I call meeting number 68 of the Standing Committee on National Defence to order. We are continuing the clause-by-clause consideration of Bill .
I've been asked by the chair to open the meeting; he is in the House of Commons presenting a bill. I suspect he'll only be a few minutes, so I don't see much point in starting the meeting....
We were in the midst of discussion with Colonel Gibson, I believe, regarding clause 20 and some of the consequences of that. But I don't think he's going to be very long. When I left the House there was a private member's bill being presented, and I think as of today he has to present his bill.
Main estimates need to be reported back at the end of May, or even the first part of June. So there is a timeframe there and we have some time before the minister needs to appear on that.
Are there any other questions? If not, let's get back to our work.
We're on meeting number 68. I want to thank Mr. Harris for taking the chair while I had to table a private member's bill in the House, and we ran late, of course. It was QP today, so it caused my delay, and I apologize for that.
We're doing our clause-by-clause consideration of Bill , an act to amend the National Defence Act and to make consequential amendments to other acts. We were in clause 20 when we adjourned on Monday evening.
(On clause 20)
The Chair: Are there any further comments or questions on clause 20?
Mr. Larose, you have the floor.
So it is punitive. For example, an individual who has been given a 10-day sentence serves it over the weekends. Instead of the sentence taking 10 consecutive days to complete, it takes 5 weeks. During the week, the individual continues to be a private, with reduced wages.
I would like to know what happens in their unit. Since the responsibilities of someone like a sergeant must be maintained, is that person replaced? What happens in their unit? There may not be any confusion, since that person is not in detention. Someone being a simple private in detention is understandable, but once that person returns to their unit, they have a sergeant's responsibilities. Are they replaced, or do they continue to be a private who carries out a sergeant's responsibilities?
I think this principle leads to more confusion. The sentence handed down by the court is 10 days, not 5 weeks.
I wonder if we could have the rationale here for the second half of clause 22, proposed section 147.1, the prohibition order there with respect to crossbows, prohibitive weapons, etc. These prohibition orders can be made, and proposed subsection 147.1(3) of this says:
||Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the performance of their duties.
That leaves us with the circumstance where a soldier is prohibited from possessing or carrying or having a weapon at his house or in any of his belongings, his vehicle, etc., but when he shows up for duty he can carry and use a weapon in the performance of his duties. This would, to the ordinary member of the public, seem a little bit odd, that if someone is not trusted with a weapon he should be issued one. I'd like an explanation of that. I think there may well be a reasonable one. In fact, I know it's a difficulty in the United States, for example, where they have much more liberal gun laws and they seem to have trouble preventing soldiers from having weapons of all sorts in their homes or other places. It causes problems for them.
Can you explain that, Colonel Gibson, what the rationale behind this is, why it's required? Why is it reasonable for a person who is prohibited from having weapons—for good reasons obviously, and being permitted to have good reasons under proposed subsection 147.1(1)—to have a weapon while in the performance of their duty?
Chair, when you look at the wording of the section, the court martial is considering it desirable in the interests of the safety of an offender or of any other person. It's obviously a safety issue. If a court martial were to make such an order because of the safety of the offender or some other person, it seems, through common sense, to be potentially or likely inconsistent for an infantry officer, as you pointed out, who can't have a weapon on his own, to be issued one in the service of his duty.
I suspect there's some rationale here that may have to do with military chains of command and obedience to authority and all sorts of other things that might make this possible. But I'm giving you an opportunity to provide a rationale that would make sense to the ordinary Canadian.
As Mr. Norlock keeps saying, I'm asking the kind of question that my constituents might ask, who say, how is it—
An hon. member: [Inaudible—Editor]
Yes, their rationale is very clear: if there is a danger of the offender having a weapon, the court martial will specify that the person not have the weapon. If there is not a danger of the person having those weapons, or any of the other items listed, and if the operational requirements dictate that the person carry a weapon or ammunition, they will carry the weapon. It is a balancing act that is present throughout this bill, and it crops up in many different forms. Military justice requires certain forms of behaviour and certain prohibitions when offences are committed and when convictions happen, but the special operational requirements of the Canadian armed forces require most members, regular and reserve force, to carry weapons when they're on operations. This satisfies both of those conditions.
Mr. Chair, very briefly, again, if one looks at the actual text of the provision, it reads, “in the interests of the safety of an offender or of any other person”.
In response to Mr. Harris, let's take the example of somebody who had spousal difficulties, had domestic violence difficulties, in the context of the base in Petawawa. The person whose interests are being considered is the offender's spouse. It may be perfectly safe and appropriate to carry a weapon in the course of duty while deployed to Afghanistan in an operational theatre, 10,000 miles away from that person whose safety is at issue. The point is, once again, that it comes down to counsel, prosecution, and defence to make the appropriate submissions on the fact to a judge, and the judge—he or she—will decide.
I don't agree with you. I have worn the uniform myself. A civilian who is psychologically unstable or uses a personal weapon improperly is usually suspended or loses their job. I have not come across any cases where it was deemed acceptable for unstable individuals to carry a weapon as part of their duties. In such situations, an attempt is made to take away their weapons and provide them with the help they need. A psychological assessment is then carried out to determine whether or not that person can continue to perform their duties. Drawing a parallel between the two situations does not seem very reassuring to me.
During one of my training sessions in the reserve, an individual pointed a C7—the equivalent of an M16 in the Canadian Forces—at the officers. He was seen doing that and pulled out of service, which did not take very long. Did that individual have any weapons at home? I don't know, but I simply wanted to say that, if an individual is unstable—even if we are talking about tools used by the Canadian Forces—it cannot be said that everything is going well in the performance of their duties. I really disagree. I have worn the uniform for most of my life, and I did not find working with such individuals reassuring. I would not want to work with someone like that. I would not feel safe at all, and I would also worry about my colleagues.
I hear my colleague's concern about the possible application of this section to other types of circumstances, where you have someone who is unstable, as he called it. I think you have provided an example that people might understand. There is a distinction where you're trying to protect someone: it's the safety of a particular person or circumstance that gives rise to the prohibition. There are circumstances in which an officer is under command, in the field, as you say, 10,000 kilometres away, which would be a different set of circumstances.
That was the kind of explanation I was looking for, sir, something that my constituents—as Mr. Norlock puts it sometimes—would understand. I think people might understand that, although I can see a lot of people would also think like my colleague.
Thank you, sir.
Before moving the amendment, I would like to ask some technical questions of the witnesses about this. We did have some discussion during committee about this, and there was a suggestion from the Criminal Lawyers' Association, for example, that there ought to be a 90-day provision similar to the civilian system. I understand there's some relationship between the number of days a person can or can't serve in detention.
Colonel Gibson, can you clarify that for us? The definition or the interpretation of this legislation would suggest that the 14 days we're talking about must be the total sentence. I'm thinking, for example, that we have an amendment suggesting 30 days. If your intermittent sentence were served in three-day increments, so 10 weekends, let's say, none of those periods of detention would be greater than 14 days. Why is that not a rational way to do it, as opposed to treating the 14 days as a totality of sentence?
Mr. Chair, in brief response, there are three reasons—one legal, two policy-oriented.
The legal one, first of all, is that the law already provides at QR and O 114.11(3) that any sentence longer than 14 days of detention must be served at the Canadian Forces Service Prison and Detention Barracks in Edmonton. Imagine the circumstance where you're suggesting that one allowed a person to serve a 30-day sentence intermittently. If that person didn't live in Edmonton, you'd be shuttling him back and forth from Toronto to Edmonton every weekend. That would make absolutely no sense at all. It wouldn't make sense, but there is also a legal prohibition against it.
The second reason, in terms of policy, is that the sentence of detention, especially for a longer period, up to 30 days, is meant to serve a particularly rehabilitative function, and there's a unique regime in place at the Canadian Forces Service Prison and Detention Barracks that is meant to take a person through a progressive stage of rehabilitation. We consider for that period that the rehabilitative effect of that special regime at the service prison and detention barracks would be lost.
Thus, for practical reasons, a legal reason, and also a policy reason, we suggested that the appropriate threshold would be 14 days.
Mr. Chair, what this provision at clause 31 is meant to do is to fill a gap that currently exists in the scheme.
If a person is arrested and is retained in custody, there's an obligation to bring them before what's called the custody review officer at the unit. He or she makes a decision whether to retain them in custody or release them. They can release them with or without conditions.
If that custody review officer from the unit releases them with conditions, what clause 31 would provide, in furtherance of a Lamer report recommendation, is the ability to have those conditions reviewed by a military judge.
So yes, it has to do with conditions that apply when the person has been released from custody pending trial.
Very briefly, Mr. Chair, what this amendment is meant to do is harmonize the use of the phrase “military justice” throughout the act so that it will be used consistently. That's its primary intent.
If you're asking for a policy explanation or a philosophical explanation of military justice, it really goes back to the two purposes of military justice set out in clause 62 of the bill: in essence, to promote operational effectiveness and to do justice.
I would just point out that really, the primary intent of this particular provision is to be in consistency with the judgment of the Supreme Court of Canada, in the Hall case, about the tertiary ground. That's really the thrust of this amendment.
What it is meant to relate to primarily is the circumstance in which there has been a direction to retain a person in custody or to impose conditions, and when the matter has been referred to the director of military prosecutions for his or her decision about preferral of charges for court martial, that office decides not to prefer the charge.
This is meant to be an elegantly simple way to deal with the circumstance in which the director of military prosecutions has decided not to prefer the charge, so that you won't have to go back and construct some sort of elaborate regime to say that the person should be released from custody or to direct that the condition should be cancelled.
In other words, this is what the regulation would essentially prescribe: that where the director of military prosecutions has issued a notice of non-preferral, then you have a simple and clean way to deal with the situation.
In my two years on this committee and as a member of Parliament, I have never heard either a government member or an opposition member call into question the integrity of agreements, regulations, and orders. They, by and large, pass muster with all of us. Given that we give them very little attention, they seem to function well.
I think we on this side, and we on the committee, can assume that drafting will be done in good faith. But could we ask Colonel Gibson, if it would not be too much to ask, to have it signalled to the committee once these regulations have been completed, published, so that we can—not necessarily with committee time but on our own time—review them to ensure that they fulfill the expectation created by this clause?
I was actually comforted by the first response I got from Colonel Gibson as to the intention and the purpose here with respect to establishing an administrative mechanism to meet the need here. But I'm a little disturbed in your answer to Mr. McKay's question that yes, that's the primary intent here, but it could be used for other purposes. That comment gives some force to what Mr. McKay was saying in terms of the way this matter is drafted.
What other circumstances are you talking about, then, outside of an administrative one? It doesn't quite say administrative here. I took your comments in good faith, particularly since they're on the record here in the defence committee, that this was the intention and that it was involved with administrative proceedings. I'm not looking for any nefarious reasons here, but what else is contemplated? Aside from the notion that there ought to be some way that doesn't involve a lot of other procedures to allow for the release of someone who is in custody under lawful direction or who has conditions on their release under a lawful order of a tribunal or court, what other ones do you have in mind?
(Clause 33 agreed to on division)
(Clause 34 agreed to)
(On clause 35)
The Chair: We have two amendments submitted by the NDP. They are consequential, so we are voting on both amendments. When you're voting on amendment NDP-17, you're also technically voting on amendment NDP-18. So if it succeeds, they both succeed; if it's defeated, they are both defeated.
It's reference number 5993962.
On clause 35, Mr. Harris.
I would like to move that amendment.
This is, I guess, a technicality, in the sense that we have to thank Justice LeSage for pointing it out. He pointed out that, based on a similar amendment in Bill in the last Parliament, there was a need for some certainty here, because of the confusion as to “after that day” being added there: what day is “that day”? He proposed that it be clarified by ensuring that the day we're talking about is that the summary trial can commence within one year after the day on which the offence is alleged to have been committed.
We have therefore moved this amendment, which is NDP-17, to give that clarity. I don't have much more to add to it than that. He does explain in his report that “after that day” is confusing. It's difficult to understand what day we're talking about in “the summary trial commences within one year after that day”. He's a judge. He tells us that he finds it ambiguous and confusing. They're the ones who are asked to apply these laws.
This puts on a limit. Of course, someone can always make an objection to a court or to a tribunal that the charge is taking place at the wrong time and have it thrown out. He suggests there is a need for clarity here. We are taking his advice and putting this to the committee to have that clarity imposed or put in the bill to allow that proper interpretation to be made and the intention of the legislature to be clear.
I generally operate from the principle that justice delayed is justice denied. I think if it's applicable outside there, it's even more applicable inside the military community. Any offence or any allegation of any offence has significant implications, not only for the soldier and his or her family, but also for, if you will, the extended military family. I preface my observation with that kind of caveat. If justice delayed is justice denied out there, it's really justice delayed is justice denied if it's not dealt with expeditiously inside the military culture.
As I would understand it, the starting point for the NDP and the government's amendments is the day of the offence, so that the charge has to be laid within six months of the offence date. But then the government gives itself, in effect, one year from the charge date to deal with the matter, whereas the NDP amendment basically is that the 12 months start running from the day of the offence.
In some respects, the government's position is more precise, but it's a longer timeframe. Am I understanding it correctly, therefore, that effectively from day one to the end of the day, the NDP amendment covers off 12 months and the government's position is 18 months. Is that fair?
Sorry, but just to respond briefly to Mr. Harris' observation, there are two things.
Bill was introduced in Parliament on October 7, 2011. The LeSage report was not tabled until June of 2012. I would ask you to just bear that in mind.
The second point is that it's a matter of legislative drafting and interpretation. In this case, we consulted with our friends, the legislative drafters at the Department of Justice, who actually draft the bills, and we asked them what they thought of this. They were fairly adamant that actually, no, it was good as it stood.
In fact the amendment suggested—with the greatest of respect to Justice LeSage—in their view was not technically appropriate and would not actually contribute to clarity or be consistent with their drafting of protocols.
That's why it is the way it is.
Well, sir, I thank you for your opinion.
I guess Mr. McKay's comment actually proves my point, that he read this...and Mr. McKay is a lawyer of very long standing, I believe one of Her Majesty's counsel learned in the law. He thought—
A voice: [Inaudible—Editor]
The Chair: Order.
Mr. Jack Harris: —the amendment was designed to shorten the limitation period from 18 months to 12 months. Now we have it confirmed, of course, by Colonel Gibson, that the intention here of the government in this amendment is that when an offence is alleged to have been committed on a certain day, a charge has to be laid within six months, and the trial has to commence—it doesn't have to end, but to commence—within 12 months of the date of the offence. But if you look at “after that day”, Justice LeSage also was concerned with the interpretation of that.
Now, there are legislative drafters, which is fine. They have their opinions, and they are very experienced people. But with all due respect, the legislative drafter is not the person who is sitting down and interpreting the law in court. Lawyers like Mr. McKay and others are arguing about the possible interpretations of the act. A judge may decide, yes, it is confusing here; we're not sure what this is all about.
You know, we keep hearing about the LeSage report having been tabled in the House in June of 2012, but it was presented to the government in December of 2011. He was commenting on a clause in Bill C-41—not on this, but this is an identical clause—and he said that if this is being brought in, it should be clearer.
Now, the legislative drafters may think it's clear. Mr. McKay doesn't think it's clear. Justice LeSage doesn't think it's clear. I don't think we're doing any harm to the universe if we make it clearer.
So I would see this as...I wouldn't call it a friendly amendment. There's no such thing, perhaps, as a friendly amendment.
Mr. Chair, I would make just one observation.
Of course, it's a fundamental principle of statutory interpretation that Canada is a bilingual, bijural country. In interpreting legislation, one has to read both the English and French versions together. One can be an aid to the interpretation of the other.
I think it's quite clear on the French side what the intention is. I've already indicated the assessment. Ultimately it's a matter for decision by members of Parliament as to what to make of that assessment, but we take the technical advice of the legislative drafters in terms of drafting issues.
The suggestion by Colonel Gibson that the French version is also part of the interpretation is a fair point, except that the amendment is actually seeking to bring about conformity between the wording in the French section and the English section, so that's all the more reason why it would be a reasonable thing to do.
Nobody here is perfect, and this is not a suggestion that a significant error has been made here, but what we're suggesting is that on the advice of Mr. Justice LeSage, and given the example of even our discussion here today, it seemed to make good sense to have what day we're talking about specified. To those who are not experts in legal interpretation, and we're talking about a lot of people who are not experts in the law who are subject to all of this, it might be worth ensuring that it actually says what it is purported to mean by your explanation here today.
Nor would I offer any commentary on the capacity of members opposite, but one prefers to resolve ambiguities prior to rather than subsequent to an issue. It seems to me that if I have misinterpreted—quote, unquote—the drafting as is, the crown in fact leaves itself open to a position that it commenced prosecution on month 13 after the offence, rather than within 12 months of the offence. I suppose as a defence counsel one should just sort of sit in the weeds and wait for that.
As to the French/English, again, if the French is very clear and it means what you say it means, then presumably it would be helpful if the English were as clear as the French.
I'll leave my observations at that. I read it, then I reread it, and I thought, “This is the government's position.” Essentially it's an 18-month window. Mr. Harris' amendment is essentially a 12-month window. But you tell me that yours is a 12-month window as well. It seems to me that if the crown has an opportunity to clarify ambiguity at the point of drafting, it would be a good time to do it; otherwise, you'll leave yourself a bit exposed.
Yes. I have a question on proposed subsection 35(1.2).
Assuming we know what proposed subsection 35(1.1) says, proposed subsection 35(1.2) says, “The accused person may”—once again—“in accordance with regulations made by the Governor in Council, waive the application” of that section. In other words, he doesn't have to be charged within six months, and his trial doesn't have to be within one year if the accused waives that. His right, or the permission to waive that, or the circumstances under which he can waive that, are set out in regulations by the Governor in Council.
Once again I ask, what's contemplated by that? Why would there have to be regulations of the Governor in Council if such a waiver is contemplated?
They essentially are the same. They are consequential, so they are grouped together in the vote.
Mr. Jack Harris: Well, you can.... I'll withdraw the amendment.
The Chair: Are there any other comments on clause 36 that are different from what we just heard?
(Clause 36 agreed to on division)
(Clauses 37 to 40 inclusive agreed to)
(On clause 41)
The Chair: We have amendment NDP-19, reference number 5993967. This proposes to delete line 14 on page 18 of the bill, up to line 24 on page 19.
Mr. Harris, do you want to move that?
Thank you. I do move that.
Amendment NDP-19 is with respect to the reserve military judges system. We believe it's unnecessary. We would rely on the arguments made to this committee by Colonel Drapeau, who testified on February 11.
We're also looking at the dissenting opinion by Commissioner Norman Sterling in the report of the Military Judges Compensation Committee, who talked about the existing workload of military judges being what he called the lowest amount of compensation, the lowest number of days, of any court, so their workload can't be compared with the superior courts. He was concerned about the cost of this.
But here we are in fact creating more judges when it's not necessary. We don't think it's necessary, and it's regarded by Colonel Drapeau as an extravagance. It's unnecessary to add this other layer of military judges to a system that's already over-resourced, shall we say.
We oppose the amendment because there needs to be provision in this act for a surge capability for military justice. We did not see that need on a mission such as the Afghanistan mission, even though there was extraordinary complexity there. We saw it on the battlefields of Europe at different periods in our history. When our armed forces go from roughly 100,000 to 200,000, or half a million to a million people in uniform, as has happened in the past, there is a requirement to take the tools of military justice overseas with that force.
This provision applies specifically to that. It meets the operational obligation of the force under the act to be ready to operate in intense situations on a very large scale at short notice. If we didn't have it, we would really be hamstringing the military justice system in terms of its flexibility in the unlikely event, the very unlikely event, that this need should arise. It's absolutely essential, in fact one of the most essential aspects of the military justice system, as now codified in the act.
The changes our bill is making to clause 41 will enhance the status, the reliability, the professionalism of military judges. That is one of the goals of the act: to encode their status in law more formally. The reserve force of military judges has to be part of that equation.
I'm not sure what world the parliamentary secretary is living in, but we're not on a war footing. This Parliament, this country, is not on a war footing. If we're contemplating—if I may finish—the necessities of an armed force of 100,000 or 200,000 or one million people in uniform engaged on a battlefield, while we're putting these people into uniform and recruiting them and training them and standing them up, or whatever the appropriate expression is, and sending them into a circumstance where we might need more military judges, then somewhere along the way I suspect that the Parliament of the day could ensure that whenever it's necessary to have an appropriate system in place for that work—whether it be raising the funds to do it, bringing legislation into order, or making sure that we have the things contemplated—that would be done. We can't put 100,000 people in the field like that. Look at the experience of Afghanistan.
Yes, we used reservists. Why did we use reservists? We used reservists because we didn't have enough armed forces to maintain the unit in the field at the strength required, and we brought reservists to the fore. They spent six months training before they got there.
If we had the kind of emergency that my friend is talking about, then we'd certainly have a very compliant Parliament that would ensure the system was adequate to handle it, whether it be financial, whether it be legal, whether it be legislative emergency powers or whatever else is required to do that.
I really don't think that is much of an argument for creating a system that's unnecessary in the current circumstance.
I might remind my colleague that, led by Mr. Harris, the legislation with respect to military judges went through all three stages of legislation in the House of Commons, with respect to Bill , in a matter of three weeks. It was introduced on maybe October 10 or 11 and was passed into law before the end of that month, because it was regarded as a necessity, given the circumstances that presented themselves.
I don't think we need to play politics with this. We can have legitimate arguments here. A similar thing happened with the passage of Bill in about a month. That was before I was here, in 2006 or 2007.
We are here as politicians for the good of the country. We may have differences about what we're doing now, but in a time of emergency or special circumstance, as we saw with the concerns about the legitimacy of the military justice system because of the rulings under the Charter of Rights and Freedoms, actions are taken. My view is that is exactly what would happen in the circumstance we're talking about, if this country were at war.
I would like to begin by specifying that the law—chapter 22 of the Statutes of Canada, 2011—talks about that provision. That provision was used again because there was uncertainty over whether Bill and Bill should be introduced at the same time.
To answer your question more specifically, I would say that, in proposed subsection 165.21(4), two circumstances are set out—the judge's request, or the attainment of the age of 60 years. Subsection 165.21(5) talks about how to deal with resignations. The legislation overlaps simply to cover both possibilities.
Mr. Chair, this is really talking about compensation for military judges, and of course it brings to mind the evidence we had in committee presented by Mr. Justice Létourneau and retired Colonel Michel Drapeau.
I know this is not a very popular topic with those in the military, but there is and has been a considerable movement throughout the western world, particularly amongst our allies in Australia, the U.K., and New Zealand, and even in France, to civilianize the military justice system, particularly in peacetime. France is the one exception to that; they have the two systems.
One of the considerations, of course, is the cost. When the last compensation committee dealt with this, during the course of which consideration was given to the workload of military judges...and the caseload of military judges could be described as being rather modest compared to that of Superior Court judges. The other systems, such as those in Australia, New Zealand, and the U.K., have managed to incorporate the systems into the regular justice system.
When pressed in the committee—I wasn't here, but I heard it—about having to have military judges because of the nature of the offences and things that are dealt with, one example that was given was the case of Jeffrey Delisle, who of course was tried not by a court martial or by a service tribunal but by a civilian court. A judge heard that case, which involved a sub-lieutenant of the Royal Canadian Navy, during which the judge dealt with the whole purpose of sentencing, etc., all aspects of bail, and everything to do with Sub-Lieutenant Delisle, as judges do on all sorts of law that may be different.
It's a concept that deserves consideration. I'm bringing it up here, under this particular clause, because it does deal with the issue of compensation of military judges and the need for a separate system of military judges. It's one thing to say that it's valuable, desirable, necessary, useful, and certainly constitutional to have a military justice system that is separate from the ordinary justice system because of the need for—as is well known and accepted by all parties in our House of Commons—operational efficiency and discipline as important parts of military effectiveness and operational efficiency, but that doesn't mean we have to have, necessarily, a whole separate system of military judges.
The suggestion has been, of course, that the Federal Court and the military judges could be joined together under the one system. The compensation system would be equal. You wouldn't have a separate system of compensation for military judges. You would have a military panel of the Federal Court made up of those who have experience in carrying out these operations. Of course, as is well known, the judiciary itself has a process whereby over the course of their careers they have many opportunities to keep up with all aspects of the law as part of the ongoing training of judges, so any concerns about that could be dealt with.
I'm raising it now, but I don't want to take up too much time with this because we are dealing with the compensation of judges. We do know that they have to be compensated, but we also have a great deal of sympathy—and in fact support the call by Mr. Justice Létourneau—for a wall-to-wall review of this system to seek to, I would say in this case, actually modernize it, in keeping with what our allies have done.
The review obviously wouldn't take place under this section. It might be another area. We'll talk about it again for a few moments under the review of this act and in keeping with the LeSage report, but it may be the subject of some motions that we would bring to the committee for consideration after we've fully considered this act.
I think the issue has been brought to the committee through this act, rather than being a separate study on that whole point. Perhaps one way to bring it before the committee for its consideration, and a potential recommendation through the House of Commons for a different type of review, would be to bring a motion. I'm not going to give notice of it today, but we'll do it in the normal process of giving a motion and having it debated before the committee.
I wanted to put that on the record, Mr. Chair, because it seemed to be appropriate in this section when essentially we're talking about the compensation of military judges. Multiply that by four and all the accoutrements that go with it. We're talking about the cost of having a separate system as opposed to integrating with the normal justice system, as is done in other countries.
Those are my comments, sir.
Yes. I don't know what argument or rationale is being made to suggest that the taxpayers should pay for judges to be represented before the Military Judges Compensation Committee, where they would presumably be seeking to gain financial benefit. This is an example, I should think, of wasteful spending in this case.
In other courts, when they have judicial commissions, the judges themselves are represented by.... I'm aware of a number of cases. In fact, in the Provincial Court of Newfoundland and Labrador, for example, they have their own counsel and they pay for that counsel themselves. They're seeking to make independent representations. It is not paid for by the government.
I don't see why military judges who want to convince someone to give them a different form of compensation or a raise should not be paying their own freight. They are remunerated very well. It's not a case of a need for legal aid, as it were, and it has to do with representation. We see it in all aspects of unions, where they pay their dues and they hire their own lawyers or they get their own union reps. I don't know why the judges shouldn't have to pay their own way, so we don't think that's an appropriate amendment.
Mr. Chair, the answer is actually quite brief. It has to do with the equity of the number of judges and also the fact that a very similar scheme is actually in place in the Judges Act in respect of Superior Court judges.
To start with the first one, there are approximately 1,000 Superior Court section 96 judges in Canada. There are four military judges. To defray the expenses of representation, which are not significantly different as between those two fora, because the function is the same, it's a lot more equitable to spread that cost over 1,000 people than it is over four.
The second part is the fact that there is a provision, a very similar one, in the Judges Act, which doesn't pay the full amount but pays most of it, because it recognizes that the whole point of this process, of a compensation committee, both in the military context and in the civilian context of the quadrennial commission, is that the Supreme Court of Canada has indicated that it is necessary as an incidence of judicial independence.
It's not there to provide some sort of undue perk to military judges. It's a practice that recognizes the necessity to have a process that is respectful of judicial independence and is also consistent with provisions that Parliament has already put in place in the Judges Act.
Are there other comments?
(Clause 46 agreed to on division)
The Chair: Now, can we do any groupings? Will I just keep going the way we're going?
Mr. Jack Harris: Yes.
(On clause 47)
The Chair: Are there any comments on clause 47?
Mr. Jack Harris: Yes, I have a comment.
The Chair: Mr. Harris, we'll hear your comment.
We heard arguments as to why this ought to be kept the way it is now—you don't want officers of a lower rank passing judgment on members of an upper rank—and the importance of having this. But I think we need to be reminded that the courts martial deal with the question of fact; they decide the questions of fact, whether or not certain facts existed. We have that in the civilian system, whereby it doesn't matter the rank—social, financial, or any rank—a jury of your peers is considered to be anybody who is fit for jury duty. You can have ordinary folks passing judgment on a question of fact for someone who is a wealthy corporate banker, say, or someone in the position of high authority, if they choose a jury trial.
So a very strong argument is to be made as part of civilianizing the system that would include the changes to be made to the court martial panels, whether it be to change it as Colonel Dugas suggested, and as we heard from the Standing Committee on Legal and Constitutional Affairs in the Senate. They recommended some changes, but they weren't very specific.
We're not bringing specific recommendations. We want to highlight that this is something that does need to be looked at as part of an overall review of the National Defence Act.
I think we have to recognize again that when we're dealing with sentencing here, we have an absolute discharge but no conditional discharge. The suggestion seems to be that it would require a certain amount of working with the civilian and provincial authorities to do this. I don't think that's necessary if we're going to provide for conditional discharges.
The problem with the absolute discharge availability is that it becomes an all or nothing circumstance, and an absolute or conditional charge recognizes that while an accused may have been guilty of a particular offence, it's not in the interests of the public, or in this case of the military justice system as well, to have a person convicted of that.
A person can be discharged absolutely or upon certain conditions. This provides for flexibility in sentencing, and I think this was recognized by the Senate Standing Committee on Legal and Constitutional Affairs. They asked for an amendment to provide sentencing flexibility to allow for conditional discharges, probation, forfeiture, restitution, suspended intermittent sentences. We've got an intermittent sentence in here. We've got an absolute discharge, but we're not really making the kinds of substantive changes that have been suggested by the Senate after due consideration and that have been suggested by Mr. Justice Létourneau. He acknowledges that there were substantial reforms proposed in the bill, but he says it's hard to understand why this stopped there.
If you look at the civilian court and the comparison, the suspended sentence is an option for up to two years, allowing a monitoring of a person's behaviour. One would think that in the military the opportunity to monitor one's behaviour would be even more available than in the civilian society, because you do have to have a system of probation. You have to have probation officers. You do have that available. In the military, of course, you have an option, obviously, within the chain of command to observe someone's behaviour. If a person has then been of good behaviour for a period of up to two years, he can be granted an absolute or conditional discharge.
So that's an important provision and flexibility that could be built into the military system. As retired Justice Létourneau says, we don't get that in the military. The sentence is already passed. What he was talking about was suspending passing of sentencing.
The conditional discharge, again, he suggested is something that would also be very helpful if someone is of good behaviour. Once again, this type of recommendation was supported by the submission of the Criminal Lawyers' Association to the committee as well.
We don't see that here. We see that as something that ought to be considered. There was plenty of time for the government to consider such a system here, and frankly, I don't think we've been given a very strong reason why it couldn't be done.
We see some very positive things here. The idea of having a victim impact statement is quite important. I think our courts have recognized for many years, and our judicial system, our legal system, has recognized for many years, how victims have been left out of the system. I practised law myself for many years before there was such a thing as a victim impact statement, and victims were treated as if they were merely witnesses in the court. Mr. Dechert, as a lawyer, knows that as well. That was very disconcerting, and in fact very disgusting to many victims of crime, and I think it has been changed.
So we're bringing that into this system here, the idea of having a very elaborate procedure for the principles of sentencing, of service tribunals. That's a very useful thing.
There are some things that obviously aren't in the system of civilian justice. Again, that's appropriate as well. We recognize that there are special aspects of sentencing with respect to the military that ought to be there, but to spell these things out is a very important thing to provide for victims and for restitution. But the conditional discharge is absent. The idea of having more flexibility in sentencing is missing, and we think that's something that ought to be here, and, again, ought to be part of the kind of review we would have expected after we had the recommendations from the Standing Committee on Legal and Constitutional Affairs. That was 2009, I believe.
There has been plenty of time in the last three years, before this bill was presented, to have broadened the scope of the sentencing provisions and provide for the kind of flexibility that is available to judges or tribunals in the civilian system. We think that's something that ought to have been included and developed.
Again, we're not in a position to create wholesale provisions for amending the act. If it's not provided for in the act, we're mindful that these kinds of provisions might be ruled out of order as being new instruments. But we do have the substantive comment from serious people, including the standing committee of the Senate; Mr. Justice Létourneau, who has considerable judicial and legal reform experience; and, of course, the Criminal Lawyers' Association has also spoken to this issue.