National Defence Committee on Feb. 7th, 2011

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

Okay.

Bill C-41 also makes reference to part-time judges. Would you tell the committee why that's important?

[BGen Bernard Blaise Cathcart]

Thanks. That's another very good question.

Yet again this underlines the uniqueness of military justice. As you're aware, our current judges.... We have four military judges who are appointed for tenure, or hopefully will be with the passing of this; right now they're appointed for five-year periods.

If for some reason the force suddenly expanded to, say, double its current size, or we were engaged in a much broader global campaign and we needed more judges to sit in courts martial, the only other solution would be simply to appoint more judges.

Then, when that “surge”, if I can use that term, were over, you might have expanded from four judges up to, say, 20 or 25 judges. Now you would have a lot of judges with not a lot more work to do.

The theory is that we would have the ability, through appointing reserve judges on a panel if required, to handle a surge when necessary. It would give an extra built-in judging capability. If we didn't need it, then of course those judges would still remain in their civilian capacity, working as judges. But if there were that surge, we could then turn them into military judges without then having to maintain them for the rest of their careers. In some cases, it could be many years, regrettably, when they wouldn't be that busy.

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

Would you please explain the necessity of setting out the duties and functions of the Canadian Forces provost marshal in this bill?

[BGen Bernard Blaise Cathcart]

That's another great question. As many of the committee members know, the role is not currently outlined. Oddly, if you go to the section dealing with the Military Police Complaints Commission in the National Defence Act, it's really all about the provost marshal, how he and his folks conduct investigations, and their standards and complaints. So it seems rather odd, even in that simple context, that you have a lot of mention about this institution and person called provost marshal, yet the individual has not been formally recognized.

The theory was really to give the provost marshal the rightful place under legislation to outline the duties and responsibilities in legislation so they were clear and transparent. We're trying to highlight, as I mentioned to an earlier question, the truly unique structure of the military police--the operational and policing side.

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

Bill C-41 requires future independent reviews of the military justice system, the military police complaints process, and the grievance process. Would you please elaborate on some of the key goals and logistics of these reviews?

[LCol Michael R. Gibson, Director, Strategic Legal Analysis, Department of National Defence]

Thank you.

Justice Lamer identified in his report the utility of having in statute a guaranteed prescribed mechanism for reviewing those provisions of the act. That is obviously meant to ensure that the system keeps pace with changes in the Canadian law generally and continues to meet the obligation to respect the rights of its members.

Putting those aspects in the actual act, as opposed to in Bill C-25, as they currently are, would elevate their visibility. Prescribing them with greater clarity would ensure that there was no doubt as to what the left and right of arc was, in terms of what should be reviewed. Prescribing an appropriate length of time or cycle for the review would enhance the utility of that review by ensuring there was an appropriate track record of actual practice to review, so when issues came before Parliament one could speak to them with that record of practice in mind.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Gibson.

I will now give the floor to Mr. Bachand.

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

Mr. Cathcart, can you explain to me how the document before us was produced? I know that Judge Lamer made recommendations. Some of them were implemented by regulation, others in the context of Bill C-60, and a number of other recommendations will be applied by passing Bill C-41. But who decided on the content of this bill? Was it you, as judge, or your predecessor, who said which changes had to be made and who then sent them to the Minister of National Defence, who gave his approval? How did this document end up before us today?

[BGen Bernard Blaise Cathcart]

Thank you for the question. It really is an excellent one and quite a logical one to ask within this discussion.

As with most aspects, there are policy holders within the CF and DND. In this case there are two main policy holders. One is military justice, which I oversee because I'm also the superintendent. So my office, with talented folks like Colonel Gibson and Colonel Gleeson, helps to formulate policy that is reviewed not only internally, but we try to reach out to people outside the community--civilian lawyers, the Canadian Bar Association--to get views on those changes. With things like MPCC and grievance, the Vice Chief of Defence Staff is a policy holder and goes through a similar process. Those recommendations are put forward. Ultimately, as you see, it's the minister who makes the decision on whether those are acceptable. He then goes forward, as he's done here today, to present them in the bill.

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

Do you think that, with Bill C-41, previous bills and the regulations, everything that Judge Lamer raised in his report is now law? Or do you think that other provisions still need to be made and other bills put forward to Parliament to cover all the recommendations?

[Col Patrick K. Gleeson]

Thank you for your question, Mr. Bachand.

That is a very good question. Bill C-41 implements a number of the Lamer recommendations, but as I mentioned earlier in the context of talking about victim impact statements, this is the statutory framework. Justice Lamer also made some recommendations that require a regulatory basis, and many of these recommendations need a regulatory backdrop in which to fully function. So there is still work to be done on the Lamer report once Bill C-41 receives royal assent. There will be a requirement to develop a number of regulations to support this scheme, and a good example of that is the victim impact statement scheme. It cannot operate based solely on the statutory framework out there; there has to be a regulatory framework behind it.

There is still a fair amount of work to be done. However, as the JAG mentioned earlier, 28 of those recommendations have already been put in force through regulations. Some of the summary trial recommendations, for example, have been into effect through regulatory change, and some of the evidentiary issues you raised have been put in force through regulatory change. So a mix of modalities and processes will get us there. This bill is key, because it is really the linchpin to put the rest of Lamer into force and into effect.

Until Bill C-41 receives royal assent, we are really at a standstill in this process.

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

Do you think that other bills, in addition to the acts or regulations, might be needed to cover all of Judge Lamer's recommendations?

[Col Patrick K. Gleeson]

That's another good question, and the answer is no. We don't need another bill to implement the recommendations in Judge Lamer's report.

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

Mr. Chair, how much time do I have left?

[The Chair, Conservative, Maxime Bernier]

You have 15 seconds.

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

So, I'll stop there.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Thank you very much, Brigadier-General, Mr. Gibson and Mr. Gleeson for joining us this afternoon.

We will suspend the proceedings for two minutes to go in camera to discuss our committee's future plans. Thank you very much.

[Proceedings continue in camera]