National Defence Committee on March 9th, 2011

[Col Patrick K. Gleeson]

Mr. Chair, I think we discussed this last week when we did clause 1. We discussed the purpose for this. It really is, as was indicated, a flexibility provision. It is intended to introduce a degree of flexibility to a rather small bench within the military context. And it is not limited to a very small group of people, which was something I think that was put on the record by some witnesses who appeared before the committee.

I'm happy to expand on any of that, but I think the points have already been made on the record.

[The Chair, Conservative, Maxime Bernier]

Very well. Thank you.

We are therefore going to be voting on amendment BQ-8.

(Amendment negatived)

[The Chair, Conservative, Maxime Bernier]

We will now vote on clause 41.

(Clause 41 agreed to)

We have no amendments to clause 42.

We will now vote on clauses 42 to 46.

(Clauses 42 to 46 agreed to)

(On clause 47)

[The Chair, Conservative, Maxime Bernier]

We now move to clause 47, for which we have amendment BQ-12.

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

Mr. Chairman, the purpose of this amendment is to change the make-up of the panel. From the very beginning, one of the Bloc québécois' concerns has always been to bring military justice closer to civil justice, without however going so far as to having the former be a replica of the latter. It is in itself a noble objective. As a matter of fact, I would remind you that a certain number of countries, for example Great Britain and Australia, were called to task for having too great a distance between the two justice systems.

Under the provisions of the bill as it now stands, if the accused is a non-commissioned member, the panel is composed of two officers and three non-commissioned members. The Bloc québécois would like to change this make-up in order for the panel to be composed of one officer and four non-commissioned members.

This would fall in with the decisions made within our society regarding the treatment of persons facing accusations, or the redress of grievances. People from every layer of society present their arguments and decide on the fate of their peers. I believe the same principles should apply in the case of non-commissioned members. It might even have been advisable to go even further and to propose that a non-commissioned member be judged by five non-commissioned members, in other words his peers. However, we wish to position ourselves between the two options. Instead of there being two officers and three non-commissioned members, we are proposing that there be one officer and four non-commissioned members.

That is our submission.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

Mr. Wilfert, and then Mr. Hawn.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Chairman, through you to the JAG, will this amendment affect the panel's ability to properly function? As well, are there any practical purposes for having a second officer?

[Col Patrick K. Gleeson]

I'd be happy to address that question.

The panel is not intended to be a jury of peers. The military justice system exists for a different purpose. You see that purpose set out in the sentencing principles in this bill. One of the fundamental objectives of the military justice system is the maintenance of discipline and operational effectiveness.

The responsibility for discipline and operational effectiveness does not rest with peers. It rests with the chain of command. That's what the panel makeup is intended to reflect. So the view is that, yes, this would have a negative impact on the military justice system as you try to turn the panel into a jury.

Certainly this bill does provide a greater level of representation for NCMs on panels. We recognized back in 1998 when we introduced Bill C-25, the importance of having senior NCMs sit on panels. Prior to that, no NCM could sit on a panel; it was all officers. It was certainly recognized that NCMs are the senior disciplinarians in units; they play a key and critical role, with significant responsibility for discipline at the unit level, and therefore should be represented on panels.

We have now increased that representation in this bill to three. I would submit that to move to a representation of four and essentially exclude officers--which I think I heard suggested might be the better approach--would definitely undermine the purposes and intent of the military justice system and the court-martial process.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Colonel Gibson, did you want to add something?

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

There's just one further point of important information for the members of the committee to be aware of.

The Charter of Rights actually makes an explicit recognition of the distinct nature of the military justice system. But particularly in the context of juries and panels, paragraph 11(f) of the charter provides as follows: “Any person charged with an offence has the right...(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury...”.

It has certainly been our view--and we think a quite correct view--that the charter actually makes recognition that there is a distinction between a jury and a panel and that there are valid reasons underlying that distinction, which Colonel Gleeson just alluded to.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Hawn, you have the floor.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I'll add just one thing. We've gone from one officer and four NCMs to three officers and two NCMs. We don't have any experience with that yet. That's a step towards what Monsieur Bachand is talking about.

For all the reasons that have been stated, I think we should not support this amendment.

[The Chair, Conservative, Maxime Bernier]

Thank you.

We are therefore now going to vote on amendment BQ-12, that relates to clause 47.

(Amendment negatived)

We will now vote on clause 47 itself.

(Clause 47 agreed to)

Now we have clauses 48 to 61 without amendments. Shall clauses 61 to 48 carry?

(Clauses 48 to 61 inclusive agreed to)

(On clause 62)

We are now on clause 62. We have two Bloc québécois amendments: BQ-13 and BQ-13.1

Mr. Bachand, you have the floor.

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

The purpose here is to add conditional discharge, suspended sentence and probation to the possible outcomes. In the end, the idea is to have new ways of resolving problems rather than resorting to more draconian solutions.

It is important that conditional discharges be listed among the conditions set out in an order, which is not the case at the present time. This would increase flexibility for military judges, enabling them to use these concepts in order for the justice system to be more balanced and more flexible. I am using this term, because it is often mentioned by military judges and lawyers. It is important that there be greater flexibility. What is at the heart of my submission is that military justice must be less rigid towards soldiers and there must be other ways of punishing them.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

I must advise you that, in the Chair's opinion, clause 13 is out of order because it goes beyond the scope and the principle of the bill. I am relying here in rendering my decision on the second edition of the House of Commons Procedure and Practice.

Indeed, it states on page 766 that: "An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill." I believe that this is the case with amendments BQ-13 and BQ-13.1.

Mr. Bachand, you have the floor.

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

Is your decision exactly, word for word, the same as the one you gave last time?

[The Chair, Conservative, Maxime Bernier]

No, it is a new decision. In fact, in the case of the previous one, my reasoning was different. The reasoning I am invoking today is that this goes beyond the scope and principle of the bill.

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

Do you have something against me, Mr. Chairman? You are looking for reasons to lock horns with me.

I would very much like to have your decision in writing, please.

[The Chair, Conservative, Maxime Bernier]

Yes, here it is.

You know that I enjoy working with you, Mr. Bachand. As a matter of fact, I will soon be going to Saint-Jean, for the Royal Military College Saint-Jean, where there is not simply one activity.

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

There are many activities at the Royal Military College Saint-Jean.

I have the impression that he is going to be announcing its complete reopening.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

I think he wishes to privatize it, or else give it to the provinces.

[The Chair, Conservative, Maxime Bernier]

It is under federal jurisdiction.

Mr. Bachand, I will give you a few minutes to read the decision.

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

Mr. Chairman, does your decision apply to both amendments, in other words both BQ-13 and BQ-13.1?

[The Chair, Conservative, Maxime Bernier]

It applies to those two amendments.