Evidence of meeting #68 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was clause.
A recording is available from Parliament.
LCol André Dufour
Yes, in principle, the judge could make such a request, but positions other than that of judge would have to be available.
NDP
Conservative
The Chair Conservative James Bezan
Are there any other questions?
(Clauses 41 to 44 inclusive agreed to on division)
(On clause 45)
We have an amendment from the government, G-1, reference 5973363.
Mr. Alexander.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
Thanks, Chair.
This is very simple housekeeping. The clause enhances judicial independence by establishing the quadrennial Military Judges Compensation Committee, and the change here is to enshrine its status in the act rather than in regulations. The amendment we're proposing is simply to adjust the date of the next inquiry so that it commences in 2015, rather than 2011, to reflect the timing of this bill's progress through Parliament.
Conservative
The Chair Conservative James Bezan
It's on page 24, starting on lines 4 and 5. The dates that are listed in proposed subsection (3) at the top of page 24 talk about 2011, and Mr. Alexander is moving an amendment to change it to the year 2015.
Does everybody see it? It's just changing 2011 to 2015 in both lines.
Are there comments on the date, the timeline?
Mr. Harris on the date, because we're talking only to the amendment.
NDP
Jack Harris NDP St. John's East, NL
Yes, if we're going to talk only to the amendment, I won't make any comment. I'll speak to the clause.
Conservative
The Chair Conservative James Bezan
Okay.
(Amendment agreed to [See Minutes of Proceedings])
Now we're going to clause 45 as amended.
Comments, Mr. Harris.
NDP
Jack Harris NDP St. John's East, NL
Mr. Chair, this is really talking about compensation for military judges, and of course it brings to mind the evidence we had in committee presented by Mr. Justice Létourneau and retired Colonel Michel Drapeau.
I know this is not a very popular topic with those in the military, but there is and has been a considerable movement throughout the western world, particularly amongst our allies in Australia, the U.K., and New Zealand, and even in France, to civilianize the military justice system, particularly in peacetime. France is the one exception to that; they have the two systems.
One of the considerations, of course, is the cost. When the last compensation committee dealt with this, during the course of which consideration was given to the workload of military judges...and the caseload of military judges could be described as being rather modest compared to that of Superior Court judges. The other systems, such as those in Australia, New Zealand, and the U.K., have managed to incorporate the systems into the regular justice system.
When pressed in the committee—I wasn't here, but I heard it—about having to have military judges because of the nature of the offences and things that are dealt with, one example that was given was the case of Jeffrey Delisle, who of course was tried not by a court martial or by a service tribunal but by a civilian court. A judge heard that case, which involved a sub-lieutenant of the Royal Canadian Navy, during which the judge dealt with the whole purpose of sentencing, etc., all aspects of bail, and everything to do with Sub-Lieutenant Delisle, as judges do on all sorts of law that may be different.
It's a concept that deserves consideration. I'm bringing it up here, under this particular clause, because it does deal with the issue of compensation of military judges and the need for a separate system of military judges. It's one thing to say that it's valuable, desirable, necessary, useful, and certainly constitutional to have a military justice system that is separate from the ordinary justice system because of the need for—as is well known and accepted by all parties in our House of Commons—operational efficiency and discipline as important parts of military effectiveness and operational efficiency, but that doesn't mean we have to have, necessarily, a whole separate system of military judges.
The suggestion has been, of course, that the Federal Court and the military judges could be joined together under the one system. The compensation system would be equal. You wouldn't have a separate system of compensation for military judges. You would have a military panel of the Federal Court made up of those who have experience in carrying out these operations. Of course, as is well known, the judiciary itself has a process whereby over the course of their careers they have many opportunities to keep up with all aspects of the law as part of the ongoing training of judges, so any concerns about that could be dealt with.
I'm raising it now, but I don't want to take up too much time with this because we are dealing with the compensation of judges. We do know that they have to be compensated, but we also have a great deal of sympathy—and in fact support the call by Mr. Justice Létourneau—for a wall-to-wall review of this system to seek to, I would say in this case, actually modernize it, in keeping with what our allies have done.
The review obviously wouldn't take place under this section. It might be another area. We'll talk about it again for a few moments under the review of this act and in keeping with the LeSage report, but it may be the subject of some motions that we would bring to the committee for consideration after we've fully considered this act.
I think the issue has been brought to the committee through this act, rather than being a separate study on that whole point. Perhaps one way to bring it before the committee for its consideration, and a potential recommendation through the House of Commons for a different type of review, would be to bring a motion. I'm not going to give notice of it today, but we'll do it in the normal process of giving a motion and having it debated before the committee.
I wanted to put that on the record, Mr. Chair, because it seemed to be appropriate in this section when essentially we're talking about the compensation of military judges. Multiply that by four and all the accoutrements that go with it. We're talking about the cost of having a separate system as opposed to integrating with the normal justice system, as is done in other countries.
Those are my comments, sir.
Conservative
The Chair Conservative James Bezan
Okay.
I see no other hands.
(Clause 45 as amended agreed to on division)
Is there any chance of grouping any of these clauses together?
Conservative
The Chair Conservative James Bezan
Okay. Let's look at clause 46. Are there any comments or questions?
(On clause 46)
NDP
Jack Harris NDP St. John's East, NL
Yes. I don't know what argument or rationale is being made to suggest that the taxpayers should pay for judges to be represented before the Military Judges Compensation Committee, where they would presumably be seeking to gain financial benefit. This is an example, I should think, of wasteful spending in this case.
In other courts, when they have judicial commissions, the judges themselves are represented by.... I'm aware of a number of cases. In fact, in the Provincial Court of Newfoundland and Labrador, for example, they have their own counsel and they pay for that counsel themselves. They're seeking to make independent representations. It is not paid for by the government.
I don't see why military judges who want to convince someone to give them a different form of compensation or a raise should not be paying their own freight. They are remunerated very well. It's not a case of a need for legal aid, as it were, and it has to do with representation. We see it in all aspects of unions, where they pay their dues and they hire their own lawyers or they get their own union reps. I don't know why the judges shouldn't have to pay their own way, so we don't think that's an appropriate amendment.
Col Michael R. Gibson
Mr. Chair, the answer is actually quite brief. It has to do with the equity of the number of judges and also the fact that a very similar scheme is actually in place in the Judges Act in respect of Superior Court judges.
To start with the first one, there are approximately 1,000 Superior Court section 96 judges in Canada. There are four military judges. To defray the expenses of representation, which are not significantly different as between those two fora, because the function is the same, it's a lot more equitable to spread that cost over 1,000 people than it is over four.
The second part is the fact that there is a provision, a very similar one, in the Judges Act, which doesn't pay the full amount but pays most of it, because it recognizes that the whole point of this process, of a compensation committee, both in the military context and in the civilian context of the quadrennial commission, is that the Supreme Court of Canada has indicated that it is necessary as an incidence of judicial independence.
It's not there to provide some sort of undue perk to military judges. It's a practice that recognizes the necessity to have a process that is respectful of judicial independence and is also consistent with provisions that Parliament has already put in place in the Judges Act.
Thank you.
Conservative
The Chair Conservative James Bezan
Are there other comments?
(Clause 46 agreed to on division)
Now, can we do any groupings? Will I just keep going the way we're going?
NDP
Jack Harris NDP St. John's East, NL
We don't have an amendment on this because it's very difficult to amend without a brand-new scheme being proposed, which would probably be ruled out of order, but we listened to the comments of Jean-Marie Dugas, whose testimony was given to the committee on February 6, and also to the comments of Mr. Justice Létourneau in his book, which he so generously made available to the committee in both official languages.
