administration of military justice in the Canadian Forces. That is in fact in place and there will be a requirement to report on an annual basis. I thought maybe I'd heard otherwise in the questioning through Mr. Price, that it was not the case, but I think it is the case that the judge advocate general shall report annually to the Minister of National Defence on the administration of military justice in the Canadian Forces, and it's called his annual report. I just wanted to say that.
Aside from that, I want to get back to some of the other factors here that look quite good, just the background though. Let's say that some of our forces were put on standby and are under stressful conditions. Say that we are in Bosnia at the moment; the kinds of things as they come under fire, the kinds of stresses that take place in the minds of soldiers and other people in command, and the sight of seeing other people die beside you— Something has to be in the minds of all the soldiers, not just their training and tactics, not just their training and self-discipline, but the awareness that there is a tool to force people to stay in the line. I think that kind of justice has to be meted out on site or the person must be removed from the line and put under charge and the trial will be held elsewhere.
In my mind—and I've never been under fire so I can't state this for a fact, but I've certainly read a lot about it—there's a lot on the CO's shoulder and the brigade commander's shoulder to see that there is no desertion from the line and that it comes back and that trials are made quickly and justice is given summarily. What we have before us now I see as being to satisfy that need, or am I wrong? What we have now is not just a peacetime justice system, it's applicable in war as well. I think a lot of people around here want to see that this is important, because what we're seeing now is a peacetime army where it's quite tranquil and things are not as stressful—although in some situations they are, self-imposed stress in some cases. I want to see that people know that justice takes place and a person can be charged by an NCO, starting with the master corporal, and that these people can be charged for conduct contrary to discipline and good order.
This just has to go on. It's not the same as being in a civilian society. These are demands; people are asked to do things they don't like to do every day, but that's part of being a soldier, sailor or airman. I want to put that on the table, that these abilities to lay charges are reviewed, they're heard summarily and they're executed summarily. If you go into any unit commanding officer at the level of company commander and beyond, he will tell you that a summary trial is an effective tool to maintain discipline and good order in the unit, but it doesn't make them a criminal. It's part of the ethos of the forces.
LGen Charles Belzile: I couldn't have said it better.
Mr. John Richardson: That's the first time you ever said that to me. But it's the reality of the situation, and I just hope that outside of this committee people understand that it's a necessary factor in the justice system.
Mr. Brian Dickson: We concur.
Mr. John Richardson: My five minutes is up.
The Chairman: Thank you very much, Mr. Richardson.
Ms. Pierrette Venne: Thank you, Mr. Chairman. I will be brief.
Under Bill C-25, an accused can use a lawyer to decide whether he will be tried by court marshall or by summary conviction. It is not a matter of having legal counsel at the summary trial itself, but just the option of being able to consult one. However, the commander can, at his discretion, authorize the accused to be assisted by a lawyer. It is not a right being given to the accused, but a discretionary right that the commanding officer.
It would seem that the purpose of the small changes is to change the current summary procedure enough so that commanders can continue imposing their discipline during summary proceedings.
Therefore, even if the summary proceeding continues to encroach on an accused constitutional rights, namely the right to be heard by an impartial and independent tribunal and the right to be represented by counsel, to a certain extent, the amendments to Bill C-25 playdown these violations to a point where there is a reasonable chance of them being justified under section 1 of the Canadian Charter of Rights and Freedoms.
That is my opinion. I would like to know whether you feel the same way, because then, the commanding officer should not have been given that discretionary power; rather, the accused should have been given the right to be represented by a lawyer.
Mr. Brian Dickson: If I might reply in English, the position of an accused before a commanding officer on a summary trial is something of a compromise as far as providing him or her with lawyer support is concerned.
At the present time, it's provided that the accused can retain his or her lawyer at his or her expense or take advantage of an advisory officer from the force that he's with, who may or may not be a lawyer—probably not. That is the extent of legal support at the summary trials stage.
I think it's a reasonable compromise, because when you are in a unit in a far-off part of the world, the number of lawyers you have...where does the lawyer come from? Say you're in the middle of Africa. You'd say you have to provide this accused with a lawyer, and all he's charged with is something that's going to give him 10 days in detention. Then it becomes ridiculous.
I think to say that every person before a summary trial is entitled to his own lawyer at the government's expense is carrying it too far, and I think this is a reasonable position. The advisory officers are expected to have some legal training. They're not lawyers, perhaps, but they will tell him whether or not he should or should not go for a court martial, as is his right of election.
That's about the substance of it. It isn't what we expect in civilian life, that everybody should have his lawyer with legal aid or something like that. It doesn't go that far and it can't.
Ms. Pierrette Venne: Couldn't a distinction be made between situations in Canada and those abroad?
Mr. Brian Dickson: What's been drafted here is something that's going to be used abroad as well as in Canada. If the primary raison d'être of our armed forces is to defend the country, then we expect that to take place in other parts of the world. Once you get there, the number of lawyers who are available to advise are few and far between. They're not on hand; you would have to bring them from Canada perhaps or England or something like that, which is just completely impractical.
Ms. Pierrette Venne: Precisely. As you say, perhaps the distinction should be made to avoid that type of totally impracticable situation.
Mr. Brian Dickson: General Belzile, you have a comment.
LGen Charles Belzile: Mr. Chairman, I would like to raise two points.
First of all, during operations, even in Canada, the situations are extremely difficult. It would be as difficult to get lawyers together as it would be abroad. I am referring to cases in the Arctic or in a number of outlying areas where things can happen.
As for weakening the argument that the Charter of Rights and Freedoms might prevail during summary proceedings, bear in mind that on very few occasions will a commanding officer actually have the discretionary power you referred to. In most cases where the punishment may be detention, for example, the commanding officer must—he does not have any discretion here—present the individual with the court martial's option, and at that point, the accused has the right to retain legal counsel and to take the time required to do so.
If he opts for a summary trial, he will get a signed exemption. In that case, the individual will not necessarily be represented at a summary trial, but he is entitled to his own lawyer if he agrees to pay for the services or if a lawyer is available.
The Chairman: Thank you very much, Ms. Venne. Mr. Clouthier, you have the floor.
Mr. Hec Clouthier (Renfrew—Nipissing—Pembroke, Lib.): Your Honour, I want to revisit the story about the subdued cook, because about 20 years ago there was a subdued driver/trainer of a particular horse at a particular racetrack. The reason this particular driver and trainer, who happened to be me, was subdued was because I didn't win the race. It would have been very facile for me to blame it on the previous owner of the horse, but really it had a lot more to do with the talent of the driver and trainer or lack thereof than the talent of the horse.
The gist of this story is that I'm coming back to what Mr. Hanger is talking about, the JAG and the military justice system.
As you well know, Your Honour, at that time it was Claire Smith, who has been recently inducted into the Canadian Horse Racing Hall of Fame and the Canadian Sports Hall of Fame, who was the presiding judge. And he, in the horse racing genre, was the judge. If I did something wrong in the horse-racing community I was judged by Mr. Smith, because he was recognized as an estimable person, but more importantly because he knew the horse racing game. He knew of which he spoke. When I myself or someone else would appear before him we could not pull the wool over his eyes, because he knew the system.
Having said that, I would agree with you that it would be very similar in the military justice system; I do agree with you that the military should be involved with judging itself. But I also do agree a bit with some of my colleagues who know that there are some subdued people, especially the NCOs, in the military. We've heard, as we've gone from base to base listening to their concerns, that they have been dealt with wrongly either in the summary trials or in some of the courts martial. They say they haven't been handled right, and then they bring up the case of the retired general or the former colonel. But having said that, I know every time I appeared before Mr. Smith I never figured I was in the wrong either.
As you had indicated earlier, Your Honour, you said that you were moving this closer to the civilian justice system because of the Charter of Rights and Freedoms. I have two questions here. When you were preparing this report, did you consult extensively with the people from the military, especially the NCOs? Did you talk to any of these people in the lower ranks? Second, has there ever been a challenge to this military justice system with the Charter of Rights and Freedoms, to the best of your knowledge?
Mr. Brian Dickson: On the first question, I think General Belzile will show you an appendix to our report number one, which lists some of the people we saw. We must have seen several hundred NCMs—all ranks. We were particularly desirous of doing exactly that—to get the opinion of the other ranks and the NCOs—and we got it. Every place we stopped, we took advantage of the opportunity, and they came, and were quite articulate, thoughtful, and very helpful.
I think, Charlie, you have something to add.
LGen Charles Belzile: Mr. Chairman, I was just looking at my notes, and over 300 people have been consulted. I would think that certainly over half of these were NCMs—were not officers. When we were travelling in Canada our venues across the country were publicized, as indeed those of this committee are before you go out. Everybody was invited across this country to submit, either in writing or in person. We never turned back anybody.
We've had specifically NCM round tables, with 30 to 35 people around for a whole day. I don't know what the poll people use as statistics; I don't know if we're correct “3.4% 19 times out of 20” or whatever they use, but my guess is that we've had as strong a consultation across this country of the military and civilian people that we could possibly have, short of going out to get them on the street.
That's that question, I suppose. If I understood correctly, your other questions had to do— I'm sorry, I may have missed it, but you were talking about the retired people.
Mr. Hec Clouthier: I was asking if there had ever been a challenge to the military justice system.
LGen Charles Belzile: There have been challenges to the courts martial. This has resulted in the Généreux case being thrown out as unconstitutional by Chief Justice Lamer by virtue of the lack of independence of judges and so on. All of this has been corrected even now.
We have gone beyond the corrections that do exist, and have enhanced the separation of the judicial, the prosecution, and the defence counsel capabilities within the military. We're satisfied that we have met the objections of the Supreme Court at that time. I'm not aware of a summary trial from a human rights point of view going all the way to a challenge to the Supreme Court.
Mr. Brian Dickson: If I can just add a little, there have been two cases before the Supreme Court on the constitutionality of the court martial. One is the one the general has mentioned—Généreux. The other one is Forster. In both of them, Chief Justice Lamer wrote and held that the court martial could not stand up to the Charter of Rights and Freedoms because of the lack of independence of the judges and so on. On the other hand, he came out with a very strong, long paragraph supporting military justice as a separate system, but one needing some revision.
So far, there has been no case before the Supreme Court of Canada on the constitutionality of the summary trial. What we were hoping with the reports we have submitted was to make certain amendments to the form of summary trial so that it would withstand a challenge when it comes before the court.
Mr. Hec Clouthier: Thanks very much.
The Chairman: Thank you, Mr. Cloutier.
Mr. David Price: Thank you.
First of all, in response to Mr. Richardson's— What I was talking about was in the report; it's recommendation six:
We recommend that the Judge Advocate General annual
report to the Minister of National Defence and the
Chief of the Defence Staff be
released to the public.
Okay? The report comes to them, and is then released.
The Canadian military tends to spend a lot of time working with and dealing with the Americans and the British. With these changes we're going to make, our system will be softened up quite a bit in comparison to theirs. I refer to the punishments we give out—the death penalty, hard labour, and that type of thing. Could you comment on the problems we might get into because of having a softer system than our two closest allies?
Mr. Brian Dickson: If you're saying that the removal of the death penalty is a softer system, I wouldn't agree with that. I think that removal of the death penalty is simply recognizing something that is of extreme importance in Canada, both in civilian life and in the military life—particularly in the military life when there's no death penalty in civilian life.
When we look around the world as to what countries have abandoned the death penalty, we find we're in pretty good company, because almost every European country has abandoned the death penalty. Certain states in the United States still have it, and it's still available in certain offences in the armed forces, but we felt quite strongly that there should not be a form of death penalty for the military, particularly when there's not one for the non-military.
Mr. David Price: Would you say your feelings had more to do with the fact that we're not at war in general, there again between dealing with forces on Canadian soil and in military actions in other countries?
Mr. Brian Dickson: No, I'm talking about the death penalty in relation to the military. In World War I, there were 23 people who were executed under the death penalty provisions. In World War II, there was one person, who had committed a murder and was executed.
As a trial judge, I had a number of murder cases come before me, some of which were capital murder, and I had the unpleasant task occasionally to direct that somebody be executed. As it happened, it was a time when Mr. Trudeau was commuting every death penalty, and so we'd go through the façade of a trial. We knew—the judges knew—and the accused knew that at the end of it, if he was convicted, he wasn't going to be suffering the ultimate penalty, because the policy of the government at that time, although the act hadn't been amended to remove the death penalty, was to commute every case that came down the path in which the death penalty had been imposed.
In due course, the government decided, I think in 1976, to declare that there would be no more death penalties in Canada. If I might express a personal opinion, I favour that, because as a trial judge, I had a number of cases that came before me in which I did declare So-and-so to suffer the death penalty, and yet I didn't feel that was really what should happen, because they'd been drinking, or they were illiterate or something, and to say that this person, this man or this woman, should be hanged seemed to me to be entirely wrong. I can't recall one case in which I would have wished to see the person executed.
Mr. David Price: In the military, as you say, there was only one execution in World War II, and since then, there haven't been any.
Mr. Brian Dickson: One in World War II, yes, and as far as I'm aware, there's been nobody—
Mr. David Price: Thank you.
The Chairman: Thank you.
Mr. Art Hanger: Thank you, Mr. Chairman.
In reference to my collegue Mr. Clouthier when we were talking about the independence of the JAG office, it wouldn't necessarily mean that one has to include a civilian, would it? It could still be a qualified military person. In that case they would be very familiar with the military process as well, even on the investigation side. So when we talk about independence, it's taking it right out of the chain of command and just giving them the authority to do what has to be done.
He made reference to his own situation, of course, as a rider in a race. I can understand why he was willing to at least take on the responsibility for what happened in that particular race, because the horse couldn't defend itself, obviously, and the judge must have realized that too.
Mr. Hec Clouthier: The judge sold me the horse.
Some hon. members: Oh, oh!
An hon. member: You knew it would come out, Art.
Mr. Hec Clouthier: The cat's out of the bag. Then I proceeded to make a horse's ass out of myself and the horse.
Some hon. members: Oh, oh!
Mr. Hec Clouthier: I'll have to get a Citizen tomorrow.
Some hon. members: Oh, oh!
Mr. Art Hanger: I appreciate your recognizing that too, Mr. Clouthier.
I wanted to make reference to proposed subsection 29(1) of the bill. It says in there that a service member, officer or non-commissioned, can only grieve a decision, act, or omission in the administration of the affairs of the Canadian Forces. It seems to me the previous legislation stated that one could grieve any personal oppression, injustice, or other ill-treatment. Why would that be changed?
LGen Charles Belzile: The short answer is I don't know. As I read this, that seems to cover every possible case that would apply to the National Defence Act or to the military justice system.
Mr. Art Hanger: Yes.
LGen Charles Belzile: But there's no right to grieve in respect of a decision of a court martial, because there is an appeal process, so presumably you don't grieve at the same time as you appeal formally through the appellate system.
Proposed paragraph 29(2)(b) says:
a decision of a board, commission, court or tribunal
established other than under this Act...
Well, that would not concern National Defence if it's under another act.
Mr. Art Hanger: No, and I'm not referring to that.
LGen Charles Belzile: Proposed paragraph 29(2)(c) says:
a matter or case prescribed by the Governor in
Council in regulations.
I'll have to have a lawyer explain that one to me.
The Chairman: Perhaps Colonel Fenske could answer that for you.
Mr. Art Hanger: Yes, absolutely.
Colonel Allan F. Fenske (Deputy Judge Advocate General, Advisory and Legislation, Office of the Judge Advocate General, Department of National Defence): Mr. Hanger, the objective in drafting the language the way it's been drafted is first of all to modernize the language. If you were to consult the language that is used in other grievance processes, in particular the RCMP grievance process, you would see that the language we've adopted is somewhat similar.
One of our concerns with the old language has been that it suggests a service member could grieve virtually anything, indeed something over which the Canadian Forces has no control at all. So you have this more modern language, which suggests that if it has occurred in the administration of the Canadian Forces, over which the Canadian Forces has control, then it is something you can grieve.
The reasons for this relate to some difficulties in interpreting the old language. We have over the years read the old language down so it approximates the language you see here now clearly.
Mr. Art Hanger: So when we talk about personal oppression, injustice, or other ill-treatment, to define the term “injustice”, would that be more difficult to ascertain? Is it too broad? Is that what you're saying?
Col Allan Fenske: Yes, it was felt to be misleading, more from the point of view of what in justice—if you were to look at the language currently in the bill, the language is arguably even broader in that respect, but it's very, very clear that it originates in something that has been done in respect of the administration of the Canadian Forces and therefore arises as a result of the individual status as a Canadian Forces member.
Mr. Art Hanger: Anyone who would like to redress a concern would have no problem, past or present, in dealing with this act because of this change. It's not going to affect what they can grieve.
Col Allan Fenske: I don't think so at all. If anything, it will make it a little easier for us to conclude whether or not a subject is grievable, but it's certainly not intended to meaningfully narrow, in any way, the current right to grieve.
Mr. Art Hanger: Okay, thank you very much.
The Chairman: Thank you, Mr. Hanger.
We will now go to the last questioner, Mr. O'Reilly.
Mr. John O'Reilly (Victoria—Haliburton, Lib.): Thank you very much, Mr. Chairman.
Thank you for coming here.
I was trying to get something clear. I think most of my questions on the elimination of the death penalty were answered, but the wording in the recommendations and in some of the summaries— I'm not a lawyer, but that's a good start. It talks about the ineligibility for parole for 25 years, for instance, and yet ineligibility for parole for sentences of two years less a day—
If in fact you're mirroring the provincial system and the federal system of sentencing, is there a particular province you've adopted as a model? In Ontario, if you've been sentenced to two years less a day, you're housed provincially and subject to different parole rules than if you've been sentenced to over two years. But it's not the same in other provinces.
I found inconsistencies in that particular part in reading Bill C-25. If a person's sentenced to life, there's no eligibility for parole whatsoever for 25 years. If they're sentenced to over two years, there would appear to be no eligibility for parole. If they're sentenced to two years less a day, which would then be a provincial conviction, are they eligible for parole?
Mr. Brian Dickson: Under the current law an accused, if he's charged under the federal law, if it's two years plus a day he goes to the federal penitentiaries. If it's less than two years, or if it's two years less a day, he goes to a provincial institution. But those are all civilian, and I think absolutely unrelated to what we have here.
Mr. John O'Reilly: I was just wondering if you were mirroring. It would appear as though you are trying to come into a civilian code in the military rules but maintain a military flavour. I didn't know where the break would be in that structure.
Mr. Brian Dickson: I don't think there was any real attempt to emulate provincial law or federal law in respect, say, of 25 years without any parole. I'm not aware of anything in the federal...that has that long term without the possibility of getting out on parole.
Perhaps Colonel Fenske might be able to throw some light on it, if the chairman would permit.
The Chairman: Sure.
Col Allan Fenske: Mr. Chairman, members, Chief Justice, General Belzile, the thrust of the provisions you find in proposed sections 140.1 to 140.4 of the bill are essentially to incorporate, on a selected basis, the provisions of the Criminal Code between sections 743 and 746 of the code, having somewhat modified them for military purposes to ensure that in those cases where parole would be delayed or where the time served wouldn't start yet to run, we don't treat a military accused who has been convicted of an offence through section 130 of the National Defence Act, which incorporates the Criminal Code, in a way different from the way we'd treat a civilian accused.
If you read these provisions carefully, you will see there is a military flavour to a number of them. For example, we deal with the case of an individual sentenced to imprisonment for life for the kinds of offences a civilian cannot be sentenced for or tried for, and I'm thinking particularly of sections 73, 74, and 75 of the National Defence Act, which are offences that occur in combat conditions.
I think if I were to try to break this down in simple language, because these are by far and away the most complex provisions of the bill, I would say in those cases where under the code of service discipline an individual can be tried for the same kind of an offence as a citizen under the Criminal Code, these provisions would treat that individual on the same basis as any other citizen of Canada.
Mr. John O'Reilly: Thank you. There are three different interpretations of what I had here. Thank you very much.
The Chairman: Thank you very much.
I'd just like to thank the witnesses for appearing before us this afternoon. It was most enjoyable.
Colleagues, on Thursday we have the clause-by-clause reading. I know I've sent you an e-mail, but perhaps you could send us your amendments as soon as possible so we can have them translated and give them to the other members.
Also in my e-mail I mentioned that if there are clauses that don't give you any problems, let us know, so we can pass them en masse.
Thank you very much.
This meeting is adjourned.