National Defence Committee on Feb. 27th, 2013

[The Chair, Conservative, James Bezan]

Okay.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Well, hang on. I just want to think about that. I don't want to go over the top here, but it seems to me that this gives the CDS a “get out of jail free” card for anybody who is remanded in custody.

[Col Michael R. Gibson]

Well, Mr. Chair, I think that presumes an awful lot about the actions and intentions of the CDS. Any actor in this system is going to, one should presume, be governed by good faith and act in accordance with the rule of law. I don't think it bears the sort of potentially sinister interpretation that is suggested.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I don't see that as potentially sinister; I simply see it as a matter of drafting. If in fact the idea is as you initially described it, then surely to goodness the drafting could be a bit more precise than the way it currently appears, which to my mind is as a fairly wide open opportunity for abuse.

Not all people in all systems at all times operate in good faith.

[Col Michael R. Gibson]

May I briefly respond, Mr. Chair?

Given that regulations are made by the Governor in Council, I think one presumes that the Governor in Council is going to act in good faith in accordance with the law.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Do we have any example of the regulations? Are the regulations available at this point? Are they about to be drafted? Where are we?

[Col Michael R. Gibson]

Mr. Chair, as Mr. McKay may know or may recall, draft regulations are subject to cabinet confidence, so I cannot speak in any great level of detail about what exactly would be in the regulations, simply because I am unable to do so.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Do these kinds of regulations come before something equivalent to the scrutiny of regulations committee?

[Col Michael R. Gibson]

Mr. Chair, the regulations under QR and O are exempt from the requirement to be gazetted, but yes, they go through the regulatory submission process, which I can tell you from painful personal experience is extensive and protracted, and ultimately they are regulations made by the Governor in Council.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Well, there is an antidote to pain, and that's generally precision in drafting.

I'm not prepared to pursue this, Chair, but it strikes me as anomalous, to be candid with you.

[Col Michael R. Gibson]

Mr. Chair, Lieutenant-Colonel Dufour has trained as a legislative drafter. Maybe he could add a little bit of interest here.

[The Chair, Conservative, James Bezan]

Lieutenant-Colonel Dufour.

[Lieutenant-Colonel André Dufour, Director, Military Justice Strategic Response Team, Office of the Judge Advocate General, Department of National Defence]

Mr. Chair, with respect to the federal regulatory process, as a matter of policy we follow this federal process, and throughout any submissions made to the Governor in Council or to any competent authorities, we comply with those requirements.

Under section 12 of the National Defence Act, we can make regulations for this purpose; however, under the statutory instrument regulations there is an exemption for examination, registration, and publication. So we do this pursuant to law.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I buy the argument that you're doing it within the framework of the current legislative framework. I don't argue that point. But because it has no public scrutiny, therefore the regulations get drafted outside of the purview of the public. Presumably the power that, in effect, this section gives you is the power to get somebody out of detention. I don't want to beat this to death, but it just strikes me as....

[The Chair, Conservative, James Bezan]

Yes.

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thanks, Chair.

In my two years on this committee and as a member of Parliament, I have never heard either a government member or an opposition member call into question the integrity of agreements, regulations, and orders. They, by and large, pass muster with all of us. Given that we give them very little attention, they seem to function well.

I think we on this side, and we on the committee, can assume that drafting will be done in good faith. But could we ask Colonel Gibson, if it would not be too much to ask, to have it signalled to the committee once these regulations have been completed, published, so that we can—not necessarily with committee time but on our own time—review them to ensure that they fulfill the expectation created by this clause?

[Col Michael R. Gibson]

Of course, Mr. Chair. Once regulations are made by the Governor in Council, they're public, and they're published; they're on the Internet. In fact, the official version is now the official version published on the defence website. So they are perfectly transparent, but I'd be very happy to pass on to the committee notice that those have been made.

[The Chair, Conservative, James Bezan]

We would appreciate that, Colonel Gibson.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

I was actually comforted by the first response I got from Colonel Gibson as to the intention and the purpose here with respect to establishing an administrative mechanism to meet the need here. But I'm a little disturbed in your answer to Mr. McKay's question that yes, that's the primary intent here, but it could be used for other purposes. That comment gives some force to what Mr. McKay was saying in terms of the way this matter is drafted.

What other circumstances are you talking about, then, outside of an administrative one? It doesn't quite say administrative here. I took your comments in good faith, particularly since they're on the record here in the defence committee, that this was the intention and that it was involved with administrative proceedings. I'm not looking for any nefarious reasons here, but what else is contemplated? Aside from the notion that there ought to be some way that doesn't involve a lot of other procedures to allow for the release of someone who is in custody under lawful direction or who has conditions on their release under a lawful order of a tribunal or court, what other ones do you have in mind?

[The Chair, Conservative, James Bezan]

Colonel Gibson.

[Col Michael R. Gibson]

Mr. Chair, again, without, obviously, stepping over the line of cabinet confidence, I could say that in general terms, the explanation or the intention that I already indicated is the one that we're contemplating at this time. I'm merely making the point that throughout the act there is often an ability provided to make regulations, partly in recognition of the fact that we know we're not smart enough to contemplate every single possibility down the road. But I would reiterate once again that the GIC doesn't make regulations that are patently illegal or won't pass public scrutiny.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you.

(Clause 33 agreed to on division)

(Clause 34 agreed to)

(On clause 35)

We have two amendments submitted by the NDP. They are consequential, so we are voting on both amendments. When you're voting on amendment NDP-17, you're also technically voting on amendment NDP-18. So if it succeeds, they both succeed; if it's defeated, they are both defeated.

It's reference number 5993962.

On clause 35, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

I would like to move that amendment.

This is, I guess, a technicality, in the sense that we have to thank Justice LeSage for pointing it out. He pointed out that, based on a similar amendment in Bill C-41 in the last Parliament, there was a need for some certainty here, because of the confusion as to “after that day” being added there: what day is “that day”? He proposed that it be clarified by ensuring that the day we're talking about is that the summary trial can commence within one year after the day on which the offence is alleged to have been committed.

We have therefore moved this amendment, which is NDP-17, to give that clarity. I don't have much more to add to it than that. He does explain in his report that “after that day” is confusing. It's difficult to understand what day we're talking about in “the summary trial commences within one year after that day”. He's a judge. He tells us that he finds it ambiguous and confusing. They're the ones who are asked to apply these laws.

This puts on a limit. Of course, someone can always make an objection to a court or to a tribunal that the charge is taking place at the wrong time and have it thrown out. He suggests there is a need for clarity here. We are taking his advice and putting this to the committee to have that clarity imposed or put in the bill to allow that proper interpretation to be made and the intention of the legislature to be clear.

[The Chair, Conservative, James Bezan]

Currently the bill doesn't specify “that day”, although that's what it says here: “that day”.

Mr. McKay.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I generally operate from the principle that justice delayed is justice denied. I think if it's applicable outside there, it's even more applicable inside the military community. Any offence or any allegation of any offence has significant implications, not only for the soldier and his or her family, but also for, if you will, the extended military family. I preface my observation with that kind of caveat. If justice delayed is justice denied out there, it's really justice delayed is justice denied if it's not dealt with expeditiously inside the military culture.

As I would understand it, the starting point for the NDP and the government's amendments is the day of the offence, so that the charge has to be laid within six months of the offence date. But then the government gives itself, in effect, one year from the charge date to deal with the matter, whereas the NDP amendment basically is that the 12 months start running from the day of the offence.

In some respects, the government's position is more precise, but it's a longer timeframe. Am I understanding it correctly, therefore, that effectively from day one to the end of the day, the NDP amendment covers off 12 months and the government's position is 18 months. Is that fair?