National Defence Committee on June 16th, 2008

[Michel Drapeau]

No.

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

I'm going to give you my opinion on those two terms. One refers to a mandatory review, which does not mean that that will be conducted, but nor does it mean that changes would be made if a review were conducted.

Furthermore, the sunset clause requires that the act be reviewed; otherwise it becomes null and void. I'm wondering whether the two concepts are incompatible. I don't think so. I think that there could be a review of the act, first of all, but that there should always be a sunset clause to provide assurance. In other words, I'm talking about a belt and suspenders. I think there is a dangerous precedent in front of us. As I mentioned earlier, the Veterans Charter was quickly passed, and we subsequently saw that there were problems. And it is subsequently difficult to correct them.

Do you think my belt-and-suspenders approach is a good approach, in view of the fact that we could make a mistake and that it's better for us to take more precautions than not enough?

[Michel Drapeau]

I agree with you that there should be more protection and definitely more knowledge not only about the workings, but also about the implications, the ins and outs of the matter. It is your committee's job to ask these questions, and I would appreciate it if you would do it. More often than not, it was taken for granted that the wise people had first thought about these things when they introduced the bill.

What happens if Parliament doesn't understand the clauses it approves? We have a problem. So not only is it up to you to do so, but I think it's your duty to ask questions and to be satisfied with the answers. I think that military members and their relatives are relying on you to pass an act after gathering as much advice and opinion on the subject as possible. It must be kept in mind that, particularly in a military context, the law follows military members overseas, whether it's in the context of a summary trial or a trial before the court martial held thousands of miles from here, without the military member being able to have access to lawyers or all the other rights that we take for granted in Canadian society.

So this act has to meet the operational needs of the armed forces and provide us with a tool to ensure good discipline. However, at the same time, we should not penalize our soldiers who are facing all kinds of risks. Military justice shouldn't be one of those risks. That justice should be established and based on a preliminary critical review. That's what you're doing, and I congratulate you on that.

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

Do you agree with me that the drafting of the bill by National Defence, with the assistance of the legislative drafters, didn't take much time either? The decision came out on April 24 and appeared before the committee a month and a half later. We aren't used to that. People usually take their time examining certain matters. In this case, I get the impression they quickly saw an imminent problem: courts martial could become virtually obsolete and inoperative. So they reacted quickly. They can make a mistake, and we can too. That's why I am insisting on protective measures. I think it would be wise to have them.

[Michel Drapeau]

The drafting was done quickly and professionally. The bill is very well constructed. The lawyers who draft this kind of text are professionals. I have no fears in that regard. If you compare it to other bills, it is not that comprehensives. It must be considered in the context of October 2001, following the events of September 11, when you and your predecessors were faced with an incredible number of legislative disruptions.

The bill is well drafted, apart from a few minor aspects that will have to be questioned. The decision to appeal is not the responsibility of the lawyer who drafted the document. That's a political decision. The departments involved wanted both to be able to make legislative changes and to appear before the Supreme Court. I don't know whether the persons responsible for those decisions will be able to answer your questions.

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

All right, thank you.

[The Chair, Conservative, Rick Casson]

Thank you.

Does the official opposition, Mr. Rota, have anything? Okay.

Ms. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman.

Mr. Drapeau, it's my understanding that at the end of the sunset period--whatever that date was--Bill C-60 would cease to exist and its the provisions would no longer be valid. Bill C-25 made amendments to the National Defence Act in 1998, and they included a requirement to complete and table a review within five years of the bill receiving royal assent. That eventually gave rise to Bill C-45. So we have quite a gap in time between the review and the actual tabling of the bill.

Given that a sunset clause and the end of the provisions of Bill C-60 could result in a gap, there being no legislation to cover the end of the sunset point to the enactment of the next legislation, can you describe what the impact of that would be?

[Michel Drapeau]

Before I can describe the impact, if I could, I would question the utility or sagacity of even having a sunset clause in Bill C-60. I have to ask myself the question, why we would want to do that? This bill is not a transitory provision; it's not something that we're going to try for a while and see if it works. It's a result of a constitutional challenge before a court, where the court has spoken unanimously that it has to be done.

So I would certainly not include a sunset clause in Bill C-60, which is fairly small in scope, but very important if you happen to be an accused, and very important if you going to be going through a court martial. Those changes were already proposed by Chief Justice Lamer and ought to have come forward through Bill C-45.

So the last thing I would want to do is to suggest a sunset clause. Instead of a sunset clause in Bill C-60, I would suggest that whenever you go through Bill C-45, the National Defence Act have in it a mechanism whereby there is a delayed schedule of some sort, so that it has to be reviewed from stern to whatever. And we're really talking here about the Code of Service Discipline within the National Defence Act. It's not everything, but it's the bulk of it. And it has to be in light of changes in the criminal law system and lessons that we learn, as we are in operations for the first time since World War II, or on that scale. Surely there are lessons that we are learning from applying our Code of Service Discipline in an operational setting abroad. So will there not be change resulting from it?

That mechanism ought to be enshrined in the act. Whether it's for every three years or every five years, whether there is an independent body from outside of DND, it should be looked at it and changes be proposed to Parliament, and we should not tinker with the act--for instance, a requirement to have a permanent court. Could that be set? Maybe, and certainly through Bill C-45, because I am familiar with some of it....

Allow me maybe to end on this comment, that we take into account the changes that are being made by all allies to their military justice systems. For instance, in military summary trials, as we heard recently, one doesn't have a right to representation; one doesn't have a right to records; one doesn't have a right to appeal. Yet you could be sent to detention for a long period, and the Trépanier decision told you how uneasy and uncomfortable detention can be. In other countries, some of them very allied to us, like Britain, they have introduced into their codes a review mechanism for those decisions, and administrative tribunals may be....

I think that with this mechanism in our act, we will be able to take a comprehensive and beneficial review of the act and propose not only what the military wants, but also what we as a society, and you as legislators, ought to have in order to keep it in sync—not behind, but in sync—with the civilian criminal law system and with society, because at the moment I think we're catching up.

[The Chair, Conservative, Rick Casson]

Okay. That's your time.

There's nothing further on this side, so we'll go back over to Mr. Blaney.

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

Thank you very much, Mr. Chairman.

From what I can see, Mr. Drapeau, you think the bill is well put together. I have two questions for you.

There is the Trépanier affair, of course, which we've discussed extensively. However, we've also mentioned a decision in the Grant affair, which contains certain incongruities, but that the bill would clarify. I would like to hear your comments on that subject.

In addition, it's sometimes said that when we compare ourselves with others, we're consoled. I'd like to know, in the event Bill C-60 is implemented, how we would position ourselves in terms of military law relative to our allies, particularly the Americans and Europeans.

[Michel Drapeau]

I don't think, from that standpoint, passage of Bill C-60 as it stands changes much. It will permit certain adjustments, but the grapefruit will remain a grapefruit: it won't become an orange. There's really no possible comparison between the Canadian military law system and that of the Americans. I don't think we should expect there to be one. There are certain common points, but there are a lot of differences as a result of the size of the American forces and the fact that the navy, army and air force each have their own system.

A comparison can be drawn with the British, Australian, French and New Zealand forces. As regards summary trials—and the Trépanier decision talks about this—those who are subject to the code, in France, because they have committed offences in their country, are subject to civilian, not military courts. That's how it works in France. In English and Australia, the judge advocate general is not an armed forces officer, but an officer of the highest chambers of justice. He remains completely outside the Department of Justice. In England, the director of prosecutions is a lawyer at the bar, not a military officer.

It appears that the British and Australian systems have taken another tangent that, rightly or wrongly, we have not followed. That is perhaps due to the lack of critical review by a committee such as yours. Whatever the case may be, there are an increasing number of pronounced differences.

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

However, if I understand correctly, without going toward a form of internationalization, we would be heading toward a definite improvement.

[Michel Drapeau]

Definitely. Bill C-60 represents an improvement; there's no doubt about that.

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

There was also the Grant decision. Do you have any comments to make on that?

[Michel Drapeau]

I haven't prepared myself accordingly.

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

That's fine, all right. Thank you.

[Michel Drapeau]

I don't have enough reading time.

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

I was told that would correct certain deficiencies in that area as well.

Thank you, Mr. Drapeau.

[Michel Drapeau]

Thank you.

[The Chair, Conservative, Rick Casson]

If there's no one else, that brings us to the end of our second round. It's pretty timely; we're right at 5:30.

Sir, do you have anything else you want to add before we adjourn?

[Michel Drapeau]

I just want to thank you, Mr. Chair, once again.

[The Chair, Conservative, Rick Casson]

We're not going to adjourn. We'll just suspend until 6 o'clock, when we'll consider the bill clause-by-clause.

The meeting is suspended for half an hour. Thank you.

[The Chair, Conservative, Rick Casson]

Order, please.

We're going to go to clause-by-clause study of Bill C-60.

We have some expert witnesses here. That's how we will refer to them. We have Colonel Gibson and Colonel Gleeson.

We have a legislative clerk here. Many of you are familiar with this gentleman. He's been on the Hill longer than most of us, I'm sure, except maybe for Mr. McGuire.

We should be able to zip through these quite quickly. Mr. Hawn, did you have something you wanted to mention before we start?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Chair, just as a point of clarification or intent, presumably we're going to get through this tonight, and it would be the government's intent and desire to have unanimous consent tomorrow to do report stage and third reading tomorrow morning in order to get it to the Senate tomorrow afternoon.

The challenge will arise if we don't do that. We could still do it, but it doesn't then go to third reading until Thursday, and then the Governor General is away, and the Supreme Court is reluctant to give an oral approval to a bill on a justice matter.

The intent is to have unanimous consent for report stage Thursday and the Senate tomorrow afternoon. That's our intent.