STANDING COMMITTEE ON NATIONAL
DEFENCE AND VETERANS AFFAIRS
COMITÉ PERMANENT DE LA DÉFENSE
NATIONALE ET DES ANCIENS COMBATTANTS
[Recorded by Electronic Apparatus]
Monday, May 11, 1998
The Chairman (Mr. Robert Bertrand (Pontiac—Gatineau—Labelle,
Lib.)): Ladies and gentlemen, welcome to our
This afternoon we have two witnesses and we will be
dealing with the study of Bill C-25, an act to amend
the National Defence Act and to make consequential
amendments to other acts.
We have as a witness the Right Honourable Brian Dickson,
former Chief Justice of Canada. It's very nice to have
you here this afternoon, sir.
We also have with us Lieutenant General Charles Belzile.
Gentlemen, we have roughly 20 to 25 minutes for your
presentation and then we'll go to question period from
the different members who are here this afternoon. If that
is okay with you, we'll proceed immediately.
Whenever you're ready, sir, you can go ahead.
Right Hon. Brian Dickson (Chief Justice of
Canada (Retired): Thank you, Mr. Chairman.
Good afternoon, ladies and gentlemen.
In January of last year I accepted the minister's
request to chair a special advisory group to examine
military justice and military police investigation
Later in the year, the minister asked us to review his quasi-
judicial responsibilities under the National Defence Act in order
to eliminate potential conflict between his responsibilities as
justice minister and his obligation to answer questions raised by
his colleagues in Parliament.
In our view, if it were not critical for the minister to
exercise these powers, someone else should.
I am pleased to be joined in these difficult
assignments by two very distinguished Canadians, one of
whom, Lieutenant-General Charles Belzile, a former commander of
the Canadian army, brought with him a vast experience
of military life, in particular, in operational command
functions both in Canada and abroad.
Mr. Bud Bird, a well-known, respected former
politician, an active businessman from New Brunswick,
added to the team his extensive parliamentary
experience and the practical views of an average
Canadian citizen. Unfortunately, Mr. Bird is unable to
be with us today. However, he sends his greetings to
That group also included three very good advisers, one
of whom was retired RCMP Assistant Commissioner Thomas,
whose participation was particularly helpful when we
dealt with the military police investigation services.
Another is Ms. Lise Maisonneuve, who practises criminal law with
considerable experience, representing police officers
in disciplinary matters. Finally, there is our
counsel, Mr. Guy Pratte. He gained an extensive
knowledge of the military when he was counsel for the
special commission on the restructuring of the
reserves, which I chaired as well.
During our studies, we took great care to listen to
all points of view, especially to consult with all
ranks of the Canadian Forces. We have been gratified
by the openness and the candour with which Canadian
Forces personnel expressed themselves to us and by
their eagerness to assist in our difficult task.
In contrast to the often negative view presented in
public in recent times, we found them all to be devoted to
their cause and articulate in presenting their views.
Many Canadian citizens also wrote to express their
opinions. Our report reflected their genuine concern
and recommended significant adjustments to the military
justice system, the military police investigation
services and the minister's quasi-judicial powers, most
of which have found their way, as appropriate, into Bill
C-25, which your committee is now studying.
It's important to remember that the Canadian Forces
have the unique responsibility and ultimate purpose of
defending the nation. Even at peacetime many members
of the forces must perform in extremely demanding
and often unusual circumstances where their lives may well
be endangered, and at such times the integrity of the
chain of command can only be preserved if discipline
is instilled at each level of the military hierarchy
and if there exists a system of justice specifically
designed to respond to these unique needs. Code of
service discipline is the embodiment of that objective.
A military justice system, as important as it is, must
be compatible with our Constitution and the law of the
land, particularly the Charter of Rights and Freedoms.
The judge advocate general assumes roles related to
military justice in the Canadian Forces that must be
set out in regulations. Some of these roles, such as
providing legal advice to accused members while also
conducting the prosecution on behalf of the forces, may
seem to be in conflict. Each role should be
institutionally separated so that they are performed
with the requisite degree of independence.
With regard to
the actual disposition of disciplinary or more serious
offences, about 98% of infractions to the code of
service discipline are dealt with by summary trials
rather than by a court martial. Summary trials are
relatively informal proceedings intended for the more
minor disciplinary problems that directly affect a
unit. They're usually presided over by a commanding
officer or an officer to whom this authority has been
delegated. The summary trial remains an essential instrument
to maintain discipline within the Canadian Forces,
therefore any concern over the constitutional validity
of this process must be resolved.
We believe this can be achieved by reducing the
severity of punishment, by enhancing the right to legal
assistance, and by improving the knowledge and training
of presiding officers. Unlike summary trials, courts
martial are formal proceedings reserved for the more
serious infractions to the code of service discipline.
A number of recent changes to the court martial process
have increased the independence of the military judges.
Nevertheless, the institutional independence of the
office of chief military trial judge must be enhanced.
Further, it is also important to ensure that the
respective roles of the court members and the trial
judge are appropriately discharged. In particular, it
should be the trial judge, having the requisite
experience, who would pass sentence after determination
We also feel the senior
non-commissioned officers of appropriate rank should be
permitted to serve on courts martial when a
non-commissioned member is being tried.
The military police have a myriad of roles, most of
which are related to the support of military operations
and should be controlled by the chain of command.
However, we are concerned that these command and
control arrangements may invite conflict with the
investigative role of the military police.
We therefore recommended that the military police
investigators have a structure that is independent from
the chain of command and under the supervision of an
enhanced national investigation service. That service
should be intended to report to a new position,
Canadian Forces provost marshal, who would report to
the vice-chief of the general staff.
Bill C-25 provides for the creation of a Military
Police Complaints Commission, whose responsibilities
would be to investigate allegations of military police
misconduct or interference in the investigative process
by the chain of command.
In summary, we believe the recommendations in both our
reports, submitted in March and July of last year, will
enhance the independence, fairness, transparency, and
effectiveness of military justice in the Canadian Forces.
We are satisfied that they are, for the most part,
reflected in the bill before you. The enactment of the
bill into law will assist the Canadian Forces and
their leadership in the maintenance of discipline and
the accomplishment of their tasks on behalf of Canada.
Mr. Chairman, we welcome your questions.
The Chairman: Thank you very much, sir.
General, did you have a presentation?
Lieutenant General Charles Belzile (retired): No, Mr.
Chairman. This is a joint presentation.
The Chairman: Thank you very much. We will move right to
questions starting with Mr. Hanger from the Reform Party. You have
Mr. Art Hanger (Calgary Northeast, Ref.): Thank
you, Mr. Chairman.
Thank you, Chief Justice, for
appearing here today and for your presentation.
We've been particularly interested of course in the
military justice theme and have proposed certain
alternatives ourselves. I do realize that there have
been some changes with the structure.
With the investigative services, at least with the provost
marshal's office as an overseer, do you feel that's far
enough removed from the chain of command to be able to
independently investigate any complaint that may fall
into their purview?
Mr. Brian Dickson: The answer is yes. This whole
amending process in Bill C-25 is intended to make this
independent of other branches and people within the
military system. I think it will be effective. I
think the new provost marshal, as he will be called if
you enact this legislation, will feel that he is free
to investigate whoever it may be if there are misdeeds
of any sort.
Mr. Art Hanger: Just so that I can understand, as
for the investigative services that are going to be
developed, it has been argued that many of the military
police don't have the skills, for instance, to conduct
criminal investigations. These investigation should be
actually farmed out, as they have been in the past, if
I understand correctly, to local police departments,
and sometimes the RCMP, for investigation. What is the
intent on the part you see that would be necessary to
bring up a certain level or standard so that those
investigators are going to be able to do the job that's
LGen Charles Belzile: If I may, Mr. Chairman,
I'll take this one on.
There's absolutely no doubt that there's really not
enough crime in the military of a serious nature to
warrant a vast or large investigative capability. The
difficulty is—we talked to all of the other police
forces, including our advisers from the RCMP—that in
the other police forces there's a lack of
understanding of the context, if you wish, under which
the military operates. The military is often abroad
and in countries without any adequate
jurisdiction, or adequate police forces for that
matter, to take on their own jurisdiction even if they
had a proper government.
The military are particularly well qualified to do
that because, by and large, they have spent a lot of years
in there. The RCMP, if I remember, requires some 12 to
15 years of an investigator's life to become an
adequate, skilful investigator. Obviously, in the
military, people have to accept that if they get into
that field, they will need to have a career that is
somewhat limited in order to become that kind of
investigator. We've also very much encouraged exchanges
between the RCMP and other police forces and military
officers of the NIS so as to operate with
them in order to gain this kind of experience.
With this, we have very little doubt that they will be
adequate to do the job. There's nothing now that would
prevent them from seeking assistance from other police
forces. As you know, by jurisdiction, certain
offences, when committed in Canada, are not
even within the jurisdiction of the military justice
system. Other police forces would automatically fall
into them anyway around a base in Canada or
what have you.
The RCMP, OPP, and Sûreté du Québec have been
involved in that sort of thing. It's a natural flow
between the two of them, and we think that this exchange
will be beneficial.
At the same time, obviously, you would wish that
investigative services will really be manned by people
who have special skills and are prepared to spend years
at it and go to police colleges and that sort of thing
to gain the required knowledge. We have no reason to
believe they can't do that.
Mr. Art Hanger: That was going to be one of my
points, too: how will this training become a reality?
If it's going to be through police colleges, certainly
that's going to be a beginning. As for the experience
side, there's no question that this is where it all
Here's another thing that was brought to my attention
by present military police officers. They fall into a
setting, if they're located and posted to a base, where
they become very familiar with the culture of that
base. I guess each base has its own culture, and
people there become very familiar with what goes on
Now, am I to believe that NIS will be operating
completely independent of any base? They will be
located somewhere else, and then they will have to move
into a base to conduct an investigation. Of course,
they weren't there to begin with to really see what has
LGen Charles Belzile: It's my understanding that
it's not very different from that of other police
forces. Other police forces that are on the site are
either on patrol or are the first to receive a
complaint or to witness something taking place. They
immediately judge whether this is something within
their purview. If it's not within their purview,
they'll call the homicide squad or whichever specialist
organization they require.
The same thing will occur on bases. The military
police on bases will obviously start most
investigations, but if it's a murder, if it's something
very serious, it won't take them very long to call for
As for that help—you're right, Mr. Hanger—it will
not be resident on that base. We didn't get into the
internal workings, but our understanding was that they
would have four or five sites across Canada where these
people would be situated. They would obviously also
have constant contact with civilian police forces and
military police on bases and would interface with them
on a constant basis. I don't think there will be much
of a cultural problem for them to move into a base.
Mr. Art Hanger: I can understand that arrangement.
Here's another point in question. The base commanders
frequently are concerned about the authority they're
They have authority to say
that—even if it's to the military police—they want
them in there, and say look at this, look at that.
Again, my understanding is that it won't necessarily be
under that direction in that sense where the military
police will be operating, but it will be outside that
and taking total direction from the provost marshal.
LGen Charles Belzile: That's correct.
Mr. Art Hanger: So the base commander or others,
how will they—or will they not—be able to interfere
as far as the chain of command is concerned?
LGen Charles Belzile: The direction is that he
will not be able to interfere. Once the NIS is
into an investigation, it becomes directly a police
investigation that's answerable only to the provost
marshal, who in turn answers to the vice-chief of the
defence staff. The base commander, other than being
informed, is not mixed up in it at all. As a matter of
fact, he should avoid being mixed up in it.
Incidentally, if I may just do a little bit of
clarification, the base commander per se is not really
that involved in the military justice system.
Commanding officers of units have by and large the
powers and the interest. The base commander is
somewhat like a mayor or overseer of a base, all of its
support capabilities, its infrastructure, and that sort
of thing. He has very little direct command of the
troops that are on the operational network.
Mr. Art Hanger: Yes.
LGen Charles Belzile: Ideally, there should be no
interference. If there is, the Military Police
Complaints Commission would have to
Mr. Art Hanger: So the NIS per se will be able to
investigate officers, as well as NCOs, as well as those
right down to the bottom. Their authority will be
totally provided through the office of the provost
LGen Charles Belzile: That's correct. Added to
that is a power on their part like their civilian
police counterparts to be able to lay charges
themselves. Therefore, they have to make sure that all
the rules of evidence and that sort of thing are taken
care of because they will have to be in court themselves to
assist in the prosecution of whatever offence is
decided on. That will not be the commanding officers,
it will be the NIS member.
Mr. Brian Dickson: We wanted to enhance the
position of the military police. The fact that they
couldn't lay charges, for example, was something
negative to their position. Empowering them now to lay
charges is important. The fact of increasing their
training—they're getting this—and the intercourse
with other police forces are things that I think
will improve the position of the military police within
the armed forces.
The Chairman: Madame Venne.
Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Justice
Dickson, I would like to know what you think about having an Office
of the Civilian Inspector General whose duties would include that
of ombudsman instead of having a surveillance committee. In fact,
I think you know that this suggestion was made by the Létourneau
Commission. I would like to hear your opinion on that.
Mr. Brian Dickson: The inspector general has been
recommended, as you say, by Judge Létourneau
of the Somalia inquiry. We considered that for a good
deal of time. In the end, we decided that at this
time, in any event, we would not recommend an inspector
general. We think there's enough external supervision
of the Canadian Forces without adding another element
and group of people who are there to look into,
criticize, and make life sometimes difficult.
The changes we recommended were major ones. We have
the Court Martial Appeal Board, military
prosecution defence counsel services, military
judges, chief military judges, the National
Investigation Service, Canadian Forces
Grievance Board, and Military Police Complaints
All of these are going to require a great
deal of study, a great deal of planning, a great deal
of personnel. And to put on top of that another body
seems to us to be superfluous, at least at this time.
As you know, we have recommended amendments every five
years. Five years from now, perhaps your committee
will decide it would be a good idea to have an
inspector general. But at the moment we have a fairly
small—60,000—armed forces in all the three services,
which is very small, and to put on top of that an
inspector general and a big staff seemed to us to be
superfluous. We decided against it.
Ms. Pierrette Venne: I was talking about the Office of the
Civilian Inspector General that would have replaced the
surveillance committee, which, in fact, was set up by Bill C-25.
It's an example of where the role of inspector general could easily
be combined with that of ombudsman. No other structures would be
required. The newly created surveillance committee could be
replaced. That is what I was referring to.
I will move on to my next question, unless Lieutenant General
Belzile wants to comment.
LGen Charles Belzile: No.
Ms. Pierrette Venne: My other question is also on the work
done by the Létourneau Commission since it made a number of
recommendations. As I was saying earlier, one of them was that the
chief military trial judge and all other judges appointed to rule
in cases of military misconduct should be civilians appointed under
the federal Judges Act. I would like to know what you think of that
and whether you think military judges should have security of
tenure that would protect them from any possible interference.
Right now, they are appointed for a five-year term, unlike civilian
judges who are appointed until retirement age. I would also like to
hear your views on that.
LGen Charles Belzile: Mr. Chairman, we have thoroughly
examined all these issues. For the reasons I mentioned earlier, for
the specialized military police investigators, the context is
important, as well as knowledge of the attitudes, concept and
military life. Crimes or offences committed in civilian
surroundings as opposed to military surroundings have a totally
different context. If someone is found guilty, in many respects a
military judge is better prepared than a civilian judge to pass the
In some cases of offences that are considered particularly
serious in Canada, the jurisdiction is automatically taken away
from military authorities. However, the jurisdiction is maintained
abroad for the reasons I explained earlier. Many countries maintain
jurisdiction for all crimes committed in their country, unless
there is a prior agreement, such as the SOFA we signed with other
NATO countries. They are satisfied with our way of proceeding. Our
military justice system is sufficiently compatible with theirs for
them to agree that most offences be dealt with by judges or
military juries. We didn't see any need whatsoever to have civilian
judges in the military context because we felt they would probably
be less prepared than military judges.
As for your question about the length of the mandate, it is
not limited to five years. The act says that the mandate is
renewable. If a military judge is particularly qualified and it is
felt that he should stay in the position, his mandate can be
Ms. Pierrette Venne: The appointment is for a five-year term.
LGen Charles Belzile: It is for five years.
Ms. Pierrette Venne: That is why I asked whether it wouldn't
be better to just have an appointment, as they do for civilians,
that would be valid until retirement and would mean that the
incumbent does not run the risk of being fired from one day to the
LGen Charles Belzile: I think that something very similar will
happen in practice because there really is no administrative
advantage to constantly changing judges.
Ms. Pierrette Venne: On the other hand, you say that military
judges are better prepared to pass sentences or make rulings, but
free will can also be quite useful. That is what I think. I wanted
to run that by you and get your opinion. Thank you.
The Chairman: Thank you very much.
Mr. George Proud (Hillsborough, Lib.): Thank you
very much, Mr. Chairman.
Welcome, gentlemen. I have a couple of questions.
During the work of your special advisory group, and I
know Chief Justice Dickson mentioned it this
afternoon, you considered the range of punishments that
should be available at summary trial to achieve the
main objective of a commanding officer, namely the
restoration and maintenance of discipline.
Your group recommended that the 30-day detention
be retained as possible punishment at summary trials.
The Somalia commission, on the other hand, recommended
that the commanding officers not have the power to
award detention. Would you elaborate as to why
you believe and why you're convinced that commanding
officers should retain that power? Would you do that
for the record for me?
Mr. Brian Dickson: I think it's vital to a
commanding officer to retain that power. I served five
and a half years in the army and was in Europe, in
France, and many times our commanding officer was called
upon to deal with summary trials. For example, our
cook was selling chickens and meat to the civilians in
the town of Colchester, where we happened to be
stationed for a while. He was caught at this and
brought before the commanding officer and was sentenced
to 30 days in the glass house at Aldershot. He lost
about 30 pounds while he was there. He came back and
he was a very much subdued cook.
Mr. George Proud: Were the meals better?
Mr. Brian Dickson: That was just one example of a
summary trial. And who else in the world could have
done that? Do you bring in somebody from Canada to
France or to Africa to deal with these summary trials?
To talk about bringing civilians in I think is just
unrealistic. I don't know where you'd get the
civilians, to begin with. And if you're talking about
a force that is serving in other parts of the world,
how you bring a civilian from wherever to deal with
criminal offences or quasi-criminal offences I'm at a
loss to know.
LGen Charles Belzile: May I, Mr. Chairman?
To add to Chief Justice Dickson's very eloquent word
about the effect of capabilities to put someone in
detention, I would like to echo his sentiment, because
I've lived them also.
Perhaps I would like to add that when people
recommended—and that included some of the
recommendations we did not totally agree with, and
hence our adjusted recommendation, if you want—they
wanted to create something called “corrective
custody”, which would put the individual with a limit
of 28 to 30 days into a retraining process.
In operations, and particularly outside the country, a
retraining process is the last thing you need to try to
discipline people. What do you teach again to a
soldier who's been under action, who has been in two
operations for the last five or six months and has done
something stupid? Then presumably you deal with him by
Where we had a big argument on detention was on the
number of days, namely 90, that used to exist and that
still exists in the code of service discipline. Ninety
days was only instituted in the Canadian Forces as a
follow-on to the navy during the
unification process. Only the navy had 90 days. The
air force and the army had 28 days. Our allies at the same
level have kept it to 30 days. And we're satisfied that
we can keep the conditions to make it defensible, if
you want, even in front of human rights legislation.
The point that over 14 days, the tradition right
now— There's nothing in the act that says that. It
is served in a central prison. The central prison is
in Edmonton right now. When we visited it there was
one customer, with a staff of 29 custodial people from
the military police. Now, if you're looking for a
difficult way to do things, that's the way to do it.
The other important thing from a disciplinary point of
view is that the prisoner must be seen by his cohorts
and by his colleagues. He is normally marched left,
right, left, right, left to his meals. He's got a big
“P” on his back, and everybody around knows what he's
doing. He's brushing the floor if he has to. The idea
of self-inflicting oneself with a wound to avoid a
difficult patrol—people would welcome the patrol after
that kind of detention in the field.
We feel very strongly that this must be kept in the
arsenal of commanding officers; otherwise he loses
Mr. Brian Dickson: Mr. Chairman, I would just
add one more thing. In connection with this 30 days,
that was recommended in the hope and expectation that
the summary trial would stand up before the Supreme Court
of Canada on a constitutional challenge. To reduce it
from 90 to 30 was a step in that direction.
It was the same thing recommending that the commanding
officer who had investigated or laid a charge should
not sit as a judge on the summary trial. That's
another step with the expectation that the summary
trial would stand up if and when it comes before the
In the Généreux case, which you are probably
all familiar with, the court, with Chief Justice Lamer,
struck down a general court martial because the judges
were not sufficiently independent. We hoped by two or
three recommendations that we would improve the
situation vis-à-vis summary trials.
Mr. George Proud: Thank you.
It appears that much of your report is present in this
bill, particularly the abolition of the transfer to
other authorities of the minister's quasi-judicial
responsibilities. Initially I was very skeptical of
these changes. However, after reviewing the matter more
fully and having been somewhat convinced, I'm a bit
My question for you is whether you think the bill
accurately reflects the recommendations you made.
Because occasionally, when a good idea is translated
into legal text it is lost in that translation and we
are left with something less than what was intended.
Can you tell us today if this has happened anywhere in
the bill that you've seen, that it's not the way you
Mr. Brian Dickson: I think the answer is yes. I
admire the work that was done between July 25, when
we submitted our second report, and I think December 4,
when all of this came out in Bill C-25. I thought it
was a remarkable bit of work on the part of the JAG
branch and the people who were assisting him in the
preparation of this bill.
As far as our report number one, we came in with 35
recommendations, and 33 of those have found their way
purely in Bill C-25. The two that don't I don't think
are really very important. One was a recommendation
that the bill on service offences should be a separate
act of Parliament, rather than part of the National
Defence Act. That was not adopted for certain legal
reasons, which we accept.
So 99% of our recommendations, both in report number
one and report number two, are now reflected in Bill
C-25. You may recall the report Mr. Young, then
Minister of National Defence, sent to the Prime
Minister, in which he said that he had received this
number one report and that he recommended that it be
implemented in full. I think it virtually has.
LGen Charles Belzile: Mr. Chairman, in the case of
the quasi-judicial powers of the minister, there's
really only one that is not reflected, which perhaps
deserves mentioning. We had recommended that military
trial judges remain the purview of being named by the
minister, by the executive.
National Defence and the Department of
Justice, I presume, which participated in the writing
of the new NDA, have decided to put that in the
hands of the Governor in Council instead of the
minister, which means the minister goes one step higher
and justifies the person in front of cabinet. That
caused absolutely no ripple, in our view. In fact,
they tightened it up even more than we recommended.
The Chairman: Thank you, Mr. Proud.
Mr. David Price (Compton—Stanstead, PC): Thank
you, Mr. Chairman.
Chief Justice Dickson and General Belzile, welcome to
our committee. We're honoured to have you here,
particularly since you can give us a lot more in-depth
insight into this bill that we are studying. You
are the experts in it.
I wanted to follow up on a question that Mr.
Proud started with. You seem generally satisfied
with the bill as it stands, but maybe what I'm looking
for is—I'll give you an example. In chapter 1 of
your report you state:
We have not been persuaded that
it is workable or desirable to design a system of
military justice that functions radically differently
depending on the particular context
Instinctively I agree with this, and the arguments you
found that were most convincing of this— In line
with that, it's my impression that Bill C-25 moves
military justice a little closer to the civilian
courts. Is that what you intended?
Mr. Brian Dickson: Yes, it was, in part
because of the Charter of Rights and Freedoms, which
affects not only non-military people but also military
people. It's something that we were thinking about
every day, particularly in the drafting of these
reports. So the more we can bring it, from a practical
point of view, in line with the civilian practice, I
think the better, but recognizing that the Canadian
Forces, whether army, navy or air force, are likely to
be serving in other parts of the world, and those facts
have to be taken into account.
Mr. David Price: That's the part I was
looking at. Reading between the lines, I had the
feeling you were—in other parts of the world you
tend to be in war zones, and the rules tend
to change in areas like that. Are you comfortable
with the way it fits together?
Mr. Brian Dickson: I think so. Having served in
war zones, I think this is a good, practical and
workable solution. That was why we would like to
maintain a good standard and a good deal of power with
the commanding officer, because he's on the spot.
To talk about bringing in civilians and all this sort
of thing, we just don't agree with that.
Mr. David Price: It didn't go too far anyway.
The other thing I want to talk about was the office of
the JAG and military judges. On the Somalia
commission, which lasted two years, the commissioners
recommended a civilian JAG. In your opinion, why would
the commissioners reach a conclusion like that and then
it gets put aside?
Mr. Brian Dickson: Because this is a military
context. To bring in somebody who's served 10 years in
the military and with legal training—it's the JAG. To
have somebody come in from civilian life without having
served one day in any of the forces just seems to us
to be impractical.
Mr. David Price: But you don't think there's a
danger that the military is going to protect itself? I
guess that's the bottom line.
Mr. Brian Dickson: Is there anything wrong with
Mr. David Price: It all depends on what is
Mr. Brian Dickson: I think the military has a
right to defend itself and has a right to the bottom
line, and I think they've done that very well in spite
of some of the comments one reads.
The JAG is an extremely important position in the
military hierarchy because he is called upon to give
legal advice to the Governor General, to the Chief of
the Defence Staff, to everybody, including us.
He did it and does it well, so I can't
see any reason for changing and saying we're going to
take somebody from civilian life and make him JAG. If
you had the two people, one with 10 years in the
military and the other with none, I don't think it
would be difficult to decide which one you would likely
appoint to be the JAG.
General Belzile may want to add something, Mr.
LGen Charles Belzile: Thank you, sir. I
really don't have anything to add except to endorse
what the Chief Justice just said.
A point to remember and to perhaps reinforce the
position of the JAG is that the JAG, like the Chief of
the Defence Staff, like a deputy minister, is the third
of only three positions in National Defence that are
Order in Council appointments. It is not made by the
military. Sure, they make the recommendations because
presumably they know the people with the legal training
and the experience, but the actual appointment of the
JAG is an Order in Council appointment. It is not made
by the Chief of the Defence Staff and he is not
protected by the Chief of the Defence Staff. In fact,
he really doesn't work for him.
So we really didn't see the problem.
Mr. David Price: Another of your recommendations
the Judge Advocate General's duty to report annually
to the Minister of National Defence and Chief of
the Defence Staff on the overall effectiveness of the military
justice system in the Canadian Forces.
You also state:
We recommend the Judge Advocate General annual report
to the Minister of National Defence and the Chief of
the Defence Staff be released to the public.
This didn't get into the legislation. Do you think
it's something we should put forward? I think it's a
good idea and I'm suggesting we put it through as an
Mr. Brian Dickson: We thought
it was a good idea. Whether it should go in Bill
C-25 may be a question of debate from a lawyer's
point of view, but it may not be necessary to write it
into Bill C-25 in order to make it public.
Mr. David Price: We find most things usually end
up having to be put into something.
Section 3, chapter 6 of your report talks about
officer training. Your recommendation 23 states:
We recommend that increased training and education
be introduced for all commanding and delegated officers to
ensure that they are knowledgeable about their roles in the
military justice system and competent to perform them.
But for exceptional circumstances, those officers
should not be permitted to preside at a summary trial
unless certified to do so by the Judge Advocate General.
When the minister was here a couple of weeks ago, I
made the point that this recommendation is not part of
the legislation. His reply was that it was not the
type of thing that would be addressed in a piece of
legislation, that it could be something like— Again,
I'd feel much more comfortable if it was
addressed. What would your comments be on that?
Should it be part of the legislation?
LGen Charles Belzile: I'm not a trained lawyer—
Mr. David Price: Neither am I.
LGen Charles Belzile: —but a lot of
recommendations have been actioned, both as a result of
our reports and as a result of the report by the
Somalia commission, that are not part of the act. They
are regulatory in nature and that is why the Queen's
regulations and orders exist—to amplify the act.
I can only assume people do not feel these are the
kinds of things you need to put into the law, because
you're talking about availability of training and
exceptional circumstances, and exceptional
circumstances will be judgmental in one way or the
other. An exceptional circumstance would be where a
commanding officer gets killed in action and number two
is immediately in the spot. If he gets killed 20
minutes later, then number three is in the spot. There
won't be any time to give this person the training he
would require to get the certification.
Wouldn't regulations be a better way to operate this
and to do it as fast as possible? As I said, as a
person not trained in the law, I would be quite happy
to see that in regulations as opposed to the law.
Mr. David Price: My next question was that: what
would you call exceptional circumstances? That I can
very well understand, but I think the judge started off
by saying that 98% of trials were summary, so shouldn't
we have something very solid that there should be some
training to take care of that 98%? The training should
be in legislation. It should be much more solid.
LGen Charles Belzile: I am not aware of any
training being in legislation in any other field.
Mr. John Richardson (Perth—Middlesex, Lib.): All
officers, from the very first course they take—there's
military law and its observance at every course level
right up to staff college. So I think it's just rolling
and rolling, the higher rank you get. NCOs get this
training program, so there is some understanding of the
military justice system and military law at every
Mr. David Price: Okay.
The Chairman: Is that it, David?
Mr. David Price: Thank you.
The Chairman: We now go to the five-minute round.
Mr. Art Hanger: Thank you, Mr. Chairman.
I want to go back to comments made by my colleague
Mr. Price, and it deals with both the investigative and
the JAG's office. Looking at it from a practical point
of view, Judge, you sat on how many trials listening to
people testify, examining cases, evidence,
We're fortunate to have you sitting here. You're
probably more of an analyst of human nature and have
seen more than any of us here. When people commit acts
and if they're part of a group, they're going to want
to protect themselves, and you mention that there. You
said the military has a right to protect itself. They
do to a point, but if they do something wrong, they
better be found out about. Fair enough.
Two recent examples have come before us. I'm going to
use this on a practical level here, because I think
that is what we're talking about when we talk about the
independence of an office to investigate, to try—that
they can't be touched or influenced by those at the top.
For instance, Colonel Vanier was found guilty of
fraud. It was right to have found him guilty of fraud,
but what happened to him? Doesn't he deserve the full
force of military justice if he's tarnished the rank
and the military by his actions? Shouldn't he be
subject to a dishonourable discharge? Who decides that?
Is a dishonourable discharge the appropriate action to
take against that man?
I am suggesting that here you have a colonel sitting
in his position of great influence, and then you have
all the ranks down below. They're going to be subject
to the full force of military justice for the most
part, and so they should be if they commit those kinds
of acts. But seeing what happened to him isn't
necessarily a message to be delivered to the lower
Then we have General Roy, who embezzled money, but
he was just asked to pay it back. Nobody knows if he's
paid the money back, and he's still kind of under
investigation because he has a credit card that doesn't
belong to him. Everybody else would look at that and
say he's getting away with that. Shouldn't there be
someone in place who's going to investigate him, no
questions asked, and he's going to go down the tube?
What guarantee do we have, with this new legislation
before us, that this is going to happen? The
investigative office is not independent. It's still in
the chain of command. It's still subject to influence.
So those are my questions. Who is going to ensure that
those kinds of examples do not happen?
Mr. Brian Dickson: It's a very important
question that you have asked. I think it would be
improper for us to comment on anything General Vanier
may be facing, because his case is under appeal, as you
Mr. Art Hanger: Yes, I do.
Mr. Brian Dickson: So for us to talk about it
now might not be the wisest thing.
But speaking generally to your question, which refers
to in effect a two-tiered system of justice, a great
deal of what you say has been repeated in the
newspapers and magazines, commenting that military
people are very well aware that there should not be a
two-tiered system. We have recommended in our report
that the military of all ranks should be treated the
same way, should receive the same severity of
punishment, and should be dealt with in an appropriate
All I can say is I hope that will be brought into
effect and is going to be in the legislation. I think
military people are well aware of the criticism that
has been directed at them in, let's say, the Vanier
case, which is now under appeal, as I've said. As for
the other case, I don't what its status may be.
Mr. Art Hanger: Can you specifically point out
recommendations in reference to this act that will
prevent that from happening or ensure that what you're
Mr. Brian Dickson: No, you can't prevent it,
Mr. Art Hanger: Investigative, though.
Mr. Brian Dickson: In the civilian world, you can
point to this case and that case where somebody seemed
to get a real break and somebody else didn't, on more or
less the same set of facts. It happens. You can call
that a two-tiered system or whatever you like, but it
will happen, unfortunate as it may be. Nobody wants it
to happen, I don't think.
Mr. Art Hanger: Well, they may not, and it's
certainly going to be a morale issue too.
Mr. Brian Dickson: Right.
Mr. Art Hanger: But it's also going to be a
discipline issue, in the sense that you have troops,
and if they see that their rank and their group are
being disciplined to the fullest extent of military law
and those officers up there are not, are they not going
to show contempt?
Mr. Brian Dickson: I think it's appalling.
Mr. Art Hanger: I wasn't so much referring to the
judgment. If it goes before the judge, whoever that
may be, and he makes a decision and he does reflect
differences, that's one thing. It's gone before the
Mr. Brian Dickson: Right.
Mr. Art Hanger: But if it doesn't get there— What
assurances are there in this legislation that it's
going to get there, that the investigation and the
evidence— As in the case of General Roy, that
took place, and yet no follow-up was done, even in the
Mr. Brian Dickson: Well, we have the National
Investigation Service, which is being established—
Mr. Art Hanger: I know.
Mr. Brian Dickson: —I think for that very
purpose, or that's one of the purposes. It's
independent; it's dealing with sensitive, difficult
cases. If it does what we hope it's going to do, it
may be at least a partial answer to your question.
Charlie, do you want to—
LGen Charles Belzile: No, I don't think so. I
agree with you, Chief Justice. The investigation in
Without discussing the individuals, if somebody is out
of the forces now, what's to prevent the RCMP from
Mr. Art Hanger: But why should that be the case?
This situation developed—-
LGen Charles Belzile: You mentioned one person
specifically who is no longer in the service.
Mr. Art Hanger: Well, he was when all that was
going on, and the service knew about it.
LGen Charles Belzile: I don't know, but
there's nothing that prevents the RCMP from doing
another investigation anyway.
Mr. Art Hanger: So who's going to ask them to do
it? Shouldn't it be the responsibility of the
military? That's where it all lies. Why should it be
a separate investigation all of a sudden in civilian
life, when it was a breach when he was in a position of
authority in the military and they all knew about it?
That's why he was out on the street. That's my
There's nothing in any of this legislation to prevent
that complaint going before an independent group. I
know, Judge, you mentioned that the provost marshal and
the NIS were going to be independent. They're not
LGen Charles Belzile: There's the Military Police
Complaints Commission. What would happen to an officer
in the RCMP in the same circumstances?
Mr. Art Hanger: That's a good question.
LGen Charles Belzile: There's the RCMP Complaints
Commission, which anybody can make a complaint to, not
only people in the military.
Mr. Art Hanger: We'll see how it works in the
The Chairman: Thank you, Mr. Hanger.
Mr. John Richardson: Thank you, Mr. Chairman, and
again welcome, former Chief Justice and General Belzile. I
want to thank you for the amount of work you've done
since 1994 until now in helping restructure and
reorganize the forces as we have scaled down.
I have two or three things I'd like to bring to
your attention. Someone mentioned the responsibility
of the judge advocate. The judge advocate general—I
thought I missed this, but in case not—shall report
annually to the minister on the administration of
military justice in the Canadian Forces. That is in
fact in place and there will be a requirement to report
on an annual basis. I thought maybe I'd heard
otherwise in the questioning through Mr. Price, that it
was not the case, but I think it is the case that the
judge advocate general shall report annually to the
Minister of National Defence on the administration of military
justice in the Canadian Forces, and it's called his
annual report. I just wanted to say that.
Aside from that, I want to get back to some of the
other factors here that look quite good, just the
background though. Let's say that some of our forces
were put on standby and are under stressful conditions.
Say that we are in Bosnia at the moment; the kinds of
things as they come under fire, the kinds of stresses
that take place in the minds of soldiers and other
people in command, and the sight of seeing other people
die beside you— Something has to be in the minds of
all the soldiers, not just their training and tactics,
not just their training and self-discipline, but the
awareness that there is a tool to force people to
stay in the line. I think that kind of justice has to
be meted out on site or the person must be removed from the
line and put under charge and the trial will be held
In my mind—and I've never been under fire so I can't
state this for a fact, but I've certainly read a lot
about it—there's a lot on the CO's shoulder and the
brigade commander's shoulder to see that there is no
desertion from the line and that it comes back and that
trials are made quickly and justice is given summarily.
What we have before us now I see as being to satisfy
that need, or am I wrong? What we have now is not just
a peacetime justice system, it's applicable in war as
well. I think a lot of people around here want to see
that this is important, because what we're seeing now is
a peacetime army where it's quite tranquil and things
are not as stressful—although in some situations they
are, self-imposed stress in some cases. I want to
see that people know that justice takes place and a
person can be charged by an NCO, starting with the
master corporal, and that these people can be charged for
conduct contrary to discipline and good order.
This just has to go on. It's not the same as being in
a civilian society. These are demands; people are
asked to do things they don't like to do every day, but
that's part of being a soldier, sailor or airman. I
want to put that on the table, that these abilities to
lay charges are reviewed, they're heard summarily and
they're executed summarily. If you go into any unit
commanding officer at the level of company commander
and beyond, he will tell you that a summary trial is
an effective tool to maintain discipline and good order
in the unit, but it doesn't make them a criminal. It's
part of the ethos of the forces.
LGen Charles Belzile: I couldn't have said it
Mr. John Richardson: That's the first time you
ever said that to me. But it's the reality of the
situation, and I just hope that outside of this
committee people understand that it's a
necessary factor in the justice system.
Mr. Brian Dickson: We concur.
Mr. John Richardson: My five minutes is up.
The Chairman: Thank you very much, Mr. Richardson.
Ms. Pierrette Venne: Thank you, Mr. Chairman. I will be brief.
Under Bill C-25, an accused can use a lawyer to decide whether
he will be tried by court marshall or by summary conviction. It is
not a matter of having legal counsel at the summary trial itself,
but just the option of being able to consult one. However, the
commander can, at his discretion, authorize the accused to be
assisted by a lawyer. It is not a right being given to the accused,
but a discretionary right that the commanding officer.
It would seem that the purpose of the small changes is to
change the current summary procedure enough so that commanders can
continue imposing their discipline during summary proceedings.
Therefore, even if the summary proceeding continues to
encroach on an accused constitutional rights, namely the right to
be heard by an impartial and independent tribunal and the right to
be represented by counsel, to a certain extent, the amendments to
Bill C-25 playdown these violations to a point where there is a
reasonable chance of them being justified under section 1 of the
Canadian Charter of Rights and Freedoms.
That is my opinion. I would like to know whether you feel the
same way, because then, the commanding officer should not have been
given that discretionary power; rather, the accused should have
been given the right to be represented by a lawyer.
Mr. Brian Dickson: If I might reply in English,
the position of an accused before a commanding officer
on a summary trial is something of a compromise as far
as providing him or her with lawyer support is
At the present time, it's provided that the accused
can retain his or her lawyer at his or her expense or
take advantage of an advisory officer from the force
that he's with, who may or may not be a lawyer—probably
not. That is the extent of legal support at
the summary trials stage.
I think it's a reasonable compromise, because when you
are in a unit in a far-off part of the world, the
number of lawyers you have...where does the lawyer
come from? Say you're in the middle of Africa. You'd
say you have to provide this accused with a lawyer,
and all he's charged with is something that's going to
give him 10 days in detention. Then it becomes
I think to say that every person before a summary
trial is entitled to his own lawyer at the government's
expense is carrying it too far, and I think this is a
reasonable position. The advisory officers are
expected to have some legal training. They're not
lawyers, perhaps, but they will tell him whether
or not he should or should not go for a court martial,
as is his right of election.
That's about the
substance of it. It isn't what we expect in
civilian life, that everybody should have his lawyer
with legal aid or something like that. It doesn't go
that far and it can't.
Ms. Pierrette Venne: Couldn't a distinction be made between
situations in Canada and those abroad?
Mr. Brian Dickson: What's been drafted here is
something that's going to be used abroad as well as in
Canada. If the primary raison d'être of our armed
forces is to defend the country, then we expect that to take
place in other parts of the world. Once you get there,
the number of lawyers who are available to advise are
few and far between. They're not on hand; you would
have to bring them from Canada perhaps or England or
something like that, which is just completely
Ms. Pierrette Venne: Precisely. As you say, perhaps the
distinction should be made to avoid that type of totally
Mr. Brian Dickson: General Belzile, you have a comment.
LGen Charles Belzile: Mr. Chairman, I would like to raise two
First of all, during operations, even in Canada, the
situations are extremely difficult. It would be as difficult to get
lawyers together as it would be abroad. I am referring to cases in
the Arctic or in a number of outlying areas where things can
As for weakening the argument that the Charter of Rights and
Freedoms might prevail during summary proceedings, bear in mind
that on very few occasions will a commanding officer actually have
the discretionary power you referred to. In most cases where the
punishment may be detention, for example, the commanding officer
must—he does not have any discretion here—present the individual
with the court martial's option, and at that point, the accused has
the right to retain legal counsel and to take the time required to
If he opts for a summary trial, he will get a signed
exemption. In that case, the individual will not necessarily be
represented at a summary trial, but he is entitled to his own
lawyer if he agrees to pay for the services or if a lawyer is
The Chairman: Thank you very much, Ms. Venne. Mr. Clouthier,
you have the floor.
Mr. Hec Clouthier (Renfrew—Nipissing—Pembroke,
Lib.): Your Honour, I want to revisit the story about
the subdued cook, because about 20 years ago there was a
subdued driver/trainer of a particular horse at a
particular racetrack. The reason this particular
driver and trainer, who happened to be me, was subdued was
because I didn't win the race. It would have been very
facile for me to blame it on the previous owner of the
horse, but really it had a lot more to do with the
talent of the driver and trainer or lack thereof than
the talent of the horse.
The gist of this story is
coming back to what Mr. Hanger is talking about, the JAG and
the military justice system.
As you well know, Your Honour, at that time it was
Claire Smith, who has been recently inducted into
the Canadian Horse Racing Hall of Fame and the Canadian
Sports Hall of Fame, who was the presiding judge.
And he, in the horse racing genre, was the judge. If I did
something wrong in the horse-racing community I was
judged by Mr. Smith, because he was recognized as
an estimable person, but more importantly because he knew the
horse racing game. He knew of which he spoke. When I
myself or someone else would appear before him we could
not pull the wool over his eyes, because he knew the
Having said that, I would agree with you that it would
be very similar in the military justice system; I do
agree with you that the military should be involved
with judging itself. But I also do agree a bit with
some of my colleagues who know that there are some
subdued people, especially the NCOs, in the military.
We've heard, as we've gone from base to base listening to
their concerns, that they have been dealt with wrongly
either in the summary trials or in some of the courts
martial. They say they haven't been handled right, and
then they bring up the case of the retired general or
the former colonel. But having said that, I know every
time I appeared before Mr. Smith I never figured I was
in the wrong either.
As you had indicated earlier, Your Honour, you said
that you were moving this closer to the civilian
justice system because of the Charter of Rights and
Freedoms. I have two questions here. When you were
preparing this report, did you consult extensively with
the people from the military, especially the NCOs? Did
you talk to any of these people in the lower ranks?
Second, has there ever been a challenge to this
military justice system with the Charter of Rights and
Freedoms, to the best of your knowledge?
Mr. Brian Dickson: On the first
question, I think General Belzile will show you an
appendix to our report number one, which lists some of the
people we saw. We must have seen several hundred
NCMs—all ranks. We were particularly desirous of doing
exactly that—to get the opinion of the other ranks and
the NCOs—and we got it. Every place we stopped, we
took advantage of the opportunity, and they came,
and were quite articulate, thoughtful, and very
I think, Charlie, you have something to add.
LGen Charles Belzile: Mr. Chairman, I was just
looking at my notes, and over 300 people have been
consulted. I would think that certainly over half of
these were NCMs—were not officers. When we were travelling in
Canada our venues across the country were publicized,
as indeed those of this committee are before you go
out. Everybody was invited across this country to
submit, either in writing or in person. We never
turned back anybody.
We've had specifically NCM round tables, with 30 to 35
people around for a whole day. I don't know what the
poll people use as statistics; I don't know if we're
correct “3.4% 19 times out of 20” or whatever they
use, but my guess is that we've had as strong a
consultation across this country of the military and
civilian people that we could possibly have, short of
going out to get them on the street.
That's that question, I suppose. If I understood
correctly, your other questions had to do— I'm sorry, I
may have missed it, but you were talking about the
Mr. Hec Clouthier: I was asking if there had ever
been a challenge to the military justice system.
LGen Charles Belzile: There have been challenges
to the courts martial. This has resulted in the
Généreux case being thrown out as unconstitutional
by Chief Justice Lamer by virtue of the lack of
independence of judges and so on. All of this has been
corrected even now.
We have gone beyond the corrections that do exist, and
have enhanced the separation of the judicial, the
prosecution, and the defence counsel capabilities
within the military. We're satisfied that we have met
the objections of the Supreme Court at that time. I'm
not aware of a summary trial from a human rights point
of view going all the way to a challenge to the Supreme
Mr. Brian Dickson: If I can just add a little,
there have been two cases before the Supreme Court on
the constitutionality of the court martial. One is the
one the general has mentioned—Généreux. The other
one is Forster. In both of them, Chief Justice
Lamer wrote and held that the court martial could not
stand up to the Charter of Rights and Freedoms because
of the lack of independence of the judges and so on.
On the other hand, he came out with a very strong, long
paragraph supporting military justice as a separate
system, but one needing some revision.
So far, there has been no case before the Supreme
Court of Canada on the constitutionality of the summary
trial. What we were hoping with the reports we have
submitted was to make certain amendments to the form of
summary trial so that it would withstand a challenge
when it comes before the court.
Mr. Hec Clouthier: Thanks very much.
The Chairman: Thank you, Mr. Cloutier.
Mr. David Price: Thank you.
First of all, in response to Mr. Richardson's— What
I was talking about was in the report; it's
We recommend that the Judge Advocate General annual
report to the Minister of National Defence and the
Chief of the Defence Staff be
released to the public.
Okay? The report comes to them, and is then released.
The Canadian military tends to spend a lot of time
working with and dealing with the Americans and the
British. With these changes we're going to make, our
system will be softened up quite a bit in comparison to
theirs. I refer to the punishments we give out—the
death penalty, hard labour, and that type of thing.
Could you comment on the problems we might get into
because of having a softer system than our two closest
Mr. Brian Dickson: If you're saying that the
removal of the death penalty is a softer system, I
wouldn't agree with that. I think that removal of the
death penalty is simply recognizing something that is
of extreme importance in Canada, both in civilian life
and in the military life—particularly in the military
life when there's no death penalty in civilian life.
When we look around the world as to what countries
have abandoned the death penalty, we find we're in
pretty good company, because almost every European
country has abandoned the death penalty. Certain
states in the United States still have it, and it's
still available in certain offences in the armed
forces, but we felt quite strongly that there should
not be a form of death penalty for the military,
particularly when there's not one for the non-military.
Mr. David Price: Would you say your feelings had
more to do with the fact that we're not at war in
general, there again between dealing with forces
on Canadian soil and in military actions in other
Mr. Brian Dickson: No, I'm talking about the death
penalty in relation to the military. In World War I,
there were 23 people who were executed under the death
penalty provisions. In World War II, there was one
person, who had committed a murder and was executed.
As a trial judge, I had a number of murder cases come
before me, some of which were capital murder, and I had
the unpleasant task occasionally to direct that
somebody be executed. As it happened, it was a time
when Mr. Trudeau was commuting every death penalty, and
so we'd go through the façade of a trial. We knew—the
judges knew—and the accused knew that at the end of
it, if he was convicted, he wasn't going to be
suffering the ultimate penalty, because the policy of
the government at that time, although the act hadn't
been amended to remove the death penalty, was to
commute every case that came down the path in which the
death penalty had been imposed.
In due course, the government decided, I think in
1976, to declare that there would be no more death
penalties in Canada. If I might express a personal
opinion, I favour that, because as a trial judge, I had
a number of cases that came before me in which I did
declare So-and-so to suffer the death penalty, and yet
I didn't feel that was really what should happen,
because they'd been drinking, or they were illiterate
or something, and to say that this person, this man or
this woman, should be hanged seemed to me to be
entirely wrong. I can't recall one case in which I
would have wished to see the person executed.
Mr. David Price: In the military, as you say,
there was only one execution in World War II, and since
then, there haven't been any.
Mr. Brian Dickson: One in World War II, yes, and
as far as I'm aware, there's been nobody—
Mr. David Price: Thank you.
The Chairman: Thank you.
Mr. Art Hanger: Thank you, Mr. Chairman.
In reference to my collegue Mr. Clouthier when
we were talking about the independence of the JAG
office, it wouldn't necessarily mean that one has to
include a civilian, would it? It could still be a
qualified military person. In that case they would be
very familiar with the military process as well, even
on the investigation side.
So when we talk about independence, it's taking it right
out of the chain of command and just giving them the
authority to do what has to be done.
He made reference to his own situation, of course, as
a rider in a race. I can understand why he was willing
to at least take on the responsibility for what
happened in that particular race, because the horse
couldn't defend itself, obviously, and the judge must
have realized that too.
Mr. Hec Clouthier: The judge sold me the horse.
Some hon. members: Oh, oh!
An hon. member: You knew it would come out, Art.
Mr. Hec Clouthier: The cat's out of the bag. Then
I proceeded to make a horse's ass out of myself and the
Some hon. members: Oh, oh!
Mr. Hec Clouthier: I'll have to get a
Some hon. members: Oh, oh!
Mr. Art Hanger: I appreciate your recognizing that
too, Mr. Clouthier.
I wanted to make reference to proposed subsection
29(1) of the bill. It says in there that a service
member, officer or non-commissioned, can only grieve a
decision, act, or omission in the administration of the
affairs of the Canadian Forces. It seems to me the
previous legislation stated that one could grieve any
personal oppression, injustice, or other ill-treatment.
Why would that be changed?
LGen Charles Belzile: The short answer is I don't
know. As I read this, that seems to cover every
possible case that would apply to the National Defence
Act or to the military justice system.
Mr. Art Hanger: Yes.
LGen Charles Belzile: But there's no right to
grieve in respect of a decision of a court martial,
because there is an appeal process, so presumably you
don't grieve at the same time as you appeal formally
through the appellate system.
Proposed paragraph 29(2)(b) says:
a decision of a board, commission, court or tribunal
established other than under this Act...
Well, that would not concern National Defence if it's
under another act.
Mr. Art Hanger: No, and I'm not referring to that.
LGen Charles Belzile: Proposed paragraph 29(2)(c)
a matter or case prescribed by the Governor in
Council in regulations.
I'll have to have a lawyer explain that one to me.
The Chairman: Perhaps Colonel Fenske could answer
that for you.
Mr. Art Hanger: Yes, absolutely.
Colonel Allan F. Fenske (Deputy Judge Advocate
General, Advisory and Legislation, Office of the Judge
Advocate General, Department of National Defence): Mr.
Hanger, the objective in drafting the language the way
it's been drafted is first of all to modernize the
language. If you were to consult the language that is
used in other grievance processes, in particular the
RCMP grievance process, you would see that the language
we've adopted is somewhat similar.
One of our concerns with the old language has been
that it suggests a service member could grieve
virtually anything, indeed something over which the
Canadian Forces has no control at all. So you have
this more modern language, which suggests that if it
has occurred in the administration of the Canadian
Forces, over which the Canadian Forces has control,
then it is something you can grieve.
The reasons for this relate to some difficulties in
interpreting the old language. We have over the years
read the old language down so it approximates the
language you see here now clearly.
Mr. Art Hanger: So when we talk about personal
oppression, injustice, or other ill-treatment, to
define the term “injustice”, would that be more
difficult to ascertain? Is it too broad? Is that
what you're saying?
Col Allan Fenske: Yes, it was felt to be
misleading, more from the point of view of what in
justice—if you were to look at the language
currently in the bill, the language is arguably even
broader in that respect, but it's very, very clear that
it originates in something that has been done in
respect of the administration of the Canadian Forces
and therefore arises as a result of the individual
status as a Canadian Forces member.
Mr. Art Hanger: Anyone who would like to
redress a concern would have no problem, past or
present, in dealing with this act because of this
change. It's not going to affect what they can grieve.
Col Allan Fenske: I don't think so at all. If
anything, it will make it a little easier for us to
conclude whether or not a subject is grievable, but
it's certainly not intended to meaningfully narrow, in
any way, the current right to grieve.
Mr. Art Hanger: Okay, thank you very much.
The Chairman: Thank you, Mr. Hanger.
We will now go to the last questioner, Mr. O'Reilly.
Mr. John O'Reilly (Victoria—Haliburton, Lib.):
Thank you very much, Mr. Chairman.
Thank you for coming here.
I was trying to get something clear. I think most of
my questions on the elimination of the
death penalty were answered, but the wording in the recommendations
and in some of the summaries— I'm not a lawyer, but
that's a good start. It talks about the ineligibility
for parole for 25
years, for instance, and yet ineligibility for parole for
sentences of two years less a day—
If in fact you're
mirroring the provincial system and the federal system
of sentencing, is there a particular province
you've adopted as a model? In Ontario, if you've been
sentenced to two years less a day, you're housed
provincially and subject to different parole rules than
if you've been sentenced to over two years. But it's
not the same in other provinces.
I found inconsistencies in that particular part in
reading Bill C-25. If a
person's sentenced to life, there's no eligibility
for parole whatsoever for 25 years. If they're
sentenced to over two years, there would appear to be no
eligibility for parole. If they're sentenced to two
years less a day, which would then be a provincial
conviction, are they eligible for parole?
Mr. Brian Dickson: Under the current law an
accused, if he's charged under the federal law,
if it's two years plus a day he goes
to the federal penitentiaries. If it's less than two
years, or if it's two years less a day, he goes to a
provincial institution. But those are all civilian, and
I think absolutely unrelated to what we have here.
Mr. John O'Reilly: I was just wondering if you
were mirroring. It would appear as though you are
trying to come into a civilian code in the military
rules but maintain a military flavour. I didn't know
where the break would be in that structure.
Mr. Brian Dickson: I don't think there was any
real attempt to emulate provincial law or federal law
in respect, say, of 25 years without any parole. I'm
not aware of anything in the federal...that has that
long term without the possibility of getting out on
Perhaps Colonel Fenske might be able to
throw some light on it, if the chairman would permit.
The Chairman: Sure.
Col Allan Fenske: Mr. Chairman, members, Chief
Justice, General Belzile, the thrust of the provisions
you find in proposed sections 140.1 to
140.4 of the bill are essentially to incorporate,
on a selected basis, the provisions of the Criminal
Code between sections 743 and 746 of the
code, having somewhat modified them for military
purposes to ensure that in those cases where parole
would be delayed or where the time served wouldn't start yet to
run, we don't treat a military accused who has been
convicted of an offence through section 130 of the
National Defence Act, which incorporates the Criminal
Code, in a way different from the way we'd treat a civilian accused.
If you read these provisions carefully, you will
see there is a military flavour to a number of
them. For example, we deal with the case of an
individual sentenced to imprisonment for life for
the kinds of offences a civilian cannot be
sentenced for or tried for, and I'm thinking
of sections 73, 74, and 75 of the National Defence Act,
which are offences that occur in combat conditions.
I think if I were to try to break this down in
simple language, because these are by far and away the
most complex provisions of the bill,
I would say in those
cases where under the code of service discipline an
individual can be tried for the same kind of an offence
as a citizen under the Criminal Code, these provisions
would treat that individual on the same basis as any
other citizen of Canada.
Mr. John O'Reilly: Thank you. There are three
different interpretations of what I had here. Thank
you very much.
The Chairman: Thank you very much.
I'd just like to thank the witnesses for appearing
before us this afternoon. It was most enjoyable.
Thursday we have the clause-by-clause reading. I
know I've sent you an e-mail, but perhaps
you could send us your amendments as soon as
possible so we can have them translated and give them
to the other members.
Also in my e-mail I mentioned that if there are
clauses that don't give you any problems, let us
know, so we can pass them en masse.
Thank you very much.
This meeting is adjourned.