I'd be happy to do that, and thank you for the opportunity to clarify that issue.
I'm taking reference in the decision to four and a half years to refer to the 2003 Chief Justice Lamer independent review that was statutorily required from Bill C-25 in 1999.
First, I think it is important to outline that the military justice system has been under extensive review in the past decade. In the post-Somalia period, we had the Somalia inquiry and its recommendations. We had two reports by Chief Justice Dickson. These resulted in a number of recommendations, the vast majority of which were accepted by the government. Bill C-25 was passed and came into force in 1999.
Interestingly enough, one of the recommendations from the second Dickson report was on setting out the role of the new convening of courts and the role of the DMP. It suggested that the DMP advise...at that time the report said the chief military judge, but as the legislation was drafted, it became the court martial administrator of the type of trial. Of course, this is one of the sections that was struck down.
In 2003 we had the review by the late Chief Justice Lamer. To put that review in context--obviously an extensive review--his comments were, as I noted in my opening remarks, that “Canada has developed a very sound and fair military justice system in which Canadians can have trust and confidence”. He noted there were a few areas that could be improved, and termed them as “a few changes”.
There was nothing in his report that indicated those recommendations were constitutional in nature--in other words, advances on the system of justice and recommendations. There was an extensive review of the recommendations in the Lamer report. There were 57 recommendations that dealt with the court martial and discipline system per se, and 52 of them were accepted in whole or in part. Two of the recommendations that were not accepted were recommendations 23 and 25, which are caught in the present Bill C-60.
The reason they weren't accepted was that there was a belief that the system of having four types of courts was working well. It provided flexibility that better met the needs of discipline of the different types of courts and powers of punishment--numbers of panel members, for example. A disciplinary court martial has three panel members, where a general court martial has five.
The Nystrom decision in 2005 of the Court Martial Appeal Court was a non-binding decision. It did not settle the issue of its review of some of the challenges that were presented by offering accused the type of court. Specifically, the court indicated it wasn't addressing the constitutionality, but it did express deep concern over this issue and the provision, and it set out its preference in its decision for this type of process, similar to what was in the Lamer report. However, at that time there was a previous unanimous binding decision of the Court Martial Appeal Court. It upheld in the mid-1990s that the chain of command--in other words, someone who wasn't as independent as the director of military prosecutions--could choose the type of court, and this did not violate the charter. So we had a non-binding decision in the Nystrom case, and an earlier binding case.
In addition to that, shortly after that case was yet another case where the Court Martial Appeal Court indicated that there were good reasons administratively why there might be a problem having a general court martial with five members in a remote location. When this was argued at the trial level--when Trépanier came forward and the judge at the trial level accepted the binding case from the 1990s, not the non-binding decision in Nystrom--that got appealed to the Court Martial Appeal Court, and we have the decision.