The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

FIFTEENTH REPORT

TUESDAY, November 24, 1998

Your Committee, to which was referred Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, has, in obedience to the Order of Reference of Thursday, June 18, 1998, examined the said Bill and now reports the same with the following amendment and observations:

1. Page 89, Clause 96: Replace lines 1 to 6 with the following:

"96. (1) The Minister shall cause an independent review of the provisions and operation of this Act to be undertaken from time to time.

(2) The Minister shall cause the report on a review conducted under subsection (1) to be laid before each House of Parliament within five years after the day on which this Act is assented to, and within every five year period following the tabling of a report under this subsection.".

The Committee is generally supportive of Bill C-25 which embodies much needed amendments to the National Defence Act and, indeed, constitutes the most significant package of amendments to that Act since it was first enacted in 1950. However, the Committee does have some concerns about certain aspects of the bill. Having amended clause 96 of the bill to ensure that regular independent reviews of the provisions and operation of the proposed legislation are conducted, the Committee expects the Department of National Defence to have considered and addressed these concerns in the course of the first legislative review, if not before.

While we appreciate the steps taken in clause 42 of the bill to strengthen the institutional independence of military judges (specifically, making military judges Governor in Council appointees, as is the case with other federally appointed judges; lengthening the term of appointment to a fixed term of five years; and establishing special advisory committees on the appointment, re-appointment and remuneration of military judges), Committee members find the retention of renewable terms for military judges to be troubling, particularly when compared with other federally appointed judges who serve until a fixed retirement age. Moreover, members of the Committee are concerned that clause 42 of the bill would leave entirely to the regulations the composition of the proposed Renewal Committee as well as the criteria which that committee would use in making its recommendations to the executive on the re-appointment of military judges. The Committee is of the view that such important matters should be spelled out in such a way as to clearly preclude the possibility of improper interference in the re-appointment process.

Indeed, the Committee has a general concern about the number of important matters pertaining to the military justice system which will continue to be implemented by means of regulations – to be specific, the Queen’s Regulations and Orders for the Canadian Forces – that are exempt from the usual process of publication in the Canada Gazette and parliamentary scrutiny under the Statutory Instruments Act.

The Committee is also concerned about the difference in the security of tenure between the proposed new positions of Director of Military Prosecutions and Director of Defence Counsel Services, which are dealt with in clauses 42 and 82 of the bill, respectively. It was noted that, while the recommendation of a special Inquiry Committee would be required for the removal from office of the Director of Military Prosecutions, the bill contemplates no such safeguard for the Director of Defence Counsel Services. This discrepancy is of concern in light of the Director of Defence Counsel Services’ responsibility for the representation of accused persons who would then be in an adversarial relationship with the chain of command – a chain of command which includes the Minister of National Defence, the person responsible for the Director’s appointment, re-appointment and possible removal from office.

Finally, the Committee supports the recommendation of the Special Advisory Group on Military Justice and Military Police Investigation Services headed by the late Brian Dickson, that the Code of Service Discipline be re-enacted as a separate statute. While the Committee appreciates the difficulty of incorporating such a change into the extensive set of amendments proposed in Bill C-25, we urge the Department of National Defence to proceed as quickly as possible with the implementation of this recommendation.

Respectfully submitted,

 LORNA MILNE
Chair