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.
6:45 p.m.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
That answers the first part of my question. They'd be in limbo.
The second part of my question is hypothetical. If we were simply to remove clause 28, would that have any implications for any other parts of the bill?
6:45 p.m.
Col Patrick K. Gleeson
Well, it creates limbo and arguably creates some confusion as well, because again we're going to have judges now trying to figure out what to do in these cases, if there are any in this situation. It'll create some uncertainty with respect to the proceedings.
If judges believe they can continue, then the accused may not get the benefit of the unanimity provisions. It would be very unclear what would happen with the panel court, for example, as to how the court would deal with it. Would the judge simply shut the trial down? Would the judge try to continue? And if he tried to continue, what rules would he use when he was instructing the panel with respect to their decision?
This transitional provision is simply trying to bring some certainty to those processes if this situation arises after the bill comes into force. That's all it's trying to do. So that would be the effect: uncertainty, lack of clarity, and potential appeals. That's where we would end up here. With a large number of cases? No, but--
6:45 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
I just want to make a point. To me it's clear that ultimately this is about giving the individual more protection. This is about protecting the individual, not jeopardizing him. This is about protecting him.
6:45 p.m.
Conservative
6:45 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
Coming back to my question, I'm not sure I heard an answer in what you said. As we speak, have any accuseds been brought before courts martial that Bill C-60 is abolishing?
6:50 p.m.
Col Patrick K. Gleeson
I'm not sure I grasped all of that. Are you asking if there are individuals who would be before disciplinary courts martial when this bill comes into effect?
6:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
No. My question is whether there are some accused people now who have been introduced in front of courts martial that are being abolished by Bill C-60.
6:50 p.m.
Col Patrick K. Gleeson
Do you mean currently, today?
6:50 p.m.
Col Patrick K. Gleeson
I expect I would have to confirm, but I am certain that DMP has probably, prior to Trépanier, directed that individuals be tried by DCMs that may not be completed yet, yes. I don't know the number; it's probably not many, but there probably are some, yes.
6:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
Don't you think that a defence lawyer could request that proceedings be terminated because the court in which he is appearing is disappearing under Bill C-60?
I think there's a fundamental risk there.
6:50 p.m.
Col Patrick K. Gleeson
There certainly is a possibility that an individual would, but you'll note that there's a 30-day coming-into-force clause with respect to this bill, so I expect that most accused who are actually having a court commence before this comes into effect will be aware that this bill is coming into effect. They would have the opportunity in that period--when they are brought before the disciplinary court martial, for example, and when they go through those procedural steps--to say they don't want to be tried by this court. Again, that triggers the process we've seen happen four or five times already.
If a case has already commenced outside this 30-day window, then it's possible an accused may ask not to be tried by that court. He could bring that motion before the judge, and the judge would deal with it.
6:50 p.m.
LCol Michael R. Gibson
May I add, Mr. Chairman, that I've been a military defence counsel, and one of the lessons I've learned is that as counsel you don't make up your own instructions. The accused has autonomy. It's up to the accused to decide how they want to proceed in that case and to instruct their counsel accordingly. With the greatest respect, it is not up to the members of the committee or me or anyone else other than the accused to make that choice for them in that circumstance.
6:50 p.m.
Conservative
The Chair Conservative Rick Casson
Hold it. We need to have one conversation at a time.
Did you have something, Ms. Black, that you wanted to put officially to him?
6:50 p.m.
Conservative
The Chair Conservative Rick Casson
Is there anybody else? Okay. I'm going to call the question on clause--
Go ahead, Mr. Bachand.
6:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
I'd like to ask a procedural question. If we wanted to delete clause 28, would we only have to vote against it? I imagine so.
6:50 p.m.
Bloc
6:50 p.m.
Conservative
The Chair Conservative Rick Casson
Mr. Bachand, your motion deals with what would be clause 31.1. If you let us deal with clause 31, then we'll deal with yours.
6:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
With regard to clause 31.1, I urge my colleagues to carefully read the amendment I am moving.
Before I introduce it, Mr. Chairman, I would like to know whether the fact that the committee retained the mandatory review after two years will have an impact. I feel uncomfortable about introducing a sunset provision over one year. In fact, if we adopt my provision, I think that of Mr. Wilfert will become null and void.
What does the legislative drafter think?
