National Defence Committee on June 16th, 2008

[Michel Drapeau]

I hesitate to give you a comment, because it's made in a vacuum. I simply don't understand the logic.

There has to be logic, and maybe I'm being not unfair but simply don't understand. Maybe the wording is not quite as tight as it ought to be, or maybe the wording leaves an aspect that I'm not seeing and you are not seeing. But for me, Bill C-60, until I read that....

There are a couple of things I'd rather not be part of because we're introducing things that are above and beyond Trépanier, but when I come to that, what does it mean? I almost have to play a bingo card and say, if I move this, this happens, and if I move that, that will happen. I don't get a satisfactory answer. In fact, it muddles the issue instead of clarifying it. The purpose of a transitional provision is to make it clear so that you know where you stand as you move from one regime to the next.

Now, this says, as we move from one to the next, you guys are going to be subject to the old regime. Yes, but we have declared the old regime unconstitutional. What do you mean?

Not only that, I know you're challenging it in court, but the court may well go along with it. If it does, if the court says “appeal denied”, then if you gentlemen and ladies pass this act, it would mean that you have said—if I read this correctly—that the old law applies.

Excuse me, but I shake my head.

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

So by passing this, we may actually be giving some authority to the current practice, some authentication to the current practice.

[Michel Drapeau]

In those very limited three, four, five, or six cases—I'd venture a number of five at the most—why are we doing this?

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

Mr. Drapeau, if I could interrupt, I think it's actually more than that, or it will be more than that, because we already have a list of four cases just since April, whatever date Trépanier came down, that have been suspended or terminated.

[Michel Drapeau]

But I would submit to you that if those have been terminated, they are no longer “commenced”.

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

Okay, good point. But there are another 50 in the works, we've been told.

[Michel Drapeau]

And that is fine. What the Trépanier decision says is--in a simplistic way because it's the only way to look at it, is--fine, you don't have to wait until Bill C-60. They know about Bill C-60. You don't have to wait until there is a decision to change that; you can make the offer now. You can seek consent.

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

But this is precluding, then, those cases that have been commenced. If we pass it this week and it gets through the Senate next week and is given royal assent a few days later, by the end of June, for any of the cases that have come up and commenced, they don't get the opportunity to use Bill C-60. And then they're going to be into the possibility of challenging them under the constitutional provisions.

[Michel Drapeau]

Precisely, and what do we do with them? We're playing on two claviers. We're saying, yes, it's unconstitutional, but by the way, some of you guys will have to wait for the second coming of....

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

The Federal Court of Appeal?

Those are all my questions.

[The Chair, Conservative, Rick Casson]

Thank you.

We'll now go over to the government. Mr. Blaney.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chairman.

Mr. Drapeau and Mrs. Guzina, thank you for being here today.

Mr. Drapeau, your record is impressive and your knowledge of military law extensive. I listened to your comments on the bill. As legislators, we are always interested in hearing the opinions of an expert such as you. I heard you say that the bill entrenched certain aspects that referred to the Canadian Charter of Rights and Freedoms and that you didn't see any problem as such with the bill. It's always comforting to hear things like that. We say to ourselves that someone who knows this has prepared a comprehensive document, with a good summary.

If I understand correctly, the Trépanier decision is one of the factors that led to the bill's preparation. An accused could not have full answer and defence in view of the fact that he could not choose how he would be judged.

Would you like to add any comments on the Trépanier decision relative to the bill? In your opinion, how would this situation play out under the new act?

[Michel Drapeau]

You've given a good summary of my position. Bill C-60 offers no major difficulties for me. It timidly addresses a few other aspects that are part of the Trépanier decision, in which reference was made to the late Mr. Justice Lamer, who had suggested simplifying courts martial. Here we find that suggestion, and I think that's a good thing. The judge also recommended, five years ago now, that there be a permanent military court. There is no court. There is no military court anywhere here in Ottawa.

If we establish a court martial today to judge an accused, a judge is then appointed and a court is convened, but it dissolves as soon as the trial is over. Before a trial is held, before the judge is sworn in, before the accused appears before the court, there is no court. Five years ago, Mr. Justice Lamer said that there should be a permanent military court.

There should also be a court of record. What does that entail? That definitely entails some minor expenses here and there, but the word is there.

With this bill, we're putting three toes in the water and saying that we're going to give a military judge, or a number of them, the power to hear pre-trial motions. This is a step in the right direction. Mr. Justice Lamer proposed it, but he went further than that. Mr. Justice Lamer also proposed that a task force be established to study what that would entail, what it would cost and what the problems would be. I can't speak for Mr. Justice Lamer, but I can certainly approve the wisdom of his recommendation with all the vigour I can summon. Why don't we find it here or in Bill C-45?

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

However, as you just indicated, there are three toes in the pool, because a judge can receive instructions.

[Michel Drapeau]

That's good.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

That's a good step. Very well. I'm pleased to know your point of view. It's an outside point of view that seems to indicate that Parliament and parliamentarians are on the right—

[Michel Drapeau]

I don't know whether you've had the opportunity to read the Trépanier decision.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

I'm not a lawyer.

[Michel Drapeau]

It's really hard-hitting. The court ruled with considerable rigour. From reading it, I think it revealed a certain impatience in saying to pay detailed attention. It discussed the detention process, the punishment process, differences between courts, that is a civilian court, criminal court, military court and everything else. It also recalled—and this is where I see impatience—that it had mentioned this in previous judgments. That day, it was given the opportunity—and it had to do so—to rule this provision unconstitutional.

I think the court is also talking to you in certain respects. It wants you to know its point of view so that you can make other changes to the act.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

The judgment was rendered on April 24 of this year.

[Michel Drapeau]

On April 24.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

That's nevertheless quite recent.

[Michel Drapeau]

It's very recent, indeed.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

If I understand correctly, that would eventually lead Bill C-60... The committee will conduct a clause-by-clause consideration of the bill and there can definitely be a few changes. But on the whole, you're ultimately recommending that the committee move forward quite quickly.

[Michel Drapeau]

With the exception of clause 28, which I find opaque or obscure.