Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 35 - Evidence
OTTAWA, Wednesday, October 7, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-25, to amend the National Defence Act and to make consequential amendments to other acts, met this day at 9:20 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Before us this morning are two witnesses, Mr. Patrick McCann, criminal lawyer, and Brigadier-General James Simpson.
I will leave it up to you as to who wishes to go first. Please proceed.
Brigadier-General (Ret'd) James Simpson, former Judge Advocate General for Canada: I thank you for giving me the opportunity to be here this morning. I have not been involved in military justice for a few years, but the invitation to come here this morning gave me the opportunity to obtain a copy of Bill C-25 and to examine it in light of the thoughts that I had during the discussions at the Somalia inquiry, particularly dealing with the Code of Service Discipline.
My main interest, and that part of the bill on which I feel I might be able to offer useful comments, relates to the military justice system and, in particular, the question of the independence of military tribunals.
This bill is a great step forward. Many years ago, both before I became JAG and while I was JAG, the office of the Judge Advocate General and the Department of National Defence tried on many occasions to get a bill on the Order Paper to substantially revise the Code of Service Discipline, but we were never successful. It is gratifying now to see that the bill has reached this stage and that it addresses many of the concerns and criticisms about the military justice system and, in particular, the jurisdiction of the military tribunals.
This opportunity to comment permits me to mention one aspect of the bill that I found somewhat surprising; that is, the continuation of the title of Judge Advocate General for the official from whom the bill would take away, at least implicitly, all judicial functions. Moreover, the bill explicitly makes that office responsible to the Minister of National Defence.
As I am sure you know, the British Judge Advocate General is a civilian judge. That position has been held by a civilian judge for at least 50 years. Yet, following the European Human Rights Tribunal decision in the Findley case a few years ago, the British saw fit in 1996 to take away the Judge Advocate General's function of advising the Secretary of State for Defence on military legal matters. In other words, they wanted to separate entirely the legal advisory functions that had been part of the functions and responsibilities of the Judge Advocate General, and leave him only with his judicial or quasi-judicial functions.
Also in 1996, the Australian Judge Advocate General, in his annual report, said that the judge should not, in his opinion, act as a general legal adviser to the Australian defence force because that would be inconsistent with judicial office.
I realize that this bill would probably not result in a conflict between the Judge Advocate General`s function of being responsible to the minister, advising the minister on legal affairs, and any judicial duties, since they are being taken away. Those judicial duties, it would appear, are to be exercised only by the chief military judge, other military judges and other officials.
However, it seems unfortunate that the bill would create two "judge" functions, namely, the Judge Advocate General, who would have no judicial functions, and the chief military trial judge, who will have all the judicial functions. It might have been better to have the bill provide for a different title for this official who is to be a non-judicial official and mainly an advisory legal official.
Given the overall scheme of things in the bill, this might not be an unconstitutional or illegal arrangement. However, one never knows. Even the appearance of the Judge Advocate General being responsible to the Minister of National Defence might cause someone to raise the issue of administrative independence and possibly necessitate an amendment to the bill at some time in the future.
I personally should like to see the retention of the term or title of Judge Advocate General because of my past experience in that regard. However, the bill would drastically change the functions of the Canadian Judge Advocate General compared to that of the British, Australian, or American Judge Advocate Generals, who do retain judicial functions. I think it would be worthwhile considering adopting another name, for example, Director General of Legal Services; thus leaving the title of chief military judge, with all the judicial functions, to the chief military judge.
With that, I will turn it over to Mr. McCann.
Mr. Patrick McCann, Lawyer, McCann & Giamberardino: I also thank you for the invitation to appear here this morning. This is something I have never done before, and it is an interesting experience. I am grateful for the opportunity.
I have two areas of concern with the military justice system. One is the degree to which the military justice system attempts to be a complete judicial system, and the other is with respect to the institutional independence of the various players within that system.
My interest in the military justice system stems from two sources. The first occurred back in the 1960s. Before I went to law school, I spent a few years as a signals officer in the army. In that capacity, I served as an assisting officer on a few summary trials before the commanding officer. That is probably what twigged my interest in criminal defence work in the first place.
It is a rather rudimentary function as a criminal defence officer in that forum. I became familiar with that and also very familiar with the need for quick response and disciplinary action at that level.
The second source of my interest was my involvement a few years ago with the court martial of Private Kyle Brown, who was charged with murder and torture in connection with the death of a prisoner in Somalia. I had a firsthand look at the system from the top end, the general court martial level, and also at a high profile case which was minutely dissected by the press.
My experience is at these two extreme levels. I do not have much experience in the day-to-day workings of the various functions that operate between those two extremes. I felt that the two extremes demonstrated the problem with the breadth of the system.
I had no difficulty in understanding the need for quick-response disciplinary procedures to deal with disciplinary matters. It is a valid approach to discipline and it is something which is needed in any military system. I have, however, concerns when that same quick-response philosophy is applied to charges such as murder. I have always felt that the military system, which is designed as a disciplinary system to respond quickly to disciplinary problems, was ill-suited to deal with serious criminal charges such as murder.
The ideal approach to justice within the civilian system is a slow, deliberate, careful approach to ensure that no injustice is done. Those concepts do not fit with the philosophy of a quick response to disciplinary problems. Yet it is that quick response which is used to justify such things as the trial by a group of superior officers as opposed to a trial by one's peers and majority verdicts as opposed to unanimous verdicts.
It has been my contention ever since I got involved with the Brown case that there is no need for the military to try these kinds of offences unless it is in a wartime, urgent situation where the exigencies of repatriating the accused person and all the witnesses would make it practically impossible to conduct a trial back in Canada. In all other cases, I do not see the need for the military to try people. They can effectively be transferred to and dealt with by the civilian courts. My position has always been that section 11(f) of the Charter, which guarantees the right to a jury trial to anyone charged with an offence that is punishable by five years or more, should be applied as broadly as possible.
The section contains the exception for offences against military law tried by a military tribunal. It is my belief that that is open to an argument that the term "military law" in section 11(f) should be restricted to offences that are purely military in nature and do not have any equivalent in the civilian process.
I also believe that the guarantee of the right to a fair trial, which includes the presumption of innocence and proof beyond a reasonable doubt, is inconsistent with majority verdicts. They are more akin to things such as balance of probabilities, which is the civil standard of proof and not the criminal standard of proof in our system.
Having said that, I should point out that I unsuccessfully argued that issue at the court martial of Private Brown, at the Court Martial Appeal Court in that case and also on an application for leave to appeal to the Supreme Court of Canada. I have effectively been shot down on those arguments. I made these same representations to the Dickson panel and they obviously did not appear in the report of that panel and they have not been addressed in Bill C-25.
At this stage, with the bill having gone through the House of Commons and second reading in the Senate, I may have to admit defeat on that point and accept that I must address that in the next round of amendments, perhaps five years from now. I feel strongly about it, however. I believe my friends in the military legal system in JAG are aware of my views on this and we have debated it many times.
I will go on, then, to deal with what I perceive as the second problem that existed in the system and it is one that has been addressed very effectively in Bill C-25. That is the question of the institutional independence of the various players.
The role of the commanding officer in the process is one area where I encountered what I believe to be a lack of institutional independence or perceived bias in the system. For example, in the Brown court martial the commanding officer, who was himself under investigation, was involved in referring the matter to a convening authority. Another situation which gave me concern was where the same officers that were prosecuting the accused person were also involved in advising the commanding officer on the referring of the matter to the convening authority and also involved in advising the convening authority.
As I understand the case law that has developed in the military system, the convening authority and the commanding officer are both considered to exercise quasi-judicial functions in referring the matter to the convening authority and in the question of whether or not the court martial should be convened. It seemed to me to be grossly inappropriate to have the lawyer who was prosecuting the accused acting as legal adviser to those people who were not, themselves, legal officers or involved with the judicial process other than this function. The bill appears to have answered those concerns.
I wish to mention another aspect of the bill which I consider to be laudatory. They have left in place the role of the chain of command in a disciplinary process. As I perceive the military justice system, there are almost two branches. There is the strictly disciplinary approach, with summary trials before the commanding officer. These are absolutely necessary in the military system because they are the appropriate, quick response to disciplinary problems of a relatively minor nature. It has always been accepted by anyone in the military that this is part and parcel of being in the military. If you mess up, you will be on the carpet in front of the CO. Everyone accepts that and lives by that. I do not see any problem in retaining that. In fact, I am glad to see that the bill did retain that.
On the other hand, the bill has completely reorganized the judicial system. I am using these terms to differentiate between the summary trials, which I would term disciplinary approaches, and the judicial system when we get into courts martial. I am pleased to see that the bill has provided for the police to now investigate on their own initiative, to lay charges and to arrest people, and then to turn it over to an independent prosecutorial authority who will determine whether to proceed further with trial, and so on.
I am also pleased to see that the trial judge will now be completely institutionally independent, as are judges in the civilian system.
I am also superficially pleased to see that there will now be an independent defence directorate or an independent defence bar to assist those charged in that system.
I say "superficially" because I am a little concerned about clause 249(2). This clause states the director of the defence counsel services is under the general supervision, and subject to the general instructions or guidelines, of the Judge Advocate General.
It is my contention that a strong and independent defence bar is an essential component of a judicial system that conforms to the principles of fundamental justice.
I will conclude these observations by pointing out that despite these criticisms of the system, every individual that I have dealt with in the military judicial system, in the JAG offices and the other people involved in it, have been completely professional, fair and competent in their dealings with me. I am sure that, with the changes that are being made in Bill C-25, when they become law, we will have an effective and fair military justice system.
Senator Beaudoin: I will begin with what is referred to often by the lawyers and judges -- that it is not enough that justice be done, but justice must be seen to be done.
After one, two or three cases before the Supreme Court of Canada, it is obvious that the system as it exists does not answer all the questions asked by the court. We certainly need a bill like Bill C-25. I have not reached the conclusion yet, but we may need more.
I am pleased to hear that former Chief Justice Dickson has made a report. Is that report confidential or can this committee have a copy of this report? Is it an opinion that was given to your department?
Lieutenant-Colonel Alex Weatherston: It is a public document.
Senator Beaudoin: In that same line, my impression is that we should change our military justice system because it should be as transparent as the civil system and the criminal law system. It may be that we have our own traditions for one, two or three centuries, but the independence of the judiciary is exactly the same in the army as it is in criminal and civil courts in our system.
I am pleased to hear that there will be a new system and a chief of military justice.
As far as the Judge Advocate General is concerned, the important thing for me is this: Is he or she a judge? Apparently not, or no longer. I do not have any problem with that. The problem is that military justice should be as independent of the legislative and executive power in National Defence as it is in the justice buildings in civil and criminal law cases.
Is the term of five years, which is renewable, adequate to conclude that the system is really transparent and independent from the executive and legislative? I do not say that it is not, I am just asking you that question.
Mr. McCann: As I read this, I am completely satisfied that the appointment of the judges will be about as independent as it can get.
The five-year term was something that struck me in reading the Lauzon case, the recent decision of the court martial appeal court. One of the things that they addressed was the composition of the committee that reviews the reappointment of military judges. That may be something that has not been completely addressed in the bill. I expect it will be addressed in the regulations setting up that committee.
The concern of the court in Lauzon was that appointees of the ministry, of the executive in DND, dominated the committee. To that extent, DND could influence the reappointment of the judges. Again, there is a review committee set up in Bill C-25, but it does not address the criteria for membership. Presumably, that will be left for the regulations.
BGen Simpson: I do not know whether or not regulations have been drafted. However, I would assume, given the judicial decisions that have come down both internationally and nationally recently, that those regulations will strive to ensure that there will be administrative independence of the military judges and their tribunals.
In connection with the five-year term; the British Judge Advocate General, under the 1996 act in the U.K., is appointed by the Queen on the recommendation of the Lord Chancellor for four or five years.
Senator Beaudoin: On the recommendation of the Lord Chancellor?
BGen Simpson: Yes. There are what are called judge advocates, the counterpart of our military judges, who officiate at courts martial. They are appointed for the same length of time but by the Lord Chancellor.
Senator Beaudoin: The term in itself is not bad, because five years is not very long. However, I am more concerned about the renewal. We were told yesterday that we would have two committees: A committee for the removal of a judge in certain cases; and a different committee for the appointment of judges, the renewal of judges, and their terms of office.
My first reaction on renewal is doubtful, because a judge may be very good but may not please the authorities and he or she is not renewed. Another judge may be less extraordinary and may be renewed. I wonder why there is a renewal.
In different countries and different democracies, we have judges who are appointed for nine or 10 years but they are never renewed. It is considered not transparent enough.
During the last year of his term, the judge may be less independent if he wishes to have a renewal. I do not conclude that a renewal is impossible, but my first reaction is that I am not much in favour of it.
Is there a reason why you are proceeding that way with Bill C-25?
What about Justice Dickson, for whom I have the greatest admiration, what does he say?
Mr. McCann: I have a copy of the report. I believe that was his recommendation. He went with the five-year term.
Senator Beaudoin: He accepts the five-year term.
Senator Joyal: Does he suggest a term which is renewable?
Mr. McCann: Yes.
Senator Beaudoin: He accepts that.
BGen Simpson: The Dickson committee recommended that the appointment be by the minister and renewed by the minister.
Senator Beaudoin: It is now the Governor in Council.
BGen Simpson: That was found to be wanting in the Lauzon case. The bill is well drafted in making the appointing authority the Governor in Council rather than the minister. Given that the minister is involved, in a sense, in prosecutions, et cetera.
Senator Beaudoin: The judges of the superior appeal court are selected by the Minister of Justice; however, they are appointed by the government. In practice, they are appointed by the Minister of Justice. When it is the Supreme Court, it is considered that it is the Prime Minister who is calling the person to ask whether he is interested in such a position.
What worries me is the mechanism itself, because we do not have renewal in civil and criminal law. There is no such thing. The judge is appointed until he reaches age 75. Perhaps in the army it is not possible, I do not know; I am not an expert on that. On that point, are you giving effect to the Brian Dickson report.
Mr. McCann: This is something I have never thought about. I always assumed that there were legitimate reasons for the five-year limitation. Perhaps the general could answer this. Is there any reason why the judges could not be appointed for life or for the balance of their careers?
BGen Simpson: I do not know. It comes to mind that in the recent decision of the Supreme Court of Canada in the Prince Edward Island reference, the court mentioned the three criteria for recognizing the judicial independence of the tribunal. One was the security of tenure, the other was financial security, and the third was administrative independence.
Senator Beaudoin: When the judges are judging.
BGen Simpson: Yes.
Senator Beaudoin: Therefore, would there be no interference at all?
BGen Simpson: No. The bill clearly addresses financial security by providing that the Treasury Board will set the rates of pay and conditions for these military judges. Administrative independence is well established by the conditions set out in the bill.
The issue of tenure bothered me. The current Queen's regulations and orders provide for a two to four-year term. This will increase it and make it a definite five-year term. However, I still have a lingering doubt in my mind as to whether a judge should be limited to a particular term and whether that adversely affects the criteria for security of tenure.
The Chairman: I have asked LCol Weatherston to join us at the table in case senators have questions which only he may answer.
Senator Rompkey: The first question for both our witnesses is with regard to the independence of the police as set out in the bill.
I should like to apply it to the case in Somalia that Mr. McCann will know well. It flows from some of the testimony that he has just given. The commanding officer is still the key decision-maker in investigation and charging decisions. The police, if they are with the unit, are under his command.
If a minor incident happens, then there is no problem. If you do not have your shoes shined or if you are late for duty or if you thumb your nose at the petty officer, then you get charged and you are on stock party and you get a punishment. There is no problem there. The issue of murder is quite a different thing.
In Somalia, we saw that, first, there were not many police there. There were very few military police with the regiment. Only two military police accompanied the Canadian Airborne Regiment and commanding officers were slow to call in the military police to investigate certain incidents. They failed altogether to call attention to any other incidents.
Are we satisfied that under the new military justice system, the problems that occurred in Somalia cannot reoccur? I realize that commanding officers will now report all serious and sensitive offences to the National Investigation Services because they are required to do that; however, what if they do not do that? I suppose there are a series of actions that will take place. They no longer will have the power to dismiss charges and the charge will become a public document. That will exert considerable pressure.
I do not have a problem with the National Investigation Service. I can see how they are independent and how they can investigate anything they want. However, in the field, the police person in the military is still under the commanding officer.
Do you think this proposed legislation gives the police more independence than they had before, or will there still be some impediments on the police, not the National Investigation Service, per se. Perhaps I am not making a good distinction between the two, but are the military police officers in the field going to have some independence, or will there be an impediment due to the fact that they are still under the commanding officer?
Mr. McCann: As I perceive the situation under the new bill, there will be a shift of function in the military police as a whole. It will essentially be divided up into two groups. I could be completely wrong with the practical application of this; however, as I read the bill, this is how I understand that it would take effect.
Certain portions of the military police would remain within the units under the command of the commanding officer and they would fulfil the traditional military police functions such as traffic control, the control of prisoners and the day-to-day policing within the unit. It will be much the same as the beat police functions in the city.
Senator Rompkey: The RCMP provide those functions, too.
Mr. McCann: Yes. They would do the routine policing work within the unit and remain under the control of the commanding officer. There will be an obligation now for the commanders, the moment any serious incident arises, to call in the National Investigation Service. The NIS will act as the major crimes unit. They will come in and do the proper investigation independent of the commanding officer under their own direction from the chief provost martial, as I understand he is now called. Someone may wish to correct me on that.
That is the way I see it happening. If that is the way it functions, I do not believe there will be a great deal of difficulty, assuming the commanders will do what they are supposed to do and report serious incidents.
That certainly did not happen in Somalia. The police under the commanding officer fumbled around with the case and it was weeks before it worked its way back to the NIS; or at least it was some significant days after the event before they came in and started to conduct a proper and complete investigation.
Senator Rompkey: I am encouraged by that response. Are there sanctions, then, against commanding officers -- I assume the answer is yes -- if they do not call in the National Investigation Service as promptly as they should?
Mr. McCann: I cannot point you to a specific section but I am sure there are.
LCol Weatherston: At the present time there are, and there always will be, sanctions against officers and non-commissioned members who do not report offences. That is an offence itself. We use that charge in the military.
Chief Justice Dickson recommended that we have training for our commanding officers who must preside at summary trials. We have never required them to have training in this area before. That is being geared up for after Bill C-25 when the regulations go into force. We will certify all these commanding officers to be capable of doing trials and the Judge Advocate General will take on that function.
Will that cure all the problems? There always will be problems, but it will go a long way towards addressing your concerns.
Senator Rompkey: The Military Police Complaints Commission is empowered to hear complaints. The bill sets out a procedure for dealing with each kind of complaint, but the report that is prepared by the complaints commission must be sent, the bill says, to the minister, Chief of Defence Staff or the deputy minister, JAG and the provost martial, who review them before they are finalized by the commission and released to the complainant and the person who was the subject of the complaint.
My question follows from what Senator Beaudoin enjoined, and that was that justice must not only be done but be seen to be done. The question is: Is there a chance that this procedure might appear to be interference in what should be an impartial report?
According to the bill, the purpose of the review is for the minister and the commission to be told of the action that has been or will be taken. Why is it necessary for all of these people to review an interim report before it is finalized? I believe it speaks, again, to the question of independence and the arm's length relationship. If the commission prepares an interim report and then shows the interim report to all of those in authority before the report is final, that has the appearance of not being at arm's length or completely independent.
Mr. McCann: That is a good point. If the purpose of that provision is simply to give those at the top of the ladder the heads up on what is coming down the pipe, then I do not have any problem with it. However, as you pointed out, if it appears to be a requirement that it be done before the report is finalized, then the commissioner should take into account any feedback from the minister and the various other people that he is required to consult before finalizing the report.
Again, I am not sure what the philosophy was behind it. I can understand that the commissioner is appointed independently and would appear to be completely functionally and institutionally independent of the minister. He certainly would not be required in any way to alter his report based on any feedback from the minister or others. Certainly there is an appearance there. If the purpose is simply to give him a heads up before it is released to the press or whatever, then that could be accomplished by other means.
Senator Rompkey: Does General Simpson have any comment on that?
BGen Simpson: I do not know the reason behind that provision in the bill. It struck me also that perhaps it impinged somewhat on the independence of the commissioner in the preparation of his or her report.
I first read it thinking of the Judge Advocate General subsequently being involved in some judicial process. That scared me. However, in view of the fact that the JAG, under the bill, will only be concerned with advising the minister on legal matters and supervising the director of prosecutions, and so on, I was somewhat less concerned.
I can see the advisability of the commissioner wanting to have input from all interested parties, such as the provost martial, the JAG, the minister's office, et cetera, and because there is no obligation on him to take those into account in the preparation of his report perhaps it does not smack of interference in any way in his independence.
Senator Rompkey: That may be an issue we need to explore further with those who drafted the bill and those who will enforce the bill once it becomes law. It seems to me that there is a need for more clarification.
The Chairman: As a point of clarification, with the permission of the committee, I would ask Mr. Goetz, our researcher, to tell us what he was just telling me as to his impression of that particular part of the bill.
Mr. David Goetz, Research Officer, Library of Parliament: The purpose of the review is to tell the authorities these are the conclusions that have been reached and to outline recommendations. The committee will then come back with its conclusions. The final report is on the adequacy of that response.
LCol Weatherston: I believe Mr. Goetz is correct. We have a chief of defence staff responsible for the Canadian forces and the military personnel could be involved here. It is for the deputy minister, who maintains his responsibility for the civilians who could be the subject of these complaints, to look at that initial report and to take action promptly. He must then return to the chairman of the complaints commission to tell them what action has been taken pursuant to those responsibilities.
Senator Beaudoin: Will the Department of Justice appear before the committee in respect to Bill C-25?
The Chairman: We have not planned on that.
Senator Beaudoin: We now hear from the Department of National Defence. I agree that we should start with them. I wonder if it is not advisable to hear from one or two experts from the Department of Justice to determine their point of view on the question of whether this bill is in accordance with section 11 of the Charter; namely, independence of the judiciary. It might be useful.
The Chairman: I believe that all bills are certified as being in compliance with the Charter before they are introduced in the House of Commons.
Senator Beaudoin: I would like to go deeper on this. I am thinking of a person like Ms Dawson. Perhaps one hour may be sufficient. It is additional security for us.
The Chairman: The steering committee will take that under advisement.
Senator Rompkey: As I understand the explanation, you really have two reports. The interim report is really on what you should do. The final report is on the adequacy of what you have done. In essence, there are two reports. However, the proposed legislation does not say that. The way the bill is written, it says there is one report. However, the explanation that I have heard is to the effect that there are two reports -- an interim report on what went wrong and what you should do about it, and a final report on the adequacy of the actions taken.
There seems to be a gap between what the bill actually says and the explanation that we have heard. It is an area that I would like to explore further.
Senator Moore: I should like to explore further the points that were being made with Senator Beaudoin with respect to the five-year term for the tenure of judges proposed in the bill. This also relates to the Lauzon decision and the concern there for the independence of the military judges.
Reading your résumé, you have considerable experience to draw on. You said that the proposed tenure of five years bothers you. What term of years or what tenure would you like to see there, having been through this yourself and reading the proposed bill? Do you have a suggestion for us that you think would better satisfy you, as a person who has lived and worked with the system, to ensure the independence of the military judiciary?
BGen Simpson: My view is based on the general knowledge that judges customarily are not appointed for a limited term. My understanding is that they are usually appointed at pleasure and good behaviour. Since it is well established that security of tenure is an essential criterion of the independence of a judicial tribunal, it is implicit, in an appointment for an unlimited period, that this is a security of tenure. Whereas, if you limit the term to a particular length of time and make it subject to renewal -- albeit that the renewal is not done by the executive on its own decision but based on the recommendation of an independent body or commission -- there does seem to be cause for some doubt as to whether that is complete security.
Senator Moore: Would you like to see unlimited terms?
BGen Simpson: If the bill were to be enacted, we would have military judges who would probably spend a career as a military judge as distinct from being a legal officer, then a military judge for a while, and then going back to being a legal officer.
If that is the one of the premises for the clauses in the bill dealing with military judges, then why not make it an appointment without time?
I was the last judge advocate that was appointed during pleasure. I served for about five years and could have stayed on for another six or seven. Some of my predecessors had been JAG for 20 to 25 years.
Senator Moore: With respect to the renewal aspect of the appointment of the judges, the Lauzon case expressed concern about the lack of standards for reappointment and that the act does not offer sufficient guarantees of independence. Bill C-25, I believe, does not propose any standards for reappointment. How do you feel about that vis-à-vis the Lauzon decision and the concerns expressed in it?
BGen Simpson: It would be a difficult task to draft into parliamentary legislation.
Senator Moore: To write in standards?
BGen Simpson: Yes, the actual standards. However, I think that the regulations should provide standards that the committee would consider before it make its recommendations.
Senator Moore: If we had tenure for an unlimited period of time, theoretically we would not have to worry about it. The judge would still be subject to review upon completion of the term, but you would not have to get into that.
BGen Simpson: No.
Senator Joyal: I can imagine how the practice here in the Senate would be changed if senators were appointed for a term of five years. I will let my colleagues think about that. Should that occur, it would be a renewable term, after evaluation and revision. When we talk about that kind of thing, we all know that it will have a major impact on the system.
I should like to address my question to General Simpson. I am impressed by the fact that you spent your career partly in the Canadian Armed Forces and partly studying the various systems and international conventions that are related to the exercise of the judicial function within the military.
To summarize my thinking about the legal philosophy at the base of the judicial system in the military, for a long period of time, the military, like any professional corporation, was internally regulated and self-disciplined. Presumptions developed about the role of the army as well as the other professions, such as doctors, lawyers, architects, engineers, and so on. Each of those corporations has developed internally a set of ethics and some mechanisms to regulate the standards of their profession. This is much needed in the army for the basic functions that they perform in our democratic system.
Throughout the last 30 years, much concern has been raised -- not only in the army but also in the professions -- about those systems and procedures. They had to be adapted to concerns about the legal rights of the defence and the legal rights of the accused. They needed to reflect better principles and to assure the rights and freedoms of the individual, be he or she a soldier or a doctor or a lawyer, and so on.
I am still trying to reconcile that principle with the need for the military to have its own system. There is also the need to maintain the principle of justice within the present context of roughly 30 years of debate in our country on the contemporary definition of "rights and freedoms of the individual." Those of us who are interested in those fields know that there are many emerging notions of rights and freedoms that no one would have contemplated 30 years ago. Perhaps 20 years from now there will be things that we do not foresee today.
I should like you to tell me about the fundamental legal philosophy today at the base of an internal judicial system within the military. This question cannot be answered in 30 seconds, but those are fundamental principles. We are trying to take this system, together with the principles that we administer in civil society, and fix it. We feel that there are some discrepancies here. The question of the five-year term is one example of that. We all know what would happen if the judges in the civil judicial system were appointed for five years. Imagine that for a second. What I said about the senators is trivial, but put that system into place in our judicial system. We are talking there of criminal law, not civil law. This does not involve suing to get $2,000 because someone hit your car. We are talking here about the freedom of individuals and about sentencing, which is very serious. Imagine for a second that judges in the civil system could be appointed for a five-year renewable term. I cannot even try to imagine its effect on sentencing, judicial activism, and so on.
There is a natural tendency to please in the system. When I say "please" I do not say it in a negative way, but there is a desire to fit in with the corporate behaviour of the system. It is inevitable, especially if it is the system itself that re-evaluates the performance of the candidate. Even if he or she the most learned person, there is a human factor involved there. We all know that it exists.
What is so essential to the integrity of the military judicial system that we need to depart from such a fundamental principle and make judges' terms renewable? Does it exist in other systems? If so, how is it carried out to ensure that we maintain those fundamental principles of respect for rights and freedoms?
The Chairman: I am anxious to hear the answer. It is my understanding that it is not inserting a new principle into this proposed legislation, but extending the length of tenure of a military judge from the two to four years it has been to five years, which is the norm in other countries around the world.
BGen Simpson: I am not sure that it is the norm throughout the world. It is now the norm for the appointment of the British Judge Advocate General, the army, the Royal Airforce, and for the civilian judge advocates in the British army and air force.
Unfortunately, it has been many years since I was in the military. I cannot profess to know the current underlying philosophy for the maintenance of a separate military justice system. The Supreme Court of Canada ruled on this in the Généreux case, which was heard in the 1980s. The court martial appeal court in the Généreux case stated that it is a well- established and accepted principle that a military force, which by its very nature, operates remotely, and independently of the normal structure of government, requires its own system of justice.
These are judicial pronouncements and not philosophical ones, if you like. It does seem to me that they are valid pronouncements. Given the nature of a military force, some means of maintaining discipline is essential. Discipline is at the root of a military force's ability to operate, particularly in armed conflict. I do not know of any armed force that does not have its own military law.
In fact, as I recall, there is a general principle of international law that a military force present in a country, with the consent of the host state, carries with it its own military law. International agreements such as the NATO Status of Forces Agreement expressly recognizes that when a force from one NATO state is present in another NATO state, that force carries with it its own military law.
Furthermore, it has jurisdiction to permit the courts of the visiting force to hold trials, and to exercise criminal jurisdiction in the receiving state in various types of cases -- such as any offences against another member of that force, against any civilian component of that force, against dependants accompanying the force, against the security of that force. It is a well-established principle of international law -- and one accepted by states -- that there is a need for a military force to have its own code of service discipline and military justice system.
Looking more specifically at the question of tenure of the judges, which you mentioned in your question, I cannot see any philosophical or military legal requirement for there to be a limitation on the tenure of military judges. However, there might be practical reasons that went into the decision to make the tenure a limited one subject to renewal. It might well be that the thought was that military judges should have some other military experience which they can bring to bear on the military cases that they try. From that point of view, perhaps it is desirable that a military judge serve for five years and then have some foreign posting with the United Nations or NATO, or something of that nature, or even serve in some other department of the Judge Advocate General's office in Ottawa.
I would think that the majority of the work done in the office of the Judge Advocate General relates to matters other than military justice. National defence is one of the biggest real property owners. You are dealing with things such as easements and leases, and with the international agreements on the status of forces that we have with various states. You have a pension section, and you deal with estates, intellectual property, and all manner of other matters. Military justice is just one division of the office. That might be one reason that these military judges ought to have experience in some of the other departments of the JAG office before going back on the bench as a military judge.
The Chairman: Would LCol Weatherston wish to respond to that question as well? I believe LColonel Fenske gave us some sort of a rationale behind that part.
LCol Weatherston: Senator Joyal, I would add to what General Pitzul said yesterday. He related how he had been a military judge for five years in the Canadian forces. I have not been a military judge, but I have appeared before military judges as defence counsel. For the military judges -- there are currently three -- it is difficult work. They all are based here in Ottawa. We do some Ottawa cases but, by and large, these three individuals are on the road continuously all year. We have held courts martial in tents in places like Bosnia. It can be unpleasant. They work long hours.
Five years is a trade-off. Perhaps it would be better for security that tenure be longer but, for fairness to these people and their families, the five years is an undertaking which they accept. I am hesitant about saying it should be a longer term and having them on the road for that period of time.
Senator Joyal: Brigadier General Simpson, do you know of other countries -- such as the U.K., the United States, or Australia -- where the principle of a fixed, renewable five year term for military judges exists?
BGen Simpson: The only one I know of is the United Kingdom. Following the reorganization of the German armed forces after the Second World War, Germany adopted a system of military justice whereby almost all military cases are tried by civil courts rather than by military courts, except for minor disciplinary matters.
Three or four years ago France drastically altered its military law legislation to provide for civilian magistrates to try members of the French forces. I believe the Germans continue to have military trials outside of Germany, but the French send civilian magistrates abroad to continue to try members of the forces, or return the accused to France for trial.
LCol Weatherston: We can undertake to come back to the committee on that.
Senator Joyal: On that very point, perhaps our witness could look into the system in other countries such as the United States and Britain. If the term of office is five years and renewable, what is the principle that the revision commission and the evaluation commission follow? What kind of regulations do they have? I would like an example of how it functions to protect the principle of the independence of justice.
We are departing from normal procedure. If we do that, we should have a very clear understanding of why we are doing it. How are the principles of justice protected in this system? This is a fundamental issue to me in regard to this bill.
The Chairman: Senator, LCol Weatherston will be coming back to us with a comparison between Lauzon and the PEI decisions. I would encourage him to also consider the NATO countries on the issues of length of tenure and reappointment.
Senator Beaudoin: Perhaps the best solution is not the five-year renewable term. Perhaps the best solution is to have those people tried by civilian judges. I am very impressed by that. You said that it is the case in France and Germany. What about in the United States?
Yesterday, the Brigadier General said that five years was enough. Judges do not say that in the civil and criminal courts. I should like to know why it is like that in the Canadian Armed Forces. Why they do not envisage a long career on the bench? There must be a reason.
The Chairman: Since France and Germany are both part of NATO, it would be covered with the facts and figures from the NATO countries. Civilian judges do not generally go to their cases; their cases come to them. There is a slight difference there.
Senator Joyal: I would like to know how the British system functions on the system of evaluation and renewal. If we are to adopt a provision of the bill, I could not say these courts are modeled on the British system.
Since you have experience in interpreting those systems, I feel it would be important for us to know exactly how the British system operates and the regulations that support the principle.
Yesterday General Pitzul said that regulations would be forthcoming. Modern parliaments tend to adopt general legislation and leave everything for regulations. Then we forget about the regulations.
If we are dealing with such a sensitive and fundamental issue, I should like to know how the British have been managing the regulation system to support the revision and reappointment process.
BGen Simpson: I am sure those regulations would be readily available through the British High Commission.
Senator Fraser: I too was struck yesterday when the present Judge Advocate General seemed to think that a term of five years for a military judge was more in the nature of a sentence than a privilege; that no one in their right mind would want to renew.
I received the impression that not much thinking had gone into concerns about the process of renewal, not just for the judges but also for the directors of the prosecutorial and particularly defence services. Perhaps there was a tacit assumption that no one in their right mind would want to do those jobs for the requisite time.
I am trying to determine the typical career path of military judges in the past. Do they just come back to doing the real estate deals you mentioned, General Simpson? Do they go off on diplomatic missions? What are they looking forward to? What would their career path tend to be?
BGen Simpson: In my day, we did not have such things as military judges.
Senator Fraser: You had no military judges at all?
BGen Simpson: We had no military judges at all. Take my own case, for example. I was a legal officer with the Canadian Air Division in France from 1953 to 1956. We had bases in France, Germany and England.
From time to time, I would be designated as prosecutor at a court martial; murder, manslaughter, theft or whatever. Sometimes I would be appointed as defence counsel. I remember I went up to the Army brigade and defended a chap on a rape charge up there.
Later on, when I became wing commander, I got appointed as Judge Advocate in courts martial. However, this was only incidental to my normal duties as a legal officer. That is, giving legal advice to military commanders in connection with everyday matters that required legal advice, reviewing boards of inquiry and all kinds of things.
I cannot tell you what the career pattern of a military judge is. They have been in existence at least 10 or 15 years.
LCol Weatherston: Senator, it has been varied. We have retirement at age 55 or age 58. Some officers have stayed in the military judge career path until they have retired.
Senator Fraser: What would the military judge career path be if someone decides to stay on as a judge?
LCol Weatherston: He would remain as a judge and be there for perhaps 15 or 20 years. There are some examples of people who have been judges that long. However, we are only talking about three or four people here. I am reluctant to speculate that there is an extensive career history here, but it is varied.
Senator Fraser: In spite of the fact that you do have some people who have been judges for a long time, there does seem to have been this absence of much concern about renewal. Are you expecting a change? Are you expecting the job to become that much more unpleasant so that no one will wish to renew?
LCol Weatherston: We are expecting a lot of change. The bill has now brought about that renewal committee. We know from Lauzon and the P.E.I. judgment that there must be an independent committee. I speculate it will not have any members of the executive on it. That is an easy speculation on my part. It may well have Department of Justice lawyers or Court Martial Appeal Court judges. It will have people who have judicial thinking. There may be laypersons there to bring that component to the committee. That will be a great change from how it is done now, where it is a decision of the minister. We know we must satisfy Lauzon and P.E.I. and any other judgments that come along for those committees.
How we will do that will be settled in our Queen's Regulations and orders.
Senator Fraser: You do not know how it will play out in real life.
LCol Weatherston: We do know we have Charter rights, and accused persons will have competent, professional legal counsel. If they see any possible defence or plea in bar on that ground, I assure you that plea or defence will be raised and will be decided in a court of law.
Senator Fraser: Of course.
Senator Beaudoin: The more I hear the answers, the more I think that perhaps we cannot reach perfection in one or two days. I will set aside the question of civil judges, because it is very different. It is not the same evidence. However, criminal courts and military courts are close.
Perhaps our system was modelled on the British system, and perhaps it works very well in Great Britain. However, the fact is that we have had a Charter of Rights and Freedoms since 1982. The mentality of Canadians is such that we are a bit charter-minded. I cannot see how military justice will remain very different, as it is now, from criminal and civil justice. We are establishing a military court system. We will have more and more cases. I am sure that the military is quite interested in the Charter of Rights and Freedoms too.
I am a bit puzzled by the question raised by Senator Joyal. How is it that there is not a strong movement to have a longer career as a military judge? Yesterday, the Brigadier General said, "Well, after five years, we want to do something else." There must be a reason for that. In the criminal courts and the civil courts, it is exactly the opposite. The judges want to stay there until they are 65 or 75. What is the reason for the difference in the military system? There must be a reason.
Mr. McCann: As I see this, the career for a civilian judge is vastly different from the career for a military judge. Civilian judges operate in comfortable surroundings. They usually apply for that position towards the end of their careers and finish off their careers on the bench. They are accorded all kinds of fringe benefits and perks.
Military judges, as has been mentioned, operate in a much different situation. They travel around and hold courts martial wherever they can put them together. They are all over the country and all over the world. It is different. It is not the same thing as sitting up in the courthouse, going down to the courtroom and hearing a case today, going back up and reserving on it, and delivering a judgment tomorrow.
From what I have seen and from what I have been told, the job of the military judge is quite different from the job of the civilian judge.
Senator Beaudoin: A person who has a background in law, a lawyer by profession, might say, "I want to be a lawyer all my life." Another will say, "I want to be a lawyer for 10 or 15 years and then be a judge." They might say, "I want to be a lawyer and then become a politician."
In the forces, do you have young lawyers who say, "I want to spend all my career as a lawyer," or, "I want to become a judge in the forces"? My impression is that it is not so clear.
LCol Weatherston: In the Judge Advocate General's office, we have approximately 100 legal officers. We have typically had three or four military judges during the time I have been in the Judge Advocate General's branch. We are doing fewer cases now, in part because we are down to 60,000 personnel in the regular force. We no longer have dependents' cases for impaired driving and shoplifting on bases in Europe. We are doing fewer cases, so we are down to three judges right now. There is a fourth military judge position.
Any legal officer can indicate to senior people that he or she would like to have a career in military justice. Under the bill, judges cannot be appointed until they have been at the bar for 10 years.
Senator Beaudoin: It is the same thing in civil life. It is 10 years.
LCol Weatherston: If a new lawyer joins the Judge Advocate General branch at age 25, he will not be a judge until he is at least 35. During that time, if he has aspirations to be a judge, he would want to be in the military justice side of our branch. He would want to be doing prosecutions and defences or military justice policy. He would want to get that experience and demonstrate competence to be a military judge.
Other people might say, "I do not see living life as barrister. I want to be a solicitor and do work looking at real estate deals, contracts, procurement issues, and advice to the minister." There is that choice.
I think many lawyers, after their call to the bar, go into practice and do not know whether they want to be on the barrister side or the solicitor side. They fall into one field or the other.
There are clearly opportunities in this military force. We will tell you what your next posting is, but you clearly have input. The branch will look at people who have shown good court work and continue to put them in that path to develop their skills.
Senator Beaudoin: I was in the Department of Justice for a few years before my academic career. Some people said, "I want to stay in the Department of Justice all my life." Some others said, "I want to be there just for a while. After that, I want to be appointed a judge." Some others said, "I want to be here for a certain number of years, and then I will go in to private practice." They have a career plan. What about in National Defence? Is there a career plan? For example, would a young man or young lady say, "I want to be a military judge. That is my life." Do you have people who think that way? I am sure you must.
LCol Weatherston: There are certainly people who join the Judge Advocate General's branch for a career in military justice. They would come in and say that. I believe the branches would extend to them every opportunity to develop the skill sets to be a military judge.
On the other hand, the Canadian forces carry out missions for the Government of Canada anywhere in the world. The JAG does want people who have general experience, so they are trained in international law, military justice and other matters. In my case, if the JAG was sitting somewhere and told me I was needed in Bosnia tomorrow, I have a general background that would allow me to go and work on military justice, or military discipline or law on conflict or international law matters. I could do that competently. We are generalists because of our numbers and because of the missions that Canada expects us to carry out.
Senator Beaudoin: If you wish to develop a career plan, you must have, on one side, a person who is ready to be in the military legal division for 20 or 25 years. You must have a career plan for the judges, unless there is a reason that I have ignored that makes it impossible to have that in the force. In other words, the bench career is something that is secular. It has been there for centuries. In the forces it is another system that we have inherited from Great Britain. Presumably it works very well. However, it is a bit difficult for those who have no background in national defence to understand why they wish to appoint judges for five years only. I wish to know the reason.
The Chairman: We have already gone around this subject and got as many answers as we possibly can from the present witnesses.
Senator Rompkey: I wish to pursue the same line of questioning because I am fascinated by what has been opened up by Senator Joyal and Senator Beaudoin.
I will approach it from a different context, which is the same context I raised yesterday, and that is with regard to who serves in the Canadian forces and in what capacity they serve. I refer again to the report of the parliamentary committee which I had the honour to chair, and which was well received, I might say. Approximately 80 per cent of the recommendations we made found their way into the white paper. That was unusual for a parliamentary committee.
One of the recommendations, though, I believe did not find its way into the white paper, and the recommendation was with regard to fewer military personnel in what is normally thought to be civilian functions. The recommendation that we made was as follows: To get the most military output for our defence dollar, we recommended a rigorous examination of which military occupations and trades can be filled by civilian employers or contractors. This should be done with a view not only to saving money, but to maximizing the tooth-to-tail ratio of the Canadian forces. That ratio simply means that the tooth obviously is the sharp end, the end that does the fighting. The tail is the support end, whether it is food or dental services or even perhaps legal services.
That is the context in which I wish to explore the same question, because General Simpson, I believe, said earlier on that perhaps even judge advocate generals came in from the civil system. Mr. McCann would be well placed to comment, because he served in the military and is now serving in the civilian system. The question is, as we have been exploring, what is the difference between the military justice system and the justice system. Is it specialized?
We have heard from LCol Weatherston that you need to be cloaked in military expertise, in order to have knowledge of the system, if you are to serve effectively. If they want to send them to Bosnia, they must have some intelligence as to how the military system operates. I am wondering how much of that we need and whether or not more military functions can be in fact provided by civilians.
I had the case just this past week of a dental assistant who was fired and a regular forces person put in her place. The answer I got was, well, if we need to send this dental assistant to Bosnia she needs to know about military procedures. I find that difficult to understand because I know that we had many reservists in Bosnia. Twenty per cent of all the platoons that served in the Canadian forces in Bosnia were reservists. They are halfway between a civilian and regular force, if I can put it that way.
It seems to me that we should be giving more emphasis to where we can use civilian expertise in the military. The legal system is a case in point. I have just discovered that in Germany and France, they use the regular courts.
Senator Beaudoin: There must be a reason for that too.
Senator Rompkey: It is an issue I wish to explore in the context of the parliamentary review and the white paper and what I believe should be present government policy.
Mr. McCann: Those comments, and also the comments from Senator Beaudoin earlier, give me some heart, but maybe I was too quick to admit defeat on my main complaint.
Senator Joyal: You were in the wrong forum.
Mr. McCann: Perhaps.
That is the point that I have always made. There is no need to have the military justice system try serious crimes within the military, unless it is in an in-theatre, wartime context. We have a perfectly adequate civilian justice system set up that is slow and deliberate and careful. It has all sorts of protections in place to ensure that people charged with serious crimes receive all the benefits of the law and all the benefits of the Charter and so forth.
You can look at it from the economic standpoint of whether it is economically feasible to have a separate system of justice within the military to deal with these kinds of offences. You can look at it from the point of view of the rights of the accused. Either way, it makes sense ultimately to take that out of the military justice system. I was not aware until today that it appears that Germany has done that, and perhaps France is somewhere in between, where they have civilian magistrates attached to military units.
Certainly I am very interested in those recommendations to which Senator Rompkey just referred, and also the comments earlier from Senator Beaudoin.
Senator Rompkey: Before I hear from General Simpson, let me say that I have information that in fact the white paper did deal with this. The white paper says that Canadian forces will reduce military staff in certain occupations and trades as functions are contracted out or reassigned to civilian employees.
Then it goes on to talk about the reduction in the command structure and so on. I assume that is government policy. That is the overall policy. How does the overall policy apply in this particular case?
Mr. McCann: That is more from the economic point of view than from the justice point of view. What you have just referred to deals with the contracting out of functions that can be done by civilians.
Senator Rompkey: Not necessarily. It is not just economic. I referred to the tooth-to-tail ratio.
Mr. McCann: Yes, but the white paper response seems to be looking at it from an economic standpoint.
Senator Rompkey: You are saying that the white paper did not go far enough. I accept that.
Senator Moore: Lieutenant-LColonel Weatherson, I want to ask you about the offices of the Director of Military Prosecutions and the Director of Defence Counsel Services with respect to the tenure of office and removal. Bill C-25 states:
165.1(2) The Director of Military Prosecutions holds office during good behaviour for a term not exceeding four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council.
With respect to the Director of Defence Counsel Services, "the Director Defence Counsel Services holds office during good behaviour for a term not exceeding four years." There is no reference at all to removal as is provided for the director of prosecutions. Why are they being treated differently?
LCol Weatherston: We view that director as akin to a Crown agent, an Attorney General, who is deciding which charges go ahead, how they will be court martialled and the type of court martial. It is not the same position as the Director of Defence Counsel Services, who is more akin to a legal aid director and has responsibility to provide legal counsel for military accused at court martial.
When we did our research -- and, looking at legal aid plans in the country -- we never found any inquiry committees protecting the chairs of legal aid committees. We did not feel we needed that protection for an inquiry committee for the defence side, whereas on the Crown side, where it is a prosecution function, we wanted to give that officer that protection.
Senator Moore: It sounds like you looked at what happens in the civilian courts.
LCol Weatherston: I am not sure that is a good analogy, but we did consider the various plans in every province, and how the legal aid directors were appointed there. We looked at their terms and we did not find any committees akin to the inquiry committee, where you have to protect their tenure.
Senator Moore: What did you find with respect to Crown prosecutors? When you did your review and looked at how legal aid directors are treated in the provinces, what did you find out in terms of how the Crown prosecutors or directors of Crown prosecutors are treated? Are they treated differently?
LCol Weatherson: The best analogy to the military prosecutor is that it is kind of like a deputy attorney general.
Senator Moore: What did you find when you looked at it? You looked at it with respect to the legal aid people. What did you find with respect to the prosecution?
LCol Weatherson: I will have to get back to you on that.
Senator Moore: They are both directors. Do they have similar pay?
LCol Weatherson: Where they are in pay range would depend on the rank of the individuals concerned.
Senator Moore: They both have onerous responsibilities.
LCol Weatherson: The question here, aside from the distinctions, is that there is not a judicial independence charter issue here in the way these people are treated.
Senator Moore: I am not thinking about that. I am concerned that one director is being treated in a substantially different manner than the other director. I do not understand why that is happening. I am concerned about creating a second class citizen here for a very responsible office, which might get back to some of the concerns that Mr. McCann raised in his opening remarks. I am concerned about that. I do not know why, practically speaking, it would be detrimental to the forces for that director not to enjoy the same opportunity of review before an inquiry committee as is afforded a Director of Prosecution. Will you get back to us on that point?
LCol Weatherson: Yes.
Senator Joyal: Instead of having a five-year renewable term, the option could be to appoint military judges for a fixed, non-renewable term of 10 years. We would eliminate revision, re-evaluation, and so on. Would that not be better in terms of maintaining the principle of security of tenure according to the P.E.I. judgment? I should like to know what General Simpson thinks about that.
BGen Simpson: That definitely would enhance the security of tenure. It would eliminate that possibility that the executive power to renew or not renew the five-year term might have an effect on judicial independence.
Senator Joyal: Do you see any practical reasons why that option should be set aside in favour of a five-year renewable term?
BGen Simpson: No I cannot, particularly given the fact that military judges are currently spending longer than five years in those positions and are still available to be posted to other positions subsequent to that.
Senator Joyal: In your opening remarks, General Simpson, you raised a point which puzzles me. You said that we are creating two functions of judges -- the advocate general and another one. That might raise a constitutional issue, which is a point of interest for members of this committee. If we are to adopt this legislation, we must clear any constitutional doubts that we have. Will you elaborate on that for me?
BGen Simpson: My thought that this might raise a constitutional issue stems from the appearance aspect. As Senator Beaudoin said, justice must not only be done, but also appear to be done.
This was dealt with at some length by the European Human Rights Commission and, subsequently, by the European Human Rights Tribunal in a case a few years ago. A member of the British army was court-martialled and sought to have his conviction for misuse of firearms and endangering lives overturned through the normal procedure of review and appeal through the British system. He was turned down at each stage.
He applied to the European Human Rights Commission with legal counsel on the basis that the British army court martial that tried him was not judicially independent. The commission found that the application was well grounded and recommended that the tribunal hear the case. The tribunal heard the case and it was decided in 1996 or 1995. The tribunal found that his trial was not conducted by an independent and impartial tribunal under the organization of the court martial in accordance with the British Army Act and the Queen's Regulations.
The decision of the Human Rights Tribunal was based mainly on the fact that the convening authority, the general who convened the court martial, also appointed the judges and the prosecutor and played a large part in the establishment of the court and the prosecution.
The court also dealt with the role played by the British Judge Advocate General, who appointed and still appoints judge advocates to be the legal advisor or the judge on legal matters in British army courts martial. It was found that the fact that the Judge Advocate General was legal advisor to the minister and to the British army and also appointed judges to appear to sit with the courts martial, unduly affected the independence of the tribunal and destroyed the administrative independence that was essential to having an independent and impartial tribunal.
The tribunal declared that it was contrary to human rights standards. The British government had to pay damages to the soldier for the detriment he had suffered.
Partly because of that case, the British have substantially amended their legislation. They no longer have the general of the convening courts martial appointing members of the court, the prosecutor and so on. As I understand it, the arrangement under present British legislation is similar to what this bill will provide for Canada.
The functions of the Judge Advocate General as envisaged in Bill C-25 will not include judicial functions. It seems that the person who holds the position of senior judge will be senior in rank to the chief military judge. That the Judge Advocate General will, by parliamentary legislation, be responsible to the Minister of National Defence could be raised as an objection based on the appearance that the military justice system is tainted in some respect because of it.
Senator Joyal: To whom is the Judge Advocate General responsible in the British system?
BGen Simpson: In 1996, the British system changed so that the British Judge Advocate General no longer was responsible to or even gave legal advice to the Secretary of State for Defence, the counterpart to our Minister of Defence.
Furthermore, the British Judge Advocate General is a civilian; he is not a member of the military. None of the military judges are military officers in the British system. The Lord Chancellor appoints them all and they travel throughout the world and sit on courts martial.
Senator Joyal: They are appointed for five years?
BGen Simpson: I believe so. I know the Judge Advocate General is appointed for five years. I cannot recall about the other military judges.
Senator Buchanan: Yesterday, I asked whether a civilian lawyer could be appointed to represent an accused before a court martial. As I recall, the answer was "no"; the director of defence services would appoint a military lawyer to represent an accused before a court martial.
However, Mr. McCann represented Private Brown as a civilian lawyer. What is the answer?
LCol Weatherston: The answer is somewhere in between. I spoke to the Judge Advocate General yesterday, and he was not aware. We also have a provision, 249.21(2), which allows the director of defence counsel services to engage, on a temporary basis, the services of counsel -- read there "civilian counsel" -- to assist the director of defence counsel services.
If we were short of military counsel or if perhaps there were conflicts in the cases between accused, we could reach out and pay civilian counsel to represent a military accused.
Mr. McCann's role was somewhat different in that each time we have a court martial, we afford that military accused the right to have military counsel. He may choose for whatever reason to go outside to his own defence counsel. Under the present system, that will continue.
Those accused will always have a right to reach out to their own civilian counsel. That is different than 249.21 where the accused says, "I want counsel," and we simply say, "We are short military counsel right now, but we will get you a civilian lawyer."
Senator Buchanan: I read that last night after I received the answer, and I thought that there seemed to be a difference of opinion.
LCol Weatherston: He was not aware of that provision.
The Chairman: Thank you very much for appearing before us, gentlemen.
I will suggest to the steering committee that we ask a military judge to appear before us. DND actually suggested this. It may answer some of Senator Fraser's questions and yours as well, Senator Beaudoin.
The committee adjourned.