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.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman.

Mr. Drapeau, it's my understanding that at the end of the sunset period--whatever that date was--Bill C-60 would cease to exist and its the provisions would no longer be valid. Bill C-25 made amendments to the National Defence Act in 1998, and they included a requirement to complete and table a review within five years of the bill receiving royal assent. That eventually gave rise to Bill C-45. So we have quite a gap in time between the review and the actual tabling of the bill.

Given that a sunset clause and the end of the provisions of Bill C-60 could result in a gap, there being no legislation to cover the end of the sunset point to the enactment of the next legislation, can you describe what the impact of that would be?

[Michel Drapeau]

This bill raised no problems for me until I read it. Reading it simply made me jump. As I told you, perhaps something is escaping me or I don't understand the logic underlying this point. Perhaps, but I don't understand it. Without clause 28, Bill C-60 would not be a problem for me and would have my full approval.

What problems can that hypothetically cause in the four or five potential cases, if there are four or five? Would that deal a death blow to military justice? I don't think so. I'd be surprised if it would mean that an accused would not face the rigour of military justice in those circumstances. I would be even more surprised after reading the Trépanier decision, which anticipates this problem.

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

But this is precluding, then, those cases that have been commenced. If we pass it this week and it gets through the Senate next week and is given royal assent a few days later, by the end of June, for any of the cases that have come up and commenced, they don't get the opportunity to use Bill C-60. And then they're going to be into the possibility of challenging them under the constitutional provisions.

[Michel Drapeau]

And that is fine. What the Trépanier decision says is--in a simplistic way because it's the only way to look at it, is--fine, you don't have to wait until Bill C-60. They know about Bill C-60. You don't have to wait until there is a decision to change that; you can make the offer now. You can seek consent.

[Michel Drapeau]

I hesitate to give you a comment, because it's made in a vacuum. I simply don't understand the logic.

There has to be logic, and maybe I'm being not unfair but simply don't understand. Maybe the wording is not quite as tight as it ought to be, or maybe the wording leaves an aspect that I'm not seeing and you are not seeing. But for me, Bill C-60, until I read that....

There are a couple of things I'd rather not be part of because we're introducing things that are above and beyond Trépanier, but when I come to that, what does it mean? I almost have to play a bingo card and say, if I move this, this happens, and if I move that, that will happen. I don't get a satisfactory answer. In fact, it muddles the issue instead of clarifying it. The purpose of a transitional provision is to make it clear so that you know where you stand as you move from one regime to the next.

Now, this says, as we move from one to the next, you guys are going to be subject to the old regime. Yes, but we have declared the old regime unconstitutional. What do you mean?

Not only that, I know you're challenging it in court, but the court may well go along with it. If it does, if the court says “appeal denied”, then if you gentlemen and ladies pass this act, it would mean that you have said—if I read this correctly—that the old law applies.

Excuse me, but I shake my head.

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

Mr. Drapeau, I've been trying to figure out whether clause 28 of Bill C-60 is an endorsement of the government's position in their appeal. Does it open the door? Should we perhaps delete subclause 28(1) and, as Mr. Rota was suggesting, rely on the existing law or practice? Do you have any comments on that?

[Michel Drapeau]

I wouldn't say all of the above, but somewhere in between. The Trépanier decision is crystal clear. It has been said with a high degree of care that this decision did not come about all of a sudden; it was a unanimous decision by the court. There have been several previous instances where the court has signalled its uneasiness about the significant difference between the civilian criminal system and the military criminal system. It served due notice in a previous decision and has now declared this provision unconstitutional.

Bill C-60 enshrines into the National Defence Act the concept that an accused will have the right, and that will make it equal to the civilian criminal system. The only grey zone is those who are in the system now and came after Trépanier. There may be three or four, but there are certainly not 100, because there's a maximum of 60 a year.

So those are cases of exception that you may need to look at. But I don't think you need to have a sunset clause if we limit our discussion to having it right in the National Defence Act that an accused, from this point onward, would have a right that is not unlike that enjoyed by a civilian criminally accused individual. That will remain on the books for a long time.

So I don't see any sunset clause being required there. I cannot second-guess what the Supreme Court would do and whether it would be reversed on appeal. Even if it were reversed by the Supreme Court, it's a still a good thing to give our military men and women facing criminal trial under the codes of discipline a right at least equal to that enjoyed by civilians. So even if you as legislators weren't pushed by the lack of constitutionality of that provision, in fairness there ought to be some form of equity between the two.

[Colonel, Retired) Michel Drapeau (As an Individual]

Thank you, Mr. Casson.

Let me open by thanking the members of this committee for permitting me to appear before you this afternoon to present my analysis of Bill C-60.

Also allow me to introduce Zorica Guzina, who, like me, is interested in Canadian military law, both in her everyday practice and in her teaching at the University of Ottawa.

Given the very short notice to conduct this analysis and the short amount of time for my appearance this afternoon, I thought it would be best for me to present the results of my review in a booklet, which you have before you.

On page 1 of the booklet is a summary table outlining the existing structure and organization of courts martial. There are four types of courts martial. I give you a description of their powers and of the rights of the accused, among other things.

On page 2, I provide a very brief decision by the Court Martial Appeal Court in Trépanier v. Her Majesty the Queen, rendered April 24 of this year, which gave life to Bill C-60.

I draw your attention to the fact that, in its decision, the Court Martial Appeal Court also referred to the recommendations made by the late Chief Justice Antonio Lamer upon his review of the National Defence Act in 2003. The purpose of those recommendations, which were pressing at the time, was to simplify the structure of the courts martial in order to create a permanent military court. The recommendations echo, at least in part, the amendments proposed in Bill C-60.

On page 3, I present a table on the essential aspects of Bill C-60.

In response to the recent decision by the CMAC declaring unconstitutional a provision by which the director of military prosecutions, not the accused, could choose the type of trial—either a panel and a military judge, or a military judge alone—Bill C-60 repeals that provision. At the same time, Bill C-60 simplifies the current system from four courts martial—a general court martial, a disciplinary court martial, a standing court martial, and a special court martial—down to two. This is something that late Chief Justice Lamer recommended in his 2003 report following his review of the then National Defence Act.

Bill C-60 then makes a fairly good number of other minor amendments, many of which are already included in Bill C-45, which I presume will receive, in the fullness of time, a more substantial discussion because this has yet to take place.

As for my general assessment, I do not have any major issues with Bill C-60. Above and beyond providing an accused with the right to elect the type of trial, it also simplifies the structure of the court martial, as first recommended by the late Chief Justice Lamer, and that is a good thing. The other minor amendments are also aimed at improving the military justice system, and on the whole, they are very apropos .

My concern—and it's reflected in the documents you have before you—is twofold, and some of it was addressed, at least in part, during the earlier part of the meeting when General Watkin was testifying.

The first one has to do with the tabling of this bill coincident with an application for leave to appeal before the Supreme Court of Canada in Trépanier. One of the documents that I'm giving you from the Supreme Court says that in fact an application to stay the execution of the Trépanier decision has been put before the court, and also an application for leave. Neither of these two has been heard so far.

My second concern deals with a transitional provision in clause 28 of the bill. It specifies that courts martial commenced but not completed by the time Bill C-60 comes into effect will be conducted under the old law. I heard some of the explanation for that, but it leaves me with a certain degree of doubt as to what the real impact will be of the operation of this particular clause. What do you mean? You may have the answer to it, but I don't.

Having said that, those are my opening comments, and I'd be pleased to take your questions.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chairman.

I don't agree with what you say about Bill C-60. Ultimately, you're short-circuiting the case that is before the Supreme Court by trying to pass a bill before the decision is made. That seems clear to me.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Okay, so as I understand this, if Bill C-60 does not pass, the accused who are awaiting courts martial risk going free without being subject to the law.

Thank you.

[BGen Kenneth W. Watkin]

Well, under our system, just as under the civilian justice system, the prosecutor will decide in terms of individual cases what the situation is in terms of the passage of time. The advantage of Bill C-60 and moving expeditiously is that it will limit that as being an issue. From our perspective, acting with urgency will put us back on a playing field where accused are getting their opportunity to have their cases heard and larger society and victim interests are ensuring that persons who have breached the Code of Service Discipline are having--

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I have a brief question. If Bill C-60 does not pass, what will happen to the cases awaiting court martial? Will the charter provisions for the right to a timely trial be triggered?

[BGen Kenneth W. Watkin]

The focus in Bill C-60 is a result of the urgency of the situation. That's why it's so narrowly focused in terms of the way ahead.

On the broader issue of representation, I did my master's thesis in 1989 on the constitutionality of the summary trial system. There was a review in 1994. It was subject of review by Chief Justice Dickson post-Somalia. He had two reports; the first report looked at some length at the summary trial system.

The goal is to be summary. There's no prohibition on lawyers being present; however, it rarely happens. As to the question of getting legal counsel, we have a fully funded legal aid system in the military, so an accused who is being dealt with at court martial will have defence counsel provided. That can be military counsel or there's also provision to provide civilian defence counsel so that their rights are protected.

[Alan Tonks, Liberal, York South—Weston, ON]

I was intrigued by the question from my colleague Mr. Hawn with respect to the principles of natural justice that are entrenched in our Criminal Code and our Civil Code. Do the same principles apply at summary trials?

You said there are no lawyers at summary trials. Granted, they deal with less serious issues and so on, but was there ever any consideration given that Bill C-60 attempts to bring into sync those legal principles? I suppose that wasn't implicated out of the Trépanier decision, but has it ever concerned the department from a justice perspective?

[BGen Kenneth W. Watkin]

From my perspective as superintendent, it's essential that we get clarity, get Bill C-60, get the court martial system operating, provide these extra rights to the accused, and get a process that ensures that victims' needs are being met and broader military societal needs are being met.

On the question of review, we already live under various forms of review in the military justice system.