Bill C-60 (Historical)

An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act

This enactment amends certain provisions of the National Defence Act that govern the military justice system. The amendments, among other things, reduce the number of types of courts martial from four to two and permit an accused person, in certain circumstances, to choose the type of court martial that will be convened. The enactment also provides that certain decisions of the panel of a General Court Martial must be unanimous and clarifies the provision that deals with the period of liability with respect to summary trials under the Code of Service Discipline. It also makes a consequential amendment to the Geneva Conventions Act.

Motor Vehicle Safety Act

[Peter Van Loan, Conservative, York—Simcoe, ON]

Mr. Speaker, consultations took place with the parties, and I am expecting unanimous consent for the following motion: “That, notwithstanding any standing order or usual practices of this House, Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act may be called for debate today; a member from each recognized party may speak for a maximum of 10 minutes, after which the bill shall be deemed concurred in at the report stage on division, and deemed read a third time and passed on division.”

National Defence

[Rick Casson, Conservative, Lethbridge, AB]

Mr. Speaker, I have the honour to present, in both official languages, the fourth report of the Standing Committee on National Defence on Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act.

[Claude Bachand, Bloc, Saint-Jean, QC]

No. My question is whether there are some accused people now who have been introduced in front of courts martial that are being abolished by Bill C-60.

[Claude Bachand, Bloc, Saint-Jean, QC]

Coming back to my question, I'm not sure I heard an answer in what you said. As we speak, have any accuseds been brought before courts martial that Bill C-60 is abolishing?

[LCol Michael R. Gibson]

If I may add one point, Mr. Chair, I think it's important for the members of the committee to understand that the Court Martial Appeal Court did not say anything was wrong with the types of courts themselves. If the person is there and they're happy to be tried by, for example, a disciplinary court martial, there's nothing wrong with a disciplinary court martial in the view of the Court Martial Appeal Court, and that's what this transitional provision is capturing. If the accused is there and he's content to be there, there's nothing wrong with that type of court, even though it would be abolished ultimately by Bill C-60. That particular court should be allowed to proceed to its conclusion.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

I'm finding it difficult to understand how each of the accused could be given these options, including information about Bill C-60, when Bill C-60 has only just been drafted and the decision on Trépanier came down on April 24. It seems to me there is a time gap there. I am very concerned about some accused going through the track on a system that has already been deemed by the appeal court to be faulty, and the appeal court is asking for changes to be made.

As I hear the discussion going on, I feel more and more strongly that we should eliminate this clause.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Essentially they've already been given the rights of Bill C-60 just by the transition process that you mentioned.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Just to follow on with that, what I was hearing before—and I think this is correct—was that, in effect, the accused has been given the rights that will fall to people under Bill C-60, just by the process that you have mentioned. The other thing, which we haven't talked about, is that the new requirement for unanimous panel findings will apply in any case. They're getting the extra protection of that.

[Claude Bachand, Bloc, Saint-Jean, QC]

I wanted to raise the argument that Mr. Comartin just raised, that the accused at the time was under another sytem. I'll admit to you quite frankly that, if I were defending an accused under the old system and was told that the accused was to be prosecuted under the old system, not the new, as defence attorney, I would object to that and would definitely institute proceedings to correct the situation.

Another thing can poison the matter, in my opinion. Under the old system, there were four courts martial. There could be accuseds prosecuted before one court martial that, under Bill C-60, no longer exists. If I were a defence counsel, I would definitely say that Bill C-60 has just cancelled two courts martial because they thought there were too many and want to judge my client under an old court martial that no longer exists under the new Bill C-60. That's another argument for deleting clause 28. Everyone has to be governed by the same act. Otherwise, I think you'll have problems. You wanted to solve a problem, but you may be causing a bigger one, in my opinion. So, thus far, I'm in favour of deleting clause 28.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm still with Mr. Drapeau, in spite of the explanation. The reality is that you're going to have maybe very few cases, as few as four, but the numbers are going to grow as this bill moves forward—assuming it gets through the Senate quickly, but if not, it's going to be even more so.

What you're really doing is denying that group of people, a short list, or perhaps a somewhat longer list once they find out about Trépanier and say, “Yes, I want to exercise my rights; I didn't think I had them before,” because the case law was on both sides of the point. In fact, the leading case law before Trépanier would have been that they didn't have this right. Trépanier has now given that to them. On top of that, now the legislature of the land, in the form of Bill C-60, is going to give that to everybody else but deny it to them. It is not logical. It's not consistent with the way law should be drafted.

Secondly, I'm very concerned about the message the Supreme Court may take from this legislation with clause 28 staying in. I don't know if you can appreciate this, but here's what we have.

We have the Trépanier decision, which says this is the model you should be following in terms of the election in the way trials should be conducted and the right of the accused to make those elections. We are now coming in as the legislature and saying, “Yes, we recognize that and we agree with the Federal Court of Appeal.” But if you're sitting there as a Supreme Court justice, you're then looking at clause 28 and saying, “Okay, you've done all that, you've recognized the Court of Appeal decision, you've carried out your responsibilities to put that into play in Bill C-60, but you're denying it to this small group of people.”

I don't want to be the lawyer acting in front of the Supreme Court to try to rationalize that on our behalf, as the legislature of this country.

[The Chair, Conservative, Rick Casson]

Order, please.

We're going to go to clause-by-clause study of Bill C-60.

We have some expert witnesses here. That's how we will refer to them. We have Colonel Gibson and Colonel Gleeson.

We have a legislative clerk here. Many of you are familiar with this gentleman. He's been on the Hill longer than most of us, I'm sure, except maybe for Mr. McGuire.

We should be able to zip through these quite quickly. Mr. Hawn, did you have something you wanted to mention before we start?

[Michel Drapeau]

Definitely. Bill C-60 represents an improvement; there's no doubt about that.

[Michel Drapeau]

I don't think, from that standpoint, passage of Bill C-60 as it stands changes much. It will permit certain adjustments, but the grapefruit will remain a grapefruit: it won't become an orange. There's really no possible comparison between the Canadian military law system and that of the Americans. I don't think we should expect there to be one. There are certain common points, but there are a lot of differences as a result of the size of the American forces and the fact that the navy, army and air force each have their own system.

A comparison can be drawn with the British, Australian, French and New Zealand forces. As regards summary trials—and the Trépanier decision talks about this—those who are subject to the code, in France, because they have committed offences in their country, are subject to civilian, not military courts. That's how it works in France. In English and Australia, the judge advocate general is not an armed forces officer, but an officer of the highest chambers of justice. He remains completely outside the Department of Justice. In England, the director of prosecutions is a lawyer at the bar, not a military officer.

It appears that the British and Australian systems have taken another tangent that, rightly or wrongly, we have not followed. That is perhaps due to the lack of critical review by a committee such as yours. Whatever the case may be, there are an increasing number of pronounced differences.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chairman.

From what I can see, Mr. Drapeau, you think the bill is well put together. I have two questions for you.

There is the Trépanier affair, of course, which we've discussed extensively. However, we've also mentioned a decision in the Grant affair, which contains certain incongruities, but that the bill would clarify. I would like to hear your comments on that subject.

In addition, it's sometimes said that when we compare ourselves with others, we're consoled. I'd like to know, in the event Bill C-60 is implemented, how we would position ourselves in terms of military law relative to our allies, particularly the Americans and Europeans.

[Michel Drapeau]

Before I can describe the impact, if I could, I would question the utility or sagacity of even having a sunset clause in Bill C-60. I have to ask myself the question, why we would want to do that? This bill is not a transitory provision; it's not something that we're going to try for a while and see if it works. It's a result of a constitutional challenge before a court, where the court has spoken unanimously that it has to be done.

So I would certainly not include a sunset clause in Bill C-60, which is fairly small in scope, but very important if you happen to be an accused, and very important if you going to be going through a court martial. Those changes were already proposed by Chief Justice Lamer and ought to have come forward through Bill C-45.

So the last thing I would want to do is to suggest a sunset clause. Instead of a sunset clause in Bill C-60, I would suggest that whenever you go through Bill C-45, the National Defence Act have in it a mechanism whereby there is a delayed schedule of some sort, so that it has to be reviewed from stern to whatever. And we're really talking here about the Code of Service Discipline within the National Defence Act. It's not everything, but it's the bulk of it. And it has to be in light of changes in the criminal law system and lessons that we learn, as we are in operations for the first time since World War II, or on that scale. Surely there are lessons that we are learning from applying our Code of Service Discipline in an operational setting abroad. So will there not be change resulting from it?

That mechanism ought to be enshrined in the act. Whether it's for every three years or every five years, whether there is an independent body from outside of DND, it should be looked at it and changes be proposed to Parliament, and we should not tinker with the act--for instance, a requirement to have a permanent court. Could that be set? Maybe, and certainly through Bill C-45, because I am familiar with some of it....

Allow me maybe to end on this comment, that we take into account the changes that are being made by all allies to their military justice systems. For instance, in military summary trials, as we heard recently, one doesn't have a right to representation; one doesn't have a right to records; one doesn't have a right to appeal. Yet you could be sent to detention for a long period, and the Trépanier decision told you how uneasy and uncomfortable detention can be. In other countries, some of them very allied to us, like Britain, they have introduced into their codes a review mechanism for those decisions, and administrative tribunals may be....

I think that with this mechanism in our act, we will be able to take a comprehensive and beneficial review of the act and propose not only what the military wants, but also what we as a society, and you as legislators, ought to have in order to keep it in sync—not behind, but in sync—with the civilian criminal law system and with society, because at the moment I think we're catching up.