Evidence of meeting #51 for National Defence in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was judges.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Bruce Donaldson  Vice-Chief of the Defence Staff, Department of National Defence
Alain Gauthier  Director General, Canadian Forces Grievances Authority, Department of National Defence
Timothy Grubb  Canadian Forces Provost Marshal, Department of National Defence
Patrick K. Gleeson  Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence
Lucie Tardif-Carpentier  Procedural Clerk

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

I think that if you spoke to the chief military judge, you would find that he certainly seems to be comfortable with the complement of judges that he has right now.

If I could just clarify, though, the intent isn't to get rid of these reserve military panel judges. They would be appointed and have security tenure in the same way a full-time judge would have that tenure, the difference being that unlike the full-time judges, as in the civilian court structure, they aren't paid on a full-time basis. They would continue to hold that position until they reached retirement age, but the chief military judge would decide when he wanted to, for lack of a better term, call them out for service to perform a judicial function. It's just a means of providing a greater pool of individuals available to the chief military judge.

As I said, the extreme example is the mobilization example I talked about earlier, but there are many more practical day-to-day examples of how this could arise. For example, if you ended up with a case with six co-accused who were all being tried separately, having four judges would create a significant problem. We haven't faced that problem to date in our system, but six co-accused with four judges would create a significant problem for the chief military judge as he tried to find a judge who was not conflicted, based on something he'd done earlier. This panel would give him a pool of other people he could go to in order to resolve that type of situation.

It really is not intended to in any way undermine the tenure or judicial independence of this pool of, for lack of a better term, part-time individuals. They would remain in their positions; once appointed, they would remain there. It really would be up to the chief military judge as to how he chose to employ them, and when he employed them, of course, they would be paid for those services.

That's the intent here.

5:05 p.m.

Conservative

The Chair Conservative Maxime Bernier

Thank you.

Go ahead, Mr. Hawn.

5:05 p.m.

Conservative

Laurie Hawn Conservative Edmonton Centre, AB

Just so I'm crystal clear, once they're appointed, those reserve judge panel members are there until retirement. They're just not going to be collecting--

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

They would be there until the prescribed retirement age for members on that panel.

5:05 p.m.

Conservative

Laurie Hawn Conservative Edmonton Centre, AB

They won't be paid unless they're on duty, and they'll be on duty as required.

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

That's right, unless, as Colonel Gibson has pointed out to me, they voluntarily wanted to withdraw from the panel and resign from their position, which any judge can do, of course.

5:05 p.m.

Conservative

The Chair Conservative Maxime Bernier

Thank you.

Go ahead, Mr. Harris.

5:05 p.m.

NDP

Jack Harris NDP St. John's East, NL

I just have a couple of technical questions, Colonel Gleeson.

In terms of this notion of reserve force military judges, are they reservists in the sense of how the military talks about the reserve? Is that in the same context?

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

5:05 p.m.

NDP

Jack Harris NDP St. John's East, NL

That's of the reserve.

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

That's right, but they would not able to perform their reserve military duties anymore once they move to this panel.

5:05 p.m.

NDP

Jack Harris NDP St. John's East, NL

I think you've explained the second thing I wanted to ask. In terms of the independence of the judiciary, they have the same security of tenure in the sense of the rules that are now being implemented here. I'm concerned about assignment or appointment. Is that in the control of anyone other than the chief military judge? Is there no other interference with that? I'm the chief military judge and I can say that I need you; is nobody else deciding that?

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

The appointment of the panel would be the normal judicial appointment process. That would be a GIC appointment. Once they're on the panel, how those individuals are employed is at the discretion of the chief military judge. Nobody else gets to--

5:05 p.m.

NDP

Jack Harris NDP St. John's East, NL

Nobody else gets to decide. No administrative person is making these decisions.

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

They're part of a judging pool that is available, just like the full-time judges. Their judicial duties are assigned to them by the chief military judge.

5:05 p.m.

NDP

Jack Harris NDP St. John's East, NL

In addition to the issues such as perhaps a deployment with a lot of forces and a potential need for more judges, there can be situations of disability or short-term or medium-term disability. There could be a conflict. A judge can be conflicted because he was the commanding officer of somebody or had some relationship. There are various ways in which these four judges might not be available.

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

There are. As I said, we've been very lucky to date in the last ten years that we've not run into a serious problem. I think that if you talk to the chief military judge—and I certainly can't speak for him—you'll find that he's had some challenges in trying to balance the small pool of officers he has over there performing those functions.

5:05 p.m.

NDP

Jack Harris NDP St. John's East, NL

Is there a limitation on the number of people who can be added to the panel?

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

There is no limitation prescribed in the legislation for the panel. No, there's not.

5:05 p.m.

Conservative

The Chair Conservative Maxime Bernier

Thank you, Mr. Harris.

Mr. Bachand, you have the floor.

5:05 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

I am going back to Mr. Harris' first question. Are they reserve judges or judges from the reserve?

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

The judges are members of the reserve force.

5:05 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

They are from the reserve.

5:05 p.m.

Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence

Col Patrick K. Gleeson

If you look at proposed subsection 165.22(1) on page 18 again, sir, you'll see that there is established a reserve forces military judges panel, to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who meets one of the four criteria there. He would have to have military experience.

5:10 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

I have another, very important question, Mr. Gleeson. Is there a provision that prevents double dipping?

What I mean is, could a regular judge decide to retire with full compensation, with his pension, and be paid as a judge on top of that?

Can you address this issue?