National Defence Committee on June 16th, 2008

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Like you, I'm looking at clause 28 and I'm thinking, why would you put that in there if it's already part of the system or already works that way? Would adding something like that cause any kind of mistrial somewhere along the line, or cause a call for a mistrial?

[Michel Drapeau]

I thought Trépanier was clear on that. It's an expansive decision, but nevertheless written by the court. It would seem to me that it addressed that kind of contingency and said that if a trial is ongoing, and this court has declared this provision as being unconstitutional, it would not be constitutional for you—excuse the play on words—to continue with it.

Now, you may have to go back to square one and stop this trial and recommence. I don't know, because as I say, I don't know which trial would fall under that particular clause and what's involved. But it seems odd to me.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

So the trials that are pending right now or that are just waiting or suspended would be tried under Bill C-60, not under the old law. Is that clear?

[Michel Drapeau]

That's my understanding of it, indeed.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Okay, and the ones that have already started have to finish, as you say, under—

[Michel Drapeau]

I would have to have an explanation. What do you mean by “has started”? Has the charter been read in, or whatever? Is it not possible to go back and provide the accused with the right to elect? I don't have a full memory of the Trépanier decision, but that's one aspect of it. It may well be that in some cases the accused may elected to have the very trial that he or she is being faced with at the moment. That doesn't necessarily mean you're going to turn the clock back in every instance, but I'm posing the question.

Really, I don't have the full deck of cards. Maybe you do. It hasn't been provided to me.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

When I first looked at Bill C-60, it looked pretty straightforward, and I would still imagine the bulk of it is fairly straightforward.

One of the main questions that hit this committee is that we're basically looking at three choices or three decisions to make. Do we accept it as is and hope for the best and allow Parliament to take its route down the road and review it? Do we put in a sunset clause, which is one of the proposals that have come up? Maybe one of the concerns with the sunset clause is that if we get to a certain point and the law created by Bill C-60 falls at the time it expires, then we're right back where we started, I would imagine. The other option that has come up is to review the law in two years. So the committee would put together a task force that would look at the law.

Which would you prefer, or which would you think is the best way to go on this?

[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.

[The Chair, Conservative, Rick Casson]

Thank you.

Thank you, Mr. Rota.

Monsieur Roy.

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

Thank you, Mr. Chairman.

I would like to go back to clause 28 because I don't think the discussion on the subject went far enough.

Ultimately, if clause 28 is maintained, trials that have already begun will have to continue. If a judgment concerning those trials is rendered after the bill comes into force, any accused judged under the old act will be able to challenge the decision.

[Michel Drapeau]

Absolutely. He'll be able to challenge it under the Trépanier case, first of all, as well as under the new act, which frames that principle. I don't know much about betting, but I think the accused will have very good chances of success.

In the context of Trépanier, section 117—you'll pardon me for having only the English version—states the following:

In any event, there's also an available interim practical solution that can be easily implemented for all charges under section 130, which is really the case in point. The accused can be offered an election as to his or her trier of facts. There will be no legal impediment to that course of conduct, since section 165.14 gives the right to the prosecution, and that right is of low force and effect with respect to the offences.

I admit I'm surprised by these provisions. Following a long period of reflection—48 hours, in fact—I'm still trying to understand, but I can't.

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

With respect to the sunset clause, it indicates that people are afraid the review won't be conducted in time and that Parliament won't have the time to come back to pass amendments, if there are any. Ultimately, the motion before us is equivalent to the sunset clause. As for future trials, if the new act comes into force but all trials underway are not subject to it, that's a problem for me. On the other hand, the only consequence of the sunset clause would be that we would go back to the old system if the new act didn't come into force in time.

[Michel Drapeau]

In my opening comments, I also mentioned that the department had filed a motion for stay of execution with the Supreme Court. What that in fact means is that the Supreme Court is being given all the time it wants to come to a decision on the appeal application, but, in the meantime, leave has been sought from the court to seek a stay of execution of the Trépanier decision. There are three things. If the execution of the Trépanier decision causes so much difficulty because accuseds would be... It must be understood that only a few accuseds would have had the choice at the outset. There are 60 in a year, so let's suppose that five per month are in the system and are directly affected for that. A stay of execution is now being sought. It may be obtained or not. If it is obtained, this discussion is pointless. If it is not obtained, we wait for the appeal decision or we change the act.

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

In fact, passage of Bill C-60 would be in contradiction with the motion for a stay. Ultimately, it's a contradiction.

[Michel Drapeau]

I didn't want to say it, but my colleague did. If there is a contradiction, it is hard to reconcile the two elements because we're moving forward and backward at the same time.

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

I said earlier—you were in the room—that we get the impression the Department of National Defence is short-circuiting the Supreme Court's decision by tabling this bill and seeking a stay.

[Michel Drapeau]

I don't think it wants to short-circuit the court's decision, but it is going before the Supreme Court in order to defy the Trépanier decision, not its very broad, universal and constitutional application. It's very technical. I wouldn't have favoured that tactic, but we really must focus on it. What is a concern for me are these two applications together: a leave application and an application for a stay of execution at the same time. Now we're here and we want to change the act.

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

I want to continue in this vein. From the outset, I've been saying that I don't see the point, if Parliament considers a bill and passes a bill, of going before the Supreme Court of Canada to challenge part of the court martial's decision. I would add to that—and the brigadier-general confirmed it for me earlier—that the Supreme Court could examine Bill C-60 and say that it thinks things that we passed in it are bad. It could withdraw part of the bill.

[Michel Drapeau]

That would surprise me, Mr. Bachand. That's not the Supreme Court's role. What the Supreme Court can do is not allow the appeal application. It's an application. If you're asking my opinion, I will tell you that I have read and reread the Trépanier decision and that that decision is very strong and very well put together. It is a court decision, not that of a judge or two in particular. It is a very well thought out decision. It is a decision that substantially advances the law, not just with respect to that, but with respect to other things as well. The Court Martial Appeal Court of Canada is the expert court in Canada.

Before the Supreme Court overturns anything and, in ruling, decides to say that there will be two-tiered justice, two justice systems, the one military and the other civilian... I would tend to believe that's not what will happen, but we'll see. However, the first decision the Supreme Court will make will be whether to allow the appeal application.

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

What do you think of our fear that mistakes will be made, in view of the haste in passing this bill? That is why we want a sunset provision. You'll remember that the Veterans Charter was passed quickly and that we subsequently had problems. That's why we're insisting on having a sunset provision.

[Michel Drapeau]

I'm going to repeat myself, Mr. Bachand. Bill C-60, as it is written, does not cause any problems for me. It entrenches a principle that should be there and that a court has unanimously recommended. It's not Bill C-60 that's the problem for me; it's Bill C-60 together with the decision to appeal from this decision.

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

It doesn't work.

[Michel Drapeau]

It's a tug of war.

[The Chair, Conservative, Rick Casson]

Thank you, sir.

Thank you, Claude.

Mr. Comartin is next for seven minutes.

[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?