Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 42 - Evidence
OTTAWA, Wednesday, November 18, 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 3:55 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have passed around a draft report to go along with the bill, which you may have a chance to read during clause-by-clause study of the bill. We will not talk about this draft report until we have completed our clause-by-clause study.
A proposed amendment has also been distributed. You will notice that it is an amendment to clause 96 of Bill C-25.
I suggest that we bunch clauses 1 to 95 together, then debate clause 96, and then group the rest of the clauses of the bill together.
Senator Moore moves that the committee complete clause-by-clause consideration of Bill C-25.
Is it agreed that I group the clauses as outlined?
Hon. Senators: Agreed.
The Chairman: Shall clauses 1 to 95 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 96 carry?
Senator Grafstein: As you will recall, some of the members of this committee expressed a different viewpoint than the one expressed by the witnesses concerning the recommendation of Mr. Justice Dickson, and the words that found their way into the legislation.
The legislation places an obligation on the minister of the day to make a report within five years.
With respect to the code of conduct -- which was recommended by Mr. Justice Dickson -- some witnesses told us that it should have been in a separate bill. Owing to the timing and the expediency, however, we were told that that could not be done at this time. A number of us have a strong feeling that that would be an appropriate recommendation to effect, however.
Having said that, a number of other senators have concerns about this bill. Those have been reflected in the "blues," on this side at least. I know some of those have been echoed and amplified by senators on the other side.
I have concluded, in consultation with others, and after listening again to the witnesses, that it would be appropriate for us to at least deal with this one clause, which would make it mandatory for the government to see how the new regime works. It would expedite putting the new regime in place, and we could see how it works. Rather than having a ministerial review, it would require an independent comprehensive review on a perpetual basis.
I know that this is broader than amendments to the Criminal Code. However, some of us believe that this process is evolving very quickly. The only way that we as parliamentarians -- and the government -- can be obliged to comprehensively review this and keep it up-to-date is through a five-year review process.
It is a viewpoint which, obviously, Mr. Justice Dickson recommended. What we are really doing is taking that recommendation and encapsulating it into this amendment.
In effect, it says that the minister shall cause an independent review. It is still up to the minister, but it must be an independent and comprehensive review, and it shall report on the review conducted under that subsection within five years and every five years thereafter.
If at the end of five years, or at the next review, the minister comes back with a recommendation to say, "By the way, we do not need it every 5 years; we need it every 10 years," the Parliament of the day may decide that that is appropriate. Until we are satisfied that the system is in play and is sensitive, responsive and flexible, we feel that that is the way to go.
That being said, I move the amendment in front of you. I will not read it, but I believe it is self-explanatory. I hope I get the support of members on all sides for this amendment.
The Chairman: Before having people respond to that, perhaps I should go through the amendment so that it is on the record.
It is moved by the Honourable Senator Grafstein that Bill C-25 be amended by deleting the present clause 96, on page 89 of the bill, and replacing it as follows:
96.(1) The Minister shall cause an independent and comprehensive review of the provisions and operation of the National Defence Act, as amended by this Act, and of other legislation that governs the Department of National Defence and the Canadian Forces to be undertaken from time to time.
(2) The Minister shall cause a report on the 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.
Senator Beaudoin: I was one of those who relied very heavily on the report of the former chief justice Brian Dickson. As we discussed the other day, and as Senator Grafstein said a moment ago, Chief Justice Dickson suggested that an independent review take place every five years, and not just one time.
Speaking for myself, I do not have any objection to the amendment. It is an improvement. Having a review every five years seems to be rather often, but on the other hand we have dealt with that bill thoroughly, and there is no doubt that Bill C-25 is a big improvement on the actual situation. We all realize that we need a little bit more. "Every five years" may be very frequent, but I do not think it is exaggerated. I would agree with the amendment.
However, I have a problem with the French version.
[Français]
Le ministre peut procéder, à l'occasion...
[English]
Senator Beaudoin: It is not included in the English version.
Senator Joyal: It is not included in the English at all.
Senator Beaudoin: That is right.
The Chairman: It says "from time to time" at the end of the English version of subclause 96(1).
Senator Beaudoin: When I was at the Department of Justice, which is some time ago, of course, we translated "from time to time" as "de temps en temps," but that is not very good French.
[Translation]
"À l'occasion", which means occasionally.
Senator Joyal: It would be better to say from time to time than occasionally.
[English]
Senator Joyal: "À l'occasion" means that there is only a specific set of circumstances for which an evaluation would be done. If you say, "de temps à autre," that means it happens without specifying the circumstances. "À l'occasion" means there is a specific reason to do it.
Senator Beaudoin: I am inclined to agree. I am not satisfied with this, unless there is some explanation that I have missed at this stage. Even in English, why do we say that? If there is to be a review every five years, why do we say "from time to time"?
Senator Grafstein: There may be circumstances that require an immediate amendment -- in other words, if there is an urgency or there is a change. We obviously do not want to lock the government into just the five-year review. If something comes up, the government may need to react immediately. For instance, if Senator Forrestall were to raise a national issue of great substance, as most of his points are, then this clause would allow the government to react, instead of having to await the five-year review.
We cannot tie the hands of the government or of Parliament. This is a minimum test and not a maximum test, and that is why the drafters did it in this particular fashion.
I cannot speak to the French version, though, because I only discussed this from an English perspective; therefore, I would appreciate the help of my francophone colleagues. If there is language to be improved, I am certainly open to having it improved.
Senator Beaudoin: At first blush, there is something about the French version that does not seem to be entirely logical.
Senator Grafstein: Can you make a suggestion?
The Chairman: How about "de temps à autre"?
Senator Beaudoin: Even with that it does not seem quite right. Obviously, Parliament may amend the statute at any time. Perhaps it is not a question of translation; perhaps it is a question of drafting.
Senator Nolin: I personally do not have a problem in French with the expression "à l'occasion."
Senator Grafstein: Is in the right place? Should it be at the end?
Senator Nolin: No, that is not the problem.
Senator Joyal: I understand the point made by Senator Grafstein about the objective of the first paragraph proposed. We can make the scenario that there is a judgment, such as we had in the case of the Létourneau judgment, in which there is a suggestion or a comment that some provisions of the act are not totally accurate and should be amended. Then the Minister of Defence may want to strengthen or change the act. You never know, because, as we have all realized, we are in a field where there are emerging rights and procedures to better protect the rights and freedoms of individuals.
I understand the scope of the first paragraph, but the first paragraph, too, is wide, because it says that the review might be not only on the provisions of this act, but on all the acts.
Senator Nolin: It is even more than that. It is all the legislation, and I will have a question for Senator Grafstein on that.
Senator Joyal: It has as its first target this bill, and then it says "et des autres dispositions," and other legislation that governs the Department of National Defence and the Canadian Forces. It is pretty encompassing as a review.
Senator Nolin: I prefer that.
Senator Joyal: I am not opposed to it. I am trying to share with my colleagues the way we understand what we are doing here, because it is an important thing.
Senator Grafstein: In looking at it, I tend to accept what you are saying. It is broader than the Dickson recommendation. If I listen to my colleagues Senator Forrestall and Senator Rompkey, and others who are more interested in defence matters, it clear to me, and it should be clear to all of us, that, from a parliamentary standpoint, we have woefully neglected an overview of, and making changes to, the Department of Defence. Lay aside the ministerial standpoint. We have tried, but if this triggers a regular wholesale review of defence forces, I think that is all the better.
I would appreciate the comments of Senator Forrestall and Senator Rompkey on this.
Senator Rompkey: I understand the amendment and I agree with the last comments of Senator Grafstein that we have not reviewed as we should. That review is long overdue and we should have it.
We should be concerned, though, about the phrase "and of other legislation." I do not know how many other pieces of legislation there are. I do know that there is the Canadian Forces Superannuation Act, which deals with pensions in the Armed Forces and so on. If we were to open that up, it could be extremely controversial, particularly if it were opened at the wrong time.
I do not know what we would be getting ourselves in for, if we included "other legislation." If we confine ourselves to the National Defence Act, we are on solid ground, because we know what the amendment means. I think the amendment has merit. However, if we go beyond the National Defence Act and into other legislation, I am not sure what difficulties we would be getting into.
If it is necessary to examine other legislation at the time of the five-year review, that can be done. We will find that out, I think, as we do the review.
The Chairman: At the end of the bill there is a list of the acts to which consequential amendments must be made. It is probably just a sampling of the acts that would have to be changed, but it includes the Access to Information Act, the Canadian Forces Superannuation Act, the Corrections and Conditional Release Act and others. Therefore, this may be a bit broad.
Senator Beaudoin: Clause 96 reads:
The Minister shall undertake a review of the provisions and operation of this Act.
This is extending that considerably.
Senator Rompkey: That is mandatory. It applies to all the other legislation as well. According to this word "shall," you must review all other legislation.
Senator Beaudoin: No, I was talking about clause 96 in Bill C-25. I do not object to this being mandatory for every five years. I agree with that entirely, but that is restricted to the act.
Senator Joyal: That is my point. This is different from the original.
Senator Forrestall: I understand that Senator Grafstein is referring to the title of Bill C-25. I see room for some argument about that. I do not see anything wrong with that authority, responsibility or obligation being given to the minister. It would then be the responsibility or obligation of the committee reviewing it, or reviewing the independent report that follows, to take cognizance of what was said about these other sections by the special committee appointed for the purpose.
My concern is that we not lose sight of this need for a review. I share Senator Rompkey's concerns, although they fall into other categories. I have voted against capital punishment seven times, and I am about to do so for the eighth time. Will I have to do so again in five years?
The philosophy that must be reviewed is that which would allow military police to investigate and prosecute, without proper training, offences of a capital nature. The Canadian Forces is not prepared to do that and should not be doing it, as in the past. I will let it go for five years to see what happens, but I would be alarmed if there were not built in a means to review that, and then, if it were found lacking, to do something about it, just as there are other things that may need reviewing. For instance, air traffic incidents can no longer be investigated by our Department of National Defence because of a conflict of interest within the national defence body. They must be investigated by the very competent Transportation Safety Board headed by Mr. Bouchard. The absence of overview and oversight of the Canadian Armed Forces in recent years is dangerous.
Senator Moore: Madam Chairman, I agree with the intent of the amendment, but I share Senator Joyal's concern about expanding the scope. I also have another concern about the drafting. As proposed, subclause (1) of clause 96 reads:
(1) The Minister shall cause an independent and comprehensive review of the provisions and operation of the National Defence Act, as amended by this Act.
Subclause (2) states:
(2) The Minister shall cause a report on the 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,...
If we assented to it today, the minister would have five years within which to conduct a review and file a written report before the Commons and the Senate. It then says:
and within every five-year period following the tabling of a report under this subsection.
However, nowhere does it say when, after the first tabling, the subsequent tablings must take place.
Senator Nolin: Within every five-year period.
The Chairman: Yes, it shall cause a report to be laid before each House within five years after the day, and within every other five-year period.
Senator Moore: Thank you. I will read it again.
Senator Joyal: We started on the basis of proposed clause 96 of the bill, and the comment made by the late Justice Dickson. The objective of this bill is essentially to overhaul the judicial system within the military, which operates differently from the justice system for civilians. Taking into account the exceptional provisions in that bill, I have concluded that it is beneficial to have a permanent five-year review process.
However, if we are to adopt the words in the proposed amendment "and other legislation that governs the Department of National Defence and the Canadian Armed Forces," I cannot agree with the amendment at this time. As a legislator, I would need to hear witnesses from the department and the Armed Forces before I could vote for that today. We did not hear from them, nor did we have any special evidence in front of us that the armed forces and the Department of National Defence should have a regular five-year automatic review.
We are establishing something particular there and we have not had the evidence to support that in front of us, except for the horror stories we have heard -- and we have all heard them. I say this with the greatest respect for the Department of National Defence, but you hear horror stories everywhere. However, the Auditor General is there to pick up on them and to report to us, and we have other forums to deal with them.
To legislate on this today, without further discussion on those two aspects of the Department of National Defence and the Canadian Armed Forces goes beyond what we are contemplating in Justice Dickson's report and the original idea that we had to entrench a process of reviewing the judicial system within the armed forces.
I should like to hear from my colleagues about whether we should come back to what we were looking at in the beginning, when we suggested that. The objective of this amendment is to give a chance to the runner. This legislation is new and it is a major change from past procedure and the way military justice was run in the past. It will involve a lot of changes and a lot of adaptation of the system. It is fair that we would have a review of this system after five years.
Taking into account that the armed forces operate outside the judicial system that we all know, it is good that their system be regularly reviewed, and that was the intention or objective at the beginning. The objective was not to review the Department of National Defence or the Armed Forces generally. That is not the mandate of this bill. Would it not, therefore, be better to remove from that amendment the phrase "and other legislation that governs the Department of National Defence and the Canadian Forces"? Perhaps we should delete that.
The Chairman: The previous phrase then becomes redundant in the use of the words "the National Defence Act, as amended by this Act." It should say, "The Minister shall cause an independent and comprehensive review of the provisions and operation of this Act to be undertaken from time to time."
Senator Forrestall: I thought there was some clarity there. It is not Bill C-25 that our colleague is proposing to amend; it is the National Defence Act.
Senator Joyal: Yes; that is right. This bill amends the National Defence Act.
The Chairman: Yes. That is what this is.
Senator Joyal: We are talking here of legislation that governs the Department of National Defence and the Canadian Armed Forces.
Senator Forrestall: If you were to drop those words as you just suggested, then it would have nothing to do with this bill but everything to do with the National Defence Act.
The Chairman: It would have everything to do with this bill and only this bill.
Senator Forrestall: That disappears the moment it is passed, though.
The Chairman: No.
Senator Forrestall: The moment it passes, in amended form or otherwise, it disappears. That is to say, it then becomes part of the National Defence Act.
Senator Joyal: It would be integrated into the National Defence Act, yes.
Senator Forrestall: We would then have Senator Grafstein's wording embedded in the National Defence Act. We should be very cautious about that.
Senator Nolin: Is clause 96 a section of the National Defence Act, or is it only a clause of Bill C-25?
The Chairman: It is a clause of Bill C-25.
Senator Nolin: Senator Joyal only wanted to refer to the act. Therefore, we should retain the National Defence Act in the amendment.
The Chairman: That is the wording that is presently used in clause 96.
Senator Joyal: That is exactly my point.
Senator Grafstein: That is in the title of the bill in any event.
Senator Bryden: I agree largely with Senator Joyal. I believe that we should not go beyond our reach in drafting amendments. What has been considered in Bill C-25 is the justice system as it relates to the National Defence Act. I was not present for a lot of the meetings, but if we restrict that to the National Defence Act, then I presume that we are talking about things we heard evidence on. However, there are a number of things referred to in subsection (1) on which I assume we have not heard extensive evidence.
Recommendation 17(b) from the Dickson report says:
We recommend that an independent review of the legislation that governs the Department of National Defence and the Canadian Forces be undertaken every five years following the enactment of the legislative changes required to implement the recommendations contained in this report and in our 1997 report.
That does not imply to me, that five-year follow-up, that all of those amendments will occur in the same act. They are making a recommendation that affects a broad area in defence and one that, in this act, deals with the judicial system in the Department of National Defence. They are saying that we should be ensuring that there is an independent review every five years regarding what we are considering here and what we are enacting, and no more.
That does not violate recommendation 17(b) because, presumably, other acts and other regulations are needed to deal with other aspects of this report and the 1997 report. Presumably, we will hear evidence on those. As judges used to do, when they did not make law but, rather, interpreted it, they would then deal with the facts of that particular case and not go beyond it.
We should deal with the facts and the information that we have. Let us restrict the amendment to an independent and comprehensive review of the National Defence Act, as amended by this act, saying that it should be tabled within five years, on a regular basis.
The Chairman: Our researcher has pointed out that, since there will probably be other amendments to the National Defence Act in the future, it might be left as "a review of the provisions and operations of this Act to be undertaken from time to time."
Senator Bryden: I am comfortable with that. I am not sure the issue is whether or not this act ceases to exist when the amendment gets Royal Assent and the National Defence Act is amended, as amended by this act. I would like the researchers to express their views on this.
Mr. David Gates, Research Officer, Library of Parliament: After Royal Assent, when the phrase "this Act" is used in clause 96, it would refer to this act as amended by Bill C-25. In other words, it would be the current provisions of the National Defence Act as changed by Bill C-25.
If you broadened that by saying the National Defence Act as amended by this Act alone, you could freeze the provisions that are being reviewed to just the ones from Bill C-25. Amendments made after this bill is assented to might not be caught by the review.
Senator Bryden: I think that is the way a court would interpret it, if you refer to "this Act." It is "this Act, as amended from time to time."
Senator Grafstein: I am persuaded by the arguments made by my colleagues, except when I look at the Dickson report. I do not agree with their interpretation of the Dickson report. However, I conclude, and I am persuaded by Senators Joyal, Bryden and others that, to be fair, we should not enact anything until we have had substantive evidence upon which we can come to a conclusion. We have not had substantive evidence dealing with the Canadian Forces, and so on. That convinces me that we should tighten our focus.
Having said that, that is not what Dickson says. When we make the argument that we are following to the letter Mr. Justice Dickson's recommendations, I do not think that is fair. As to this act, it is, but it is not his recommendation. Mr. Justice Dickson, may he rest in peace, was a meticulous draftsman. He says, and I want to read it again just carefully for the committee, having concluded, as Senator Bryden does, that we should narrow the focus, "We recommend that an independent review of the legislation that governs the Department of National Defence and the Canadian Forces..."
He says, "and the Canadian Forces." That is why I asked the drafters to track this. They tracked it religiously. I commend them for that. Clearly, to my mind, he was saying that it is not just this act; you have to go beyond and take a look at the Canadian Forces.
Having said that -- and this is something we could discuss with our colleagues on Defence -- this is something that we have not had any evidence about. For us to ask for perpetual review for something about which there has been no evidence led, convinces me that we must, reluctantly, narrow our focus.
I will therefore withdraw the last words in the second line, starting with "and other legislation that governs the Department of National Defence and the Canadian Forces." Thus, it would read: "The minister shall cause an independent and comprehensive review of the provisions and operation of the National Defence Act as amended by this Act."
The Chairman: No, that is too narrowing. It will be a "review of the provisions and operation of this Act to be undertaken from time to time."
Senator Beaudoin: I do not understand why we are discussing this. Keep clause 96 as it is, and add only the phrase "within every five years" and that is the end of it.
Senator Grafstein: We are not talking about that. We are talking about going beyond the purviews of the justice system. That is the whole idea. We have not had evidence on other issues that may affect the Canadian Forces that may require perennial review.
Senator Rompkey: What harm does it do if you spell out the National Defence Act? It could not be clearer.
The Chairman: Once this is enacted, it becomes part of the National Defence Act. Thus, in the National Defence Act you would be saying something about the National Defence Act and "this Act." "This Act" at that point will refer to the National Defence Act.
Senator Grafstein: Madam Chairman, I think we should stick to the words, the "National Defence Act as amended by this Act," and then delete the words "and other legislation to be undertaken from time to time." That means that the National Defence Act, the scope of which is dealt with here, as it may be amended in this act and other legislation.
The Chairman: Before we make any decisions on that, perhaps at this point we should hear from Senator Fraser, who is our expert editor.
Senator Fraser: I am troubled if we simply say that we want to review the National Defence Act because this act also amends other acts. Some of those amendments are fairly significant elements that I think we would want to take a look at.
I am further perturbed by saying that we should review the National Defence Act, because there is stuff in there, as numerous colleagues have said, that we have not considered in this committee and that is beyond the purpose of this legislation. We are instructing the government here to cause an independent and comprehensive review. This is not just a quick and dirty look that we are discussing. We are talking about a very serious look at what we have done with this law.
We will be better if we stick with "this Act." "This Act" will cover what we have worked on these last weeks, including not only changes to the National Defence Act, but some other changes as well, which should be looked at, but which will leave out all those other elements that are beyond our purview. Really, we need to stick to that.
Senator Rompkey: I wanted to raise another point for reflection. The intent of this is to have an independent and comprehensive review. Subclause (2) suggests that that independent and comprehensive review be done outside Parliament. I am wondering about the role of Parliament. The intent is to have an independent review done which is then presented to each House of Parliament.
This is a point of discussion. Might we not consider this the other way around? One of the most satisfying experiences that I had was the review of defence policy. That was done by a joint parliamentary committee of both Houses. As a matter of fact, it was one of the few cases in which Parliament pronounced itself before the executive pronounced itself. The parliamentary review was done and published before the white paper was written or accepted by the government.
That was different from the United States, Germany, France and many other countries. It was very satisfying for me. We parliamentarians had the first crack at it before it went to the "experts."
I put it in the context of what is happening to Parliament and what is happening to us as parliamentarians. I am not sure that the talent in both Houses is being used as much as it should be. I speak from experience both in the House of Commons and in the Senate. I make the same criticism, perhaps even more so, of House of Commons committees than of Senate committees. I think they could be used a lot more. I think that is the heart of Parliament. If you look at the McGrath report, a number of revisions of parliamentary practices on which pronouncements have been made, this is where the bulk of recommendations are -- strengthen the parliamentary committees.
I raise this matter for discussion. I understand the intent of this amendment. I know that all wisdom does not reside in Parliament, but Parliament can co-opt a lot of that wisdom if it wants to.
I simply raise this question: Is it appropriate to have an extra-parliamentary review and then a parliamentary review, or would it be better to initiate the review within Parliament?
Senator Forrestall: I share in that very important question.
Senator Beaudoin: I have no objection to having two paragraphs. I think it may be done in one, but I would compromise on that. All we need is the words "every five years" instead of "within five years" and "independent and comprehensive review" instead of "review."
If you prefer to have two paragraphs, I would not object to that. However, if you add in the first line of clause 96, "an independent and comprehensive review," and change "within five years after the coming into force of this section" to "within every five years after the coming into force of this section," with the addition of only a few words the problem is solved. I do not see why we are going in that direction.
I have one problem with that, of course. I agree with an independent review, but an exhaustive review every five years will be a full-time job. However, if the majority wants "independent and comprehensive," I will not object to it, although it is very ambitious.
It is only the end of the clause that should be changed from "within five years" to "within every five years," and that will be the end of it. That is exactly what Chief Justice Dickson said. He said every five years. He does not go as far as we do.
Senator Moore: He does say independent.
Senator Beaudoin: That is right. It is good for it to be independent, but I do not think it is realistic to have a comprehensive report every five years.
Obviously, I support the words "of this Act." The rest is purely drafting.
Senator Joyal: I wish to comment on Senator Rompkey's points about a specialized committee of the Houses of Parliament doing the review. I would much prefer that the review be done independently and that we review it, for obvious reasons. To do such a review, it would be necessary to study many cases. Although we do have the expertise to do that, I am not sure that it would be the best use of the time of members of either house. I prefer to trust the experts, especially in matters such as the administration of justice. Although your proposal has merit, it would not diminish the role of both houses of Parliament to review a report prepared by experts.
To return to a point made by Senator Grafstein on a qualification made by the late Chief Justice Dickson, section 17(b) of his report recommends the following:
...an independent review of the legislation that governs the Department of National Defence and the Canadian Forces be undertaken every five years following the enactment of the legislative changes required to implement the recommendations contained in this Report and in our March 1997 report.
In other words, it is a review of the legislation, but only insofar as that legislation is amended or considered in his recommendations that deal with military justice. So there is a very well-defined scope there.
In my opinion, we must stick to that. That is our mandate and that is essentially what the act entrusted us to do. As I said earlier, we did not hear any other evidence with regard to the other aspects of the Armed Forces, and there are many.
I believe that if we stick to the original proposal, with the addition of "independent," which is an important element, and as long as we cover what Justice Dickson recommended, we will be doing our job.
Senator Bryden: I believe that Senator Beaudoin's suggestion has much merit. The goal in drafting is to get the required substantive change while affecting the original section, which presumably was carefully thought out, as little as possible. Your suggestion to include "comprehensive" accomplishes that. Many people in the Department of National Defence will do nothing but prepare for reviews. People need an opportunity to do their jobs. It must be independent, but the review will go on forever if there must be a report every five years.
From my experience on the Special Senate Committee on Security and Intelligence, I can tell you that it would be much better to have experts prepare a comprehensive report for our review.
Senator Nolin: Senator Rompkey, with all due respect to the House of Commons, I do not think it is independent. I would prefer to have an independent review done by people who have worked in that system, exactly as Justice Dickson recommended.
Senator Beaudoin: It is already there in clause 96. It states "each House of Parliament."
Senator Nolin: I think we can have both. We can have an independent review by a group of persons appointed by the minister and then a report tabled here based on the findings of that report.
First, Senator Beaudoin, I prefer "within five years" rather than "every five years." Second, if you look at the amendment proposed by Senator Grafstein, it is important to understand why we have two subsections. There is a subsection dealing with the review and then a subsection dealing with the report. There is no time limit on the review. It is "from time to time." Under proposed subclause (1), it can be whenever the minister wishes to have the review undertaken. However, subclause (2) is different because now Parliament is doing the report -- that is, in both Houses of Parliament -- within five years. We must separate the two. They are two different items and we should deal with the review in subparagraph (1) with no time limit, whenever the minister wants to conduct the review. Of course, five years is the ultimate, because subclause (2) will cover that.
The Chairman: I am told that it is difficult to fit the concepts from the second clause into the first in the way that we have been discussing. What Senator Nolin is saying is correct.
Senator Forrestall: To the best of my knowledge, there is nothing presently in the National Defence Act that triggers a review of any kind whatsoever. The authority to do that lies in another statute that has served us well for 100 years.
I am trying to be very careful here. Having spent about 24 years in the House of Commons, I must disagree with my friend Senator Rompkey. We may seem to be independent or we may believe that we are somewhat independent, but that is the role of the House of Commons. It is the link between the people and the Department of National Defence -- that is, the men and women who make up our Armed Forces.
When you sever or impair that link, or do something to change it without a very substantial Canadian debate -- and I am talking about civil control in the military as it is perceived not necessarily by you learned gentlemen around the table here but by lay people like myself -- I become very alarmed. People become somewhat alarmed when there is a perceived loss of contact. National defence is not the only area where this occurs, but it certainly is one of them. The preferable way is some other form of trigger, for example, 50 members of Parliament rising in the House of Commons and petitioning the Minister of National Defence to look at a section or to look at the entire act, which would cause it to happen. Once you start doing a five-year review, a whole branch would be created. A secretariat would develop very quickly whose sole job would be to do this work. They would have to do that because there is no other trigger. Should the Minister of National Defence be concerned about other matters, this might not preoccupy him to the point where he could take the right decision with respect to a consequence of the agreement.
I wish there were another trigger, but I do not know of one in the act itself. As I have read this bill over the last few months, there is nothing in it that triggers this, other than the authority that lies in other statutes giving the minister the authority to do whatever he wants to do.
Senator Rompkey's second point bears repeating. We are masters of our own destiny, and we can review anytime we want. We can call whomever we want. We can hire whatever advisory staff or research officers we choose to hire. We can do that as a Senate committee, as some of us have been proposing over past years; or we can do it jointly, by petitioning the House of Commons to join with us in a joint effort to do this review.
If that satisfies the absence of another trigger for the people around this table, then I do not know why you do not include Justice Dickson's recommendation that the matter be reviewed from time to time.
Senator Grafstein: I will not deal with drafting. I hope that our advisers have been working on this to see if we can come up with a consensus draft. I am open to that, because the whole idea here was to incorporate the sum and substance of recommendation 17(b), and the most effective way of doing that.
I want to deal with the substantive issue raised by Senator Rompkey. I agree with him that Senate committees and House of Commons committees should be, in many instances, places where we advance experts. However, when it comes to judicial matters, this is not the case.
I say that, Senator Rompkey, because I spent the last month or so, as we were working on the Judges Act, trying to take a look at the question of judicial independence. In order to do so, I had to rely on outside experts who had done some serious work in the field to go through the numerous cases to deal with it. I am halfway through the last tract. The bill has already been passed, but I want to finish it off. I think judicial matters are a lot different than policy matters of a general nature. It is too labour intensive and I cannot see a committee working through those cases and such things.
What we are really looking at here is an independent outside expert, free of the House of Commons and all the partisanship that goes on over there and free of our time, because I do not think we could take the time to deal with this. When it comes to these matters, an independent review is the way to go. I do not deny, however, that in many instances a Senate committee may be a lot better than experts.
In foreign affairs, we did a better job than the experts and the diplomats. I agree with the fact that we should stick to an independent review as a principle. However, when it comes to drafting, our drafters have looked at this. In fact, it came from them. I should have proceeded with more meticulous care, but I am open to their advice and the comments made by the senators here. I agree that the word "comprehensive" goes well beyond what we intended to do and what I convinced myself and our colleagues to do. I am prepared to withdraw that reference.
The question is: How do we expertly inculcate the principles that we talked about in clause 91? I should like to hear from our experts about that.
The Chairman: I will read into the record what the researchers have come up with at this point. Clause 96(1) states:
The Minister shall cause an independent review of the provisions and operation of this Act to be undertaken from time to time.
Subclause (2) will remain as you moved it, Senator Grafstein.
Senator Grafstein: I agree with that.
Senator Fraser: I have two points. First, I believe "operations" should be in the singular, not in the plural. You read it in the plural.
The Chairman: Yes. I apologize.
Senator Fraser: Next, subclause (2) states:
The Minister shall cause a report on a review conducted...
I would like it to say "the report," not "a report." "A report" could be one paragraph testifying to us that such a review was conducted.
Senator Grafstein: It should say "shall cause the review."
Senator Fraser: No, it is the report of the review.
Senator Nolin: The French version is fine in that area. It is very precise.
Senator Fraser: In French, it is the report of the review.
The Chairman: There will be more than one report, but only one report at a time. Hence, the report on the review would be correct.
Senator Fraser: The report of the review; that is to say, the reviewer will be reporting to the minister. We should see what the reviewer has told the minister, not the minister's report of what the reviewer said.
The Chairman: My resident experts are saying that that really does not work within the rest of the sentence. "The minister shall cause the report on the review," et cetera, "within every five year period following the tabling of a report under this subsection."
Senator Bryden: You are going to hate me for saying this, but we have talked about the fact that there may be more than one review within a five-year period.
The Chairman: As long as it is within, it can be as many as they like.
Senator Bryden: So the minister shall cause the report on each review.
Senator Fraser: On any review?
Senator Beaudoin: Five years is peanuts.
Senator Grafstein: Since it is my motion, may I ask suggest the following to the drafters? The Minister shall cause an independent review of the provisions and operation of this Act, et cetera. The Minister shall cause the review conducted under subsection (1) to be laid before the House following the tabling of a review under this subsection.
The Chairman: The review is an action. The report is what results from the review.
Senator Beaudoin: The review is still continuing. The report is every five years.
The Chairman: They go out into the field and they review, following which they come back and report.
Senator Rompkey: The senator's point is well taken. It must be the definite article, "the" review.
The Chairman: I have been told that this works, then: "The Minister shall cause an independent review of the provisions and operation of this Act to be undertaken from time to time." Proposed subsection (2) would read: "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."
Are you in agreement, Senator Grafstein?
Senator Grafstein: I am, indeed, on the undertaking that there is no further comment.
Senator Beaudoin: The second clause is what?
The Chairman: The second clause is the parliamentary part of it. The first clause is the minister causing the review.
Senator Beaudoin: That is clear, but the second is not clear.
The Chairman: "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."
They do it once and then they continue.
Do you want to change the French part "à l'occasion" to "in any way"?
Senator Beaudoin: In French, it means something now because the review will be continuing.
The Chairman: Is "de temps à autre" better?
Senator Nolin: No, the independent review that we are looking at in subsection (1) is not an ongoing review. "L'occasion," means that whenever the minister feels there should be review he will create the review. "L'occasion," for me, is fine.
Senator Beaudoin: That is right.
Senator Nolin: From time to time, à l'occasion.
The Chairman: It has been moved by the Honourable Senator Grafstein that clause 96 be amended by replacing lines 1 to 6, on page 89, 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."
I will ask Dr. Lank to read the amendment in French.
[Translation]
Ms Lank:
Moved by the honourable senator Grafstein:
That Bill C-25 be amended in Clause 96 by replacing lines 1 to 6, on page 89, 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.
[English]
Senator Beaudoin: You refer to the Royal Assent and after that the deposit. It is two different dates.
The Chairman: The first reference is the first report after this proposed legislation comes into effect. The next part of that sentence is for the rolling five-year review afterwards.
Senator Beaudoin: Each five years after what?
The Chairman: After each report is tabled, then the clock starts again and there will be another five-year period.
The question, then, is on the amendment to clause 96.
Is it your pleasure, honourable senators, to adopt the amendment?
Hon. Senators: Agreed.
The Chairman: I declare the amendment carried.
Shall clause 96, as amended, carry?
Hon. Senators: Agreed.
The Chairman: I declare the motion carried.
Shall clauses 97 to 128 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall I report the bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
Now we come to the report. This is a draft. It will be changed because of the amendment we have just passed. The last two paragraphs referring to clause 96 must be rewritten.
Are there any specific comments on this?
Senator Beaudoin: I thought, when I read this draft, especially the fourth paragraph, that it was very strong. That is all right but will people not ask why we do not amend the legislation?
Senator Nolin: We will have the act again in five years. That is my response.
Senator Beaudoin: That is a good answer.
Senator Nolin: As you said, we already have a very important review of a very old -- .
Senator Beaudoin: Problem?
Senator Nolin: -- system. Let us start it, and in five years we will look at it again, but we need the report.
The Chairman: That is very much so, yes.
Senator Grafstein: I see the report, and I am delighted with one exception that incorporates, to the best of my recollection, members' concerns on all sides.
I would add one substantive change. The fourth recommendation of the Dickson report of March 25, 1997 says that the existing code of service discipline should be re-enacted into a separate federal statute. I remember the evidence on that.
Senator Nolin: They were working on it.
Senator Grafstein: I understand that. That was a strong recommendation and, quite frankly, I would have preferred to see that recommendation enacted at the same time that we are doing this. However, I accept the department's answer that it was not expedient, because of everything else they were doing, but they undertook to continue working on it.
It strikes me that we have now given a time frame of five years. We would hope that before the review takes place it would occur before or as part of that five-year review. That gives the department enough time it see how the new mechanism works and, at the same time, take a look at how this affects the statute. So I would like that incorporated as one of our concerns.
Having said that -- and I will leave this to the chairman and the steering committee -- I think we should recast the report to say that in light of our amendment that in effect institutes a five-year review, and as opposed to saying we are concerned about this or that, we are saying that these are our particular concerns. Then we list all of our concerns. We do not change the substance of our concerns but we say that we would hope and expect that our concerns will be reflected in the independent review referenced in the amendment.
As opposed to an open-ended debate about all these issues all over again, this would almost give initial terms of reference to the independent review. When they come back five years hence, they can see each concern listed and ask how each was met.
This is not to diminish any member's comment because the list of concerns are valid. Everyone should make sure that they incorporate in this list their concerns, if they are substantive. I will accept those if members say they are substantive. Having said that, we should draft the report so it is in sync with our amendment. We have said there will be a five-year review and that is the time when all these matters will be considered. Then we can have our cake and eat it, too.
We have a five-year review when we can address our checklist of concerns, as opposed to a general undertaking from the minister. We will not simply move the concerns into the ether.
That is my suggestion. I am prepared to delegate that to the steering committee for incorporation of that one substantive change regarding the fourth recommendation of the Dickson report to enact the existing code in a separate federal statute. The department indicated that it is seeking to do that.
Senator Nolin: In your comment, are you suggesting that they should wait for the review in five years?
Senator Grafstein: They can do it in five years or sooner.
Senator Nolin: If they are working on it, then as soon as possible.
Senator Grafstein: At least, at the end of the five-year period, which will go very quickly around here, we will have that. It will be helpful to the department and to us and to those on the other side. It is not our intention to reopen this into an endless debate. It is our intention to lay out our concerns and let the department and independent experts work on these so we can satisfy ourselves yet again. That should not be hard to do, Madam Chairman.
Senator Beaudoin: Would this be a new paragraph?
The Chairman: Yes, there would be an addition of another paragraph in here.
Senator Beaudoin: We give the steering committee the authority to do that.
The Chairman: With these comments all in mind and with the draft report before you, would you allow the steering committee to work on the report?
Senator Joyal: In the French version, the second paragraph, last line, states, "ingérence importune," but "importune" is not a word in that context. It should be "inopportune."
[Translation]
The last line of the second paragraph should read:
... à empêcher toute ingérence inopportune...
instead of "importune."
[English]
At the fourth paragraph, the first line says:
Le Comité est également préoccupé par l'iniquité...
I find the word "iniquité" to be awkward.
The Chairman: In English, it means inequity.
[Translation]
Senator Joyal: I understand, this is romantic prose, but it should say "différence de traitement," which means inconsistency, rather than "iniquité."
[English]
"Inconsistency" seems to me to be a better reflection of our preoccupation.
[Translation]
Senator Beaudoin: What do you suggest?
Senator Joyal: This is the Standing Senate Committee on Legal and Constitutional Affairs. If we say "iniquité," we seem to agree to something that is unfair. The word "iniquité" is very strong.
[English]
The Chairman: We could say "the apparent difference."
Senator Fraser: We do not need "apparent." It is a difference.
The Chairman: That is right.
Senator Joyal: It is a difference, but "l'iniquité" should not be part of a report where we will adopt the legislation.
The Chairman: Why not just use the word "difference"?
Senator Joyal: I would agree with that.
[Translation]
Different treatment is what we mean, but we cannot say "iniquité" because we would be agreeing to something unfair. If I were convinced this was unfair, I would definitely move an amendment.
[English]
The Chairman: Is it agreed that we can work on that?
Senator Joyal: Yes. Do you understand our comment on that?
The Chairman: Yes, and it will be righted. If there are no other issues, the committee will adjourn.
The committee adjourned.