Evidence of meeting #32 for National Defence in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was accused.
A recording is available from Parliament.
5:05 p.m.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
That clause concerns the coming into force of the act for existing cases.
If, for example, we moved forward and if Bill C-60 came into force, how do you think the practice of military law in Canada would change?
5:05 p.m.
Michel Drapeau
I think it will evolve in the right direction. I think we've been given a slap on the wrist. By “we”, I mean those who practise military law. They've been slapped on the wrist by the court and its resounding decision urging us to make this change. That's good. I think it's also very good, at last, to apply some of Mr. Justice Lamer's other suspended recommendations. Reducing the number of courts martial from four to two is a very good thing. The various jurisdictions, the various powers are all Greek to most military members. I think this makes a contribution to the military justice system in the twenty-first century. I think it's very good.
5:05 p.m.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Would parliamentarians be betraying your thinking, Mr. Drapeau, if they said that you're recommending this bill be passed without delay?
5:05 p.m.
Michel Drapeau
That wouldn't be betraying my thinking, but don't forget that I have expressed some reservations. I don't understand clause 28, and I understand even less why, at the same time, you're going to knock on the door of the Supreme Court for it to declare what you want to do now unconstitutional.
5:05 p.m.
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Wouldn't that be because, in the Trépanier decision, there are distinct legal and constitutional aspects to the bill?
5:05 p.m.
Michel Drapeau
I think that the constitutional aspect in the Trépanier decision is the one we're all talking about here. It's also easy to support it.
I also think that the central aspect of the Trépanier affair, although I don't know the arguments the department presented before the court, is that that point was ruled unconstitutional. That's what the court was examining at that time.
5:05 p.m.
Conservative
The Chair Conservative Rick Casson
Thank you, Mr. Blaney.
That ends our opening round. We'll start a five-minute round with the official opposition, and then we'll go back to the government, and then the Bloc.
Mr. Rota, do you want to start?
5:05 p.m.
Liberal
Anthony Rota Liberal Nipissing—Timiskaming, ON
I'll be very brief. I have another question to ask on clause 28, which very much intrigues me.
If clause 28 were deleted, what problems would that cause for the bill? Could we easily delete that clause and still proceed? I imagine that any bill passed by Parliament can be put before the Supreme Court. There's no doubt about that. If we deleted clause 28, would it be clear enough? Would that be good? Could we continue?
5:05 p.m.
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.
5:10 p.m.
Liberal
Anthony Rota Liberal Nipissing—Timiskaming, ON
Does this clause constitute a precedent? Do we see its content in other bills or acts?
5:10 p.m.
Michel Drapeau
I haven't examined any bills that might contain this kind of provision, no.
5:10 p.m.
Conservative
The Chair Conservative Rick Casson
Thank you very much.
We'll go back over to the government. Are there any questions?
Go ahead, Mr. Lunney.
June 16th, 2008 / 5:10 p.m.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
Thank you.
While we're looking at the requirements here, one of the things I wanted to ask about has to do with this transition period as well. One of the requirements is that it would bring in what's required with civilian courts, which is the unanimous principle, rather than a majority vote, for judges. In that transition period, does that second clause add some measure of comfort? It seems to me you have to have a set of rules that apply during a trial, so while we're in transition, in order for any proceedings to go ahead, you have to have a set of rules that apply. Does the unanimous provision help during that transition period?
5:10 p.m.
Michel Drapeau
Let me go back a step.
I don't have the figures, but in Trépanier we provide the figures on how many trials there have been over the past five or six years and how many of those have been with a panel--that is, with a military judge and a panel. I think there are only one or two. The number of these panel trials there would be in this transition, I would submit to you, would not be very many as we speak. Of course that number will likely go up in the months or years ahead, but as we speak, it is a very small number, and these unanimous provisions would apply with a panel trial, and not a judge alone.
5:10 p.m.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
Thank you, Chairman. That covers what was on my mind right now.
5:10 p.m.
Michel Drapeau
In Trépanier, paragraph 82 says that between 1999 and 2003--that's four years--for general courts martial with a judge and panel there was one, for disciplinary courts martial there were three, for standing courts martial with a judge alone there were 216, and for special general courts martial there were zero, for a total of 220. That's one out of 220. That's the core of Trépanier, which says an accused before a court martial ought to be able to elect to have a trial either by a judge alone or with a panel. If he does, those numbers may change, and they likely will change, but we've had one over the past four years.
5:10 p.m.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
A provision of Bill C-60 provides for the dissolution of a general court martial where the military judge is satisfied the panel cannot make a unanimous finding. I wonder if you would care to comment on how that would affect the court proceedings. Would that be a plus? Would that speed up procedures where it was obvious they weren't going to come to a unanimous finding?
5:10 p.m.
Michel Drapeau
I've read it in this wording and I don't have any difficulty with it.
5:10 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
I want to go back to the protection measures concerning the amendments that may escape us. Personally, I hadn't noted clause 28. So if you had come to tell us about it, that might have escaped us. However, I had noted that the matter pertaining to the Supreme Court was a fairly significant problem. You also mentioned that you would like to see a permanent military court established. All that leads me to believe that we need protective measures in this act, to review it.
I don't know whether you are an expert in parliamentary terms, but there are two schools that propose terms. One talks about a mandatory review, and the other proposes the term “sunset clause”.
First of all, do you know the difference between those two terms?