Evidence of meeting #23 for National Defence in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Liberal
Liberal
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
Thank you very much, Chair.
I'd like to know whether this amendment undoes Justice Fish's recommendation eight, which was that any “power to issue directives in respect of a particular prosecution” should reside at the ministerial level “at a minimum”.
I want to verify whether that undoes his recommendation. Could you provide further explanation on that recommendation, please?
Col Geneviève Lortie
I can confirm that it's contrary to Fish's recommendation eight, which was to ensure accountability to Parliament. In the same way that the Attorney General can provide to the director of public prosecutions specific instructions, the amendment in Bill C-11 provides this by having the minister provide to the director of military prosecutions specific instructions related to prosecution.
Bill C-11 proposes to move it from the judge advocate general to the minister, who is accountable to Parliament. That would be the same as with the director of public prosecutions. Considering that the Minister of National Defence would be the mirror of the Attorney General in issuing those types of instructions and that the power of the Minister of National Defence related to prosecution has been a subject at the Supreme Court of Canada.... There were those same kinds of parallels about ensuring, considering they were accountable to Parliament, that they maintain that a political decision be made in those decisions.
The case was not exactly on point. It was concerning the appeal right, but we can certainly look at the same principles behind that.
Liberal
Chris Malette Liberal Bay of Quinte, ON
My question is for Colonel Lortie again, I would imagine.
Do we know what Mr. Justice Fish was intending with the original recommendation eight? Is this amendment even remotely in line with that line of thinking, as it's been interpreted?
Col Geneviève Lortie
The way we understand it, it was to ensure accountability by someone to Parliament, with the minister being accountable to Parliament. The judge advocate general is not directly accountable to Parliament. It's only through the Minister of National Defence. It was to ensure direct accountability.
Liberal
Chris Malette Liberal Bay of Quinte, ON
Well, we're all looking for accountability.
Thank you very much.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
As we're talking about how it works within public prosecutions, we heard this from Rory Fowler:
The difference is that the Attorney General is a law officer, the chief law officer of Canada. While the current Minister of National Defence is a lawyer and past ministers of national defence have been lawyers, and it's very easy to advise them when you're a military lawyer, that's not always the case, nor are they a law officer.
The reason why the JAG would give direction to the director of military prosecutions is that it's a lawyer giving another lawyer direction in a very public fashion. By making the director of military prosecutions responsible to the minister—appointed by the minister, accountable to the minister—the JAG is no longer superintending military justice when it comes to military justice before a court martial....
Minister McGinty himself was asked about this and said, “I would be hard pressed to believe that any minister of national defence would want to insert themselves into a prosecution of this kind.”
If it's not going to get used, and the JAG is going to be the superintendent and you need lawyers talking to lawyers—I don't think it's always going to be the case that you'll have a lawyer serving as the Minister of National Defence—then I would suggest it is in line to return those powers back to the judge advocate general.
Conservative
Scott Anderson Conservative Vernon—Lake Country—Monashee, BC
I have nothing to say. This man here said it all perfectly.
Liberal
Viviane LaPointe Liberal Sudbury, ON
How could changing the rules as they exist today affect how independence is perceived?
Col Geneviève Lortie
The director of military prosecutions holds office for good behaviour. We just amended that provision so that it now reads by “a resolution of the House”. That's one of the highest levels of independence they can get in their appointment. They also get independence throughout the time of their mandate. It's non-renewable.
It's really about all the different aspects of their mandate, their appointment and how they can be removed. It's not just one element. It's when you have all those elements that maintain their independence.
Liberal
The Chair Liberal Charles Sousa
I see no further debate. Shall CPC-14 carry?
(Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])
(Clause 17 as amended agreed to on division)
(On clause 18)
That brings us to BQ-3.
Mr. Savard-Tremblay, do you wish to move it?
Bloc
Simon-Pierre Savard-Tremblay Bloc Saint-Hyacinthe—Bagot—Acton, QC
Yes.
The purpose of this proposed amendment is to clarify the fact that the government can appoint veterans. We are also adding that a military judge is released from the forces upon taking up his or her position.
These proposals come from the Barreau du Québec, and they were based on the Fish report.
Liberal
The Chair Liberal Charles Sousa
Thank you, Mr. Savard-Tremblay.
I have to say that it's out of scope. Bill C-11 amends the National Defence Act by expanding the class of persons who are eligible to be appointed as a military judge. The amendment seeks to require that an officer or non-commissioned—
Bloc
Simon-Pierre Savard-Tremblay Bloc Saint-Hyacinthe—Bagot—Acton, QC
That's fine, Mr. Chair. I challenge your ruling. We can skip that step right away.
Liberal
Legislative Clerk
You can just say that it's inadmissible due to the scope.
Liberal
The Chair Liberal Charles Sousa
That's fair enough.
In the opinion of the chair, the concept goes beyond the scope of the bill. Therefore, I rule the amendment inadmissible.
It's over to you, Clerk. Please proceed.
Bloc
Simon-Pierre Savard-Tremblay Bloc Saint-Hyacinthe—Bagot—Acton, QC
I just wanted to save everyone's time, Mr. Chair, and prevent you from wasting your breath at the same time.