National Defence Committee on Nov. 15th, 2011

[The Chair, Conservative, James Bezan]

Good morning, everyone. We are in meeting number 12 of the new session. We're going to be dealing with the order of reference that was sent to committee from the House of Commons on November 4 to undertake the study of Bill C-16, An Act to amend the National Defence Act (military judges).

As a witness this morning, for the first hour, we have Colonel Michael Gibson, Deputy Judge Advocate General--Military Justice.

Colonel, if you would please make your opening comments and give us background on the bill, we'd appreciate that.

[Col Michael R. Gibson, Deputy Judge Advocate General, Military Justice, Office of the Judge Advocate General, Department of National Defence]

Thank you, Mr. Chair.

Honourable members of the committee, thank you for giving me the opportunity to briefly address you regarding Bill C-16, Security of Tenure of Military Judges Act.

I am pleased to be with you this morning as you begin your examination of this bill, which, as members will be aware, is a companion bill to the more comprehensive Bill C-15, which is currently at the debate stage of second reading.

Bill C-16 is specifically aimed at expeditiously and effectively responding to the recent judgment of the Court Martial Appeal Court in the case of R. v. LeBlanc regarding the constitutionality of the appointment and tenure of military judges.

Currently under section 165.21 of the National Defence Act, military judges must be officers and barristers or advocates of at least 10 years standing at the bar of a province before they may be appointed by the Governor in Council. That section further provides that a military judge holds office during good behaviour for a term of five years; is removable for cause by the Governor in Council on the recommendation of an inquiry committee; and is eligible to be selected for renewal for a second or subsequent term on the recommendation of a renewal committee.

On June 2, 2011, the Court Martial Appeal Court delivered its judgment in the case of R. v. LeBlanc. In its decision the court determined that those portions of section 165.21 regarding the appointment and tenure of military judges do not sufficiently respect judicial independence as required by paragraph 11(d) of the Canadian Charter of Rights and Freedoms. The court specifically declared that subsections 165.21(2), 165.21(3), and 165.21(4) of the National Defence Act were constitutionally invalid and inoperative. However, it suspended the declaration of invalidity for a period of six months to allow Parliament to enact remedial legislation. The court's declaration, absent of such an enactment, will be effective on December 2, 2011.

This decision is consistent with the recommendations of the Right Honourable Antonio Lamer, the late former Chief Justice of the Supreme Court of Canada, who submitted an independent review of the National Defence Act in 2003. Former Chief Justice Lamer found that while these current provisions were not unconstitutional, military judges should be awarded security of tenure until retirement, subject only to removal for cause on the recommendation of an inquiry committee.

Bill C-16 responds directly to the recommendations in the Lamer report and to the decision in R. v. LeBlanc. The proposed amendments will enhance security of tenure for military judges by providing that they serve until the retirement age of 60 years unless removed for cause on the recommendation of an inquiry committee or if the military judge resigns.

As mentioned earlier, Bill C-15, Strengthening Military Justice in the Defence of Canada Act, introduced at the same time as this bill, addresses the same security of tenure issues and proposes broader systemic changes. Coordinating amendments have been added to Bill C-15 to ensure that in the event both bills enter into force, it will be the provisions of Bill C-15 that take effect. Those provisions in this regard are identical to this bill.

I would be pleased to assist the committee by answering any questions you may have regarding Bill C-16.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you, Colonel.

We'll go now to our first round with Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Chair.

Thank you very much for your presentation, Colonel.

As colleagues will know, we've been very supportive of this and have been working with Mr. Alexander, the parliamentary secretary, to move this through as quickly as possible. We don't see this as controversial. We see this as a matter of housekeeping in terms of justice matters.

We have a couple of questions just for the purposes of clarification, but it's our intent to move this through both committee and third reading as quickly as possible and to get this in place.

With that, I'll just turn to my colleague Madame Moore and ask her to put a couple of questions for clarification. But do understand it's our intent to move this through as quickly as possible, Chair.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

My first question concerns one of the amendments to the act that the bill proposes. As amended, subsection 165.21(3) of the act would indicate the following: "A military judge ceases to hold office on being released at his or her request…"

I'm wondering whether the words "at his or her request" are important. When the judge is released from the Canadian Forces, whether or not it is at his or her request, he or she is released. It may be that the judge is released for medical reasons that he or she did not request.

Do you think the words "at his or her request" are relevant?

[Col Michael R. Gibson]

Thank you for the question.

Yes, of course, it addresses the fact that once appointed as a military judge, a particular judge may not wish to continue in office as a military judge for reasons of his or her own. In those cases, of course, there is no infringement upon judges' traditional independence if they ask to be relieved of that function or if they take their release from the forces.

In the event that a judge was found to be, in a hypothetical case, medically incapable of continuing in office, that would require that an inquiry committee be struck and that a recommendation be made by the inquiry committee, which would be upon the grounds that the person was not medically capable of fulfilling the office. That would be, in essence, exactly the same way that it would happen for a civilian judge in the civilian justice system.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Okay.

I would also like to ask a second question, which is also a little technical.

Why is the retirement age set at 60, and not 65? What is the current retirement age? I would like more detail. Why was 60 years chosen?

[Col Michael R. Gibson]

The reason 60 years was chosen is that military judges are military officers in the Canadian Forces, and it was considered to be important, for reasons of consistency of personnel policy, that their retirement age be consistent with that of Canadian Forces officers generally. The age of retirement for officers in the Canadian Forces is described in QR and O article 15.17, and currently for members who have joined since 2004, the specified age of retirement for Canadian Forces officers generally is 60 years. Since military judges are military officers, as I said, that's why the age of 60 was selected.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you. I have no further questions.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Gallant, you have the floor.

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

Thank you, Mr. Chair.

And thank you to our witness.

I'd like to understand better the composition of the inquiry committee. Should there be complaints against a judge, how would that process work? How would the membership of the inquiry committee be comprised? How would members be found? How difficult would it be for someone to remove this judge?

[Col Michael R. Gibson]

The provisions in our law regarding an inquiry committee are largely consistent with similar provisions set up under the Judges Act with respect to civilian judges. So currently, today, the inquiry committee is constituted in the Queen's regulations and orders and would be composed of three judges of the Court Martial Appeal Court selected by the chief justice of the Court Martial Appeal Court. It is meant to be a safeguard of independence that the composition of the committee is determined by an external independent authority and that the actual members of the committee would be judges of the Court Martial Appeal Court who would examine this.

Under the proposals in Bill C-15, the inquiry committee as recommended by former Chief Justice Lamer would be shifted from regulations into the National Defence Act itself to give greater prominence to that and to give even greater perception of the security of independence.

So to answer your question about how difficult it is to get rid of a judge, of course, that is something that would not be undertaken lightly in either the military or civilian justice system. It happens extremely rarely, and the conditions that would be required for that would either be that the judge had sufficiently misconducted himself or herself in demeanour so as to no longer be able to continue as a judge or that the judge was medically incapable of continuing.

The conditions and the criteria for removal are specified in law, and the decision to make a recommendation is made by an external independent authority.

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

So the process would have to be initiated by someone in the judiciary.

[Col Michael R. Gibson]

The process would be initiated, if it were considered required, by an authority's writing—for example, hypothetically, the Judge Advocate General, who has statutory responsibility to administer the military justice system, writing to the chief justice of the Court Martial Appeal Court, who would then constitute the committee.

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

What would it take to compel the Judge Advocate General to go forward with the process?

[Col Michael R. Gibson]

As I said, it would have to be clearly a very grave situation such that it was considered that the judge had misconducted himself or herself to such a degree—for example, had been convicted of a serious criminal offence—or had had a stroke or something like that, which rendered the judge medically incapable of continuing in office. But the point to be made is that the purpose of the inquiry committee is to ensure that a judge could only be removed from office on extremely grave grounds and that the process to make that recommendation would be transparent and rigorous.

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

Can you please tell us what the consequences will be if this bill does not receive quick and speedy passage through either this committee or the House of Commons? In other words, how urgent is it that this bill receive royal assent as soon as possible?

[Col Michael R. Gibson]

It's very important. As I mentioned in my opening remarks, the Court Martial Appeal Court, in its judgment in the LeBlanc case, suspended its declaration of invalidity only until December 2. So in the hypothetical case where this bill does not receive royal assent and is passed into law by that time, it will create a situation of great uncertainty in the military justice system.

I think one could reasonably anticipate a proliferation of applications and courts martial regarding the independence of military judges. That would clearly introduce great uncertainty in the system, delay the progress of cases, and introduce uncertainty for both those accused and victims in cases that involve victims.

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

Right now, how many do we have on the bench, and what effect will this bill have on those who are currently serving on the bench?

[Col Michael R. Gibson]

There are currently four military judges. If the bill were passed, by operation of law the provisions for security of tenure until retirement would apply to those judges. They would have security of tenure until the retirement age of 60.

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

The National Defence Act currently provides that an officer may be appointed a military judge if the officer is a barrister or advocate of at least 10 years' standing at the bar of a province.

Why are civilian lawyers with sufficient legal experience not able to be appointed military judges?

[Col Michael R. Gibson]

The policy rationale for having military judges really goes back to the fundamental attributes that we consider are required for a military court. Amongst them is a profound understanding of not only the necessity for the maintenance of discipline in the forces, but also the requirements of it.

As has actually been recognized by the Supreme Court of Canada in the case of MacKay in 1980, it is considered that military officers are best positioned, by virtue of their experience, to be military judges.

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

What contributes to the selection of a judge from the pool of lawyers you have within the military?

[Col Michael R. Gibson]

The process for selecting a military judge is closely analogous to that found in the civilian system. People who wish to make application to be assessed for appointment as military judges provide their names to the military judges selection committee. The administration of the process of that committee is actually done for us by the Commissioner for Federal Judicial Affairs--the body that does a similar process for the administration of assessment of civilian nominees.

The military judges selection committee currently comprises five persons: a retired Superior Court judge; a nominee of the Canadian Bar Association; a civilian lawyer; the officer occupying the position of Chief of Military Personnel; and, to ensure that the perspective of non-commissioned members is represented, a Canadian Forces chief warrant officer.

The military judges selection committee would provide a recommendation on each applicant to the Minister of National Defence. He would then select the name of the person he considers to be advisable and take it forward to cabinet. That would ultimately lead to an appointment of the military judge by the Governor in Council.

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

How is the availability of the appointment advertised? How do the lawyers within the system know that this position is coming up?