National Defence Committee on June 16th, 2008

[Some hon. members]

Oh, oh!

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

With regard to the process, I'm not clear on it. You're saying that we could have got around the concern that was expressed in Trépanier at the appeal level by allowing for the right of election, but we could not do that with regard to establishing the court martial court.

[BGen Kenneth W. Watkin]

I'm sorry, could you repeat that?

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

Lieutenant-Colonel Gibson is agreeing with me.

There were two parts to it in terms of the constitutional challenge. One was to establish a court martial court in the first place. So they struck that provision down. But it would appear that they would have allowed the prosecutor to build the system—I guess a practical system—to allow for the accused to have their election. Am I right?

[The Chair, Conservative, Rick Casson]

Very briefly. We're out of time here.

[BGen Kenneth W. Watkin]

It's clear that the Court Martial Appeal Court anticipated the matters going ahead. I'll give you the practical example that it created.

Because we have the different powers of punishment that attach to different courts, if an accused is charged with an offence that would attract more than two years less a day as a punishment—let's say, manslaughter that occurs outside of Canada—if the prosecutor were to offer that choice to the accused, the accused could self-limit the punishment that he or she would receive by choosing a standing court martial, which obviously is problematic from the view of broader societal interests and from the view of a victim's concern about process. This then sets you down the road to equalizing a standing court martial with a general court martial in terms of punishment and jurisdiction, which moves us down the road to....

Because we've had some history of accepting representations from accused for courts, one of the things the director of military prosecutions did in the wake of the Nystrom decision was issue a policy that said they would take in representations from accused concerning the type of court they wanted. That happened with the deputy director seven times, and each time the accused was given the type of court they wanted.

[The Chair, Conservative, Rick Casson]

Thank you. I'm afraid we have to move on.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

Thank you, General and panel, for being here.

I just want to correct one thing my honourable colleague Mr. Wilfert said. Bill C-45 was actually introduced in March 2008, not October 2007—just for editorial purposes.

Bill C-60 is not intended to be a temporary measure. Bill C-60 is intended to be a permanent measure. Is that correct?

[BGen Kenneth W. Watkin]

It's certainly intended to be.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Is there any particular reason we wouldn't proceed with necessary legislation because of an inability to predict Supreme Court hypotheticals? If we're trying to pass something that is permanent and we think it's good, why would we worry about what some Supreme Court might do somewhere down the road?

[BGen Kenneth W. Watkin]

Exactly, Mr. Hawn. We cannot predict that.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

We can't predict that, obviously. Laws are living documents and are always going to be open to question and review, challenge, and so on, whether it's through the charter, through the Supreme Court, or whatever. The veterans charter might be an example where something gets passed with all good intentions and is a good piece of legislation but is always open to review, and that's just a fact of legal life in Canada.

Is that a fair statement?

[BGen Kenneth W. Watkin]

As I mentioned in my opening remarks, this legislation is broader than Trépanier. Trépanier was limited to one type of offence. This would extend the same rights to accused charged with serious offences that would attract life imprisonment, for instance, or for other offences that weren't under the section 130 offences in the National Defence Act: the ability to choose the type of court martial.

Secondly, my goal is to have as fair a system as possible. As I've said to folks around my office, I've been subject to the Code of Service Discipline for 31 years, and my goal as a member of the forces is that Canadian Forces members have a fair system that they will be tried by.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

And I have to say it has always been fair, even when I didn't deserve it.

With respect to a mandatory review or a sunset clause, and so on, can you comment on what might be the impact of a sunset clause in terms of unintended consequences, consequences to wording in other acts or reference to other acts? What is the danger in a sunset clause?

[BGen Kenneth W. Watkin]

It has the danger of bringing a system to a halt.

One of the effects of Bill C-60, obviously, is that it's fundamentally changing the system. If those effects of Bill C-60 come to a halt, you won't have the ability to convene courts martial. Those provisions in fact will disappear. It has in it questions about the extent of the jurisdiction, the type of punishments of the various trials, and the ability for an accused to choose the type of trial. So we'd find ourselves back in a situation where in fact you would have a larger question in terms of the ability to function with a court.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

We've talked about Bill C-45 and that it maybe didn't move ahead because of some of the procedural challenges there, and so on. What will be the relationship between Bill C-60 and Bill C-45 as we attempt to pass Bill C-60 and as Bill C-45 gets addressed down the road and presumably passed?

[BGen Kenneth W. Watkin]

Bill C-45 clearly deals with those parts of the Lamer report that were accepted and put forward as legislation. Bill C-60 deals with the provisions that have arisen as a result of the Trépanier decision. There are some overlapping provisions. Two in particular are the requirement for a majority vote by the panel members and the ability of a judge to deal with pretrial matters. There's a process set out in the legislation that whichever one gets passed first will deal with those issues that overlap.

In particular, the importance of the unanimous vote is that it's tied to the whole issue of having a jury trial. Our existing system has a majority vote. Chief Justice Lamer's recommendation was that it go to a unanimous vote, and that was accepted. With Bill C-60, there's the potential to have even more panel trials to ensure that fundamental protection for the accused is captured. The two are very integral to one another.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

At some point in the fall we will proceed with Bill C-45. Assuming we pass Bill C-60, is it going to make it easier for parliamentarians to understand how this works? Will it make it easier to get Bill C-45 passed, just because people will understand it better? I know I'm asking for a pretty subjective opinion here.

[BGen Kenneth W. Watkin]

I find it difficult to answer that question, other than to say we will have a fully functioning justice system and courts proceeding. This committee will have had a hand in making that happen.

In terms of learning about the operation of the system in Bill C-60, we'll provide the type of background influence that will affect any legislative initiative.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Just to emphasize what I get out of the whole process, it's to make the military justice system--whether it's with Bill C-60, Bill C-45, or other things--more compatible with the civilian justice system and have equal justice for all. But we understand that the military justice system is always going to be a little bit different for reasons of discipline, and so on.

[BGen Kenneth W. Watkin]

On the process of review and the regular reviews, clearly the desire set out in the 2003 Lamer report is to parallel the civilian justice system but retain those parts that are unique requirements of the military justice system. The military justice system is fully subject to charter review, and that is another safeguard to ensure that the system keeps up with changes and values in Canadian society.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

If we just passed Bill C-60 as it is with a mandatory review after two years or whatever--either one of those solutions--from your point of view of handling the military justice file, would that be satisfactory? Please feel free to disagree.

[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.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Would passing it with the sunset clause be a dangerous thing to do?

[BGen Kenneth W. Watkin]

Yes. We would have the problem that it would put us back in a similar situation to where we are now.