NDVA Committee Meeting

STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS

COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 22, 1998

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[English]

The Chairman (Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.)): Good afternoon, ladies and gentlemen. Good afternoon to you, Mr. Minister. It's nice to see you appear before us again. I understand you have to leave us a little earlier than usual this afternoon.

Hon. Arthur C. Eggleton (Minister of National Defence, Lib.): Well, I'm good until about 5.15 p.m.

The Chairman: Okay, that's fine.

You're aware of the way we proceed. We'll let you make a brief presentation and then we'll go directly to question period.

Mr. Arthur Eggleton: Thank you very much.

[Translation]

Thank you, Mr. Chairman.

[English]

I have with me Vice-Admiral Garnett, our Vice Chief of the Defence Staff, whom I think most of you have met on many occasions; and Colonel Fenske, from the Office of the Judge Advocate General. He and his colleagues have been instrumental in drafting the amendments to the National Defence Act that we have before us.

Thank you, Mr. Chairman and members of committee, for the opportunity to be with you today and to discuss Bill C-25. It's a pleasure to be able to engage committee members in a discussion that I believe will solidly benefit the men and women of the Canadian Forces.

Bill C-25 is the most extensive package of amendments in the history of the National Defence Act. Although it addresses a broad range of provisions, it is primarily about modernizing the military justice and policing system. The main thrusts of the bill are, one, clearly defined roles and responsibilities for the key participants in military justice; two, greater structure and transparency in investigation and charging; three, modernized powers and procedures for service tribunals; and four, strengthened oversight and review.

I hope that members of the committee share my view that a modern code of service discipline that embodies Canadian values and meets the unique requirements of the military is essential to promote discipline and morale and to maintain an effective armed force.

This afternoon I'd like to take the opportunity to address a number of concerns that were raised during the second reading debate in the House. These concerns focused on, one, the decision not to include inspector general provisions in the bill; two, the independence and the organization of the judge advocate general, or JAG, military judges and military police; and three, the reform of the summary trial process.

During that debate in the House, a number of members suggested that the government has ignored the recommendations of the Somalia commission of inquiry to establish an independent inspector general. Well, that's simply not true. The government has given this recommendation careful consideration, as it did all of the other recommendations.

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[Translation]

The government has accepted 83 percent of these recommendations, in whole or in part.

[English]

Although we do not agree with the recommendation calling for the establishment of an inspector general, we do agree with its underlying objective to strengthen civilian external oversight of the Department of National Defence and Canadian Forces. We can agree on the goal and objectives; we have a different method of getting there.

To accomplish this objective, we have adopted a threefold strategy. First, we have strived to strengthen our cooperation with existing oversight bodies such as the Office of the Auditor General, the Office of the Commissioner of Official Languages and the Canadian Human Rights Commission. Let's not forget the role that they play in oversight.

Second, in this bill and elsewhere we have established or are about to establish some new specialized oversight bodies, including an independent grievance board and a military police complaints commission, to deal with areas of concern. We will also be shortly appointing an ombudsman.

Third, we have substantially increased annual and public reporting. Our strategy is designed to provide for more specialized review mechanisms tailored to specific areas. We think that our forces members will be better served by that. For example, the ombudsman will provide information, advice and guidance to all personnel, military and civilian, in need of help or who believe they have been treated improperly.

Also, Bill C-25 will create a military police complaints commission that will be independent and external to the department and the forces and will have the mandate to deal with complaints from the public about the conduct of military police in their policing duties. It will have the mandate to deal with complaints by military police concerning improper interference by members of the forces if that should occur.

The mandates of the new oversight bodies such as these will enable them to complement, rather than to conflict with, existing internal and external review bodies. With such new oversight and review bodies there is no need for an inspector general per se.

Turning now to the judge advocate general, it was suggested during debate that because the JAG owes his appointment to the Chief of the Defence Staff, he is too dependent upon him.

Mr. Chairman, let's keep in mind that the JAG is appointed by the Governor in Council on the recommendation of the minister.

[Translation]

In addition, under Bill C-25, Parliament will determine the duties that the JAG, who will have to report to the Minister, must perform.

[English]

Mr. Chairman, we believe we have done what is necessary to ensure the JAG's independence.

There was also some question during debate about the requirement that the JAG be a military officer. The performance of the JAG's duties require a thorough understanding and appreciation of the command structure of the Canadian Forces and the unique requirements of the military justice system as well a as a degree of experience with military legal issues. The benefits of having a military officer fill the position of JAG are clearly evidenced by our own practice and tradition and by that also of our allies.

It was also argued in debate that Bill C-25 would permit the JAG to interfere with the integrity and the independence of the new director of military prosecutions or the director of defence counsel services. I would point out that the structure put in place by Bill C-25 will permit the JAG to issue general instructions, such as charging and disclosure policies, and specific instructions in individual cases to the director of military prosecutions.

This structure, I should point out, largely parallels, as much as this legislation does, the one in place today for federal and provincial crown attorneys under the civilian justice system in this country. However, unlike most Canadian jurisdictions, the director has security of tenure and by law must make available to the public all general instructions received and any specific instructions, the release of which will not prejudice the administration of justice. So it's a very open and transparent procedure, parallel with what already exists in the civilian justice system.

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In the case of the director of defence counsel services, this director will be appointed by the minister. The JAG will provide only general policy guidelines, none related to any specific case. Again, all such general instructions will be available to the public—full accountability.

Mr. Chairman, during the second reading debate, some members expressed concern that Bill C-25 did not afford military judges sufficient independence and argued that their careers could be compromised by their judicial decisions.

This is simply not the case. Bill C-25 will provide for fixed five-year appointments for military judges, and as with other federal judges in the civilian court system, they'll be appointed by the Governor in Council. They will have financial security and they will be removable only for cause on the recommendation of an inquiry committee. So they have that same kind of independence.

[Translation]

I'm convinced that these measures will guarantee the independence of our military judges.

[English]

I would also remind members of this committee that the practice of appointing serving military officers with legal training to perform the function of military judges has been endorsed by both the Supreme Court of Canada and by the special advisory group headed by former Chief Justice Dickson, whose recommendations are mirrored in this legislation.

Mr. Chairman, during second reading debate some members also mentioned Bill C-25 not requiring the military police to report to the Attorney General on serious cases. That was a recommendation not from the special committee headed by Chief Justice Dickson but by the Somalia commission.

I simply disagree. The government believes that the required investigative independence can be achieved within the existing military structures. The special advisory group made several specific recommendations to ensure the independence of the National Investigation Service, that arm of our military police operation. We implemented these recommendations. We went even further. Bill C-25 adds another dimension to military police independence and professional accountability through the establishment of the external monitoring military police complaints commission.

Another important issue raised during the debate was that of the summary trial procedures and the application of the Canadian Charter of Rights and Freedoms. It was argued that in the case of disciplinary infractions punishable by detention, charges should be heard by an independent and impartial tribunal and that the accused should be represented by counsel.

Well, Mr. Chairman, the summary trial is a necessary instrument for both the command and the administration of justice within the Canadian Forces. It has been restructured in keeping with the purpose of summary proceedings to provide prompt but fair justice in respect of minor service offences and to contribute to the maintenance of military discipline and cohesion of armed forces in Canada and abroad in time of peace or in time of conflict.

In responding to the challenge to reform the summary trial system, procedural fairness has been substantially improved. In particular, an accused person will have the right to choose a court martial in all cases except those where the accused is charged with one of five traditional military offences, and the infraction is minor in nature. And most of them are minor in nature.

No accused person will be liable to a punishment of detention at a summary trial without having first chosen that forum as opposed to a court martial. This choice is fully informed on the basis of the accused receiving all relevant information and having the opportunity to consult with a lawyer, at no expense to him or her, prior to making the decision as to which procedure to choose.

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Mr. Chairman and members of the committee, it has been almost 50 years since the National Defence Act was enacted as the first comprehensive national defence statute. We all know that the world has changed and this country has changed significantly since that time, but the requirements remain to maintain our armed forces ready for combat, ready for peacekeeping, or, as we've seen in recent times in the ice storm, ready for domestic disaster assistance and other duties as may be assigned to them.

The amendments in Bill C-25 before you today, including several technical amendments I haven't really spoken to that the government is proposing, modernize the military justice system. They increase its effectiveness and its efficiency, increase its fairness, its transparency, and help to provide for our armed forces, our personnel who provide dedicated courageous service, and will enable them to complete their many duties in a fashion that is covered by a fair and open military justice system.

Thank you very much.

The Chairman: Thank you very much, Mr. Minister.

We now go to question period. We'll start with the official opposition with ten minutes.

Mr. Art Hanger (Calgary Northeast, Ref.): Thank you, Mr. Chairman, and thank you, Mr. Minister, for appearing, as well as those military personnel from DND.

This has been a very interesting bill, Bill C-25, and one that does have a reflection of what's in the Somalia report. I know there were a number of very definite recommendations in the Somalia report surrounding the judge advocate general, as well as the inspector general.

Mr. Minister, you made mention several times of the need for openness and a very clear view of what is happening to military justice, and I would have to say not just from the outside looking in but also within the process.

Since this has been on the table a long time, it would appear that there would be concern in DND, and especially the military justice system, that openness and fairness and justice would be delivered in real terms.

I'm going to reflect over the most recent case that actually came to the attention of the media. That is the court martial of Colonel Reno Vanier. He received an appallingly light sentence and he received a demotion, I understand, one level down and a fine of $10,000 to pay back. Now, this man clearly committed fraud, a criminal offence, and it was a prime example of what shouldn't be happening within the military, the things you just spoke of—clearly, the fairness, the justice, the openness.

After talking with a lot of the troops, I think there is a real feeling that there is a two-tier justice system in the military, and really, the changes you have made aren't dealing with those concerns at all.

There's no question there's a need for an independent office. You haven't struck it in Bill C-25, whether it be the office of the inspector general or clearly defining the investigatory or prosecutorial divisions within the armed forces. So it would appear it's going to be much the same. If you can't deal with it now, you're going to be continuing on the same line.

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The court martial of Colonel Vanier raises a number of important questions about fraud within the department, period. My first question is this: how widespread is the submission of false expense claims in the department? My second question is, were any of the other officers sanctioned for similar offences? By that I refer to a commanding officer recalled from the former Yugoslavia in 1995 for the very same reason. How many other officers were involved?

Mr. Arthur Eggleton: With respect to the case of Colonel Vanier, that matter is still within a period that is subject to appeal. I am reviewing the matter and therefore, because it could still be before the military judicial system, I'm not in a position to comment on that particular case.

Let me say in regard to your comments just prior to that, though, it is justice in real terms that these amendments are certainly going to ensure. This is modernizing legislation; this is bringing it in concert with the justice system that we're all subject to in this country. It is not a two-tier justice system. I am opposed to a two-tier justice system. I want to make sure that all our people of all ranks are dealt with fairly and I believe this is what will happen with these amendments in the administration of the military justice system.

The fishing expedition that you're on here—how widespread is fraud? I believe that infractions of that kind, while they do occur in any organization where you've got 100,000 people working for you...you're going to have the good, the bad and everything else. But the vast majority of those people are solid, dedicated citizens of this country who serve this country and Canadians with great pride. Be very careful, when you get into fishing expeditions, that you're not casting that brush in such a way that you're hauling down the character of some very fine people in all ranks in our Canadian Forces.

Certainly, anything we find out about any alleged fraud or anything else that's contrary to the law of Canada, contrary to the military law and the code of service discipline, is something we want to deal with. We want to weed it out. We want to deal with it.

You've also mentioned, in a separate vein, the independent office of inspector general. I don't know how many times I have to repeat this. We have covered the functions, we have covered the objective, we have covered the goal of external civilian oversight. We have covered the goal of having reports made regularly and publicly by a wide variety of officials, including the ombudsman and the grievance board. They'll all be available to this committee. They'll all be before the members of Parliament of this country.

We feel that the method they recommended is not the best method for us and we have suggested another method to accomplish the same goal. I repeat, the same goal. That's why we've said we've got a lot of things in place that work not too badly, but we need to make sure we get this external oversight and we think it could be done in this way rather than throwing out everything and starting over again. It sounds simplistic to have what you call an inspector general, but we are covering those functions, Mr. Chairman. We simply believe in another method of doing it.

Mr. Art Hanger: Getting back to my my initial questions again, are there other incidents of fraud under investigation now in the military?

Mr. Arthur Eggleton: I can't tell you. As I said, we have a large organization. Whether anything is under investigation... There are always things under investigation. I'm not aware of anything particular.

You're on a fishing expedition. I'm telling you that as these matters are brought to light, they will be dealt with in the appropriate fashion in the military justice system, period.

Mr. Art Hanger: So you're not prepared to advise this committee on other ongoing investigations. I think it's a key point, because we're all being informed here that the openness of this system is paramount, and the military justice system will deal with all ranks at the same level.

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There have been situations recorded both in the media as well as outside. Some are rumblings, but they may have some substance. Again, if other officers are sanctioned for fraudulent offences, shouldn't they be brought forward similar to Vanier?

Again, the commanding officer from the former Yugoslavia in 1995 was brought forward. What was the reason?

Mr. Arthur Eggleton: If you have any specific allegations you want to make, make them. We'll look into them.

Mr. Art Hanger: Sure.

Mr. Arthur Eggleton: But the matters that come before our military police or the investigative service are always examined thoroughly. They are brought into the military justice system, either through the summary process or through the court martial process, as the case may be, just as they are when such things occur in the civilian community through the justice system.

Mr. Art Hanger: One officer, Armand Roy, left the Canadian Forces with a cloud hanging over his head. He was ordered to pay back $80,000 in fraudulent claims he made against the department. It seems there are additional concerns about his behaviour. The government phone card, for instance, had been used quite extensively for several months after he left the department. Is he expected to pay this money back to the department?

Mr. Arthur Eggleton: I understand, with respect to the $80,000, it has been recovered, but the other matter of the use of credit cards is under investigation.

The Chairman: Thank you, Mr. Hanger.

[Translation]

Mr. Lebel.

Mr. Ghislain Lebel (Chambly, BQ): Mr. Minister, thank you for your presentation. I wonder why under military justice, the criminal offences with which military personnel are charged are not subject to the process provided for under Part XII of the Canadian Criminal Code and why summary convictions are not handled in accordance with Part XXIV of the Criminal Code. Why do we resort to a court martial for a serious criminal offence, a murder, for example? Shouldn't these kinds of cases be brought before regular Canadian courts such as the Federal Court of Appeal or the Supreme Court of Canada? Shouldn't the enforcement of justice among Canadian military personnel follow the same course as for other Canadians?

For example, the Supreme Court is the last court of resort in income tax cases where litigants have exhausted all other remedies before the Federal Court of Appeal. Why do we have this closed system of military justice? Is this really the best solution?

[English]

Mr. Arthur Eggleton: That goes to the heart of why we have a separate military justice system, as opposed to why they just don't go through the regular civilian system. This is a matter that has been addressed by a number of learned people in the legal profession. I mention the special advisory group headed by former Chief Justice Dickson, who recommended strongly that we should maintain a military justice system separate from the civilian justice system.

The Supreme Court of Canada itself, in a judgment rendered by the chief justice in 1992, also reaffirmed the necessity of a separate system of military tribunals. This is done because of the nature of the Canadian Forces and armed forces in general, who risk injury or death in the performance of their duties. There is a premium on discipline and cohesion of military units, because an action of an individual could in fact risk the life or limb of other people in the unit they're part of.

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We also need a system, so that indicates we need a system that is fair and just but prompt, because in a lot of these cases, particularly where it's minor offences, we want to be able to deal with them, discipline the person involved and return them back to service as quickly as possible.

We also need a portable system. We also need a system that can operate both inside Canada and outside Canada, wherever our troops may be in peacekeeping missions abroad. We are in many different countries all over the world, both in peacetime and, of course, in war.

So the system is justified. It needs to be operative quickly with people who have experience. The judges have experience in the military, so the system can work in a prompt but fair fashion, given the nature of the military's work and the cohesion and discipline necessary.

[Translation]

Mr. Ghislain Lebel: Mr. Minister, we have reduced our military strength from 100,000 to 60,000, and we have heard from certain witnesses that our Army could eventually be reduced to 45,000 members. The Army would have a pyramid structure that would include only a small number of very high-ranking officers at the top and expand toward the base. Won't we risk undermining the appearance that justice is being done, particularly when we bring charges against the Army's top brass and ask officers at the top to hear their cases? This is what we witnessed in the Vanier case and that could reoccur elsewhere.

I am in complete agreement on the principles that you stated in response to my first question. This is justified in a large clientele or group, but, since our Army is more and more being reduced, isn't there a risk that the interrelationship between the individuals in the pyramid will distort our principles of law, which you spoke of 30 seconds ago?

[English]

Mr. Arthur Eggleton: No, I don't believe so. By the way, we have no plans to go below 60,000 regular troops. We have 30,000 over and above that in terms of primary reserves, but our white paper commitment was to a force of about 60,000. But whether it's 60,000, 80,000 or 100,000, I think those people in the 60,000 are regular full-time members of the Canadian Forces. They deserve the best possible justice system—a fair and open system—and that's what these amendments will bring them.

[Translation]

Mr. Ghislain Lebel: Do you believe, sir, that justice as we know it is well administered? I don't want to talk about Mr. Vanier's case because you say it is still pending.

Let's talk instead about the case of Corporal Purnelle, whose appeal deadline has passed. Do you believe that Corporal Purnelle was treated in the same way as superior officers in the Canadian Army? We're not talking here about the most serious offences. You know the story of Corporal Purnelle. I believe this is an application of the La Fontaine fable about the animals stricken by the plague that turn on the donkey because he was defenceless. This is the impression that members currently have. Do you think this projects a good image of military justice?

[English]

Mr. Arthur Eggleton: We can dissect all sorts of individual cases, but we don't have all the information on those individual cases that the tribunals had before them, or the commanding officers had before them at the time. You have to assess all the information and make a judgment based on it.

There is allowance now and there's allowance in terms of the amendments, as there is in the civilian court system. They judge each of these cases on its merits. They look at all the facts and render what is deemed to be the appropriate decision and the appropriate sentence out of that. I don't think it serves the cause of reforming the military justice system for us to sit here and dissect and second-guess all the decisions that have gone before us. I'm saying that these amendments strengthen and modernize the system and make it more fair and open.

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[Translation]

The Chairman: Thank you very much.

[English]

If you noticed, we have two new faces at the head of the table here with us. One is Mr. Richard Dupuis, a legislative clerk. The other one is Mr. David Getz of the law division library. They will be helping us with Bill C-25.

We now go to Mr. Bob Wood.

Mr. Bob Wood (Nipissing, Lib.): Thank you, Mr. Chairman. Mr. Minister, I guess I'm somewhat uncomfortable with the provisions in this particular bill that completely eliminate the judicial responsibilities of the Minister of National Defence in the military justice system.

I think one of the reasons why you, Mr. Minister, have always had this kind of quasi-judicial role was to act as a check and balance against the internal military justice system. I know this is one of the reforms and that many of the others are designed to strengthen the judicial independence of the military system; however, the implications still worry me. I have discussed this with Colonel Fenske one other time.

I'd just like to ask you, Mr. Minister, about your personal opinion on this subject. Are you personally uncomfortable with acting as a final judge and jury on certain cases? Do you feel that this is a conflict of interest by having this role?

Mr. Arthur Eggleton: Yes and yes. I believe it is. I'm uncomfortable with it in the sense that my primary function is to deal with the overall management and direction of the Canadian Forces, not to handcuff myself by having to deal with specific cases in a quasi-judicial fashion.

I believe that does create a conflict. I believe there are times when I wish to act on what I believe to be the broader interests of the Canadian Forces, but I'm handcuffed by having to deal with a specific case that prevents me from doing some of the things that perhaps should be done. So I believe it does do this, as did the learned judges who participated in the special advisory committee.

The Somalia commission of inquiry thought the same thing. So when they came forward with recommendations that indicated that there should be in fact more of an overall management role only for the Minister of National Defence, I felt quite comfortable with those recommendations.

Mr. Bob Wood: The aim of Bill C-25 is to try to bring the military justice system more in line with the civil justice system. This is mainly due obviously to the fact that the current system dates back from the Second World War and is based partly on harsher wartime requirements for discipline and swift justice.

Since obviously we do not anticipate a large-scale war in the foreseeable future, I can understand amending the system so that it mimics civil justice. However, the Canadian Forces is still a military organization with the potential of having to go to war. I'd just like to know if the changes in Bill C-25 have been considered in terms of how they would affect wartime operational requirements. Has this possibility been fully considered?

Mr. Arthur Eggleton: Yes. Again, the people who were part of the special advisory committee have experience in the Canadian Forces in both peacetime and wartime and they understand the needs of the system under both of those circumstances. Yes, they have done so. That's the short answer.

Mr. Bob Wood: The sweeping changes in the bill have implications for all ranks in the services. I'm mostly concerned that these changes will come into effect and be imposed on an entrenched military justice mentality without adequate preparation. The lower ranks obviously are used to the current system, and officers and commanding officers are accustomed to the powers they now have. Bill C-25 is going to change the system drastically.

I guess what I would like to hear is what you see as the process for the transition and implementation of these changes so that there are no complications.

Mr. Arthur Eggleton: We are, of course, conducting training and adjustment programs.

Can you add something further to that, Vice-Admiral?

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Vice-Admiral Gary L. Garnett (Vice-Chief of the Defence Staff, Department of National Defence): There are two aspects. The first one is that we in fact already have a team composed of a couple of senior folks—national investigative service members and legal and administrative staff—travelling from base to base, headquarters to headquarters, to talk about the new military policing functions and the role of the investigative service with its independent investigations and ability to lay charges.

They have been going about the country. They're over half done, holding two-hour discussion periods, answering questions. This has been very well received as the introduction part of that process.

I think Colonel Fenske will talk about the educational process for commanding officers.

Colonel Allan F. Fenske (Office of the Judge Advocate General, Department of National Defence): Thank you, sir.

There are two aspects I would raise for you. The first one is that at the end of November 1997 regulations were issued with respect to summary trials. The summary trials process, as many of you know, in fact deals with about 90% of our discipline. A lot of change has been built into that already, and there's training ongoing for that now.

The second thing is that one of the recommendations—and this was made in different ways, but both from the commission and the Dickson review group—was that there be more training with respect to military justice responsibilities. This is a big job, but we're working on it now.

For example, we expect that by the fall of this year there should be a summary trial certification process in place so that people who must administer the summary trial process are in fact taught the tools of the trade.

Mr. Bob Wood: I have one more quick question. One of the problems I've observed, especially in the military justice system, is the power that commanding officers have over their ranks. In the past, on occasion, I know some of us probably have been asked to intervene because of what was perceived as unfair or harsh treatment by a commanding officer.

I guess I'm pleased to see that Bill C-25 is going to reduce the powers of commanding officers to make, as you say, summary punishments. However, they will still retain considerable powers, and that, of course, is the ability to detain a soldier for 30 days or the ability to demote a member by one full rank.

With the extensive reforms proposed in Bill C-25, why was it deemed necessary to preserve these considerable powers for commanding officers?

Mr. Arthur Eggleton: The power of the commanding officer will be altered by these amendments. For example, a commanding officer would no longer have the authority to dismiss a charge. A commanding officer will not be able to try a case in which the officer—that is, an officer from the military police—has laid a charge. A commanding officer must obtain legal advice before laying a charge in respect of any offence or causing a charge to proceed by summary trial for all minor offences.

So there are some changes being proposed here. In the serious or sensitive crime area the NIS can carry out their investigation and lay the charge, and the commanding officer cannot have that charge withdrawn. These are major changes.

But it's still important that the commanding officer be involved in this whole process. As I said, one of the basic reasons for the military justice system is the question of discipline and cohesion of the different units of the forces. The commanding officer is very important, of course, to that whole system.

I'll ask the officers here whether they have anything to add to that.

Col Allan Fenske: Just one thing. The question as posed does perhaps suggest there might not have been enough limitations on the jurisdiction and on the powers of punishment of commanding officers. I would simply underline a couple of things.

One, you can't see it in the bill, but the jurisdiction of summary trials has now been telescoped down, after an extensive review run through Chief Justice Dickson's advisory group, to ensure that the jurisdiction of summary trials is the jurisdiction that's needed for the maintenance of minor unit discipline, not for the charges of murder and not for dealing with charges that have CF-wide implications.

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The second thing that I would underline is that the powers of punishment have also been re-examined extensively, both within the military and by Chief Justice Dickson's group. They also have been limited.

In particular, the power to impose detention is now down to 30 days, and if you look carefully at the indicia of the punishment of detention, you will see that its long-term effects have been removed. Under this bill, there is no automatic reduction in a rank that has to be re-earned. It's limited to 30 days, and the individual is paid as a private during that detention.

The reason for that is that detention is intended to be a disciplinary tool, not a penal sanction—a disciplinary one, not a criminal one. So a lot of work has gone into it from the institution in this regard.

The Chairman: Thank you very much.

Mr. Axworthy.

Mr. Chris Axworthy (Saskatoon—Rosetown—Biggar, NDP): Thanks very much. I apologize for being late, folks, the minister and the committee. I had a chance to read through his comments as best I could while the other questions were going on, and as a relatively new person to the responsibility of defence, I want to thank the minister for his cooperation through this beginning process. Not all ministers are as helpful as his department has been.

I also want to say in regard to Bill C-25 that I don't think anybody could be but struck by the significant changes that have been introduced here. It's of course normal for opposition parties to say you should go further, and indeed sometimes for backbench members of the government to say that.

But there are a couple of questions in that regard that I think need to be asked, and need to be answered in a slightly different way than the minister earlier did. I think it's one thing to assert that the recommendations from the Somalia inquiry about the independent office of an inspector general were not accepted by the minister and by the armed services; I think it's another thing to explain why that was the case. I can understand in a chain-of-command organization and the nature of a military organization that these are very, very difficult questions.

I have a specific question that I'll come to in a moment, but I think what we're going to find is that people will not be confident that things have changed unless there is a significant outside review of the process.

My only contact with the armed services were five not altogether successful years in a cadet force. You know, because the person is in charge of you, they can tell you to do stupid things and you have to do it. Even when it's pointed out to the person that it's stupid, you still have to do it.

That's not a very creative environment in which to go to war or indeed to conduct the many operations that the armed services have. So I think there has to be something more outside than is presently the case.

I'd ask the minister for a clear rationale of that. Why not more independence? Why not have a clearer kind of outside process? And if we're really serious about getting to the bottom of some of the problems—and they would be minor in the context of the overall operations—why not protect those who blow the whistle on the things that have to be investigated if we really want to get to the bottom of some of these things?

Mr. Arthur Eggleton: As I indicated earlier, I believe we are covering off these functions, this external overview, in a number of other ways—for example, the ombudsman. The ombudsman will be a civilian, will be external to the chain of command and to the Canadian Forces, and will submit a report to me that will be put out publicly, placed before this committee, placed before Parliament.

The grievance board, which will take over some of the examination that perhaps previously the minister did, will now look at it from an external standpoint of the chain of command—again, independent, external, civilian—and will put out a report.

The military police complaints commission will put out a report publicly, again an external overview.

Internally the JAG, the CDS, all are putting out reports. So there will be very substantial examination of what's going on.

• 1625

As I said, this deals with a system as it is, it brings improvements to the system. If it doesn't work, we can always look at other combinations, or other ways of accomplishing the same thing, but I believe this will work. I believe this will provide the external overview that we need, and I believe it will demonstrate that way through the openness and transparency of the system and the reports they will provide.

In regard to blowing the whistle, there's an obligation on the part of military personnel to uphold the code of service discipline, to bring to the attention of their superior officers matters that in fact could affect the unit, could affect them. These matters could have a very profound effect, a negative effect, on them and so it's necessary to be able to do that. That is part of their duty, without any penalty at all being visited upon them for doing it. That's, again, part of the discipline of the system.

Mr. Chris Axworthy: Thank you. I think, though, you can understand that those who are going to be at the pointed end of some of these decisions will not be satisfied with that kind of justification. There will always be those, and I think legitimately so, who would want something more independent than that.

I have a question, which I hope is a fair question, that I think deals with this question. We all remember Sergeant Kipling, who refused to receive a shot against anthrax. There are significant numbers of serious people who consider that this shot in the past contributed to Gulf War Syndrome, and it hasn't, as I understand it, been fully authorized by the department itself. So here's a situation in which somebody is saying to him, “You have to have this stuff stuck in your arm”, and he's saying, “No, I don't want to”, and he's threatened with court martial under those circumstances. Mr. Minister, I wonder what you would have done if you had been Sergeant Kipling?

Mr. Arthur Eggleton: I should tell you I've had my anthrax shot—I was just in Kuwait, in fact, visiting our troops there—and as near as I can make out, I didn't have any side effects from it.

As you will appreciate, I can't comment on the specifics of that case because it is a matter that is still before the military justice system. It's still an active matter under consideration and investigation with the possibility of charges being laid. In fact, I'm not sure if a charge has been laid or whether it's still under investigation.

Col Allan Fenske: A charge has been laid.

Mr. Arthur Eggleton: A charge has been laid, so it still is before the military justice system, so it wouldn't be appropriate for me to comment on it as such.

Mr. Chris Axworthy: Just very briefly, I think to the public at large that does illustrate a significant problem. I certainly wouldn't want somebody sticking something in my arm that wasn't of my choice, and here he wasn't in a battlefield environment; he was on his way to one. I think those kinds of decisions are things that legitimately people are concerned about and would be more comfortable with if there was a more independent approach to how you protect the rights of those who disagree.

I understand a second soldier has refused, too. I don't want to put it this way, really, but what's there to be afraid of in having a completely independent review of the way in which these justice decisions in the military are being conducted?

Mr. Arthur Eggleton: Without getting into the specifics of the case that you're talking about, as I said, under what we are proposing, there would be an ombudsman; there's a grievance board; there currently is a chief of review services. So there are all sorts of opportunities to grieve, or to complain and to have these matters looked at by somebody quite independent from the chain of command. There is that opportunity in what we are proposing and what we are carrying out in terms of reforms to the system.

Mr. Chris Axworthy: He's been charged with something.

Mr. Arthur Eggleton: Yes, but I told you I can't comment on the specifics. The matter is before a military justice tribunal and I can't comment on that specifically—and I think you understand that. That's fundamental to our justice system, whether it's military or civilian justice, particularly since up to this point in time, until these amendments are passed, I still am part of the justice system in terms of my quasi-judicial function. So I'm not in a position to comment on it. So it's very difficult to cover this subject that you want me to comment on without impinging upon that jurisdiction.

• 1630

But let me also say, in addition to the grievance and ombudsman kind of roles and dealing with issues where there are complaints in general, that we have some fine medical officers, doctors, in our system who look at each of the circumstances and determine what in fact is in the best interests of our troops.

I remember the concern in the House of Commons with respect to the possibility that we weren't getting them the anthrax vaccine fast enough. There was a concern that Saddam Hussein would go and unleash all these chemical or biological weapons and that they were going to be unprotected.

So we moved—this was the desire, I sensed, of the House and the Canadian public—to make sure that we protected our troops. We've done that. Out of all of our troops there, out of 400, there was one...

You say there's a second one, but I'm not sure of that. Is there a second one?

You know, most of them took it for their protection. But I can't comment, as I said, on the specific case or how it's going to be handled because it is before the justice system.

The Chairman: Thank you.

Mr. Price.

Mr. David Price (Compton—Stanstead, PC): I won't mention anthrax.

Mr. Chairman, first, I do apologize for being late, but one of my constituents received a gold metal and a silver medal in the Olympics, and I did have to greet them.

We're really following along after the Somalia inquiry and report here. A lot of what is in Bill C-25 comes out of that. But you're referring quite a bit to Chief Justice Dickson's report. I'd just like to read you a quotation that he stated after he submitted his report. This was last November. He said, “Something is drastically wrong when the public feels that its military is incompetent and led by an inept if not corrupt hierarchy”. That's rather heavy coming out after he has finished on a report like that. I wonder if you have any comments on that, to start off with.

Mr. Arthur Eggleton: It's easy to take a quote. You could take my quotes. I could take your quotes. It's easy to take them out of context.

I heard a speech by former Chief Justice Dickson when he received the Vimy Award from the Conference of Defence Associations. He was praising our military. He was praising the military justice system.

He says it's something that needs, yes, some modifications, and those are the modifications that we're putting into effect through Bill C-25. He said in fact in his report that he had a very high opinion of the military justice system.

I think you have to take this all in context. He's also referring to what other people have said, so it might be interesting to know what he said after the comment you just made—

Mr. David Price: That's what I'll follow—

Mr. Arthur Eggleton: —because he's certainly not then condemning either the military justice system or the officer ranks of the Canadian Forces.

Mr. David Price: No, but obviously he was saying there needed to be a lot of work done to it.

Mr. Arthur Eggleton: Right, and we're implementing what he suggested.

Mr. David Price: I'll continue with what Mr. Wood was talking about in terms of the military summary trials. One of the things that tends to bother my party, let's say, is that—we were told this by National Defence—there is no formal training at all for the commanders. This was one of Chief Justice Dickson's major recommendations. It had to do with a certification process that allows officers to hold summary trials. This issue hasn't been addressed by the bill such that they do have some type of training.

Mr. Arthur Eggleton: But that's not something you would address in a piece of legislation; you would address it in the regulations and administration of the act, and that definitely will be done.

Earlier we had some comments from the admiral and the colonel as to how those changes in terms of appropriate training were already in process They could perhaps give us more on that.

Mr. David Price: I'd love to hear it.

• 1635

Col Allan Fenske: Thank you, sir.

I had mentioned earlier that, as you say, Chief Justice Dickson, and the Somalia commission also, noted this authority without necessarily having all the training that you might want. So they recommended that we do something like this. We've embraced this, and there's a lot of tough sledding going on right now because you can imagine having to identify all of the slots where people could be in positions to administer summary trials or hold summary trials and then figure out how you get those people into a training program. All of that's going on now, and the hope is—and it's a target—that we will have this up and running in the fall of this year. At that time there will be regular certification training for people who move into command slots where they will hold summary trials.

Mr. David Price: So it will be a formal set-up.

Col Allan Fenske: Yes, sir.

Mr. David Price: That's good to hear. I wish we would have known.

Also, in preparation for these hearings on Bill C-25, I have talked to commissioner Peter Desbarats of the Somalia inquiry. I intend to ask him to come before the committee, and he has agreed. I wonder how the minister feels about it. Would you be bothered by it?

Mr. Arthur Eggleton: Would I be bothered? Would it make any difference?

Mr. David Price: It probably would. From that side, it would make a difference.

Mr. Arthur Eggleton: Is he coming to sell his book, or what?

No, this committee should do whatever it feels is necessary to do to get the information you want to have with respect to dealing with Bill C-25. So I don't have any feeling on it one way or the other in that respect, other than to say that generality, that you should do what's necessary to be done.

As I said, what happened in Bill C-25 is pretty much a mirroring of the special advisory group under former Chief Justice Dickson; it does not mirror the Somalia commission inquiry.

Mr. David Price:

[Editor's Note: Inaudible]

Mr. Arthur Eggleton: Most of it does, but some things are clearly different from the Somalia commission.

Mr. David Price: I still have a bit of time.

The Chairman: Yes, you have two minutes.

Mr. David Price: Actually, one of the recommendations was that:

The National Defence Act be amended to provide clearly that an individual in the Canadian Forces or any civilian can lay a complaint with Military Police without fear of reprisal and without having first to raise the complaint with the chain of command.

That recommendation doesn't appear at all in the document, and yet a lot of different areas thought it would be good to be in the bill.

Mr. Arthur Eggleton: I answered that earlier with respect to whistle-blowing, but as I said at that time, it is their duty in fact to uphold the military law and the code of service discipline and to report these circumstances and not to in any way be punished for doing that.

With the openness of the system that we are proposing and that we are putting into effect, through everything, as I said, from an ombudsman to a grievance board and so on, I think there is every opportunity for anybody who feels that they've not been dealt with fairly to in fact complain to these people, who have every opportunity outside of the chain of the command to be able to deal with this matter.

The Chairman: Thank you, Mr. Price.

We'll now go to the five-minute round. Mr. Benoit is first, Mr. Pratt is second, and so far Mr. Hart is third.

Mr. Leon E. Benoit (Lakeland, Ref.): Mr. Hanger is going to take one quick question first.

The Chairman: Okay, this will come out of your five minutes.

Mr. Leon Benoit: No, we get ten minutes on the second round.

Mr. Art Hanger: I want to ask a quality of life question, Mr. Minister. It deals with the clothing shortages, especially for the soldiers going to Bosnia.

I know my colleague Leon Benoit asked a question on February 18 in that regard, and you said that we didn't know what we were talking about, that this was old news and the problem had been dealt with. That was on February 18.

• 1640

I have a document here dated March 3, clearly indicating that the problem has not been solved and that in fact there are no clothes for the third rotation into Bosnia. And this document goes on to say that there won't be combat clothes until later this year.

So obviously this clothe-the-soldier effort seems to be falling by the wayside. Do you expect our troops to go into Bosnia without any pants?

Some hon. members: Oh, oh.

Mr. Arthur Eggleton: What I said on February 18—that you didn't know what you were talking about—I stick by it.

Some hon. members: Oh, oh.

Mr. Arthur Eggleton: Any clothing that is kept next to the body is not something that we expect people to return or go without or hand down to other people.

General clothing is not what we're talking about here. We have specialized combat clothing, clothing or jackets or other things that are part of that particular theatre of operation. For example, where I was last week, in Kuwait, there's obviously a special kind of clothing and special things you need in a place like that which you don't need to bring back here with you.

I think you're getting a little confused about the difference between—

Mr. Leon Benoit: No.

Mr. Arthur Eggleton: —general clothing and combat clothing. But notwithstanding that, there are still some difficulties we're trying to address. But I wonder if the vice-chief could add more to that.

Mr. Art Hanger: I wonder, Mr. Minister, if I might give you the document.

Mr. Arthur Eggleton: Yes, you can give me any document you like, but let's—

The Chairman: Maybe we're just off the subject a little. We should be talking about Bill C-25. Could we stick to the subject at hand here?

Mr. Benoit.

Mr. Leon Benoit: Yes. With all due respect, Mr. Minister, we heard very clearly at Petawawa, as we'd heard at bases before, that these people don't have the proper combat clothing, right from the boots up, and they're concerned about that. They're really concerned about that because they're heading out again in a few months. You may make light of it, but it's a serious matter.

Mr. Arthur Eggleton: No, I don't make light of it, Mr. Chairman. Do you want me to answer this?

Mr. Leon Benoit: Now, in regard to the questions about this bill, Mr. Minister... By the way, good afternoon, Mr. Minister, it's a pleasure to have you here.

In regard to this bill, I'm not in fact convinced, as Mr. Axworthy was, or appeared to be, that this bill is really going to have any significant impact at all. And just for example, let's take a couple of issues.

First of all, we heard clearly from the soldiers as we were out and around to the different bases, most recently in Petawawa this week, that they are really concerned about a two-tier justice system in the military. They made that extremely clear. They're upset about what happened to Lieutenant-General Roy. In his case, he steals $70,000 and then he has this phone card that he used for—

Mr. Arthur Eggleton: The money was paid back.

Mr. Leon Benoit: Oh, it's okay to steal if you pay the money back.

Mr. Arthur Eggleton: No, I didn't say it was, but I told you he paid it back.

Mr. Leon Benoit: That's just great. How was it paid back? Was it paid back from the severance package? How was that money paid back?

Mr. Arthur Eggleton: I couldn't tell you.

Mr. Leon Benoit: You don't know?

Mr. Arthur Eggleton: I couldn't tell you. I don't know.

Mr. Leon Benoit: I'd sure like to know how it was paid back.

Mr. Arthur Eggleton: But it was paid back. He met the obligation. That doesn't excuse what he did; I agree.

Mr. Leon Benoit: It sure doesn't. And why was he allowed to keep his card after he was fired?

Mr. Arthur Eggleton: It's under investigation.

Mr. Leon Benoit: That's under investigation?

Mr. Arthur Eggleton: Yes.

Mr. Leon Benoit: You have no answers. You see, this demonstrates—

Mr. Arthur Eggleton: No. Things are under investigation by the police. Don't you understand? Mr. Hanger should understand this. When the police are investigating something, you obviously can't give an answer until the investigation's complete. But all of that will eventually come out.

Mr. Leon Benoit: But what's become very clear, Mr. Minister, is that you haven't been kept informed by the department of what's going on, on this issue and others, and that applies to Lieutenant-General Roy, it applies to Colonel Vanier...and they're upset about that as well.

You haven't been told, you see, and this, I think, demonstrates clearly the importance of having this independent inspector general. It's not only to protect taxpayers and the general public; it's to protect you, as the minister, when the department keeps you in the dark, as they clearly have on some of these issues.

I would suggest that if we had the independent inspector general, we wouldn't go through a minister a year. I feel sorry for you, Mr. Minister, being in that position of being kept in the dark. I feel sorry for the past ministers who lost their jobs because they were kept in the dark by their department. I think that's inexcusable. And I want you to explain to me how these changes in legislation are going to help protect you and, more importantly, quite frankly, how these changes are going to protect the taxpayers of this country against this type of action, the stealing of their money.

• 1645

Mr. Arthur Eggleton: I don't believe I'm kept in the dark, and I've responded to each one of these cases. I'm aware of where they stand, but I'm also aware that they're still in the judicial system. They're still under investigation, and you well know—

Mr. Leon Benoit: Maybe you can explain to me—

Mr. Arthur Eggleton: —that I can't comment—

Mr. Leon Benoit: —just to get to this bill, Mr. Minister, how this legislation is going to protect against situations like those that have happened with Lieutenant-General Roy and with Colonel Vanier. If you could, please explain it really slowly so that I can understand it step by step. Could you just do that? If you can explain that to me clearly, so that it really makes sense, then I'll give you that this legislation has done something worth while.

Mr. Arthur Eggleton: It will treat people in a fair and equitable fashion in a military justice system that will be brought completely up to date, that will, in many cases—

Mr. Leon Benoit: Detail, Mr. Minister. Step by step, how will this—

The Chairman: Mr. Benoit, could you let him answer, because your time is just over.

Mr. Leon Benoit: That's why I'm pressing for an answer, Mr. Chair, with all due respect.

Mr. Arthur Eggleton: Any laws and the penalties that go with any laws act as deterrents. When it comes to the military justice system, a lot of the penalties are even more severe than what you would find in the civilian system simply because it is necessary to maintain discipline, morale and—

Mr. Leon Benoit: What about the question, Mr. Minister? I deserve an answer to that question.

Mr. Arthur Eggleton: I am answering. You just don't understand the answer I'm giving. I'm sorry, I guess I'll speak more slowly.

What I'm saying—I'm sorry, I didn't mean to be flippant about that—is that this system acts if somebody does step out of line. First of all, it hopefully acts as a deterrent to help keep people in line. For most people, that's not a problem at all because they understand the system. They join it because they want to serve and they want to do it in a proper fashion, and they respect the system.

The number of cases we have of fraud are small in comparison to the size of the force and the good work that is done by the people in the force. Let's bear that in mind.

Where people do get out of line, that system is there to make sure they are in fact dealt with, and these amendments help to make sure they're dealt with in a fair and equitable way. It's a system that's consistent with Canadian values, and it takes into account the Charter of Rights and Freedoms and the civilian court system in this country.

Mr. Leon Benoit: Mr. Minister—

The Chairman: Thank you, Mr. Minister.

Mr. Pratt.

Mr. David Pratt (Nepean—Carleton, Lib.): Thank you, Mr. Chair. I presume that we on this side are going to get the same degree of leeway Mr. Benoit has just received in terms of his time.

My question, Mr. Minister, relates to the issue of the abolition of the death penalty from the National Defence Act. It's certainly something that I support very strongly. Based on your knowledge of the act and of the laws of our allies in terms of, say, the U.S. and the U.K., I'm just wondering whether or not we are in sync with those countries as far as abolishing the death penalty from the military justice system is concerned.

Mr. Arthur Eggleton: I've just asked about some of our allies. In general, I would say we are in sync, but not all of them are. He can give you more detail.

Col Allan Fenske: I can't give you chapter and verse here today, although we do have it.

Basically, the United States still uses the death penalty, but a large number of the NATO allies and the G-7 countries that we find ourselves aligned with have abandoned the death penalty in terms of their criminal justice systems. I think the best generality to make here is that by getting rid of the death penalty, we will be joining a large and growing majority of our like-minded international nations.

Mr. Arthur Eggleton: I might add that we've never used the death penalty under the provision of the National Defence Act that came into effect fifty years ago. The last time the death penalty was used, was carried out, was in World War II, and then only in one case. There were a very substantial number of cases in which it was used in World War I, but it is our feeling that it is not needed as part of the military justice system. It would replace a life imprisonment in some very severe cases where it could be used, but again, we think we're bringing it into accordance with the civilian system—we abolished capital punishment back in 1976—and this would be an appropriate move to make at this time.

• 1650

Mr. David Pratt: The other question I have for you relates to the issue of mistakes that are made by the justice system. Over the last number of years, we've seen some very high-profile mistakes where there were wrongful convictions, and in some cases people spent many years in jail because the justice system failed them.

I'm just wondering if you're reluctant to lose some of the powers you currently have under the act that would allow for ministerial intervention in cases where there has been a miscarriage of justice, and where new evidence comes to light that should prompt a very quick reassessment or other type of judicial action that would get the ball rolling fairly quickly in terms of responding to an incident of that nature. Are you at all concerned that the process that will be put in place won't have the flexibility that ministerial discretion would provide in those sorts of circumstances?

Mr. Arthur Eggleton: I believe it will have the kind of flexibility and safeguards we need. There's no perfect system. The civilian system and some of the cases of injustice we've seen in our judicial system in this country indicate that. I don't pretend to suggest the military system would have any greater degree of perfection than that, nor do I believe it will have any greater problems in dealing with things in an appropriate fashion. But I'm not concerned about being out of that system.

I'd like Colonel Fenske to talk a little about how that system helps to ensure as best we can, short of perfection, that justice is done through appeals and other mechanisms that provide for review of new information or whatever.

Col Allan Fenske: Thank you, Minister. I will only make one or two short points.

First, there is a full appellate system, and it's not well known but we have specialist military tribunals working at the first instance level, but the appeals from these levels go to the court martial appeal court, which is a court comprised of civilian federal judges. You can also draw from a bank of superior court judges across the country. That appeal process also goes to the Supreme Court of Canada. It gives a slightly more liberal access to the Supreme Court than the civil criminal justice system, but that's an opinion.

The second point I would raise for you is that while this bill substantially reduces the ability of the minister and military authorities to review and deal administratively with the findings of courts martial, it still does preserve, for example, the right to petition for a review on the grounds of new evidence. You would find at proposed section 249.16 of the bill a provision that is something of a blend between our current provision and what occurs in the Canadian criminal justice system. So I believe the bill does preserve the kinds of remedies you would expect.

Mr. David Pratt: Thank you, Mr. Chair.

The Chairman: Thank you, Mr. Pratt. Mr. Hart.

Mr. Jim Hart (Okanagan—Coquihalla, Ref.): Thank you very much. It's nice to see you again, Mr. Minister, Admiral Garnett and Colonel Fenske. It's nice to have you here.

What I'd like to do, if it's acceptable, is just go through a couple of questions. I have three or four. I'll get rid of them and then I'll let you folks answer them.

First of all, I would like to come back to the minister's statements. I know you've given us some indication of the things that came up in second reading that we were concerned about, but I have to tell you I'm not convinced yet, Mr. Minister.

I would also like to point out that although you say 83% of the Somalia inquiry's recommendations were taken into account by Bill C-25, the government shut down the Somalia inquiry when it didn't have its work completed. The mandate you gave it was not completed, therefore 83% is a pretty generous figure on our part.

Bill C-25 is a very important piece of legislation. It's overdue legislation, so I do congratulate you for what you are trying to do. But I still think there are possibly constitutional problems with this piece of legislation, and I would ask the minister if he has considered taking this piece of legislation to the Supreme Court of Canada for comment prior to bringing the legislation to the House.

• 1655

The reason for that is because we have seen so many times legislation coming from the government ending up being challenged in the Supreme Court, which overturns a decision. I'm wondering if there may be a possibility that this could be looked at.

I don't think anyone would question the need for obedience to lawful commands, which is the centrepiece of an effective military organization. No historian in this country would question unflinching discipline as appropriate when it's applied in the military context. So it's very important.

I think the other aspect is that the rank and file soldiers, sailors and airmen in the Canadian Forces also must have confidence in the military justice system, and I think that is what we've seen is lacking. It was lacking for quite a number of years and it still is lacking, and I'm not certain that Bill C-25 addresses that.

I would like to move to proposed sections 9 and 10 of the bill specifically at this point. Proposed subsection 9(1) states that the Governor in Council must appoint an officer as the judge advocate general. If implemented, this means that no civilian jurist could ever be appointed to this position.

I would ask the minister this. With recent recommendations given by the Somalia inquiry to replace the JAG office with an independent institution that has separate judicial and advisory roles, why has he ignored these recommendations and eliminated the possibility of appointing a civilian jurist to the office of JAG?

Number two, regarding proposed section 9.1, it extends the legal adviser duties of the JAG to include the Governor General. I find this most curious. We all know that the Governor General is the Commander-in-Chief of the Canadian Forces, but primarily it really doesn't have an administrative role in the operations of the Canadian Forces. In fact, the provision of legal advice from a military lawyer to a head of state in a democracy is unusual, if not bizarre, in my view, and is contrary to our constitutional traditions. Why has the office of the Governor General been included when that office does not have any real role in the decision-making processes of the Canadian Forces?

My final question—depending on time, I could probably go on for awhile—proposed section 9.4 of the bill stipulates that the JAG hold the rank that is not less than brigadier-general.

Mr. Minister, I would question the wisdom of this. With the numerically challenged Canadian Forces, why on earth would we have to have a judge advocate general who would have to be any higher in rank than colonel? This is a concern to me, and I don't think we need to have the rank of general in that particular office.

In closing, I would like to say that to me, with some 10 years of military experience—it isn't very much, but I take pride in that—I would like the assurances of this government that we don't see the recurrence of things that the Court of Appeal referred to when they overturned the decision in the Commander Marsaw case. In the Court of Appeal decision, when they could not follow through with that conviction, they made six points.

The first was that there was a bias in respect to the court martial panel of officers and both prosecution and defence counsel, each of whom came from the staff of the JAG.

Second, character evidence and hearsay was permitted in contravention of common law.

Third, abusive cross-examination by the prosecutor of Lieutenant-Commander Marsaw was permitted.

Fourth, insulting and improper questions by the prosecutor were accepted.

Fifth, the prosecutor's closing address was inflammatory and otherwise improper.

Sixth, the presiding judge advocate failed to properly direct the court to ignore these remarks.

Now, that's very instructive when it comes to a review of the military justice system, and I would like the assurance from this minister that we're not going to see that ever happen again.

The Chairman: Mr. Minister, you have about a minute to answer.

Mr. Arthur Eggleton: Oh, my goodness.

First of all, with respect to this question, I think you were trying to suggest that you weren't convinced about the inspector general situation, although you didn't mention that by name. I want to point out that there is a five-year review of what we're suggesting here in terms of amendments. So I believe what's being suggested by us is going to work, that the goals and purposes will be met, but a five-year review will certainly give us the opportunity to examine all of that.

• 1700

I turn to your question of constitutional clearance. These amendments are built on a lot of case history, both in civilian courts as well as in military justice cases, and we're quite confident about putting them forward. As I indicated earlier, the separate military justice system is already a matter that was before the Supreme Court with a decision back in 1992, so overall we think there is ample precedent for putting these forward.

I agree with you that confidence in the system is important. It not only comes in terms of these amendments, it comes in terms of how it's administered, and I think time will demonstrate that in fact it will be a fair system.

You mentioned that the Somalia commission didn't recommend that the JAG per se remain. Again, I point out the special advisory group headed by a former chief justice did. In most of the countries, our allies have a position that it is a long history and tradition to be called the judge advocate general, and while we have done in essence a lot of the separation and independence that the Somalia commission was looking for, we've maintained the title of JAG.

With respect to the Governor General, he is indeed the commander-in-chief but operates through the Governor in Council, which means the cabinet and the Minister of National Defence, etc. Why the rank of brigadier-general? Well, the JAG needs to be able to advise the minister on a direct level, the Chief of the Defence Staff, the deputy minister. We feel it should be somebody of a high rank, showing the importance of the position. I might add that the rank is not owed to the chain of command. It's in fact established through Parliament, through the position that would be established as a result of this amendment. So I think it's an appropriate law.

All the criticisms you cite in the Marsaw case...I mean, you can cite lots of those things. That's why cases get appealed, whether it's the military justice system or the civilian justice system. Those kinds of criticisms are sometimes a matter of opinion, sometimes warranted, whatever, and are cited in many different cases every day, every year in our country. We have to take them seriously, and they are of course taken seriously. Changes are made that bear that in mind. That's why we have an appeal system. Obviously, appeals disagree with a number of things that come out from the first court of jurisdiction.

In the case of Marsaw, of course, there was a settlement of that matter to the satisfaction of both the Canadian Forces and the department as well as to Mr. Marsaw.

The Chairman: Thank you very much.

[Translation]

Mr. Lebel.

Mr. Ghislain Lebel: Mr. Minister, do you intend to adopt a code of criminal procedure in response to the amendments proposed in Bill C-25?

Col Allan Fenske: The procedures that apply to service tribunals or military tribunals are described in the Act, including in the regulations that were drafted pursuant to section 12 of the Act. The Queen's Regulations and Orders contain all the procedures for the courts martial and summary trials.

Mr. Ghislain Lebel: For example, do they contain the procedures concerning the admission of evidence, hearsay, etc.?

Col Allan Fenske: Yes. One section in the Act gives us the power to make evidentiary regulations. Military evidence regulations are published and apply to all courts martial.

• 1705

Mr. Ghislain Lebel: We see that there is a Court Martial Appeal Court, but there appears to be no mention of any reference to the Supreme Court of Canada. Is this how matters would proceed?

Col Allan Fenske: Bill C-25 does not really address the issue of the Court Martial Appeal Court or the Supreme Court. Not many changes are proposed to the sections that apply to appeals. Certain sections of the Act address the right of appeal to the Court Martial Appeal Court and to the Supreme Court. It's all there, and both courts obviously establish their own rules and procedures.

Mr. Ghislain Lebel: Thank you.

The Chairman: Thank you very much.

Mr. Richardson.

[English]

Mr. John Richardson (Perth—Middlesex, Lib.): Thank you, Mr. Chairman.

I'd like to turn to something that Colonel Fenske brought up earlier, to help the committee to understand the program of preparing people to sit on the boards, and that is the people who will be adjudicating and other people who will be supporting on the boards.

Could you give us some insights? Would this be incorporated in officer training right through from office cadet to the rank of lieutenant-colonel, say, at the Canadian Forces Staff College? Would it be an integral part of all that kind of training, or would it be a one-shot affair?

Col Allan Fenske: It's a very complicated business, sir, because under our procedures you have summary trials that can be conducted by superior commanders who are senior officers, generally officers of general rank, or certain colonels who are designated for certain purposes.

Second, you have summary trials that are conducted by commanding officers. And third, you have summary trials that are conducted by more junior officers within a unit to whom summary trial powers are delegated.

The result is this three-tier system and a great diversity in the ranks and trades of officers who would be the subject of this kind of certification and training.

The best I can do for you extemporaneously is to say that it is planned that you would not be able to take a command slot where you would have to conduct summary trials—that could be as a deputy commanding officer of an infantry battalion, for example, or as a commanding officer—without first having the training.

The specifics of the training is still being worked out, but generally we're talking about probably a two-day program in which individuals go intensively through the procedures and the underlying theory, with some sort of exam at the end.

VAdm Gary Garnett: Let me pick up on it.

The Chairman: Yes, Vice-Admiral Garnett.

VAdm Gary Garnett: I think Mr. Richardson was asking about what one could call the experience factor. Perhaps I could talk a little bit about naval training, which perhaps I'm aware of better than the other two services. But certainly for as a naval cadet at HMCS Venture, one of your courses as part of your basic naval training package would be related to summary trials.

As a very junior officer, in your first appointment on board a ship, you would have a duty as a system divisional officer. This would take you to observe summary trials, either from the commanding officer or a delegated officer, and be what's called an assisting officer or assistant assisting officer for somebody.

At the next level, a deputy level on board a ship after more training ashore, you would for the first time be a divisional officer, where one of your duties would be to assist members of your division in this justice system at the very low level.

By the time you would actually reach being a delegated officer, you would have had at least upwards of ten years of experience and two or three levels of education, if you like, through the experience process in relation to that.

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So what we're putting on top of it here is actually some formal training on top of the experience factor for those who do sit in the position of adjudicating at a summary trial. So it's a combination of considerable experience, but now a formal training process as a result of the Dickson report and Minister Young's report to the Prime Minister.

Mr. John Richardson: Thank you very much.

As a follow-up, one of the things that cause some concerns, both sometimes in the civilian court programs and in those that are undertaken in the military courts, is that there should be some guidelines for punishment for such crimes worked into the system. Then there would be some upper and lower levels for the judges to make assignments within that. Then you wouldn't get these kinds of rulings that are far on the bottom and far on the high side. You would get some kind of reasonableness whereby punishment would be similar every time a crime came up—unless there are other extenuating circumstances that would alleviate that kind of bracket for punishment.

VAdm Gary Garnett: I'm sure that Colonel Fenske would give you the legal answer, but from a leadership position one of the key changes in the court martial process, as a result of Bill C-25, is that the court no longer determines the sentencing at a court martial. It is indeed the judge advocate who determines the sentencing. And perhaps that answers—

Mr. John Richardson: The same person would be giving a more consistent approach to it, then.

VAdm Gary Garnett: Or if it's the summary trial system, they're all reviewed at one level higher than those—and I'm not saying there would be command influence, but naturally that wider visibility would tend to perhaps relate to your question.

Colonel Fenske may tell me I'm in trouble here.

Col Allan Fenske: No, not at all, sir. The issue of the range in sentencing is certainly one of the factors in the consideration of going to judicial sentencing. When you do that, you have people who are doing it more often, and I would add that, unlike the current situation, they have to give reasons. The panels today don't have to give reasons. That makes it a bit more difficult to appeal and to get at the issues, and to get the kind of case law and guidance that you were talking about to be applied in individual cases.

The Chairman: Thank you.

Mr. Benoit.

Mr. Leon Benoit: Thank you, Mr. Chair.

Mr. Minister, again, as we've been travelling from base to base, we've heard it on every single base. I've had phone calls from members of the forces expressing the concern. They, members of the forces, are absolutely convinced that there is a two-tier justice system now. And what I'm asking from you is just to explain to me how this system would protect against such situations—and you don't refer to any particular situation—as a Lieutenant-General Roy or a Colonel Vanier.

Mr. Minister, as you pointed out at the first of your presentation, it was the people from the department who drafted this legislation, and if you can't explain what this legislation will do to deal with that situation better, then I would welcome the explanation from the people from your department who can explain.

Mr. Arthur Eggleton: What was just mentioned a moment ago is one example of that, and I quite agree that we don't want to have a system that is perceived or in any way operates as a two-tier justice system. We want everybody at all levels treated with fairness and equity, and I believe that will happen in the system. And these amendments help to strengthen it.

For example, what we just talked about a few moments ago is that sentencing will be done at a court martial, not by the panel but by the military judge. That will help to bring—in answer to a colleague's question earlier—a greater sense of conformity to sentencing principles, which is what people are looking for. They are looking for some rationale that would appear to give sentencing on an even-handed basis. So I think we'll get that through that particular amendment.

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Mr. Leon Benoit: But how would that help prevent a situation such as that concerning Lieutenant-General Roy?

Mr. Arthur Eggleton: You told me you didn't want to go into specific cases again.

Mr. Leon Benoit: You can refer to another past case. I'd be quite happy to hear about that.

Mr. Arthur Eggleton: No, as I said earlier, there's no useful purpose to be served in dissecting previous cases. They all have a wealth of information. If you want to dissect a case, then you have to bring all of the information before us so that we can understand why the decision was rendered.

What I'm talking about here is a system that through these improvements, this modernization of the system, will better serve the men and women in our forces.

Mr. Leon Benoit: I feel I haven't received anything like an explanation on that from you here today.

Maybe the gentlemen here could—

Mr. Arthur Eggleton: Well, I don't know what more we can add. We're trying to help you.

Mr. Leon Benoit: Frankly, if that's all there is in this legislation—

Mr. Arthur Eggleton: Oh, no—

Mr. Leon Benoit: —and if that's as far as it's going to go to help prevent a situation and then deal with a situation like either of the ones I've referred to, then why are we wasting our time with it?

Mr. Arthur Eggleton: As I said, these amendments do in fact bring about improvements. They do in fact, in the administration and in the regulations, bring about improvements to the military justice system. That's what we're here to do.

Col Allan Fenske: I can't talk about specific cases, but I can talk about a systemic approach to the system so that the system doesn't treat people differently. Always, whether it be in criminal justice on the civilian side or in military justice, there will be people who are not happy with an individual decision, but I would argue that you want to make sure it's as open as possible and that you've avoided as many conflicts as possible and that the person who ultimately has to carry a prosecution, for example, is the person who makes the last decision.

So there are a number of things that have been done in the bill. You have to find them in little corners of the bill, but they all fit together into a pattern.

First of all, a commanding officer—

The Chairman: Colonel, can I stop you for a minute?

I know you have to leave, Minister, for another meeting. I want to thank you very much for appearing.

Mr. Arthur Eggleton: Thank you very much, Mr. Chairman.

The Chairman: Colonel Fenske.

Col Allan Fenske: Mr. Benoit, if you were to look at it from the beginning to the end, a number of things have been done in the process to basically set up the type of process where you have independent spheres—if I can force an analogy or a metaphor on you—with these functions that bump up against each other without overlap. It's when they bump up against each other that they're supposed to create proper outcomes.

Mr. Leon Benoit: Just along that line, who is ultimately responsible now for the prosecution? Who is ultimately responsible now for the defence, under the new proposed system?

Col Allan Fenske: I was going to get to exactly that, Mr. Benoit. I'll go back and talk about a number of things.

One, today a commanding officer still has the power to dismiss a charge and still has substantial control over the investigation of a charge. Of course, this was commented on by both Dickson and the Somalia commission. The new amendments reduce the commanding officer's jurisdiction. So that's one.

Two, they set up a national investigative service. I say that the new amendments do this, but in fact they accommodate something that's already ongoing.

Mr. Leon Benoit: Who does that national investigative service answer to?

Col Allan Fenske: The national investigative service answers to the Canadian Forces provost marshal, who answers directly to the Vice Chief of the Defence Staff, of course, who happens to be here and may wish to speak about that.

Mr. Leon Benoit: Who does the prosecutor answer to ultimately?

Col Allan Fenske: The prosecutor answers to the JAG and the minister.

Mr. Leon Benoit: Who does the defence counsel answer to?

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Col Allan Fenske: The defence counsel answers to his client, really.

The bill sets up the defence counsel so that the defence counsel can only receive general instructions from the JAG. He's housed within the JAG organization but analogous to provincial legal aid schemes and federal legal aid. The individual never takes case-specific instruction. His solicitor-client relationship is never interrupted.

Mr. Leon Benoit: The current judge advocate general, Brigadier-General Pitzul, recommended on February 3, 1997, when he appeared before the special advisory committee on defence, that the Attorney General directly have the ability to interfere in the prosecution if there were any reason to believe the JAG's office wasn't handling that appropriately.

You see, that gives you a certain amount—I believe a reasonable amount—of separation in the ultimate authority over the prosecution and the defence, and that's one of the things that's lacking from this piece of legislation.

The other, of course, is having that...you said you want independence. That was a comment you made when you started answering my question. But if you really want independence, then the independent inspector general is the only possible solution.

Col Allan Fenske: Sir, I'm not here to argue with you. I would have been pleased to give you an explanation as to what we were trying to set up and why, but I can't take on the inspector general issue.

Mr. Leon Benoit: Okay, but even in terms of, again, the independence and the fact that the prosecution and the defence should ultimately answer to different people, as the current judge advocate has proposed, to in fact the Attorney General... The prosecution should answer to the Attorney General. That does give some independence. It gives a separation, and frankly, I think it will give a justice system far closer to a justice system that the men and women will have confidence is not a two-tier system.

Col Allan Fenske: I would say simply that the object of these amendments is that there wouldn't be what you keep referring to as a two-tier system. The current National Defence Act doesn't say to treat officers differently.

Mr. Leon Benoit: No, but that happens all the time.

Col Allan Fenske: It's a matter of administration, and a number of things that I was going to mention have been done in order to open up that administration to more oversight and to more structure.

Prior to the national investigative service being set up, operational commanders and commanding officers had a great deal of control over the priorities of serious investigations and over the resources that are allocated to them. We felt that was natural at the time, and we found some of the problems that are associated with it.

As a result of Chief Justice Dickson's report, we took on a number of changes. We've moved the national investigative service away from the operational chain of command. The result of that is that if you're in Halifax, for example, the local commander does not control the national investigative service.

I'm sure that the VCDS would be happy to give you some indication of the accountability framework that has been set up between himself and the provost marshal, but we believe within the military system we've taken the investigative service off to the side and run its reporting relationship up to the top, above the operational commanders.

Mr. Leon Benoit: That's what I'm getting at here. You have the vice chief responsible ultimately under these new proposals for the prosecution. Is that...?

Col Allan Fenske: No.

Mr. Leon Benoit: No, pardon me. I better make sure I have it clear.

The way it's being proposed, you have some separation in terms of the defence, but it's ultimately the JAG's office, both the defence and the prosecution ultimately—

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Col Allan Fenske: I think it would be fair to say that with the way the bill sets things up, there is a separate investigation function without overlap, and it reports ultimately to the VCDS. There is a separate prosecution function, and it reports directly through to a director of military prosecution. That director is an independent officer, will have a term, and cannot be removed except for cause on the basis of an inquiry committee.

Mr. Leon Benoit: An independent officer of what rank?

Col Allan Fenske: It doesn't specify the rank—

Mr. Leon Benoit: Oh, it doesn't specify. Okay.

Col Allan Fenske: —but this officer will be under the general supervision of the JAG. The JAG can issue general or specific instructions to this individual. It's important to note that.

Could I finish? I won't be long.

The Chairman: Yes.

Col Allan Fenske: Under the bill, the director of military prosecutions is required to make them public unless, in the case of specific case instructions, he or she thinks it will cause a problem with the administration of justice. In other words, the decision on what to do with the instructions is in the hands of the individual who has carriage of the prosecution in court. We believe we have created substantial buffers and separate spheres.

Mr. Leon Benoit: This is the point I was going to make in terms of the separation of those responsibilities. You have a small group of people at the top levels in the military. All of these people you are speaking about—prosecution, investigation, defence—will come from this small group of people who know each other very well. In terms of perception, that certainly causes a problem amongst the men and women in the forces who just don't believe a top-level officer who is part of that group will be treated the same as a low-level officer. That's the point I was going to get at. I'd like you to respond as to how the changes made are really going to make any improvement in that regard.

Col Allan Fenske: Well, I've given you what I think is the principled answer. The principled answer is that the functions are being separated, and real legislative performance measures of separation are being put in place. You can see those in the bill, so that would be my first answer.

You indicated that everybody knows each other. Nobody is required to have a military defence counsel. I should say that in my practice, when I was articling and when I was doing things in Nova Scotia, I knew everybody. Everybody knew everybody. I'm not sure that one takes us too far, sir.

I hope that's a full answer, but I'm wondering whether the vice-admiral wishes to speak about it. I guess not.

[Translation]

The Chairman: Okay.

Mr. Lebel.

Mr. Ghislain Lebel: Colonel, in civil trials, Crown counsel is completely independent of the prosecution, of the judge and law firm of the prosecution. In the military system, they are all friends, all buddies. How can the accused feel safe when his defender has no more interest in winning than in losing? He is in his own environment of friends and buddies; they go to the officers mess together in the evening for a drink. They are buddies. How does the accused feel? Doesn't this fundamental principle of our civil justice, which at least exists in criminal justice in Canada, exist in the Army?

Col Allan Fenske: First, I'll say that not all these people are buddies. Second, in court particularly, not all these people are buddies. Third, in any city in Canada, you'll find defence lawyers and prosecution lawyers who know each other very well.

Mr. Ghislain Lebel: Yes, but, ultimately, they don't split their fees.

Col Allan Fenske: I agree, but we don't split our fees either.

Mr. Ghislain Lebel: Well, they have no interest in winning. The defence lawyer is not paid by the accused, but by the Army.

Col Allan Fenske: He's paid by the Army and...

Mr. Ghislain Lebel: Just like the prosecution counsel who is also paid by the Army. He has no interest in winning. If you win, so much the better. If you lose, it's not so bad. You still get paid.

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Col Allan Fenske: In Ontario and Nova Scotia, prosecution counsel are paid by the province, like defence counsel who work for legal aid. Ultimately, it's not a question of knowing who's going to pay.

The Chairman: Thank you very much.

[English]

I'd like to thank both of you for appearing before us this afternoon.

[Translation]

We'll probably call upon your expertise again. Thank you very much.

The meeting is adjourned.