PARLIAMENT of CANADA

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Publications - May 14, 1998
 

STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS

COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 14, 1998

• 0911

[English]

The Chairman (Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.)): Good morning, everyone. Welcome to the committee meeting.

This morning, as you are all aware, we are going clause by clause on Bill C-25.

[Translation]

We are here this morning to study Bill C-25 clause by clause. Since this may be a rather long day,

[English]

we shall start right away with clause 1.

(Clause 1 agreed to)

(On clause 2)

The Chairman: We have amendments, two from the Bloc Québécois and two from the Progressive Conservatives.

Madame Venne.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Mr. Chairman, the amendment we are proposing to clause 2 is only incidental. The bill says that "The Governor in Council may appoint an officer who is a barrister or advocate". I propose to appoint a barrister or advocate who is not an officer. So this relates to the whole question of whether the judges should be officers or civilians. I brought forward this amendment so that the judges are civilian judges from now on. This is why I propose to remove the words "an officer who is" to ensure that we just have a barrister or advocate with standing at the bar.

This is the amendment I proposed. The other amendments that you will see after that are consequential; thus they are simply incidental. If we agree to this one, we agree to the other consequential amendments, since it is only this one I propose. If it is negatived, the others will be dropped automatically. Thank you.

The Chairman: Is there any other discussion?

[English]

Is there any other discussion on the amendment to clause 2?

Mr. Art Hanger (Calgary Northeast, Ref.): I raise a point of clarification on my colleague's motion. I wonder whether she is referring to proposed section 9.4:

    9.4 The Judge Advocate General holds a rank that is not less than brigadier-general.

The Chairman: It's proposed section 9.1, I believe.

• 0915

Ms. Pierrette Venne: It's the same thing for proposed section 9.4.

The Chairman: Thank you, Mr. Hanger.

Mr. Richardson, you had something to add?

Mr. John Richardson (Perth—Middlesex, Lib.): Just that the position of the JAG has been filled since 1911 by a military officer, and the reason for that is he requires a thorough understanding of the Canadian Forces command structure and the unique needs of the military justice system and a degree of experience with military legal issues. Firsthand knowledge and experience enhances the credibility of the individual occupying that position.

This officer could be a barrister or solicitor, but he needs to be an officer to have that background information and to give him a fuller and in-depth understanding of a situation.

The Chairman: Thank you.

Madame Venne.

[Translation]

Ms. Pierrette Venne: I would just like to add, Mr. Chairman, that the fact that this has been so since 1911 is not a reason to be forced to go on in the same vein. No pun intended. Mr. Richardson, it is sometimes possible to progress in another direction. That's all.

[English]

The Chairman: I'll call the vote on Madame Venne's amendments to clause 2.

(Amendments negatived) [See Minutes of Proceedings]

(Clause 2 agreed to on division)

(Clauses 3 to 6 inclusive agreed to)

(On clause 7)

The Chairman: I believe, Mr. Hanger, you have an amendment to clause 7 that you would like to propose.

Mr. Art Hanger: I do indeed. It should be before everyone here.

Again, it's in reference to the appointment process strictly leaving it up to the Governor in Council to appoint both the chairperson and at least two vice-chairpersons to the Canadian Forces Grievance Board. This committee should have considerably more power than what it has, because everything is taken away, even recommendations or a review of the standing committee on defence as to who should be on that particular board. And we will never know, because it's all done behind closed doors.

• 0920

So I would like to make this amendment, replacing line 10 on page 8 with the following:

    appointed, on the recommendation of the standing committee of the House of Commons that normally considers matters relating to national defence, by the Governor in Council that are

The Chairman: Would anybody like to speak on that, or are there further explanations of this amendment to clause 7?

Mr. George Proud (Hillsborough, Lib.): Mr. Chairman and members, I have never seen this procedure. As we said before, I haven't seen this procedure yet, and I don't think this is a recommendation that at this particular time we could look on favourably.

Mr. Art Hanger: I may not be in a position to ask the member why he would make that suggestion.

The Chairman: You can ask.

Mr. George Proud: Yes, you can ask me. It's because in the system we have, this just doesn't happen. It has never happened, and until changes are made, not only in this bill but in a lot of the procedures of this institution, it won't happen.

Mr. Art Hanger: Then it just shows you the total inadequacy of a committee such as we sit on right here to have any input into any of what is being decided. It's a top-down process again, and the committee is left toothless.

Mr. George Proud: I don't think, Mr. Chairman, it's an inadequate role we play. I will be one of the first ones to say, and one of the ones who in my time around here and in my time in provincial legislatures has said, that the legislators don't have enough say in it. However, having said that, I am not in a position to change it. I can't do that, nor can these people sitting on this committee.

The change has to take place, as you say, Mr. Hanger, in the institution itself, and until that time, no matter how much I might agree with you, I can't agree with this right today.

Mr. Art Hanger: Again, I have to beg to differ on the member's argument, because here is the piece of legislation now that would enable the committee to have input into those who sit on these particular boards, and you're refusing—

Mr. George Proud: This is a debate for another time, and I'd love to have this debate another time, because this has to be changed. We can't do this in this committee, because it won't be accepted. We know that. So therefore, when the institution is changed to do it, I'll be the first one to agree with it then.

Mr. Art Hanger: Again, I beg to understand the member's logic, because here is a chance to put it into legislation, and yet the members opposite refuse.

The Chairman: Ms. Longfield.

Mrs. Judi Longfield (Whitby—Ajax, Lib.): Mr. Hanger, I have some sympathy for the way in which we appoint members, but I don't think we can do it in this piece of legislation alone. I would remind you this is the same way we appoint members to the external review committee for the RCMP and other federal tribunals. This may be a debate that needs to take place in and of itself, but I don't think it should be specific to Bill C-25. We've spent a lot of time talking about and trying to make comparisons with other civilian boards and agencies, and as I say, I remind you this is the way we do it for the RCMP and others.

Mr. Art Hanger: If I may reply, Mr. Chairman, that is the argument that is so often used, which really has no substance, because it's “I think”. Whereas here is an opportunity, within a piece of legislation—an enactment, a bill, which would become law—to have that authority granted to the committee to go and do something substantially different from what we have been doing. It's a top-down process; that's all this is reflecting.

Mrs. Judi Longfield: Mr. Hanger, I don't disagree with you, except I don't think we do it on one specific bill.

Mr. Art Hanger: Why? Let's start.

Mrs. Judi Longfield: I think we do it as a general amendment to orders in council.

Mr. Art Hanger: Then we should start right here. Now is the chance to start.

Mr. George Proud: You can't do it that way.

(Amendment negatived)

• 0925

The Chairman: Now I believe amendment G-1.... Mr. Richardson, would you like to start it off?

Mr. John Richardson: Mr. Chairman, this is simply a technical amendment. For consistency with the French text, consumer provisions and other federal statutes such as subsection 66(1) of the Access to Information Act and subsection 67(1) of the Privacy Act, the English text should be amended to provide for the purported exercise of a power or the purported performance of a duty or function.

This amendment will provide additional protection to members of the Canadian Forces Grievance Board, and persons acting on behalf of the board, from civilian or criminal liability for activities carried out in good faith.

(Amendment agreed to [See Minutes of Proceedings])

Mr. George Proud: Mr. Speaker, could we have a recorded vote on clause 7?

The Chairman: Certainly.

(Clause 7 as amended agreed to: yeas 8; nays 2)

(Clauses 8 to 10 inclusive agreed to)

(On clause 11)

The Chairman: We have amendments on clause 11. Mr. Richardson.

Mr. John Richardson: Again, Mr. Chairman, this is a technical amendment. The words “personal belongings” are replaced by “personal or movable property” to properly reflect the bi-judicial nature of the Canadian legal system.

To reflect this nature a reference to federal legislation in common law insured personal property is mirrored by a reference to the civilian law term “movable property.” We're using the civil law term.

The Chairman: Is there any discussion on the amendment?

Mr. Art Hanger: Yes, I would like to ask a question. What do you mean by a civil law term as opposed to personal belongings and personal property? What's the difference? What's the significance?

Mr. John Richardson: I could ask Colonel Fenske to give you that fine discrimination.

Colonel Allan Fenske (Deputy Judge Advocate General, Advisory and Legislation, Department of National Defence): It's a technical issue that arises from different terminology in the common law and civil law systems. In order to ensure that the provisions of the acts in the federal statute base reflect both systems, we regularly ensure that we use interchangeable terminology.

So you see in this bill that we say “personal or movable.” That way it's very clear that it can be applied in a civil law or common law context.

Mr. Art Hanger: But is it not the case that Canada is operating under a common law principle on a federal level?

Col Allan Fenske: No, sir. The civil law system of Quebec does have standing, of course, and this bill must be applied in Quebec.

Mr. John O'Reilly (Victoria—Haliburton, Lib.): It's civil law, not the Civil War Act.

Some hon. members: Oh, oh.

Mr. John O'Reilly: It's the civil law, not the civil war.

Mr. Art Hanger: Thanks for clarifying that.

Some hon. members: Oh, oh!

(Amendment agreed to [See Minutes of Proceedings])

(Clause 11 as amended agreed to)

(Clause 12 agreed to)

• 0930

[Translation]

(On clause 13)

The Chairman: I think we have an amendment to clause 13.

Mr. Richardson.

[English]

Mr. John Richardson: Again, Mr. Chairman, this is a technical amendment. The underlined words are added to prevent any interpretation that this paragraph could exclude evidence by a witness who could not understand the nature of an oath or solemn declaration but was nevertheless able to communicate the evidence in question. Section 16 of the Canada Evidence Act provides for the admissibility of such evidence in court.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 13 as amended agreed to)

(Clauses 14 to 23 inclusive agreed to)

(On clause 24)

The Chairman: We have an amendment on clause 24, proposed by the Reform Party. Mr. Hanger, would you like to address the amendment?

Mr. Art Hanger: I'll withdraw that amendment.

(Clause 24 agreed to)

(On clause 25)

The Chairman: Now, on clause 25 we have a Reform amendment.

Mr. Art Hanger: I will withdraw that clause 25 amendment, Mr. Chairman.

(Clause 25 agreed to)

(On clause 26)

The Chairman: Mr. Hanger, you brought in an amendment.

Mr. Art Hanger: Yes. I will withdraw my amendment to clause 26.

(Clause 26 agreed to)

(On clause 27)

The Chairman: There is a Reform amendment to clause 27. Mr. Hanger, would you like to address the amendment?

Mr. Art Hanger: I will withdraw my amendment to clause 27.

(Clause 27 agreed to)

(On clause 28)

The Chairman: On clause 28 we have three amendments.

Mr. Art Hanger: Mr. Chairman, I will withdraw the three amendments I have on clause 28.

(Clauses 28 to 31 inclusive agreed to)

[Translation]

(On clause 32)

The Chairman: The government has an amendment to clause 32. Mr. Richardson, would you like to address the amendment?

[English]

Mr. John Richardson: Thank you, Mr. Chairman.

Again, it is technical in nature. A witness who, when summoned or ordered, fails to appear before the grievance board, the military police complaints commission, a board of inquiry, or a commissioner taking evidence under the National Defence Act commits a service offence under section 118 of the act. There is no similar provision for a witness at an inquiry committee. This amendment would provide the inquiry committee with the same means to control its process as the other tribunals under the act.

Mr. George Proud: Does that mean a subpoena?

Mr. John Richardson: When you're asked to appear it's similar to a subpoena, but I don't know how official that is.

Col Allan Fenske: If they have the means to summons, it would mean failure to react to a summons.

Mr. George Proud: Okay.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 32 as amended agreed to)

(On clause 33)

The Chairman: Mr. Hanger, you have an amendment you would like to bring in?

• 0935

Mr. Art Hanger: I withdraw our proposed amendments to clauses 33, 34, and 35.

(Clauses 33 to 40 inclusive agreed to)

(On clause 41)

The Chairman: I believe Mr. Hanger has an amendment to clause 41.

Mr. Art Hanger: The act would be amended by adding the following after section 156:

    156.1 Officers and non-commissioned officers who are appointed as military police under the regulations for the purposes of section 156 shall report to the Judge Advocate General in matters relating to investigations of alleged major disciplinary offences and criminal misconduct, whether these offences occurred inside or outside Canada.

Mr. John Richardson: This follows the U.S. model kind of practice. It's not the way we do business in the criminal justice system in Canada. We have followed those practices that we have in Canada so far in this bill. This would be out of the orbit of the Canadian practice.

Mr. Art Hanger: You mean to report? I think you're going to find your military code somewhat out of the practice of normal criminal justice practices in Canada overall.

Mr. John Richardson: Well, it follows general Canadian practices. If you would like an explanation for more detail, I will defer it until Mr. Hanger gets fuller detail.

The Chairman: Maybe we can have a point of clarification.

Mr. Art Hanger: I would like a full report as to what is wrong with that proposal.

Mr. John Richardson: I don't think he can speak to that explanation, but he can explain what the bill does.

Col Allan Fenske: Mr. Hanger, I can't tell you you're wrong, but I could explain the theory behind the bill so that you'd understand the way it's drafted and why it's drafted that way. I could relate it to your amendment, if you'd like.

• 0940

Mr. Art Hanger: If you would.

Col Allan Fenske: The Somalia commission recommended that military police report to the Judge Advocate General. They recommended that because in their view there was no tradition of independence in the military police, and that would be a suitable amendment to make, given that there appeared to be more independence in the JAG and that the two of them together would form a decent team. I hope I've done justice to their report in summarizing it that way.

The Dickson approach, when they looked at military police and prosecutions, was to follow a Canadian model, and the Somalia commission acknowledged that an organization where police reported to prosecutors was not a Canadian model. The Dickson panel chose to follow a more Canadian model, and the Canadian model has your investigators, your police, acting independently of those who prosecute.

The result of your amendment would be to put them back together. The tradition in Canadian criminal practice has been to keep them apart, because it's felt in some circles that it concentrates too much power in the hands of the prosecutors when the police are working for them. It's a matter of debate in learned circles, but the government did buy the Dickson amendments, as you're aware, and the bill does reflect that policy stance.

Mr. Art Hanger: I'm familiar with Judge Dickson, and certainly he was before this committee and the questions were put to him about the independence of the whole judicial system within the military chain of command. Clearly, he offered no further guarantees that there was going to be that independence because of that very fact. As a result, one point here to really impact the whole independence argument, this is no more independent or less independent, really, apart from the fact that there's another level of reporting that Judge Dickson, even though he agreed there wasn't that independence, felt was the way they wanted to proceed, regardless.

So your independence issue is pretty weak, given the fact that the JAG is not independent of the chain of command.

Mr. John Richardson: But really, the police wouldn't be independent of the prosecutor. That's the whole thing. They wouldn't be.

Mr. Art Hanger: No. They aren't now, they never were, and this isn't going to help it any with the present arrangement. The independence is going to be still within the chain of command; it's just maybe shuffled off to the side a little bit more. That's my argument.

(Amendment negatived)

(Clause 41 agreed to on division)

(On clause 42)

The Chairman: We have quite a few government amendments to clause 42. Mr. Richardson.

Mr. John Richardson: Thank you, Mr. Chairman. These are, again, technical amendments.

For consistency with English text, the words

[Translation]

"l'officier qui a effectué une révision aux termes du paragraphe (2)"

[English]

should be added in subsection 158.6(3) of the French text.

The Chairman: Go through them all, Mr. Richardson.

Mr. John Richardson: Okay.

• 0945

The first is that Bill C-25 in clause 42 be amended by replacing, in the French version, lines 27 and 28 on page 31 with the following:

[Translation]

    en liberté, commettra une infraction ou nuira à l'administration de la

[English]

The second is that Bill C-25 in clause 42 be amended by adding after line 13 on page 40 the following:

    Powers of Inquiry Committee

      (2.1) The Inquiry Committee is deemed to have the powers of a court martial.

Could I just take a moment to explain that one?

The Chairman: Yes, okay.

Mr. John Richardson: In the conduct of an inquiry concerning the director of military prosecutions, the inquiry committee may require the power to compel a person to appear before it or produce documents and to administer oaths to witnesses. The addition of proposed subsection 165.1(2.1) will permit an inquiry committee to exercise such powers. An inquiry committee under the Judges Act has similar powers.

The amendment of proposed subsection 165.1(3) in the French text clarifies, with the addition of proposed subsection 165.1(2.1), that it is the term of the director of military prosecutions that is renewable.

There's just a whole slew of them, so you'll have to bear with me on this clause. Again, they're all technical in nature. I'll speak to the background of this one.

Given the general supervision of the director of military prosecutions exercised by the Judge Advocate General, the words Le ministre et in proposed subsection 165.17(2) of the French text should be removed. This would also provide consistency with the French text.

The word peut replaces peuvent in the French text of proposed subsection 165.17(2), providing agreement between the subject and the verb.

Consistent with the English text, the words après consultation du directeur des poursuites militaires in proposed subsection 165.17(2) of the French text should also be removed.

The change to proposed subsection 165.17(3) clarifies in the French text that the Judge Advocate General and not the director of military prosecutions issues instructions and guidelines. Therefore we make the following amendment:

[Translation]

    (3) Le juge-avocat général peut, par écrit, établir des lignes

[English]

Amendment G-10 is that Bill C-25 in clause 42 be amended by replacing, in the English version, lines 5 and 6 on page 42 with the following:

    instruction or guideline, or any part of it, to be available to the

For consistency with the French text, the words “issued under subsection (3)” should be removed from the English text.

Mr. Chairman, we're going to go through all the government motions on clause 42, and there is a Bloc motion as well, so I'll read the Bloc motion at the end, or the Bloc member will.

Amendment G-11 is that Bill C-25 in clause 42 be amended by adding after line 2 on page 43 the following:

    Powers of Inquiry Committee

      (2.1) The Inquiry Committee is deemed to have the powers of a court martial.

• 0950

The explanation for the last motion is in the conduct of inquiry concerning a military judge, the inquiry committee may require the power to compel a person to appear before it, produce documents and administer oaths to witnesses. This amendment will permit an inquiry committee to exercise such powers. An inquiry committee, under the Judges Act, has similar powers.

The last of the group of amendments is G-12. It is that Bill C-25, in clause 42, be amended by replacing, in the French version, line 4 on page 44 with the following:

[Translation]

    165.27 Le juge militaire en chef peut déléguer à un

[English]

Pardon my French, but I'm trying my very best.

For consistency with the English text, en chef should be added to the French text. Thanks, George.

[Translation]

The Chairman: I would have a question for Ms. Venne. Are the amendments you proposed cancelled by...

Ms. Pierrette Venne: Of course.

The Chairman: Thank you.

Ms. Pierrette Venne: You voted against.

[English]

The Chairman: What we'll do is we'll vote in block for all the government amendments, G-5, G-6, G-7, G-8, G-9, G-10, G-11 and G-12, and then we'll go back to Mr. Hanger's amendment.

(Amendments G-5 to G-12 inclusive agreed to on division)

The Chairman: Mr. Hanger has brought in amendments to clause 42.

Mr. Art Hanger: Yes.

The Chairman: Would you like to address the amendments, Mr. Hanger?

Mr. Art Hanger: Yes, I certainly would.

In reference to military judges, proposed subsection 165.21(1) is to be amended by replacing line 32 on page 42 with the following:

    The Governor in Council, on recommendations of the Standing Committee—

[Translation]

Ms. Pierrette Venne: I rise on a point of order. I am sorry. It seems to me that when an amendment such as this one is introduced, it should be in both languages, and not only in the hands of the translation department. I refuse to discuss an amendment which is not translated.

[English]

The Chairman: That's right.

Mr. Art Hanger: May I finish?

The Chairman: No, just a minute here.

Mr. Hanger, Madam Venne has brought up a point that you cannot introduce an amendment if it's not translated. It's being translated now, so what I propose, Mr. Hanger, is that we can suspend the passing of clause 42 and we can come back to it once your amendment has been translated.

Mr. Art Hanger: I'm sure that would be acceptable to me.

The Chairman: Clause 42 is put.... No, we can't. We're holding.

Mr. Art Hanger: Mr. Speaker, just to expedite matters, if you're going to put clause 42 on hold, there is another amendment that I've submitted, and again it's in reference to the chief military judge.

The Chairman: I believe, Mr. Hanger, both of them are being translated now.

Mr. Art Hanger: Okay, that sounds good.

(Clause 42 as amended allowed to stand)

• 0955

The Chairman: Just for the committee's information, I believe, Mr. Hanger, you have brought in two more amendments on different clauses.

Mr. Art Hanger: Yes, on clause 82 replacing line 23 and 24 on page 70, and clause 104 on page 94 of the bill to have—

The Chairman: They too are being translated right now.

Mr. Art Hanger: Okay, that sounds good. And on clause 128. That will be it.

The Chairman: So we will come back.

[Translation]

We are going to come back to clause 42 once the amendments proposed by Mr. Hanger are translated.

Ms. Pierrette Venne: I agree, Mr. Chairman, because I am a very good person and I want to give Mr. Hanger a chance to have his amendments discussed.

The Chairman: Thank you very much, Ms. Venne.

[English]

Mr. George Proud: What happens to Madam Venne's amendment? Are you just putting everything you like?

The Chairman: It was cancelled.

The Clerk of the Committee: It was negated by voting against her first one.

(Clauses 43 to 54 inclusive agreed to)

(On clause 55)

The Chairman: We are at clause 55. I believe Mr. Hanger has brought in—

Mr. Art Hanger: On 55?

The Chairman: On clause 55, yes.

Mr. Art Hanger: On clause 55 I did submit, indeed, an amendment. However, I am withdrawing it.

(Clauses 55 to 81 inclusive agreed to)

The Chairman: Now on clause 82, we have six amendments. I'll call them G amendments. Mr. Richardson, would you like to comment on those amendments, please?

Mr. John Richardson: Thank you, Mr. Chairman.

The amendment is that Bill C-25 in clause 82 be amended by replacing the English version of lines 34 to 41 on page 63 with the following:

    or cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears that the service tribunal was satisfied of the facts establishing the offence specified or involved in the new finding.

Again, it is another technical amendment. There's no change to substance. It's just that the consistency is being established.

The Chairman: On G-14.

Mr. John Richardson: The amendment is that Bill C-25 in clause 82 be amended by replacing lines 5 to 13 on page 64 with the following:

    offender guilty, if it appears that the facts proved the offender guilty of the other offence and the service tribunal could have found the offender guilty of the other offence on the charge under section 133, 134 or 136 or on any alternative charge that was laid.

Mr. George Proud: Mr. Chairman, could I have that translated into layman's language?

Mr. John Richardson: I thought you were going to ask me to speak French, Mr. Proud.

Mr. George Proud: No, no.

• 1000

Mr. John Richardson: Here's the background on it, for Mr. Proud. It's to more clearly set out the conditions for a review authority to substitute a finding of guilty made at a service tribunal, and for better consistency between the English and French texts. Both texts in proposed section 249 should be amended. It's for language consistency.

Mr. George Proud: It's the language, and doesn't do anything to the intent?

Mr. John Richardson: No, there's no change in substance.

Mr. George Proud: Okay.

The Chairman: We'll go through all of the government amendments. Go ahead, Mr. Richardson.

Mr. John Richardson: Amendment G-15 is that Bill C-25 in clause 82 be amended by replacing, in the English version, line 23 on page 73 with the following:

    in the exercise or purported exercise of a power or in the performance or purported performance of

Again, it's a language amendment to maintain consistency with the French text, and with similar provisions in other federal statutes, such as subsection 66(1) of the Access to Information Act and subsection 67(1) of the Privacy Act. The English text should be amended to provide for purported exercise of power or purported performance of a duty or function.

This amendment will provide additional protection to members of the Canadian Forces Grievance Board and persons acting on behalf of the board from civil or criminal liability for activities carried out in good faith.

Amendment G-16 is again a technical amendment. It is that Bill C-25, in clause 82, be amended by replacing line 24 on page 74 with the following:

    Time Limit

    250.2 No complaint may be made more

The words “Time Limit” are inserted.

Mr. George Proud: So it just involves putting in the two words “Time Limit”.

Mr. John Richardson: Yes. And the reason? It is intended that the time limit be set out in proposed section 250.2 for making a complaint apply to both conduct and interference complaints under part IV of the National Defence Act.

As proposed section 250.2 does not have the heading, and follows proposed section 250.19 with the heading “Interference Complaints”, it could be argued that proposed section 250.2 only applies to interference complaints. To provide clarity, a new heading, “Time Limit”, should be added immediately prior to proposed section 250.2.

[Translation]

The Chairman: Are there any questions?

[English]

Mr. John Richardson: Amendment G-17 is that Bill C-25 in clause 82 be amended by replacing, in the French version, lines 2 and 3 on page 80 with the following:

[Translation]

    transmet au ministre, au chef d'état-major de la

[English]

There is no requirement that the complainant and the person who is subject to the complaint receive an interim report under proposed subsection 250.32(3), as the chairperson sends a final report to them under proposed subsection 250.53(2). This amendment would provide consistency in the English text.

Amendment G-18 is that Bill C-25, in clause 82, be amended by replacing line 32 on page 88 with the following:

    martial, the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), the Military

This amendment will permit a witness other than an officer or non-commissioned member or an officer or employee of the department to receive fees and allowances when summoned or attending an inquiry committee.

Mr. George Proud: That doesn't happen now?

Mr. John Richardson: No.

Mr. George Proud: So they're going to pay now, to go.

The Chairman: Just one moment. Madam Venne.

[Translation]

Ms. Pierrette Venne: I would like us to revert to amendment G- 17. I am sorry.

The Chairman: yes.

Ms. Pierrette Venne: We are on amendment G-18. Could we come back to amendment G-17 for a minute?

• 1005

In the French version, we are removing the words "transmet au plaignant et à la personne mise en cause", which is however rather important. Is that the purpose? I find that surprising.

Col Allan Fenske: Ms. Venne, you noticed the difference between the French version and the English version. The problem is that the process includes several steps. The people we are removing here in the text are those who will receive the final report. We just simplified the process. They will still receive the final report but not the interim report.

Ms. Pierrette Venne: Thus it is the interim report which is concerned here.

Col Allan Fenske: Exactly.

Ms. Pierrette Venne: Thank you.

The Chairman: Is it clear?

Some Hon. Members: Yes.

[English]

The Chairman: Have we finished with G-18?

Mr. John Richardson: We're finished with that round of technical amendments.

(Amendments G-13 to G-18 inclusive agreed to on division)

The Chairman: For clause 82, we have two amendments from the Reform Party. One is in your package and the other one is being translated.

Mr. Art Hanger: This bill is just rife with order in council appointments. We're sitting here as a committee content to let it happen. I can't believe it.

Mr. George Proud: We're not content, but we're going to let it happen.

Mr. Art Hanger: Very unfortunate, not even an argument.

An hon. member: Nothing to argue with.

Mr. Art Hanger: If you like that kind of thing, sitting in a committee and twiddling your thumbs, I suppose that's the way—

An hon. member:

[Inaudible—Editor].

Mr. Art Hanger: Why can't you? Here's a piece of legislation where you can change it. What do you mean, you can't?

Mrs. Judi Longfield: You can't. Art, it goes to the very nature of how we appoint boards and agencies. Bring in a bill that talks about it in a general sense and we'll have a discussion on it.

Mr. George Proud: We'll have a discussion on it, Art.

Mr. Art Hanger: Yes. I accept the suggestion; it's a good one.

The Chairman: Shall RF-10 carry?

(Amendment negatived [See Minutes of Proceedings])

• 1010

The Chairman: We have one more amendment to deal with in clause 82, and we will be dealing with them as soon as we get them in the next few minutes. They are being translated.

(Clause 82 allowed to stand)

(Clauses 83 to 89 inclusive agreed to)

(On clause 90)

[Translation]

The Chairman: I think the government has an amendment to clause 90.

Mr. Richardson.

[English]

Mr. John Richardson: Mr. Chairman, I do; it's amendment G-19.

The background and reason for this is technical, again. It's another technical amendment. This amendment would provide the inquiry committee with the same means to control its process as other tribunals under the act.

The amendment is as follows:

    the Grievance Board, an Inquiry Committee established for the purpose of subsection 165.1(2) or 165.21(2), a service tribunal, a

(Amendment agreed to)

(Clause 90 as amended agreed to)

The Chairman: Shall clauses 91 to 123 carry?

Mr. Art Hanger: I think clause 104 has an amendment.

The Chairman: Hold on a minute here.

Mr. John Richardson: We have two technical amendments to make here. One is a typo, dealing with the French text. It should be amended by replacing—

The Chairman: For which clause?

Mr. John Richardson: It's clause 124.

The Chairman: Just hang on a minute. We're not there yet.

Mr. Hanger.

Mr. Art Hanger: This particular amendment I have on clause 104, if I may address it—it's on section 104, not clause 104. It is actually within clause 104 but specifically dealing with section 104.

The Chairman: I know we're talking about clauses here, but we'll wait for Christmas later.

(Clauses 91 to 103 inclusive agreed to)

(Clause 104 allowed to stand)

(Clauses 105 to 123 inclusive agreed to on division)

(On clause 124)

The Chairman: On clause 124, Mr. Richardson,

[Translation]

are you proposing an amendment?

• 1015

[English]

Mr. John Richardson: Thank you, Mr. Chairman. As I mentioned, this is a typo correction. The French text should be amended to provide Defence Research Board instead of Defence Research Council.

Mr. George Proud: The Defence Research Board would replace the Defence Research Council?

Mr. John Richardson: Instead of.

Mr. George Proud: Okay.

Mr. John Richardson: Yes, substituting.

Mr. George Proud: I'm learning every moment I come here.

(Amendment agreed to)

(Clause 124 as amended agreed to)

(Clause 125 agreed to)

(On clause 126)

The Chairman: On clause 126, Mr. Richardson, I believe the government has an amendment.

Mr. John Richardson: It's another amendment similar to the previous one. It's a typing correction. It will be that Bill C-25 in clause 126 be amended by replacing in the French version line 5 on page 102 with Defence Research Board.

(Amendment agreed to)

(Clause 126 as amended agreed to)

(Clause 127 agreed to on division)

(On clause 128—Coming into force)

The Chairman: For clause 128, I believe we have an amendment from the Reform Party that is being translated.

Mr. Art Hanger: Yes, it is.

(Clause 128 allowed to stand)

The Chairman: Here it comes.

[Translation]

Some Hon. Members: Yes, yes.

The Chairman: We are going to come back to clause 42. I invite Mr. Hanger to address his amendment.

[English]

Mr. Art Hanger: Yes, in reference to clause 42, proposed section 165.24, as noted in the proposed change, the chief military judge. We would like to amend line 32 on page 42 with the following:

165.24(1) The Governor in Council on the recommendation of the standing committee of the House of Commons that normally considers matters relating to national defence may

Mr. George Proud: I think you know my opinion on this.

Mr. Art Hanger: I think I've heard it from the Liberal side in total, yes. You've also heard mine.

• 1020

Mr. George Proud: And I've given you an amendment to that.

[Translation]

The Chairman: Do you have any comment, Ms. Venne?

Ms. Pierrette Venne: Yes. In fact this amendment which is quite similar to others Mr. Hanger proposed had to be translated. It is only as a matter of mutual respect that I asked for this translation. Thank you.

[English]

(Amendment negatived)

(Clause 42 as amended agreed to on division)

(On clause 82)

The Chairman: Mr. Hanger, would you like to present your amendment please?

Mr. Art Hanger: This is in reference to clause 82 on page 70, with respect to the establishment of the commission. We would like to amend proposed subsection 250.1(1) by replacing line 18 on page 70 with the following:

    appointed by the Governor in Council on the recommendation of the standing committee of the House of Commons that normally considers matters related to national defence.

We would also replace lines 23 and 24 on page 70 with the following:

    but may be removed for cause by the Governor in Council on the recommendation of the standing committee of the House of Commons that normally considers matters relating to national defence.

The purpose, of course, is to put more power into the hands of the committee and give them some purpose.

(Amendment negatived)

(Clause 82 as amended agreed to on division)

(On clause 104)

The Chairman: Mr. Hanger, I believe you want to delete clause 104.

Mr. Art Hanger: I want to delete clause 104.

Mr. George Proud: You want to delete the clause itself?

Mr. Art Hanger: Yes, remove it.

The Chairman: Remove clause 104.

Mr. George Proud: Was it your clause or the clause that's in there now?

Mr. Art Hanger: I will give the rationale.

• 1025

If Bill C-25 better enables complaints about military police and the military justice system, why should the changes not be enacted retroactively? In other words, why are we content with leaving it on the day the Governor in Council would like to—

Mr. George Proud: For the same reason as the others, I guess: that's the way it happens.

Mr. Art Hanger: —give us direction on the bill? What's wrong with going retroactively? And I might ask that to the—

Mr. George Proud: It's not acceptable.

Mr. Art Hanger: Why? Why isn't it acceptable?

Maybe the experts could give some explanation.

[Translation]

The Chairman: Apparently, when asking for the removal of a clause, there is no need for translation.

Ms. Pierrette Venne: They have to say so, because up to now we were discussing without really knowing what we were talking about.

The Chairman: We are now discussing clause...

[English]

Mr. Art Hanger: I'm sorry, Mrs. Venne.

Ms. Pierrette Venne: No, it's okay. I understand now that you want to withdraw.

Mr. Art Hanger: Just remove the clause.

Ms. Pierrette Venne: Okay, I understand now.

Mr. Art Hanger: Could I have some explanation as to why it could not be done retroactively?

The Chairman: Mrs. Longfield.

Mrs. Judi Longfield: You can't change the rules part-way through the game. For things that were done in compliance with the act, you can't suddenly say, “This no longer applies. We have a new act, and everything that's passed falls under the new act.”

Mr. Art Hanger: If I could have an explanation, apart from just not changing the rules, I would appreciate it.

Mrs. Judi Longfield: Well, I guess—

The Chairman: I believe Colonel Fenske had some information.

Col Allan Fenske: I can just explain the rationale for it, if that would be helpful.

It's theoretically legally possible to do retroactivity, but a lot of adverse consequences go with it. The most obvious one is that you lose certainty as to what you're creating. The rationale of this provision is to give the boards a clean start so they'll be able to define what cases are before them. If you don't do that, they will have an extremely uncertain caseload and they'll have to deal with cases that are already in some other form of process. So it turns into a very complex problem of administration—not necessarily law right away, but it can cause legal difficulties also, which is why the norm is that these kinds of things are prospective.

Mr. Art Hanger: Well, I gather from your comments, though, sir, that retroactivity is possible; it's just that the government has chosen not to go that route. I might point out that Revenue Canada doesn't waste any time when it comes to changing law to make it retroactive.

We're here to correct a problem that exists within the military justice system, and I don't see us really dealing effectively with those that are even before our courts right now or under charge or pending charges.

Mr. George Proud: Well, I don't know.

Mr. Art Hanger: That's my opinion.

Mr. George Proud: If this comes into effect, then that law comes into effect the day it's proclaimed, right, Colonel?

Col Allan Fenske: I'm just looking at the words to make sure I've given you the right answer, sir.

Using this provision, the caseload of the board would consist of those cases that come into being once the board comes into being.

Mr. George Proud: Yes.

The Chairman: I'll now call the vote on clause 104.

Mr. Art Hanger: Mr. Chairman, I think we should have a recorded vote on this particular one.

(Clause 104 agreed to: yeas 9; nays 1)

• 1030

The Chairman: Okay. Now we go back to clause 128. Did I say go back to? I'm sorry; we go ahead to clause 128. We revert back to clause 128.

Mr. Hanger, could you comment on the amendment you wish to bring in?

Mr. Art Hanger: Yes. It's in keeping with the discussion we've had already. It deals certainly with retroactivity, but since that clause was agreeable to the Liberal side, and retroactivity is not considered a possibility in this bill, the amendment I would like to propose here on clause 128, lines 21 and 22, would be as follows:

    Act, comes into force on the day this Bill receives Royal Assent.

—and not, as recorded here, “comes into force on a day or days to be fixed by order of the Governor in Council.”

The Chairman: Would anyone like to comment on the Reform amendment?

Mr. George Proud: I guess the problem with that is that there will be certain parts that won't be ready to come into effect on that particular day. The boards wouldn't be appointed....

Mr. Art Hanger: That's the same old argument—that it's taking away from the power of Parliament, bottom line. We're allowing the Governor in Council to continue on behind closed doors making all kinds of decisions.

Mr. David Pratt (Nepean—Carleton, Lib.): Mr. Chair, perhaps we could get an explanation from the departmental representatives. I could be wrong here, but it seems to me that this is being done for administrative convenience.

The Chairman: Colonel.

Col Allan Fenske: This is a 100-page bill that is the single biggest set of changes to military justice since the enactment of the National Defence Act. Some of the changes will give rise to extensive regulations and do need to be phased in. If it were to come into force on one day, it would pose a very difficult management problem for the department.

Mr. George Proud: We'd be back again next year doing another one, trying to eradicate some of the problems here.

Mr. Art Hanger: It's still in principle to protect Parliament in enacting law and making decisions—not the Governor in Council or the military or NDHQ.

Mr. John Richardson: Is it that you think this is undemocratic, what we're doing?

Mr. Art Hanger: Yes, I do.

Mr. John Richardson: Because you want your vote to weigh more than the other nine of us.

Mr. Art Hanger: No, not at all.

Mr. John Richardson: That's what you're trying to say.

Mr. Art Hanger: I think this is a situation that we, as a committee, had better examine very closely. The power that is vested in this committee obviously is a top-down process, and everybody over there is content to leave it that way.

The Chairman: Just hang on a minute.

[Translation]

Mr. Proud, then Ms. Venne.

[English]

Mr. George Proud: Thank you, Mr. Chairman.

I don't think everybody here is contented with it. What everybody here believes in is that this is the way our institutions work. We're not saying that we totally agree that this is the way it has to happen. If we allow this to come into force on the day the bill receives royal assent, then the bill is not going to be ready, nor are the institutions going to be ready to carry the object of the exercise out.

I have talked for years and tried for years to change this institution, Mr. Hanger, and I would certainly agree with you that we have to change it. The problem is.... And I agree with what you're saying now. If such a thing happens that some day your party becomes the governing party, I will assure you that others will be sitting on the other side of this table saying the same thing. And that's unfortunate, because that's the way the system has worked for 131 years, or whatever it is.

I believe it has to change. Doing this will change it. Therefore I can't support the amendment.

• 1035

The Chairman: Thank you, Mr. Proud.

[Translation]

Ms. Venne.

Ms. Pierrette Venne: Mr. Chairman, I think that we could have said that "this Act comes into force on the day this Bill gets Royal Assent, except for the following clauses", as we have already done for other bills. We name the clauses we want to exclude because there are appointments to be made or for other similar reasons. I wonder if we could not have done so in this case.

Col Allan Fenske: Ms. Venne, everything is possible but, within the context of this piece of legislation, it would have been very complicated.

Ms. Pierrette Venne: I know.

Col Allan Fenske: That is the problem, All I can do here is stress that the management procedure prescribed for the putting in place of the various regulations leaves us lots of administrative flexibility in the implementation of each of the clauses.

Ms. Pierrette Venne: May I ask you if it will be long before the implementation order in council will be pronounced?

Col Allan Fenske: It is hard to say. I will first make some comments, without prejudice, of course. First, I imagine that is will not simply be an order in council. The problem is to know how much time it will take to put into place a Military Police Complaints Commission and a Grievance Board.

Some progress has been made on several fronts. We should add to this the problems of the military judge, of the new prosecution officer and of the new defence board. Many elements have to be put in place gradually, Ms. Venne.

Ms. Pierrette Venne: I understand. Thank you.

[English]

The Chairman: Mrs. Longfield.

Mrs. Judi Longfield: One of the problems with this coming into effect immediately, Mr. Hanger—I think you can understand—is that we're damned if we do and we're damned if we don't. If it was coming into effect the minute it had royal assent, we would have had to have all of the boards in place and all of those appointments made. Surely that's not how you expect that. We're not going to presuppose that we're going to get full passage. So it needs to get passage through the House before we can start to establish those boards.

With respect to order in council appointments, we've had the discussion on other areas, and I think that is open for discussion at a further time. But look at this particular one. I think any time a bill of this magnitude comes into effect the minute it gets royal assent, that would make us need to be putting things in place well in advance of the bill actually being passed. I think that is most undemocratic.

The Chairman: Mr. Proud.

Mr. George Proud: I just would say in my final comments to the people responsible for it that I would hope they would look at this post-haste and get the thing up and running as fast as humanly possible.

Thank you.

The Chairman: Thank you.

Mr. O'Reilly.

Mr. John O'Reilly: The thing this bill has that I enjoy is an automatic five-year review. I think it's important that we note for the record the objections that are here. In that five-year review, we should make sure they're brought forward and have been addressed. For what it's worth, some of them may in fact be reviewed in five years or may be changed before five years.

The Chairman: So in five years Mr. Hanger could bring back the amendments.

Mr. John O'Reilly: His son will be a member then.

(Amendment negatived)

(Clause 128 agreed to)

• 1040

The Chairman: Shall the title carry?

Some hon. members: Agreed.

Some hon. members: On division.

The Chairman: Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

[Translation]

The Chairman: Shall the Committee order a reprint of Bill C-32 for use at Report Stage?

Some Hon. Members: Agreed.

The Chairman: Thank you very much.

[English]

Mr. John Richardson: Mr. Chairman, may I take a moment to thank Colonel Fenske and Colonel Weatherstone for all the work they've done since we started in following this bill through and offering us the best advice and aiding us along the way.

The Chairman: I would also like to take this opportunity to thank all the members of the committee. I had cancelled all my appointments today, and now I don't know what to do.

[Translation]

Thank you very much.

[English]

The meeting is adjourned.

ParlVU