National Defence Committee on Feb. 7th, 2011

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you, Mr. Chair.

Thank you very much, Minister, for being here this afternoon. As a committee, we certainly appreciate the opportunity to study this bill, and we look forward to having it move through our legislative process as soon as is practicable.

Minister, both in your presentation and in a response to a previous question, you explained that, where possible, the military justice system should mirror the civilian system, and that where it makes sense, certain important features of the civilian system—pragmatic, positive features—should be reflected in the military justice system. But still, at the end of the day, it's important that we have a separate and distinct military justice system. Why is that important?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you for the question and your work in this regard.

I think the best description of the necessity for these two parallel systems, with the ability to overlap and the flexibility to incorporate the best of both, is found in the decision that Mr. Justice Lamer has handed down in the Généreux case and that gave rise to some of the changes we're now contemplating. It really is rooted in the important matters of discipline, culture, efficiency, and contributing to the sense of morale, which is very important to military members and their families, and also in some of the fundamental principles of justice around fairness, around confidence that the justice system is working for members of the military.

Having that separate and distinct system I think reinforces that formula, if you will, that necessity for discipline, efficiency, and morale, but at the same time is taking the best of the existing criminal justice system and some of these important changes that we've talked about: the victim impact statements, the tenure of judges, and the modernization, if you will, of how the law is now applied and how it works in a courtroom or tribunal. This contributes to very fundamental and important issues of readiness and of the ability for the force to do what's expected of them.

To give them their separate system also allows for the continuation of these very distinct matters of discipline that apply to everything about military life: from the way they dress to the way they conduct themselves and to the way they interact with one another, the way they train, and the way they prepare. Readiness is a very important issue for our military, as we've seen, given the high tempo of operations in recent years, the expectation of what they do both at home and abroad, and how they conduct themselves while deployed.

All of this plays into and, I strongly suggest, reinforces the need for this separate military justice system that applies to them in their life, in their work, and in their daily interaction with others.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you.

You've mentioned this important feature of victim impact statements. Could you explain what enhancements you believe they will bring to the military justice system?

[Peter MacKay, Conservative, Central Nova, NS]

Well, the victim impact statements, just as in the civilian criminal justice system, at a practical level allow for the direct input of victims into the deliberations, into the final dispensation of sentencing. They allow the victim to put on the record and to have a voice about the impact this has had on them. It can be financial. It could be emotional. It could be physical, in the cases of assault. It allows them to express themselves in a way that currently, in our military justice system, at least, doesn't exist to the extent that it should and that it could. It doesn't have the same prominence that we now see in our civilian criminal code.

It allows that victim impact statement to be considered by the adjudicator when it comes to the final meting out of a sentence. It allows the military justice system to mirror, to the greatest extent possible, that same level of inclusiveness for victims. Our government has been very strident about the importance of victims' rights and I think it's no less important—it's certainly of identical importance—when it comes to our military justice system.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

With respect to the sentencing, then, how does the bill allow for greater flexibility in sentencing, and why is this important?

[Peter MacKay, Conservative, Central Nova, NS]

The sentencing provisions are improved or augmented by virtue of this bill. It's not just a victim impact statement; it's other ways in which, for example, intermittent sentences can be applied.

It's sentences such as those that we see in our criminal justice system that allow for combinations of time served plus a fine. It's for the inclusion of a broader range of sentencing options for a judge--restitution being made available as an option, which didn't previously exist.

So it is taking elements of the justice system that we see now enshrined in the Criminal Code, putting them into the National Defence Act, to allow for that both real and perceived parity in the systems when it comes to a judge's options, when it comes to the availability of sentencing options available for both offender and for the judge and prosecution.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Some describe the military justice system as being two-tiered, with both summary trials as well as court martial proceedings.

Why is it essential that the system include both?

[Peter MacKay, Conservative, Central Nova, NS]

It has a lot to do with the flexibility of having this two-tier system that currently exists, with the tribunal structure, which allows for summary trials where most of the disciplinary-type matters that I talked about earlier are applied, and the more formal court martial system.

It's not to say that both can't impact on a person's career aspirations and career path, but the summary trial is by far the more common system that's applied. It's used in the vast majority of service tribunals, and it's used in playing this vital role of maintaining discipline and the operational effectiveness of the Canadian Forces.

I spoke earlier about how Chief Justices Brian Dickson and Antonio Lamer looked at the system and determined, and both commented that these recommendations for refinement are important for that whole range of issues--as far as credibility, as far as continuing the culture and the balance--and I think you can certainly take their assessment of the system and the two-tier system as quite substantial.

Thank you, Mr. Chair.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Minister.

Now I will give the floor to Mr. Wilfert, and I know you may share it with Mrs. Folco.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Chairman, if I could put my two questions on the table, and then ask Madam Folco to put hers on the table, then we could have all three answered at the same time.

I have two clarification questions, Mr. Chairman, through you to the minister. With regard to clause 20, which calls for what amounts to a temporary on-duty demotion for those CF members above the rank of private who are sentenced to detention, do you see this temporary on-duty detention having the potential for long-term interpersonal relationships in the chain of command? In other words, would it cause problems for NCOs who are forced to serve as a private for a period of time and then return to the position of authority following his or her sentence? Could it cause longer-term problems to the chain of command?

Secondly, Minister, under clause 40...just some clarification here. That would require a court martial to summon an accused member. The wording here is a little vague. I'm left with wondering whether this clause would legally require members to testify if called upon to do so, or does it simply require them to be present?

If Madam Folco could put her question in....

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Mr. Chair. Thank you, Mr. Wilfert.

Mr. Minister, I would like to refer to clause 45, which would give the minister power to request an inquiry into a military judge.

On one hand, the minister may request an inquiry. On the other, unless I'm mistaken, an inquiry committee apparently already has the power to hold this kind of an inquiry if a complaint has been presented before the committee. I'm wondering whether granting the minister this special power to request an inquiry is necessary. It seems redundant to me. I'm wondering about the independence of judges in this respect.

[Peter MacKay, Conservative, Central Nova, NS]

Let's never forget how judges get appointed. It's that awful business of politics and decision-making by ministers that results in judges becoming appointed. So I take your point that in this instance it may appear redundant, but there can be circumstances that arise where a minister I think should and could have the authority to have an investigation into a judge. I think it would be a rare occasion.

I think you'll find within this bill, Madam, that the powers of the Minister of National Defence are actually diminished. There are a number of clauses here that are aimed at curtailing, if not eliminating, the power of the minister within the justice system—appropriately so. But the power to order an investigation I don't see as interference. I see this as a rare opportunity where a minister might determine that something within the Department of National Defence, and within the justice system within the military, might merit an investigation. That's not to interfere in the outcome. It's not to interfere in the way in which the investigation were to occur. It would simply be to order an investigation. That would be my personal reflection on the matter.

With respect to clause 20 and clause 40, I think perhaps what I would suggest is that I can respond in more detail to the member's question, but clause 20, again, comes back to the issues of necessity for discipline, necessity for, in some cases, rehabilitation around the member in question. The ability to summons or to order attendance is not to necessitate testimony but to have the individual present in the court. This is also, I would suggest, similar to the powers that exist in our current Criminal Code to have an individual present and in the courtroom, and then the discretion exists to call that individual to give testimony, to provide testimony or evidence to the court, should the court decide so. But to have the ability to summons somebody is simply to have them attend. That is my interpretation.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Through you, Mr. Chairman, on clause 4, which allows the Vice Chief of the Defence Staff to issue direct orders to the provost marshal pertaining to ongoing investigations, can you just share with us, or certainly clarify, how this will affect judicial independence? What type of test will be used to determine whether any particular case merits this type of intervention? Will there be limits to this power? Finally, Mr. Minister, would the provost marshal be required to justify such orders?

[The Chair, Conservative, Maxime Bernier]

A short answer, Minister.

[Peter MacKay, Conservative, Central Nova, NS]

It is a rather complex and multi-part question. The short answer is that I believe there are very rare circumstances in which the Vice Chief of Defence Staff would intervene in this matter. However, the discretion is still there, based on the current legislation.

The second part of your question I guess is whether we are reviewing the circumstances in which it might occur. I suggest that this will be the subject of further examination by this committee. It would be appropriate to pose that question to the Judge Advocate General in the coming session, and future witnesses, to perhaps further weigh the appropriateness of when and where a Vice Chief of Defence Staff might make such an intervention and whether this would be deemed undue interference in the process, as opposed to, again, one of those circumstances, rare though it might be, where the intervention of the chain of command might be appropriate, based on the necessity to maintain order and discipline. Operational security, I suppose, might be another matter where there could be an intervention.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Minister.

Mr. Payne, you have the floor.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chair.

Thank you for attending today, Minister. It's good to see you here again.

Looking at this bill, it's certainly a really important opportunity to upgrade the military system, I believe. The information in here I think is going to be very positive to try to get it much closer to the civilian justice system.

One of the things that intrigued me, of course, was the concern in the Lamer report addressing security of tenure of judges until retirement. Can you maybe explain the necessity of this recommendation and how it's been incorporated into Bill C-41?

[Peter MacKay, Conservative, Central Nova, NS]

Again, this was a bit of an anomaly, Mr. Payne, in terms of how the military judges were out of step in terms of their tenure. After their appointment, they had to renew their tenure every five years.

There were concerns that were set out in the Lamer report specifically about their job security, for lack of a better word, and how this could potentially impact on them, a consideration around retirement age. To address the concerns that were there outlined in the report, to address concerns that I've had expressed to me about the job security and the fact that the tenure of military judges was out of step with the justice system, I think this amendment properly addresses that in a way that mirrors now our civil system and will enhance the perception of judicial independence, which was also a concern that was raised by members of this committee, and it was discussed in the House.

Judicial independence is very important. It's consistent with what we're trying to accomplish here. It's consistent with the tenure of judges in the Canadian civilian justice system. For all of those reasons, I think we have struck a proper balance with this amendment.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you.

Also, during the course of debate in the House, several members of the opposition raised concerns regarding the harshness of sentencing in the military justice system. Could you maybe address some of that information and give clarification?

[Peter MacKay, Conservative, Central Nova, NS]

Yes. Again, you'll find that this is a legitimate concern. If you were to look at this through the lens of how civilians might see the necessity of certain types of behaviour, certain types of dress, certain types of activities that are undertaken by the military, they might question why our system of justice in the military is geared in such a fashion. Those questions are answered again in the necessity of how the military train, how they respond, how they accept a certain doctrine by virtue of joining the Canadian Forces.

It was again the subject of considerable deliberation by Justice Lamer in the Généreux case. He talked about the need to sometimes add quickly, to frequently instill what might be deemed a more severe punishment for what are more mundane breaches of codes of conduct. This is all about maintaining that high standard of discipline, readiness, and behaviour that is in line with being effective as a member of the military but never being out of step with basic principles of fairness. The word “harshness” was thrown around a little bit during the debate, I know.

Bill C-41 incorporates something else, which is the principle of restraint. It uses those words “principle of restraint” so that the military system doesn't go overboard in applying sentences or discipline when it comes to certain what are more summary types of offences. Again, I think the bill itself is aimed at providing statutory protection for unduly harsh sentences while also upholding that code of discipline, that code of conduct, expected of members of the military in the pursuit of their career and in the pursuit of their objectives.

[The Chair, Conservative, Maxime Bernier]

Thank you.

I will give the floor to Mr. Bachand.

Mr. Bachand, the floor is yours for five minutes.

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

Thank you, Mr. Chair.

Mr. Minister, I still have three questions for you. I invite you to take note of them; I will be pleased to hear your answer.

My first question deals with the fact that the chief of the defence staff is going to delegate his duties as final adjudicator in the grievance process. In my opinion, if he is allowed to delegate these final duties, it will put the chief of the defence staff out of the loop and he will not really know the status of the disputes. I would like to know what you think about this.

Here's my second question. The bill also sets out the obligation of carrying out independent reviews in the future. There is great deal of protest about the current grievance procedure. We are talking about future independent reviews. When are we going to make the most of the independent reviews on the grievance process, something I am particularly interested in?

My last question concerns the military judges who will now have the right to file a grievance themselves. To my knowledge, this is fairly new. I find that it is an infringement on a judge's judicial restraint. The equivalent does not exist in public or civil law. Is it not an infringement on a judge's judicial restraint if he has the right to file his own grievances to complain about how he is treated?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Chair and Monsieur Bachand.

Thank you for your questions.

With respect to the grievance process and the amendments that are made as they pertain to certain grievances, again I would suggest that the chain of command operates quite differently when it comes to a comparable system, if you will, of justice. One analysis might be that it's similar to having prosecutors and junior prosecutors and people who work within the system where certain authorities can be delegated. That is very consistent with military life, military doctrine. You have ranks. You have authority that is sometimes delegated to junior officers and further through the chain.

I don't agree with your assessment that because this delegation might occur, somebody would be out of the loop or they wouldn't be aware of what was happening on the ground. I would suggest that most military, throughout the ranks, are very fastidious in ensuring they communicate clear instruction, that there is a clear expectation of what is to occur. Again, that is part of military life. This doctrine of delegated authority is found throughout the military, and the military justice system is no exception.

When it comes to future cases around grievance and the process of those grievances, some of what you have outlined in your question is found in specific amendments here. Others have been delayed, in large part because--again, for emphasis--we did not want to be seen to be imposing changes to the grievance process or the military police complaints process while certain important and sensitive cases were being considered. That isn't to say those changes will not be implemented in the future; it is not to suggest that they are not legitimate amendments to be considered.

I guess the short answer is that in due process, in due time, we'll move on some of these other recommendations and some of these other necessary amendments. We hope to be able to do this in addition to, not separate from, or in any way in parallel to.... We hope to be able to do these without any perception, real or otherwise, that we were trying to interfere with those ongoing deliberations.

On the subject of neutrality of judges, I couldn't agree more. This is an extremely important issue. The neutrality of judges, in any system, is one of those sacrosanct matters when it comes to the integrity of the process. Suggestions that may come from this committee, further amendments around the insulation, if you will, of the neutrality of judges, are very important to the overall functioning of the system. I look forward to those recommendations, and I look forward to the testimony of others who will be coming before this committee and who can comment further on that subject.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Mr. Minister.

Mr. Cathcart…

we'll be with you in five minutes.

I am going to suspend the proceedings for five minutes, and then we will resume the public meeting.

[The Chair, Conservative, Maxime Bernier]

Good afternoon to our members and our witnesses. We are continuing the 46th meeting of the Standing Committee on National Defence.

I want to welcome Mr. Gleeson and Mr. Gibson, and also Mr. Blaise Cathcart. Thank you for being with us.

Now I will give the floor to Monsieur Bachand.

Mr. Wilfert, are you ready? Do you want to have the floor?