BACKGROUNDER

THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

On February 24, 2009, the Standing Senate Committee on Legal and Constitutional Affairs was mandated by the Senate to study the provisions and operation of An Act to amend the National Defence Act (court martial), formerly Bill C-60. 

Bill C-60 responded to the April 24, 2008, decision of the Court Martial Appeal Court in R. v. Trépanier. In that decision, the court struck down certain provisions of the National Defence Act (NDA) and the Queen’s Regulations and Orders for the Canadian Forces. These provisions allowed the Director of Military Prosecutions (DMP) to decide, when preferring a charge, which type of court martial would try an accused person. They also allowed the Court Martial Administrator to convene courts martial in accordance with the DMP’s decision. The court found these aspects of the former system of courts martial under the NDA violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and declared them to be invalid. 

Officials at National Defence then decided to appeal the decision to the Supreme Court and prepared a legislative proposal as well, which was eventually tabled as Bill C-60. It turned out to be more practical to proceed with legislative changes than to await a decision from the highest court in the land. Consequently, the new Act came into force on July 18, 2008, 30 days after it received Royal Assent. 

Given the speed with which Bill C-60 was studied in both the House of Commons and the Senate, there was concern that its potential impact was not fully understood. Consequently, the bill was amended to require a parliamentary review of the provisions and operation of the Act within two years of Royal Assent, including recommendations for possible changes to the Act.  The Standing Senate Committee on Legal and Constitutional Affairs, however, does not consider this study and report to constitute such a statutory review. 

While the committee’s Order of Reference instructed it to study the provisions and operation of the Act specifically, the members of the committee concluded that its work should be conducted within the context of the many efforts to reform Canada’s military justice system over the last 12 years. 

On March 11, 2009, the Minister of National Defence asked the committee to consider including recommendations outside the scope of the Act in its report. He suggested that these recommendations could form the basis for a successor bill. 

Accordingly, the report is divided into two sections: recommendations in relation to the Act; and certain recommendations for reform of Canada’s system of courts martial generally. The report contains nine recommendations (attached) to bring the civil and military justice systems more closely into line. 

For more information on the committee, its report or for biographies of its members, visit the committee website at www.senate-senat.ca/LEG-JUR.asp.

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