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.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Mr. Leif-Erik Aune
Michael R. Gibson  Deputy Judge Advocate General of Military Justice, Office of the Judge Advocate General, Department of National Defence
André Dufour  Director, Military Justice Strategic Response Team, Office of the Judge Advocate General, Department of National Defence

4:45 p.m.

Conservative

The Chair Conservative James Bezan

Mr. Alexander.

4:45 p.m.

Conservative

Chris Alexander Conservative Ajax—Pickering, ON

Thanks, Chair.

We oppose the amendment because there needs to be provision in this act for a surge capability for military justice. We did not see that need on a mission such as the Afghanistan mission, even though there was extraordinary complexity there. We saw it on the battlefields of Europe at different periods in our history. When our armed forces go from roughly 100,000 to 200,000, or half a million to a million people in uniform, as has happened in the past, there is a requirement to take the tools of military justice overseas with that force.

This provision applies specifically to that. It meets the operational obligation of the force under the act to be ready to operate in intense situations on a very large scale at short notice. If we didn't have it, we would really be hamstringing the military justice system in terms of its flexibility in the unlikely event, the very unlikely event, that this need should arise. It's absolutely essential, in fact one of the most essential aspects of the military justice system, as now codified in the act.

The changes our bill is making to clause 41 will enhance the status, the reliability, the professionalism of military judges. That is one of the goals of the act: to encode their status in law more formally. The reserve force of military judges has to be part of that equation.

4:45 p.m.

Conservative

The Chair Conservative James Bezan

Mr. Harris.

4:45 p.m.

NDP

Jack Harris NDP St. John's East, NL

I'm not sure what world the parliamentary secretary is living in, but we're not on a war footing. This Parliament, this country, is not on a war footing. If we're contemplating—if I may finish—the necessities of an armed force of 100,000 or 200,000 or one million people in uniform engaged on a battlefield, while we're putting these people into uniform and recruiting them and training them and standing them up, or whatever the appropriate expression is, and sending them into a circumstance where we might need more military judges, then somewhere along the way I suspect that the Parliament of the day could ensure that whenever it's necessary to have an appropriate system in place for that work—whether it be raising the funds to do it, bringing legislation into order, or making sure that we have the things contemplated—that would be done. We can't put 100,000 people in the field like that. Look at the experience of Afghanistan.

Yes, we used reservists. Why did we use reservists? We used reservists because we didn't have enough armed forces to maintain the unit in the field at the strength required, and we brought reservists to the fore. They spent six months training before they got there.

If we had the kind of emergency that my friend is talking about, then we'd certainly have a very compliant Parliament that would ensure the system was adequate to handle it, whether it be financial, whether it be legal, whether it be legislative emergency powers or whatever else is required to do that.

I really don't think that is much of an argument for creating a system that's unnecessary in the current circumstance.

4:50 p.m.

Conservative

The Chair Conservative James Bezan

Colonel Gibson.

4:50 p.m.

Col Michael R. Gibson

Mr. Chair, I believe Mr. Alexander has articulated one of the primary policy intents—to provide a search capacity in the event of the rapid-mobilization expansion of the forces.

There is also another rationale, for which one does not have to look to such an exotic or far-off potentiality. We have only four regular force military judges. It's not difficult at all to envisage a case in which there are multiple accused with cut-throat defences in which they make motions for separate trials. It doesn't take long to exhaust the bench of four judges to do that, so this provides us with a very low-cost and flexible mechanism to accommodate the circumstances of having a case in which there are 10 accused, which is not at all impossible to envisage. That is also one of the policy rationales for the provision.

4:50 p.m.

Conservative

The Chair Conservative James Bezan

Okay.

Madame Moore.

4:50 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

My comment is not specifically about the amendment. It's actually about the provision itself.

4:50 p.m.

Conservative

The Chair Conservative James Bezan

There is a technical problem.

4:50 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Can I speak even if my comment is not specifically about the amendment?

4:50 p.m.

Conservative

The Chair Conservative James Bezan

We're on the amendment—

4:50 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Can we come back to this later on?

4:50 p.m.

Conservative

The Chair Conservative James Bezan

We have to deal with the amendment first, and then we can come back to the main motion after that.

Mr. Alexander, you wanted the floor.

4:50 p.m.

Conservative

Chris Alexander Conservative Ajax—Pickering, ON

It's just to say that Mr. Harris' argument is patently absurd, given that every major military engagement we've been involved in has involved us in combat in much less than a year, and often within months of the beginning of the mission, and in this particular case it's taken us almost two years to come even close to amending the National Defence Act with regard to military justice. We have shown our own inability to meet this kind of requirement on short notice—led by Mr. Harris, I might add.

4:50 p.m.

Conservative

The Chair Conservative James Bezan

Mr. Harris.

February 27th, 2013 / 4:50 p.m.

NDP

Jack Harris NDP St. John's East, NL

I might remind my colleague that, led by Mr. Harris, the legislation with respect to military judges went through all three stages of legislation in the House of Commons, with respect to Bill C-16, in a matter of three weeks. It was introduced on maybe October 10 or 11 and was passed into law before the end of that month, because it was regarded as a necessity, given the circumstances that presented themselves.

I don't think we need to play politics with this. We can have legitimate arguments here. A similar thing happened with the passage of Bill C-60 in about a month. That was before I was here, in 2006 or 2007.

We are here as politicians for the good of the country. We may have differences about what we're doing now, but in a time of emergency or special circumstance, as we saw with the concerns about the legitimacy of the military justice system because of the rulings under the Charter of Rights and Freedoms, actions are taken. My view is that is exactly what would happen in the circumstance we're talking about, if this country were at war.

4:50 p.m.

Conservative

The Chair Conservative James Bezan

Seeing no other hands, we are voting on the amendment, which is NDP-19.

(Amendment negatived [See Minutes of Proceedings])

We're back to clause 41.

Madame Moore, you had a technical question.

4:55 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Regarding military judges, the bill states the following: “A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.” The same is stated in the case of Reserve Force military judges. Why were the words “at his or her request” used? Is that really relevant?

It seems to me that, once the judge is released from the Canadian Forces, it doesn't matter whether they were released at their request or not. Why was it deemed relevant to add those words? The person could be released for medical reasons. In such a case, the release would not come at their request.

Why were the words “at his or her request” added? I don't understand how that is relevant.

4:55 p.m.

Col Michael R. Gibson

I'm sorry, but the translation wasn't especially clear.

Could I ask you to please point to which particular provision you are referring to?

4:55 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

I can explain it to you in English.

When we are talking about military judges ceasing to hold office on being released from the Canadian Forces, why do we use the words “at his or her request”. In fact, he's being released from the Canadian Forces, so if it's at his request or not, it doesn't matter. If he's released, he's released.

4:55 p.m.

Col Michael R. Gibson

Mr. Chair, the answer goes to the fundamental requisites of judicial independence. One of the three requirements for judicial independence elaborated by the Supreme Court of Canada in a number of cases, including Généreux, is security of tenure. In order not to violate security of tenure, you have to have a retirement age fixed by law—in other words, an age at which the person ceases to hold office, in this case 60—but it's also possible that the person may decide himself or herself that they no longer wish to do that. In this case, it's because it's their voluntary choice to cease office. That doesn't infringe their security of tenure.

The short answer to the question is that it's necessary to contemplate the situation where the person himself or herself wishes to cease holding office in order to respect the requisites of security of tenure, which is one of the fundamental requirements of judicial independence.

4:55 p.m.

Conservative

The Chair Conservative James Bezan

Do you wish to follow up, Madame Moore?

4:55 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Proposed subsection 165.21(5) states that the person may no longer wish to carry out their duties; that's very clear.

However, when someone is released from the Canadian Forces—be it for medical reasons or at their request—they cease to perform their duties. I don't understand how the words “at his or her request” are relevant. It seems to me that this adds some confusion. The person stopped performing their duties either when they were released from the Canadian Forces, when they attained the age of 60 years, or when they resigned under proposed subsection 165.21(5).

4:55 p.m.

LCol André Dufour

I can answer that.

I would like to begin by specifying that the law—chapter 22 of the Statutes of Canada, 2011—talks about that provision. That provision was used again because there was uncertainty over whether Bill C-15 and Bill C-16 should be introduced at the same time.

To answer your question more specifically, I would say that, in proposed subsection 165.21(4), two circumstances are set out—the judge's request, or the attainment of the age of 60 years. Subsection 165.21(5) talks about how to deal with resignations. The legislation overlaps simply to cover both possibilities.

4:55 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Under what provision can the judge request to stop working as a judge, but remain in the Canadian Forces? Is that a possibility?