Proceedings of the Standing Senate Committee on
Issue 33 - Evidence
OTTAWA, Thursday, October 1, 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 10:59 a.m. to give consideration to
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, this morning we have before us, from the
Department of National Defence, Colonel Fenske, Deputy Legal Advisor, Judge
Advocate General, National Defence Act Amendment Team, and Lieutenant Colonel
Alex Weatherson, Judge Advocate General, National Defence Act Amendment Team.
Welcome, gentlemen. Our usual procedure is to allow time for an opening
presentation by the witnesses followed, rather informally, by questions from
the senators. Please proceed.
Colonel A. Fenske, Deputy Legal Advisor, Judge Advocate General, Department of
National Defence, Canadian Forces Legal Advisor, National Defence Act Amendment
Team: Thank you, Senator Milne, for that welcome. If I might clarify, I am now
the Deputy Legal Advisor, DND CF Legal Advisor. As a result of changes that
have been occurring over the last couple of months, we now have at National
Defence a separate DND CF Legal Advisor and a Judge Advocate General with
differing responsibilities. I now work as the Deputy Legal Advisor, hence, the
rather long title. However, I am running the National Defence Act Amendment
I am in your hands, as is Alex Weatherson, in terms of how you would like to
proceed this morning. We would propose to provide you with some preliminary
remarks that address the background of the bill, review the highlights and main
thrusts of the legislation, and then try to comment on where the National
Defence Act is today and where the bill is taking us so you can see the changes.
We will try to confine those remarks to 20 or 30 minutes.
The Chairman: That is fine.
Col. Fenske: Thank you very much. I feel privileged to be here before this
committee of eminent Canadians to help you study Bill C-25. To begin with, I
should like to take you to some preliminary remarks, if I might.
Bill C-25 is a comprehensive package of amendments that is designed both to
strengthen and modernize the legal framework that governs defence activities in
Canada. It is the most extensive package of amendments to the National Defence
Act since enactment in 1950. The bill addresses a broad range of defence
operations but its primary focus is military justice, and our backgrounder,
which we have provided for you in your committee binder, focuses primarily on
the military justice aspects, as will my remarks today.
In the military justice area, modernization has entailed a much closer alignment
with Canadian legal values and traditions, while still preserving the essential
features of the current Code of Service Discipline considered necessary to meet
military requirements. The amendments contained in this bill draw not only on
work done within the department and the Canadian Forces, but on four
significant and recent studies.
The bill implements recommendations from the report of the Minister of Defence
-- and I am referring to the Doug Young report -- to the Prime Minister on
leadership and management of the Canadian Forces. It also implements
recommendations from the Dickson Special Advisory Group study on military
justice and military police investigation services. There was a second Dickson
study done in relation to the role of the Minister of National Defence under the
National Defence Act, and then, of course, there is the Somalia commission
report. Approximately 83 per cent of the recommendations of the Somalia
commission report that relate to military justice have been affirmed by
government, and we are implementing those either in this bill or in other
places, in administrative publications and in regulations, in parallel with
what we are doing today.
I intend to provide you, if that suits your purposes, with this overview by
dealing briefly with a number of subjects, all of which are in the backgrounder
that you have in your binder. The first subject is the elimination of the death
Next, I will discuss five new features in the bill that strengthen oversight and
review, and in this respect I would note that the oversight and review that we
are talking about strengthening is dominantly civilian oversight and review of
I will then turn to the bill's treatment of the key actors in military justice,
and their separation from each on an institutional basis, by which I mean the
prosecutorial, investigative, defence, and judicial functions of the justice
I will turn immediately, then, to the issue of the death penalty, and I am
referring to page 16 of the backgrounder should you wish to refer to it. The
death penalty is no longer considered to be required as a punishment for
service offences under the National Defence Act. I know that all senators in
this room will be aware that this is the only place in federal legislation
where a death penalty remains. The death penalty has not been invoked under the
National Defence Act since World War II, and the last time it was invoked was
in relation to a civilian offence that was incorporated into the Code of
Service Discipline at a time when the Criminal Code still carried the death
penalty. We have not used it in two and a half generations and do not consider
that it is necessary today, and so the bill will replace the death penalty in
much the same way as the Criminal Code replaced the death penalty.
Let me make two other points. The mandatory death penalty is completely removed
from the scale of punishments, and where a mandatory death penalty has been
called for, it now becomes mandatory life imprisonment. I know that most of you
will be familiar with the 25-year, no-parole rule. That rule has been
paralleled in this amendment, so that when you look at the way in which military
people under the Code of Service Discipline are treated for the purposes of
sentencing, you can draw much clearer parallels to the way they would be
treated under the Criminal Code as average citizens. I do not propose to say
more about the death penalty.
Senator Beaudoin: Which clause is it? You referred to page 16.
Col. Fenske: I see you referring to the bill, senator. There are probably 12 or
13 amendments in the bill that deal with the death penalty. I am referring to a
summary of what we are doing that is contained in your backgrounder at page 16.
The next issue that I would like to address for you briefly is the issue of
oversight and review of military justice, as well as some activities that you
would only call justice in the broadest sense. One of the issues that the bill
attempts to come to grips with arises as a result of learning, through the
interviews with people across the country and through the studies, in particular
the Dickson group study on military justice, that justice is something more
than being charged and dealt with before a court martial.
We have a grievance system in the Canadian Forces, as I know many of you will be
aware. It is fair to say that these amendments treat that grievance system as
part of our justice system, in the sense that if an individual feels he or she
has been unjustly dealt with, there is a justice issue in the mind of that
individual. Thus, when I talk about the oversight and review of justice issues,
I am also talking about the oversight and review of our grievance system.
There are five specific initiatives in this bill that deal with strengthening of
oversight. The first one is grievances, and I am referring to page 14 of your
backgrounder. Under the current National Defence Act, the issue of grievances
is dealt with in a very summary way in section 29. If you were to review the
current section 29 of the National Defence Act, you would see that it basically
permits a grievance system through regulations and does not tell the
regulation-making authority how to set that up, so it leaves tremendous
latitude. The new provisions have more structure to them in legislation, and
they -- and this is certainly the oversight feature that we wish to bring to
your attention -- also provide for oversight of the grievance process by an
independent grievance board whose members would be obviously independent of the
department and the Canadian Forces, and would be Governor in Council
appointments. That board would have the function of reviewing prescribed
categories of grievances that are referred to them before they go to the Chief
of Defence Staff, CDS, as final grievance authority.
Two things have happened. First, we have streamlined the grievance system by
reducing layers. Some of those layers, of course, appear in our regulations.
That is the point of the amendment. Second, we have provided for outside
reviews of certain prescribed categories. The idea is to ensure that the CDS,
as the final adjudicator, when he has a decision to make on an important issue,
has some review. For example, what if it was an official languages issue or
something that comes squarely home and intrudes on a member's way of life.
Perhaps Col. Weatherson can give you an example.
Lieutenant-Colonel Alex Weatherson, Judge Advocate General, Department of
National Defence, National Defence Act Amendment Team: We have a number of
grievances each year. Some arose a number of years ago, when we changed to our
present three colours of uniform for the air force, navy and army. A number of
members who had served in the air force and ended up in army trades felt they
had a right to go back to their former uniforms. A number of members put in
grievances on that issue.
Col. Fenske: Another example is that, currently, our suspension provisions
provide for suspension without pay. When you look at those kinds of decisions,
you have to say that we would really benefit from an outside view, and the
changes to the bill have not yet been made. However, we are looking at a system
that is relatively aligned with what is going on in the RCMP today.
Another point I wish to make is that the CDS, as the final decision maker, will
have some grievances which the government will require him to refer out, but he
will also have the ability, which we do not believe the current RCMP board has,
to have any one grievance referred. He can look at it and say, "I am just
not sure; I would like a second opinion." We hope it is very flexible and
designed to ensure transparency and outside consultation in respect of
decisions that are challenged by our Canadian Forces Grievance Board.
The second item I wish to bring to your attention in relation to oversight is
that the bill contains another independent review body called the Military
Police Complaints Commission. This is like the RCMP External Review Committee,
but it is somewhat different as well.
First, it will provide for the ability of people to question and complain about
the activities of military police in their investigative role. Second, what is
novel is that it will permit military police and their superiors to complain if
they have been interfered with in their investigative role. It goes both ways,
and it is innovative in that respect.
The third item that I would bring to your attention is that the act now will
provide that the Judge Advocate General, who under the current act does not
have a statement of purpose or duties, has the clear duty to superintend the
administration of the military justice system. Some of you will recognize those
words out of the role of the Attorney General. It is that kind of function. If
you were to look at the role of American service JAGs, you would find that that
kind of function is performed by them. The specific purpose of this is to
ensure that on a regular basis we are looking at the administration of military
justice and reporting on it in a public way.
The other matter I wish to bring to your attention is that this bill has a
clause in it that provides for a five-year review. If we are thinking of
oversight and review of these provisions by Parliament based on our experience
with them, it is provided for in the bill.
I do not propose to say anything more about either the death penalty or
oversight and review.
I wish to turn now to the more central provisions of the bill. If you look at
page 5 of the backgrounder, you will note that we have provided a shaded box
under "Amendment Highlights" that talks specifically about the key
thrusts of the bill. I would like to tell you about two key thrusts which are
The first is that this bill looks to clarify the roles and responsibilities of
the actors in military justice. In clarifying those roles, it also looks to
separate them on an institutional basis so that one can see that there is a
clear investigative role, a clear prosecutorial role, a clear judicial role and
a clear defence role.
The current National Defence Act was drafted in 1950 on the basis of a model
that was being applied in the United Kingdom. There was a liberal borrowing
from that model. If lawyers were to look at this, they would immediately see
that everything involving a power in this bill starts with the minister or an
individual prescribed or appointed by the minister. It does not take very long
before you think about the wire diagram, if I can use that phrase, and
everything comes to the minister. We conclude that that is perhaps not fully
consistent with our view of a minister's responsibilities today. Normally
ministers concentrate on presiding over general issues. They stay out of things
such as individual actions in a litigation.
Please note the amendments we are providing in this bill in order to clarify the
role of the minister. When you see the things we are changing, you then see the
things that the minister can do today as a matter of discretion. Today the
minister can appoint superior commanders for some retrials. I know that that
language is opaque.
Currently, the minister can appoint those senior officers who are able to
conduct trials in our summary discipline process. In other words, he is naming
the people who can do the judicial function for that summary process. He can
convene courts martial, and does name everyone who can convene a court martial.
The minister can approve punishments of dismissal and dismissal with disgrace.
The minister can suspend detention or imprisonment, and the minister can make
final decisions in our grievance process.
The amendments in Bill C-25 draw the minister out of and place him above this
process. If I can be colloquial here, the object, based on the Dickson report
and some recommendations from the Somalia commission report, is to take the
minister out of the kitchen, so to speak, so that the minister can spend most
of his time presiding and focussing on larger issues, thus avoiding perceptions
of interference or perhaps even conflict of interest that come from being
involved in individual cases. We have sought out situations where we can put
people in his place who are suitable to do these functions.
I do not propose to go into any further detail about the minister's role. That
is the principle being applied in this bill in many places.
The second key actor in military justice is the Judge Advocate General. If you
were to look at sections 9 and 10 of the current act, you would see provision
for a Judge Advocate General, but no provision for what the Judge Advocate
Senator Beaudoin: Why?
Col. Fenske: Senator Beaudoin, I am one of perhaps a handful of people who can
claim to have gone through virtually every piece of available information from
the meetings held by officials and Parliamentarians on the 1950 National
Defence Act, and yet I simply do not know. I cannot find anything that would be
useful to tell the committee.
Senator Beaudoin: What does the Judge Advocate General do?
Col. Fenske: It would be fair to say that the Dickson committee noted that the
JAG has no executive authority. However, the JAG advises the minister, the CDS,
and people in the chain of command and is expected to review the administration
of military justice. However, it has no clear mandate in that area.
The new provisions in the bill provide clearly for the appointment -- even the
rank, as a matter of fact -- and for the role of legal advisor to the
government in matters of military law and that attorney general-like role of
reviewing and reporting on the administration of military justice and for
meeting the requirement to report annually to Parliament.We now have an actor
with accountable standards, and that actor can direct himself or herself to the
role and be held accountable on the basis of clear standards.
Under the current National Defence Act, if you were to look for who performs the
prosecution function, you would find very little guidance. The prosecution
function is carried out by lawyers who are basically by the chain of command
with the concurrence of the JAG, because the JAG has established under him
virtually all the lawyers.
Senator Moore: Are these always lawyers within the service?
Col. Fenske: For all practical purposes today, that is true.
That is the way it is happening. If you look at the system, you say to yourself,
"Well, who is accountable for the prosecution role? Is it the same person
who can convene the trial?" The answer is that it is. If there is an issue
that we have been working with over the past ten years, it is the separation of
the prosecution function and the judicial function from the chain of command.
The bill before you will separate the chain of command from the prosecution. You
will have a director of military prosecutions who is appointed by the minister
and who is independent of the chain of command. That person has the job of
deciding what cases go to court martial and what do not. That person will still
receive their cases from the chain of command. When they receive a case, they
decide whether the charges are right or not. They have the final say on whether
to proceed and the type of court martial to convene. You have a full-blown,
prosecutorial authority that is separate from the command function. That
prosecutor will have other prosecutors working for them, and the JAG is
responsible for the general supervision of that prosecutor.
Senator Grafstein: Point me to the section where he is appointed.
LCol. Weatherson: It is section 165.1.
Senator Grafstein: Have you the page number?
Col. Fenske: It is page 38 of the bill.
Senator Grafstein: The JAG is pointed by Governor in Council, and the Director
of Military Prosecutions is appointed by whom?
Col. Fenske: By the minister.
You will see that there is a term of four years and that the prosecutor is
subject to case-specific instructions, as is the case for most prosecutors in
this country. The minister must be informed in the case of such instructions
ever being issued.
The next actor in the military justice system that you will not find in any
meaningful way in the bill is the people who act as judges.
Senator Nolin: Everyone has the same question. Why do you not use "judge"
when you judge and "advocate" when you advocate?
Col. Fenske: We have just done that in the bill, sir. At least we think we have.
It is interesting that you raise the Judge Advocate issue. It is fair for me to
comment on that now.
The Somalia commission recommended that the title of the JAG be changed to
Director, Military Legal Services. The title "Judge Advocate General"
goes back hundreds of years and is in current use in a number of foreign
militaries which follow the Anglo-American legal tradition.
Senator Beaudoin: He is not a judge.
Col. Fenske: The current one has been one.
Senator Nolin: He is really legal counsel to the government, to the Crown.
Col. Fenske: That is right.
The Judge Advocate General, in his terms of reference in the bill, operates as
the legal advisor to the minister, to the government, in respect of military
law. He must supervise the Defence legal services that are provided to the
system and those of the prosecution, but he does not judge.
Senator Nolin: I have a concern. Can you be both defence and prosecutor?
Col. Fenske: No.
Senator Nolin: Is your client always the same?
Col. Fenske: The client is the same, but the people are not.
Senator Nolin: Your client is always the Crown. Are you not asked to defend the
military against the Crown?
Col. Fenske: The client of the JAG is the Crown. One of the responsibilities
that the JAG has, much like a provincial attorney general, is to ensure that
there is some form of Defence legal services or Defence services that are
provided to people in the justice system. The bill provides for a separate
office of a Director of Defence Counsel Services and for his or her functions to
be prescribed in regulation. The only client of the Director of Defence Counsel
Services is the accused.
Senator Nolin: It is never the Crown?
Col. Fenske: No.
The Chairman: For those of us who are not quite into the defence system, perhaps
the witness could continue through his presentation. You can then come back to
these important points at the end.
Col. Fenske: It is quite timely for me to interject one item on the overview.
This bill is attempting to, in many ways, emulate what happens in Canadian
criminal law, subject to a number of adjustments that occur as a result of the
military context. It would be fair to say that our construct of criminal law
provides for just outcomes by the provision of separate actors who have
individual roles. You have a separate judiciary; you have a separate
prosecution; you have separate police who investigate; and you have defence
counsel. By the way, in some cases defence counsel could be Crown agents, and
in other cases they could be defence counsel, but they must have a clear
mandate in both cases and keep it separate. We are doing the same sort of thing.
This bill, for the first time, clearly provides for those actors. You can set
them out on a page now and say, "Those are the actors, and there are their
roles." After that, the cases get fed to them, and it is the individual
interaction against each other with their individual roles that will provide for
the just outcomes.
We desire through this bill, first, to take chain of command out of that kind of
interaction, and second, to ensure that, if you are defence, at the time that
you are doing it, that is your only role, so you do not have any other job to
do, and that if you are prosecution, that is your only role. You will see that
the director of military prosecutions, for example, can be assisted by other
lawyers. You will see that the director of defence counsel services can be
assisted by other lawyers. People will be moved to those roles and, while in
those roles, they will do nothing else. That is what the bill is doing.
The intent is similar with respect to our judges. This is probably the right
time to talk about judges. Currently you will not find military judges in the
bill. You will find the occasional reference to the Judge Advocate -- again,
for the very same reason, Senator Nolin, that you have raised. There is a
concern about confusing them. We have retained the title of Judge Advocate
General for the Judge Advocate General. It is an historic title. However, in
terms of our judges they are now referred to in the bill as military judges and
their roles are prescribed in the bill.
Senator Nolin: We need clarification.
Col. Fenske: We feel it is an improvement. The thing that is different about
military judges is the fact that, unlike section 96 judges and other federal
judges, they are nominated for a term. The Supreme Court of Canada has, in Généreux
and MacKay, commented favourably on the benefits of having military judges who
are familiar with the conditions of service and with the values that are
imbedded in the separate military justice system and who are able to deploy to
any part of the world that the Canadian Forces are in, in any kind of
conditions the Canadian Forces are serving in. That is the rationale for having
Having said that, nonetheless you will see in this bill that they appear for the
first time. There is a chief military judge. It is clear that the role of
military judges is to preside at courts martial. That is their only role unless
they have been given another role, in the same way as a federal judge can be,
which is compatible with their judicial responsibilities. I do not think there
is anything else that I would bring to your attention on the issue of judges
other than that we are now providing for distinguishing their remuneration from
that of other members of the military, and that their remuneration will be
Senator Nolin: By Parliament?
Col. Fenske: Not by Parliament. It will be reviewed regularly by an inquiry
committee into their remuneration, and the decisions regarding their
remuneration will be on the basis of that committee. I know that your committee
is very familiar with the P.E.I. reference.
The difference you would find in our scheme is that you will not find the
committee process or the committee composition in the bill. In order for their
remuneration to comply with the case law and the Charter, that process and that
committee will have to be independent and objective. I know you have been
through this. That is something that we would be doing in regulation. There
would be a standing committee to deal with this on a regular basis. If I am not
mistaken, Bill C-37 provides that four years will be the cycle. I am not sure
that we would choose a cycle quite so long but, for the moment, that remains
The Chairman: I apologize for disturbing your flow and your train of thought
here but Senator Beaudoin must leave and he would like to ask a question.
Senator Beaudoin: I am quite glad that you wish to abolish the death penalty. It
was against section 12 of the Charter anyway, but congratulations.
My question is this: Former Chief Justice Brian Dickson has worked on the
question of courts martial in this country. I have studied the MacKay case and
the Généreux case and the P.E.I. case, and there is no doubt that
we need reform in that field. I listened very carefully to what you have said.
My only preoccupation is this -- because the court was criticized for it: What
about their judicial independence? You say that judges' salaries and the
treatment of judges will be taken care of by a committee. However, that
committee is responsible to whom? There is a division of power between the
judiciary and the administration and the government, and we must respect the
independence of the judiciary because the court martial is the part of the
judiciary. We have to respect those principles, to the letter. What are you
doing with respect to that? Under the other system, they did not have financial
independence at all, or at least not very much.
Col. Fenske: I wish to point out, first, that the underpinnings for military
justice for financial independence are not the same as for federal judges. It
has its own problems associated with it. But a military judge is appointed for
Senator Beaudoin: How many years, sir?
Col. Fenske: Five years, renewable on recommendation.
Senator Beaudoin: Renewable?
Col. Fenske: Yes.
Senator Nolin: Can you explain why? Are the reasons historical in nature, or is
there a rationale?
Col. Fenske: It is historical. If you were to survey the changes to the National
Defence Act and the regulations over the past ten years, you would notice a
gradual movement towards the civil system and a clear meeting of the principles
of independence as we can find them at particular points during that ten-year
period. For example, prior to Généreux, we had made some changes.
Following that case, we made other changes, mostly involving the separation of
the judicial and executive functions more and more clearly. This bill takes you
to the point where the judicial function is completely separate and, indeed,
the court martial becomes a judicial institution as opposed to a institution
that is run by a lay officer with a judicial advisor. It is a judge court of
the kind that you would expect to see in Canada anywhere else.
In terms of how they are remunerated, though, a military judge who is serving
for five years never gives up his livelihood. The livelihood of a military
judge is never at risk. A military judge is a member of the Canadian Forces
holding a rank with a salary, and that salary is set by regulation by the
Senator Beaudoin: The salary of an officer or the salary of a judge?
Col. Fenske: There is a special article that deals with military judges. It is
linked to what a lawyer would receive. What I can tell you about the way it
works is as follows. An individual who is appointed a military judgeship,
regardless of how long they have been in rank, is immediately paid the maximum
for that rank. So, for example, in the case of the chief military judge, that is
in excess of $100,000 per year, roughly in the range of some provincial court
judges. There is a range across the country.
They also receive a premium, which is basically two per cent above the maximum
of whatever is given to lawyers. The two per cent is intended to recognize that
an individual who is in such a position might in fact be disadvantaged. I do
not think that we have been able to demonstrate that, quite the contrary. That
is the way it currently works, but it has been criticized by Justice Létourneau
in the Lauzon decision recently.
The bill makes major changes in the way compensation is done. The only
compensation in the bill pursuant to regulation is in respect of military
judges. All other military compensation has now been taken out of regulation.
They will end up with their own compensation scheme.
What that compensation will be in the future, applying the P.E.I. reference as
an example, will be the product of a committee's recommendation and the
judgment of the government on the basis of that committee's recommendation,
using a process that is independent and objective, a process that has yet to be
set in regulation. I do not think it will surprise you to know that we are
looking carefully at what this committee is doing with Bill C-37 and the
The result is that there has been a substantial narrowing of the difference in
the way we treat our judges and the way other federal judges are treated. There
are still some differences, but we find it difficult to see that we are now at
a stage where it is unlawful. They have substantial financial security, even
though it is not done exactly the same way as other federal judges.
Senator Nolin: They probably wish they could keep it.
Col. Fenske: I cannot speak for them.
Senator Nolin: My concern is the renewal.
Col. Fenske: Renewal is a very interesting issue.
Senator Beaudoin: What is interesting in the renewal?
Senator Nolin: They wish to keep the salary, so who is paying?
Senator Beaudoin: Judges under our system are appointed under the age of 75. If
you are not satisfied with the work of the judge, is he renewed?
Col. Fenske: That is why there is now a provision in the bill that renewal is on
the basis of the recommendation of a renewal committee. A committee will be
established. You and others will want to look at the establishment of that
committee once it is set up in regulation.
Senator Beaudoin: What does former Chief Justice Dickson say about that in his
Col. Fenske: He said that appointing them for a term and having them appointed
by the minister was a sufficient guarantee of their independence. We have gone
the extra step of having them appointed by Governor in Council by increasing
the term. The current term is two to four years normally.
Senator Beaudoin: Now it is five. It is improving.
Col. Fenske: I am heartened to hear you say that, Senator Beaudoin.
You can see where this is going. If you were to look in our federal judiciary,
we do not have terms. The only time we have renewals is with respect to
part-time judges. They are rare. With respect to provincial court judges, as
they get to the end of their tenure, some are extended.
The reason that the renewal recommendation is in the bill is a recognition
that, notwithstanding renewal's problems, if it is done right -- and so says
Lauzon out of the court martial appeal court recently -- it can provide a
guarantee. We are hoping to do it right in accordance with the CMAC decision.
We will be judged on whether we did do it right.
We think there is some additional security for a judge to indicate that he wants
to continue and for people other than the executive to say that this is a good
The Chairman: Back to your presentation, sir.
Col. Fenske: I wish to speak briefly about defence counsel services. The bill
provides specifically for someone with the sole task of providing legal advice
to people who are accused or charged under the military justice system. It
would be a ministerial appointment for a term not exceeding four years.
Senator Grafstein: Ten years.
Col. Fenske: No, four years -- ten years' experience as a lawyer.
This individual will supervise that function the way a legal aid director does.
They will have counsel working for them.
The JAG has the ability to provide general directions in writing to this
director, but no case-specific directions. For example, as a standard operating
direction, it might be issued that all individuals who perform this function
are lawyers admitted to the bar of a Canadian province. That would be a general
direction. The act is very clear that there is no intervention in individual
cases and no intervention in the solicitor-client relationship between
individual counsels and the individual accused.
That is the sum total of what I wish to say to you regarding the separation
of functions into institutional departments that do not overlap.
I should like now to turn to the issue of service tribunals. Under the code
of service discipline, there are two kinds of service tribunals -- summary
trials and courts martial. There are four kinds of courts martial. Two are
paneled courts -- like a jury trial -- one with five officers and one with
three. Two of them are individual judge-alone courts. This seems all very
complicated until you apply it. The scheme writes out a little complicated, but
they have different jurisdictions.
We have something called the special general court martial. It can only be used
to try a limited number of civilians who are subject to the code of service
discipline. It is not something we do often today, but when we had a population
of 20,000 people living together in Germany, there was a need for this kind of
What we have is what you would recognize as a judicial tribunal of the kind
that operates in Canada and in our communities. The other one is a purely minor
disciplinary tribunal. It is called a summary trial, and there are three
categories of people who can sit on this kind of tribunal. They are commanding
officers or individuals within their unit -- for example, a deputy commanding
officer or a company commander. They are able to sit and judge minor
infractions that affect internal unit discipline. That is the first tribunal;
the second one is a courts martial.
Senator Grafstein: Is there a defence counsel mechanism for that as well?
Col. Fenske: There is not. A summary trial is an historic institution. It is
meant to keep things simple for minor cases.
The accused has an assisting officer but not counsel; the concern being that it
would become quite complicated with counsel.
Having said that, how do you get before a summary trial? There are a couple of
things. Of course you have a right to counsel regarding the decisions that you
make in choosing a summary trial. We are specifically providing for that now,
even though the bill has not yet stood up. We operate a defence directorate
today, and an individual who is given a choice to have a court martial or a
summary trial has the right to disclosure, as you would expect, and, a right to
contact counsel and get full advice on that decision.
Senator Grafstein: At the summary level, where there is not the right to
cross-examine and not the right to counsel in the traditional sense, what is
the maximum penalty?
Col. Fenske: The maximum penalty under this bill would be 30 days detention.
Senator Grafstein: That is the maximum that a person can have in effect without
Col. Fenske: There is a regulatory scheme in place today. An individual cannot
be brought before a summary trial without being given the choice of a court
martial, unless the infraction involves a very minor disciplinary infraction --
minor AWOLs as an example -- where no punishment would involve a deprivation of
liberty or a serious change in that person's station in life, for example, being
demoted. That cannot happen at a summary trial unless the individual has first
been given the choice of going to a court martial where they would have all the
things that you would expect that they would have at any kind of criminal
trial. They get to choose that forum.
That is the first thing you should know. The second thing is that they have the
opportunity to consult counsel in making that choice. The third thing is a
right to cross-examination, conducted by the individual. There is no
prosecutor, either, at a summary trial.
Senator Grafstein: It is just the officer?
Col. Fenske: Yes. It is inquisitorial.
Senator Moore: You just said that there is no demotion at a summary trial.
Col. Fenske: No, I did not say that, sir. I said that you could not be demoted
at a summary trial unless you had first been given the choice to go to that
summary trial. The most major punishment that a summary trial can impose is 30
days' detention by a commanding officer. Pursuant to this bill, I should
describe for you what the detention is.
Today, under the National Defence Act, detention can look like imprisonment.
Under this bill, detention involves going to a facility where you will be
subject to lock and key. You will be subject to a disciplinary regimen that
will seem very military. If you are not a private, your rank will be suspended
-- and I am using that in a plain language sense -- for the period that you are
in detention. For the period that someone has said you need to be
reconditioned, your thought processes need to be adjusted somewhat, you will be
treated as a private and paid as a private. When you get back out, if you were
a corporal or a master corporal, then you get your rank and your pay as a master
It is an attempt to maintain a military institution that is considered to be
very important by the people who are responsible for living up to the
directions this government gives its military.
Senator Grafstein: There is no requirement other than it be a commander or
The Chairman: Senator Grafstein, I did not allow interruptions before, so
perhaps I can put you on the list and you can make note of the questions you
wish to ask.
Senator Grafstein: I apologize, Madam Chairman. This is complicated material and
it may very well be preferable that, instead of getting all of this
information, we can deal with each section one at a time so that we may follow
it in some linear sense. As the witness has pointed out, this is a massive and
radical change and, in effect, each line, from Judge Advocate to defence, to
prosecutorial, is quite separate and distinct, and has its own particular
problems of independence on the one hand and responsibility on the other hand.
They are quite complex.
The Chairman: This is quite true but I am thinking perhaps of the non-legal
minds on the committee who would prefer to get the overview first.
Senator Grafstein: Fair enough.
Col. Fenske: If I were to continue with the overview, Madam Chairman, what we
wish to tell you about summary trials, about this institution that we have
described for you, is that the vast majority of work in respect of summary
trials has already occurred. Most of the amendments that I am talking about are
already in place and they are being conducted that way today pursuant to changes
to regulations which, when you look at the full scheme of the act, we have the
latitude to make.
Two very important changes in respect of summary trials are being made. The
first thing is that the maximum sentence of detention will be 30 days in the
bill. There will be no access ever to a higher length of detention at a summary
trial. It is true that it can be limited by regulation and is limited by
regulation today to 30 days, but now it is spelled out in the bill. The second
thing that is happening is we are limiting the ability of a summary trial to
reduce a person in rank. Under the old system, a sergeant could be reduced to
the rank of private at a summary trial. I can assure you that is a very
substantial change in station in life.
These amendments say only one rank. If you think about the theory behind them,
if it must be more than that. It is not a minor unit matter, it is a Canadian
Forces matter; it is a public matter; and it needs to go to a more public
judicial institution. That is the thinking behind those two amendments.
I should tell you also, just so you have a good idea of the practical effect of
a number of things we are doing, that the jurisdiction of a summary trial today
has been substantially curtailed from where it was. An analysis was done
several years ago now, the product of which is actually in regulation today, of
the necessary jurisdiction for a summary trial. Each federal offence and each
military offence was analyzed. A list was drawn up and ultimately it was said
that these are the ones that are needed at summary trial. The result is that
there are only eight -- I could be off by one -- federal offences that are not
strict military offences and which are now possible to be tried by a summary
trial. In all cases, you have a choice of court martial.
We have truncated both the scope of the jurisdiction of these minor unit
discipline tribunals and lowered the power and increased the ability to opt out
of them, if you so desire. Those are the changes that have been made.
With respect to courts martial, I would say simply that courts martial have been
judicialized. The current act talks about a president of a court martial and
the president is in fact a lay officer. The panel of the court martial makes
findings and imposes sentences. The two key changes that are occurring are:
one, it will be presided over by the judge, and the amendments make that clear:
and two, the judge, not the panel, will sentence.
I should like to point out that when you read the act, it does not give you much
If you were to observe most of our courts martial today, apart from the fact
that they wear uniforms on the panel and there are not 12, which of course is
covered off in the Charter, you would not see much difference in the way they
operate. The role of the judge has been accepted by the institution already,
and this bill confirms it in law. The standard and the practice are the same.
I mentioned to you that there are two panels that have members. One is the
General Court Martial, and it is the one that has the highest sentencing
ability. It can give a sentence of life imprisonment, if necessary, and it can
try senior officers. There is a Disciplinary Court Martial that has the power to
sentence only up to two years. In both of those courts martial now, only
officers are appointed as members. Officers alone do not represent the chain of
command that is responsible for discipline. With these amendments, it is
possible for non-commissioned members to also have a role to play. It is
possible for them to be appointed as members.
All this is done on the basis of random technology. No one actually chooses a
particular person. Again, a system is in place that causes this to occur, and
that system can be reviewed. The system that is in place today is there as a
result of an appeal judgment and has not been successfully challenged since.
The current National Defence Act, in its punishment provisions -- and I will not
review them in detail -- provides for some very restrictive situations. For
example, today it says that if you are a non-commissioned member sentenced to
imprisonment, you are automatically reduced in rank. Any time a tribunal wants
to sentence someone to incarceration, its hands are tied. Even if the period of
incarceration is only one day, that person must loose his or her rank. It does
not take much imagination to think about the consequences of a second over .08
offence in a ten-year period, where an individual did not think of getting a
pardon. Suddenly, you do not have the choices that you need. A number of
amendments are being made to our punishment provisions so that it is the court
that gets the decision, not the act.
We are taking away the three-year limitation period in relation to courts
martial. They are specialized criminal courts, and we were unable to find a
reason for keeping it. This is a direct result of the Dickson group
recommendation. A one-year limitation is being retained for proceeding with an
offence by summary trial based on its disciplinary character.
Detention, not imprisonment, currently under the National Defence Act can be
awarded up to two years. If you can play through the thinking that we have
given you about paid as a private, treated as a private, you should not be in
detention for more than 90 days. Therefore, this bill will reduce that down to
90 days from two years.
Those are all the things I wanted to tell you about the way the tribunal
functions except for one very important matter, and that is jurisdiction over
sexual assaults. The current bill will give the Canadian Forces jurisdiction
over sexual assaults committed in Canada. The current situation is that while
under the Code of Service Discipline courts martial have jurisdiction over the
vast majority of sexual-related offences like sexual exploitation and have
jurisdiction over sexual assault outside Canada, they do not have jurisdiction
There have been a number of feature editorials about the way in which sexual
assaults have been investigated. I would suggest to the members that if the
institution is not in a position to move with dispatch to protect individuals
who are assaulted within the community under the Code of Service Discipline and
who must turn to the outside, then it is not in a position to remedy the things
that go on in a unit and that may undermine the unit morale and the way it
functions. This provides the remedy to act in a number of situations that does
not exist today.
The last point I wish to bring to your intention has to do with the
investigation and charging process. It is quite important that you consider the
investigation and charging process. Arthur Martin, in his work on screening,
commented about the pre-trial area of criminal law where all the value
judgements are made and where it is so possible for things to go wrong. In this
area, we have looked for a way to maintain the valuable input of the chain of
command, which is a key stakeholder in the discipline of the Canadian Forces
and ultimately responsible for its discipline, keeping in mind that the
Canadian Forces will carry out government directions. We have tried to keep them
in but at the same time meet the kind of concerns that ask, do they need to
have so much power? Do they have to find themselves in places where there are
obvious conflicts of interest? We are trying to tailor a system that will
respond to that. The first thing that our amendments with respect to
investigation and charging try to do is come up with a system that maintains
the integrity of that process when it is looked at from the outside.
Under the current law, a commanding officer can dismiss a charge. Someone lays a
charge. It comes to the commanding officer for a decision to proceed or not.
The commanding officer can dismiss the charge. The effect of the dismissal is
that it can never be heard again, either by a civil or military court. Some
people argue that that interpretation is not absolutely right, but presuming
that is the majority interpretation, and it is, is that a good thing? No one
else in this country can do that, so this is being removed. They do retain the
decision to proceed or not proceed with the charge. If subsequently the
decision is that perhaps that was not the best decision, it is still open for
them to proceed. This is left as a matter of administration. There is nothing
in the regulations at this stage touching on this.
The important part is that we have required our unit charging authorities to
report what we call serious and sensitive offences. I will give you some
examples of what "serious" or "sensitive" would be. A
Criminal Code offence is a serious offence. An offence involving a commanding
officer is a sensitive offence. Those kinds of offences must be reported to our
National Investigative Service.
That service was established as a result of the Dickson advisory group on
military justice and military police investigative services. It is separate
from the chain of command. It responds to our VCDS above the operational
commanders that we have out in the field. Its resourcing is independent. The
individuals who are in the NIS have the independent power to investigate and to
We hope the result of this is that when a charging decision must be taken in a
serious or sensitive case it is made by someone who is independent and is made
out in the open. Once that charging decision is made, it goes back to the
commanding officer, who then makes a decision on whether to proceed. That is
the way the bill would cause it to work.
Under the bill, if the decision is made not to proceed, it is not a final
decision; it is not like a dismissal.
There is one other important fact. If the person who laid the charge looks at
that decision and decides that, although they do not like that decision, they
can understand and they will let it go, then that is fine. If the person who
laid the charge looks at that and says that they just cannot agree with the
decision, the military policeman has the ability to cause the charge to be
referred up to the Director of Military Prosecutions, where an independent
officer will make the decision on whether to proceed and on what the charges
That is our way of trying to permit command authorities to maintain a role and,
at the same time, to make sure decisions are vented, open and transparent.
I wanted to make those points clear to you about the charging process. We hope
that the charging process becomes highly visible and, in serious cases,
balanced with a number of checks and balances to ensure that anyone who might
have an interest in a serious case does not make the first decision about
whether it proceeds. Second, in serious cases, the NIS would be called in
anyway. If there is a disagreement on the disposal of that charge, then it goes
to the Director of Military Prosecutions who is independent and who has the
last say on how it proceeds.
That is what I wished to say about investigations. I know it is a 99-page bill.
The overview is, of course, a complicated one. I have touched on the vast
majority of the issues, which we thought were the most important for you to be
exposed to immediately and which would provide you with some sense of the
military justice system. I know you are very familiar with the Canadian justice
I would conclude my remarks, Madam Chairman, and we would be delighted to answer
your questions and to assist you in any way that you think is appropriate.
The Chairman: Thank you, Colonel Fenske. That was an excellent overview and we
are becoming more and more familiar with the Canadian justice system.
Senator Nolin: Can the sentence of a summary trial be appealed?
Col. Fenske: In the rules, there is a process that allows any accused
dissatisfied with the verdict or the sentence to ask for a higher authority to
review the case. This review is done in writing and a higher authority can
change the verdict or the sentence.
Senator Nolin: Is this higher authority a judge?
Col. Fenske: No, it is a military officer. I must point out that there is also
an authority under the National Defence Act in charge of changing verdicts and
sentences of military tribunals, even including courts martial, and this is not
Senator Nolin: If I understand you correctly, Parliament accepts that a decision
rendered by a military court can be reversed by a military officer?
Col. Fenske: Yes, that is presently the case. The changes to our legislation
will seriously curtail that. Behind all this is the concept of respect for our
courts of law. In the Anglo-American military tradition, the power to act in
this way is maintained.
The legislation was changed to limit court martials in the utmost, but it was
kept for summary trials. This power is maintained for internal disciplinary
cases or a given unit.
Senator Nolin: There are two objectives at issue, military discipline and
respect for order, but there is also the respect for the rights of the person
who is accused. There can be a conflict between the two on occasion and it is
important to maintain the coexistence of those two great principles. How then,
at each one of the stages, can we protect both the foundations of the military
structure and the rights of the accused?
I want to come back to your explanations on the investigation procedure and the
examination of complaints. What are the rules concerning the complainant? Must
the complaints be brought only by an officer of the military police force or
can they be brought by just anyone?
Col. Fenske: In the units, it is only the people designated by the commander. In
the case of an infantry unit, made up of three companies, you will have one
person per company. The RSM, the Regimental Sergeant Major, has the authority
to file a charge. Besides that, in all other cases, the charges are brought by
the military police.
Senator Nolin: I do not mean the formal charge, I am still at the preliminary
complaint stage. Anyone can complain about anyone?
Col. Fenske: That is it.
Senator Nolin: Each complaint is examined under the process you've explained?
Col. Fenske: That is what the rules require.
Senator Nolin: A limited number of people can bring charges?
Col. Fenske: That's it.
Senator Nolin: When you say that the summary trials are military judicial
procedures conducted mainly by commanders or their delegates, I presume the
people who are doing the judging are independent and are not part of the chain
Col. Fenske: They are part of the chain of command.
Senator Nolin: Not of the accused's chain of command?
Col. Fenske: We hope it will be that of the accused. That is what we try for,
that is the goal.
Senator Nolin: How can a judge who is part of the chain of command that has been
misled protect the fundamental rights of the person who was responsible for
Col. Fenske: The answer to your question is to be found in our examination
process and in the safeguards for this process. You can not proceed to a
summary trial unless the accused has been given the choice to appear before a
court martial unless it is for an offence like absence without leave or other
minor offences that do not call for a punishment restricting the individual's
freedom. That means that this will not happen unless you have chosen the
summary trial process. Anyone has the option of a court martial if the offence
is serious and if there is a summary trial the accused has chosen to appear
before his unit instead of appearing before another court made up of strangers.
That is the individual's choice, that's the difference.
Senator Nolin: The constitutional right to consult a lawyer still exists.
Col. Fenske: Yes.
Senator Nolin: And that lawyer is not necessarily a lawyer from the Department.
Col. Fenske: That is right. It is very simple, if you need to consult a lawyer,
you're free to do so. The same thing goes for the military. The difference for
the accused, in the military, if the accused chooses to do so, of course, is
that there are military lawyers available and there is no charge for their
services. They have some experience in the area. This service is not like legal
aid. It's a service offered to the accused no matter where the posting,
anywhere in the world.
Senator Nolin: That is fine when the accused is in Canada, but if you're in
Somalia or Bosnia..
Col. Fenske: That is how the process ensures safeguards. You can not appear
before an officer for a summary trial unless it is for a minor offence. The
five offences that are already in our regulations are like that. The next
stage, if the offence is minor, is that you can choose between a court martial
or a summary trial.
Revision is not exactly an appeal. The tradition in military organizations for
the longest time has been not to appeal summary trials. You have a review by an
officer who is not there and that officer must take legal advice on the matter.
Everyone has the opportunity to go before a judge. The only thing our
regulations require is that the accused specify a complaint. If the accused says
there was not enough evidence to be found guilty of the offence, then that
matter will be examined during review. If the accused says the penalty was too
harsh, then that is what will be looked at during the review. The officer
conducting the review is one of the officers who has the power to change a
sentence or the verdict of the summary trial, only in such cases.
Senator Nolin: Are military courts subject to federal court?
Col. Fenske: Yes. We do not want a military person who was found guilty at that
stage to have to go to federal court to resolve that kind of situation. That is
the reason for the other stage in the process. But, at the end of the day, it
is a disciplinary process. It is a process where we have kept the role of chief
of command. A distinction has been made between a legal process and a
disciplinary process. We took the jurisdiction of the summary trial, we
enormously decreased the jurisdiction of the officer presiding and his powers
of punishment to keep this, in our opinion, within the boundaries of
discipline. All other offences now go to court martial. That is how we
approached the problem.
Senator Grafstein: I am on page 4, proposed new section 11. I do not understand
the relevance of the clause that deals with section 11 of the act. What is it
doing in this bill? Is this just a clean-up bill? It does not make any sense to
me. It is out of place, and it does not make any sense.
Col. Fenske: Section 11 was changed to provide for a variety of means of
disposal. The current act limits the manner by which materiel can be disposed.
Senator Grafstein: It does not seem to have any place in a bill that is meant to
deal with the judiciary.
Col. Fenske: It is interesting that you should raise that. The National Defence
Act is intended to be an all-purpose statute.
Senator Grafstein: I understand that.
Col. Fenske: If you look at the way it is structured, the organic provisions
that set up the department and the Canadian Forces are there.
Senator Grafstein: I understand that the National Defence Act has a broader
purview than the subject matter of our discussions here. It just seems to me
that this clause is a little misplaced.
Col. Fenske: I see what your saying.
The Chairman: Are there any more odds and ends?
Col. Fenske: As I said at the beginning, senator, this bill addresses the full
range of defence operations, but its primary focus is military justice. You
will find, sir, that there are a number of other clauses like that. For
example, with respect to our boards of inquiry, we have ensured that they have
the ability to summon both civil and military witnesses. There are a number of
administrative things like that.
Senator Grafstein: I am not quarrelling with anything that deals with the
administration of justice within the defence establishment. This seems to be an
economic matter beyond the narrow confines of what we are addressing, and it
does not make any sense to me on top of that.
It says that they may determine any material that has not been declared surplus
and dispose of it. It seems to me to be the reverse.
I leave that, Madam Chairman, as a question mark for you and other witnesses. If
there are any other catch-alls, it would be useful for the staff to go through
this bill and to give us a clause-by-clause exposé on everything that is
outside our purview.
Col. Fenske: You should know, Senator Grafstein, that this is a big bill and
that there are other clauses like this one, as you said.
Senator Grafstein: I am sure there are.
Senator Nolin: We do not argue with that.
The Chairman: I would like to point out that in the legislative summary there is
a section called "miscellaneous" where this is most evident.
Senator Grafstein: Madam Chairman, in effect, the major thrust of this bill is
to establish -- within the context of the military -- a judicial system, a
prosecutorial system, a defence system, a judicial system, and a service
oversight system. It is a very complex and quite radical departure from the
existing practice in many respects.
I am saying it would be useful if we could have the miscellaneous on one corner
and deal with those items separately, and deal with the judicial or
quasi-judicial matters in another corner. It is a question of trying to wrap
our minds around this gargantuan task that has been presented to us.
I thank both the chairman and the witness because the overview is quite
Col. Fenske: I would like to respond to a point that was raised. As we said in
our earlier remarks, much of what seems to have attracted a lot of attention is
in the military justice area, but there are other items. We would be happy to
answer questions in those areas. The one you have picked is rather obscure.
However, the answer to it is that we were trying to produce more flexibility in
how we dispose of excess materiel. When I say "materiel", we could be
disposing of anything from desks all the way through to tanks.
Senator Grafstein: Since the witness is coming forward to give us an overview of
the quasi-judicial system, perhaps we could deal with the other matters as a
separate item. It is a lot to digest. Some of them have a life of their own
that does not relate to the subject matter.
I am trying to grasp, if I can, how we got here. We got to this rather reformist
legislation by a number of trails. One of them is the Charter. The second is
the unfortunate experiences that we have had overseas with some of our forces.
The third is the concerns that have been raised in the last few years with
respect to discipline within the forces. Finally, the larger question for us is
the question of the independence of the decision-making process as it relates
to people's lives, on the one hand, because of the Charter, and, on the other
hand, the more difficult question of parliamentary accountability.
We have been wrestling these issues in the bill concerning judges, as you know,
and this bill raises some questions for me about those issues. I would like to
start with the philosophy. Once the philosophy is clear, we can deal with the
other issues more clearly.
I want to deal with parliamentary accountability first. In other words, the
accountability of the National Defence forces to Parliament in all of its
aspects. The way we have accountability now is through the minister, with the
minister having tremendous powers of oversight within the quasi-judicial system
in the Department of National Defence. As you pointed out previously, much of
this has been cleared away or reallocated to officers within the military
establishment who now receive their accountability through the appointment
In other words, the minister is being freed of many matters which are now being
delegated to the Judge Advocate and to others. The minister is being, if you
will, liberated from those responsibilities. The responsibilities do not
disappear, but now Parliament gets its accountability through the appointment
process. Is that a fair statement to make?
Col. Fenske: I would suggest that your argument is potentially off the mark in
its assessment. If one discusses this at a higher level of detail, one begins
to see that accountability relationships have been maintained.
The first thing that I would say, and I did mention this at the beginning, is
that the minister qua minister remains the individual accountable to
Parliament, and must appear every day that Parliament is in session, and answer
for the activities that occur in the defence domain. The minister's powers
under section 4 of the National Defence Act, which says that he has authority
over National Defence and all matters related thereto, have not changed. The
manner in which a number of functions are exercised have changed. For example,
the role of the chain of command and its responsibility to the minister, the
Governor in Council and, frankly, senior members of the chain of command to
Parliament through the minister, has not changed at all. What has happened is
that roles have been clarified.
If I can take you to a number of spots in the bill, and I can show you that
parliamentary accountability has, in fact, been increased. For example, let us
consider something which we had in the area of pre-trial custody. In the area
of pre-trial custody, if you look at the current National Defence Act, you will
find two or three sections in which the whole pre-trial custody process is dealt
with. If you can figure out everything which would happen in those three
sections, then you are very perceptive indeed. Under this bill, if you look at
pre-trial custody, you will see that virtually every step in that process is
set out. That is because it is that important, and because of a desire for
parliamentary accountability. In fact, Parliament is making those rules now. I
could point you to a number of places in the bill where this is occurring.
The current legislation contains nothing on defence services to be provided to
an accused. The National Defence Act contains nothing on it. Now, Parliament is
declaring that there will be a function that an individual will be tasked with
one sole responsibility, that is, to provide legal services to accused people
who are subject to the code of service discipline.
I do not know whether I have understood your question well, sir.
Senator Grafstein: I do not think you have.
What you are saying is quite correct, that in the Department of Defence Act, in
effect, Parliament is supreme. Parliament can amend the Department of Defence
Act. What this act is doing is detailing a number of areas that have been
generally delegated, and specifying them. Parliament is having a direct hand in
specifying how the administration of justice is operating within the department.
I am not quarrelling with that. Parliament has had that power all will retain
it, and the five-year term and the sunset clause allow Parliament to come back
and review it. I am not quarrelling with that. That is not my issue. Quite
frankly, that is what we had before, and that is what we will have forever, save
and except with respect to the Charter, which presents some opportunities and
The question I have pertains to accountability, bearing in mind the more
philosophic sense of "minister" with a whole range of powers. These
powers are now being arrogated within the establishment, and the minister
retains his accountability through the appointment process. That is what I see
as the structure of this bill.
Within that process, the right to regulate, change the act, and review the
regulations is retained, all of which I think is sound, helpful and positive
because the system becomes much more transparent. I accept this as being very
positive public and parliamentary accountability in its general sense.
I am now wearing the accountability hat. Later on I will wear the judicial
independence hat, because I also wish to explore that side of it. I wish to
examine whether or not any powers are left to the minister to involve himself
in the process that might be in the public interest, and in the interest of
Parliament. That is what I am saying. On one hand we want judges to be
independent, which is more complicated, and the general public does not
understand this because governments and Parliament get trashed for this. On the
one hand we want Parliament to, in effect, have more accountability.
Let us assume Parliament decides, through Question Period or whatever, that
there has been an egregious series of errors. How does Parliament, through the
minister, intervene in the process, save and respect with removal of the
judges? Is there any other process?
Let me give you the other example. The other classic example in Parliament was
the right of petition. In effect, the Crown could always be petitioned and the
minister or the Crown could say never mind the system, here is a petition that
seems to be egregious. What avenue is left to the minister to properly
intervene in the process when the public -- Parliament -- is outraged other than
to remove judges; that is to wait for their turn to be finished, or to remove
them through the traditional means?
Col. Fenske: I have a much better appreciation as to where you are coming from
First of all, both the chief of the defence staff and the deputy minister, of
course, who represent the two major arms in the defence function, work under
the direction of the minister, and that has not changed. We have not changed
that in any way. The vast majority of the things that we have been talking
about relate to the justice function.
It is the minister who is ultimately responsible to respond in respect of all
military justice functions. That is a national defence matter. The minister's
ultimate responsibility has not changed. He is there. The JAG works for the
minister. The prosecutor is under the general supervision of the Judge Advocate
General. The prosecutor is a ministerial appointment. The prosecutor is subject,
if this ever seemed to be the kind of thing that had to happen in a specific
case, to a specific instruction. There are safeguards built into that.
Senator Grafstein: The minister has the power of specific instruction?
Col. Fenske: The JAG can give those instructions, and the JAG works for the
minister. These things are there on the prosecution side.
Senator, I would be quite surprised if you actually wanted them there in respect
of either the judges or defence counsel. The object of what we were doing with
both the judges and the defence counsel is to ensure that the person who is
responsible for the executive functions in the department is not responsible
for these matters and, indeed, it is that very issue of separation between
executive and judiciary, executive and defence, that was called into question
in the Lauzon decision in the Court Martial Appeal Court.
In partial response to that question, senator, I would say that there are areas
where you do not want the minister to have day-to-day accountability for
individual decisions; they are the judiciary and the defence. I mean individual
case decisions. This is very much a textured layout.
If you take military police as an example, what the department and the forces
have done is to create the National Investigative Service, which is a body
designed to do complicated and sensitive investigations.We have said that
portion of the military policing function will not be subject to the usual
people in the chain of command. We did not say that it is not subject to the
chain of command. What has happened is we have taken that function out from the
first level of command, the second level of command, and we have made it
respond through the Canadian Forces Provost Marshall up to the vice-chief of
the defence staff, who is the second in the chain of command. As a result, we
have provided for room to breathe and to act in an independent fashion in order
to preserve the integrity of those investigations.
The vice-chief of the defence staff and the chief of the defence staff are in
the hierarchy that is responsible to Parliament. That has not changed.
I now realize that you asked a very subtle and complex question, but the answer
can be found in tracing each of the various functions in terms of military
justice. It is obvious that you do not want the minister to be there in some of
these functions because, while you get maximum accountability, you also get
maximum conflict of interest, maximum potential for people to think that there
is interference. In fact you get the minister doing a whole bunch of things
that our ministers do not normally do. Ministers normally preside, make policy
decisions and account for the overall performance of departments.
I hope that is at least a partial answer to that question.
Senator Grafstein: It gives me some grounds to look at the legislation more
Senator Fraser: I have one simple factual question, because I am not a lawyer,
and one rather more conceptual question. I understand the appeal mechanism in
summary cases, but where does appeal lie in courts martial?
Col. Fenske: The prosecution or the accused appeal from court martial to the
Court Martial Appeal Court, and from the Court Martial Appeal Court to the
Supreme Court of Canada.
Senator Fraser: It is obviously highly desirable to do what you are doing in
terms of separating the prosecutorial and defence functions in order to keep
them independent of each other. Why do you have both of them reporting to the
Judge Advocate General? In the end, this seems to undermine or to potentially
undermine the degree to which the functions will remain really insulated.
Col. Fenske: That is a good question. The rationale is more by analogy. If you
were to look at the JAG's new duties in the act, you would find that he
superintends the administration of military justice. That means both sides,
much like a provincial Attorney General or their deputy Attorney General. The
worry is doing that without conflict.
In terms of the Director of Defence Counsel Services, the prevention of conflict
has been achieved by ensuring that the JAG cannot give any specific directions.
Senator Fraser: You said the act was very clear. Perhaps I have not found the
relevant clause. What I see in here is an instruction that he or she may give
general directions, and a clause saying that general directions must be made
public. I see no prohibition against instructions in specific cases. The
prosecutorial side is specifically allowed to given instructions in specific
cases. It is then silent on defence. Does that not still leave it open?
Col. Fenske: Read them together. On the one side, he can do both; on the other
side, you say he can only do one. That means that he can only do one.
Senator Fraser: Is it limiting?
LCol. Weatherson: Yes.
Senator Fraser: He can do nothing other than the general public instruction?
Col. Fenske: That is his authorization to act in relation to the defence
function; general instructions. Look at his authorization to act in respect of
the prosecutor. The prosecutor is subject to both specific case instructions
and general instruction. That is the theory of the draughtsmanship.
Senator Fraser: You still have a defence side for career prospects. Even if it
is a ministerial appointment, the minister will act heavily on the
recommendation of a defence post. Career prospects will depend upon approval by
someone whose own interests will frequently be more intimately bound up with
the prosecutorial side because that is the one in which he or she can get most
involved. Is that right, namely, defence people?
Col. Fenske: They are two separate offices.
Senator Fraser: The JAG is not.
Col. Fenske: No; nor is the Attorney General of New Brunswick.
Senator Fraser: The Attorney General of any province does not supervise defence.
Col. Fenske: If you look down in the bowels of their organizations, you will
find that policymaking is happening in respect of that function.
Senator Fraser: For defence counsel?
Col. Fenske: Not the provision of it, but they provide policy supervision of
that envelope. I would suggest that you start from the bottom with the
individual accused and say, "That individual accused can get any lawyer
that the accused wants." That individual accused has that right. If he or
she wanted to get any individual lawyer, most people in this room would have to
pay for that individual lawyer, because they would not meet legal aid minimums.
No matter who you are, subject to the code of service discipline, you do not
have to do that.
You can do it, however. You can get free counsel from the Director of Defence
Counsel Services. Under this legislation that individual has only one function
-- namely, to direct provision of those services to accused people. That
individual has people working for him who, by their oaths, by their bar society
values, by the norms that come out in their bar codes and by the law, can only
deal with the accused in a solicitor/client relationship. The JAG can in no way
interfere with that.
Senator Fraser: I do not want to belabour this. Just give me a short answer. Why
would it not have been feasible or appropriate to set the defence counsel
services up independently, as was done with the investigative service, for
example, which went outside the normal chain?
Col. Fenske: The investigative services is outside the normal chain of the
people that it investigates and it responds to the Vice-Chief of the Defence
Staff, who is a member of the chain of command, albeit at its apex.
Senator Fraser: I am not saying "that model". I am using it as an
Col. Fenske: My reading of what has been done suggests that, since the JAG
cannot get into individual cases, the counsel enjoys more protection than in
the case of the military police investigation services. That is one of the
reasons why we have a military police complaints commission in this bill. The
police can go before the commission if they have been interfered with, and the
public can also appear before it.
In your dealings with counsel, if you think something has gone wrong their bar
society is standing behind them -- at least to answer for their conduct.
It seems like the right place to include that provision. It seems to be
efficient and there seemed to be enough safeguards. It seems to be roughly
equivalent to the kinds of models that we have in place today. Remember that we
are talking about sending people into a wide range of conditions.
Senator Fraser: I understand that.
Senator Nolin: I have a supplementary question on the subject of defence. Can
they be included with any ordinary civil lawyer?
Senator Nolin: Do the lawyers working at National Defence have access to the
activities of the Quebec or Ontario Association of Defence Lawyers?
Col. Fenske: There's no limit today.
Senator Nolin: I understand the philosophy of the bill which is to maintain the
principles of discipline and those of the legal system. I'm trying to see if
there are limitations, because it is an important right for the accused to have
access to a lawyer who won't be influenced by something else.
Senator Moore: There is not much change in the section that Senator Grafstein
mentioned, namely, section 11. The phrase "or the Defence Research Board"
has been taken out.
Col. Fenske: That is correct.
Senator Moore: The word "such" has been removed for the word "any"
in terms of the terms the Governor General may determine. What sort of
materials would be used by the Defence Research Board?
Col. Fenske: That is one of those housekeeping issues that we had not thought
worthwhile to raise in light of some of the others.
The Defence Research Board is an organization outside of the department that was
very much a strong player in the early 1950s and 1960s. The government wound
that agency down. That agency was folded into the Department of National
Defence and it no longer conducted independent scientific research. This bill
is only removing legislation that was rendered unnecessary 15 to 16 years ago.
Senator Moore: How busy is the judicial system within the services in terms of
summary trials and courts martial? How many of each of those would be conducted
in a given year?
Col. Fenske: That is a very good question. The only answer I can give you in
this regard right now is a highly qualified one. I would like to explain why
We do not have current statistics over the last several years on the number of
cases that occur in respect of summary trials because many of them are minor.
Senator Moore: The commanding officer can just deal with them. His decision is a
trial of a sort, or a review.
Col. Fenske: That is right. The last set of numbers that we have goes back
several years and it was in the thousands in respect of summary trials.
In terms of courts martial, it has varied dramatically from about 130 or 140 a
year during the time that we were in Europe, down to 45 a year. The year we had
the Somalia trials we were down to about 45. Counsel, judges, and all support
staff for the court system were in court every day for virtually the whole
year, but we only had 45 cases. The pages of transcript and the hours of
hearings were, of course, inordinately high.
I want to mention one point that arises from that. That is one of the reasons we
have put into the act that the JAG has the responsibility to superintend. One
of the concerns that the current JAG has is to ensure that we have a very sound
statistical basis upon which we can report on all military justice activity and
upon which we can base policy decisions. Over the next year to two years you
will see, I believe, quite a change.
Senator Moore: You will be tracking all decisions, whether from a commanding
officer or by way of a proper summary trial?
Col. Fenske: I think you will be able to judge that by the very first report
that the JAG issues, sir.
Senator Ruck: Permit me, Madam Chairman, to go back a few years. During the
early years of World War I and World War II, visible minority persons had a
very difficult time enlisting. Many times they were told, "We will call
you when we need you." Subsequent to the Korean War, there has been a
major change. I believe it had something to do with the institution of human
rights legislation. Now we see a large number of visible minority people in the
military, and also many females in uniform. So there has been a major change in
terms of how people view the involvement of certain other people in the
military of Canada.
There is still room for improvement. From speaking to some visible minority
people in the military, I understand that promotion is a problem. They are
permitted to rise to the rank of Lieutenant-Colonel, but at that point the
promotions stop before they reach the level of which they feel capable.
I believe this committee could assist in that area if it really is a problem,
and I believe it is. I believe that the highest rank of a black person in the
military is a Lieutenant-Colonel in the Royal Canadian Air Force.
The Naval Service Act came into being in 1910. The first clause with respect to
recruitment was very explicit. It stated that all recruits must be members of
the white race. That was not changed until World War II. A gentleman from
Winnipeg by the name of Percy Haines broke down that barrier. He had to deal
with a gentleman from my part of the country by the name of Macdonald. He was
the premier for a number of years and he was also the naval secretary.
Mr. Haines was told that that clause was put into the act in the best interests
of minority persons. Percy Haines did not agree with that point of view. He
brushed it aside and he persisted. Finally, the naval secretary and other
persons of high rank got together and decided to change the Naval Services Act
to permit blacks to enter.
During World War II, approximately six blacks joined the Navy, so it did not
cause a stampede. They did the jobs they were given to do.
You can see some of the problems that visible minority persons have had
throughout the years. I am sure that this also impacted on the native community
to some degree, although traditionally they had a reputation for being good
The Chairman: Senator Ruck, I must point out to you that committees in the
Senate are pretty well proscribed as to what they can do. All we can do here
today is deal with the bill before us. I sympathize very strongly with what you
are saying. I wish to point out to you that there is an ongoing review of the
federal Employment Equity Act. That may soon come before this committee and it
may well be a good time for you to bring up these particular concerns. However,
since you have voiced them here today, perhaps the gentlemen before us can give
us a very fast review of the situation in the military right now.
Col. Fenske: Madam Chairman, as you know, I am here to assist the committee with
respect to Bill C-25. I would have to confine my remarks to saying simply that
I understand that both the Department of National Defence and the Canadian
Forces are committed to reflecting the faces of all Canadians in the
institution and to a promotion policy based on merit. That is our commitment, as
I understand it. The issue that Senator Ruck raises is, of course, a very
complicated and important one, but not one that I could comment further on here
The Chairman: That is probably an acceptable answer because we are dealing with
the bill before us.
Senator Ruck, I apologize to you.
Senator Grafstein: I will deal with the secondary issue, the independence of the
judiciary within the system, which is the other side of the coin. I tend to be
a little more concerned about the mechanics of how the existing operation,
which is within the Department of National Defence, would work with respect to
police investigations, wrongdoing and egregious conduct.
As it now stands, what it says is that the police investigatory process is
outside the chain of command at the lower levels. Therefore, it pulls them over
to the side. They report up to a vice chief of staff, and I guess the JAG
reports to the minister directly. We have him reporting to the minister and the
police reporting up to the vice chief.
Let me draw a hypothetical problem for you and tell me how this would work.
Forces are in the field, there is wrongdoing at the lower levels -- by the
lower levels, I mean some from company and down -- and the police are sent in
to investigate. Before the police investigate, this matter was known or could
have been known to the higher levels, and could have been known up the chain of
command really as far as the chief of staff himself. If this is a problem in
the field, there is an egregious conduct by the military. The theory of the
press is that the military wants to hush this up. Yet it could have or should
have been known at the highest levels in terms of the command structure. The
police investigating this would follow the lower echelons as opposed to moving
up into the senior echelons.
How would the JAG or the police deal with a matter that one could determine had
gone up the chain of command and come down the chain of command and kept this
at the lower levels? How would the police investigatory mechanism work in that
instance? Who would oversee the senior officers, the senior chain of command?
Col. Fenske: That is a hugely complicated and hypothetical question that you are
asking me, senator. My first answer to you is that I do not believe we cover
Senator Grafstein: I am not suggesting you do. I am raising it as hypothetical.
I do not mean to use a pejorative word. I mean to get at public policy.
Col. Fenske: The issue you raise goes to the very reason why I indicated to you
earlier we have separated the functions. The only task of the Canadian Forces
Provost Marshall and the national investigative service is to investigate a
Second, we now require that our unit commanders report a serious or sensitive
offence to the NIS when they first hear of it, and it is the NIS that will
investigate it. The very first thing that we do when confronted with a serious
situation is to take it to someone who is not inside the particular area where
it is supposed to have happened.
We have now organized things so that the conflict upon which the theoretical
construct is based has been institutionally resolved for the most part. You
must get all the way to the vice chief of the defence staff before the Canadian
Forces Provost Marshall runs into someone who has authority over her in respect
of her investigative function. You would find that there is an accountability
framework that is public between the vice chief of the defence staff and the
Provost Marshall, and I cannot quote it verbatim to you, sir, but I suggest to
you that the principal thrust of that accountability framework is she will
investigate reports of offences.
Our chief military police person is now operating in a framework that is very
like the chief of police of the City of Ottawa. If you are concerned about the
chief of police of the City of Ottawa somehow getting involved in a cover-up,
then it will be the same for our chief of military police, because the two are
operating in very similar accountability frameworks. The difference being, of
course, that this is with respect to serious and sensitive offences. We have
left an area for members of the chain of command to work on their own. That is
the minor disciplinary area. If you were to look at the jurisdiction of summary
trials, you would see that this is very minor unit discipline.
The first answer is that the design is intended to ensure that that conflict is
resolved at the investigation stage. The second important factor is that the
responsibility to lay the charges that arise from that investigation lies with
the investigator from the independent national investigation service, not with
the unit. Therefore, the charge is laid by someone from the outside.
The responsibility to deal with the charge remains with the commanding officer
of the accused, but the charge is a public document. There is a strong
regulator in play here. I mentioned to you some time ago that when a military
police person is unhappy with a decision, pursuant to a section of this bill,
he or she will be able to cause that to go not to the JAG, but to the individual
whose sole job is to determine whether service offences should be prosecuted.
What we have done is much the same as you would expect to see in many provinces.
You have an investigator, and you have someone who is determining whether to
proceed with a charge. In the City of Vancouver, for example, that person is a
Crown prosecutor, or perhaps an RCMP or a local police officer. If they
disagree, they bump it up. If they still disagree, they bump it up. If they
still disagree, the individual who lays the charge gets to lay the charge.
Once having received the charge, the individual who must proceed with it and
carry the can before a judicial tribunal can decide whether to proceed with the
charge, and how to do so. It is a very delicate counterbalance put in place,
but it is not dissimilar from what exists in most Canadian cities.
I would also mention that we have put a very powerful component into this whole
framework. If members feel that the NIS has been interfered with, a policeman
from the national investigative service can complain to the Military Police
Complaints Commission. We have opened up the process on the same theory of
having people with individual responsibilities abutting against each other. It
is the separation of those responsibilities that guarantees the integrity of
our system and the just outcomes. That integrity is being guaranteed by the
separation of the investigation function from the decision to proceed, and by
keeping it wide open and public.
The Chairman: Presently, under courts martial, the presiding judge and panel of
officers do not give their reasons for awarding a certain sentence. Under the
new system, will the military judge be required to give reasons?
Col. Fenske: I am glad you asked that. We analyzed this at length. Most people
who are accustomed to doing jury trials would say the people who serve on our
panels provide blue ribbon panels. They bring lots of expertise about service
conditions. They want to do well. However, there are a number of things that do
not work in their favour. One is that they do not sentence often. They might
only sentence one or twice in a career. As well, they do not give reasons.
Owing to the fact that they do not sentence often and because they operate as a
panel, it is difficult to give reasons.
I believe it is those kinds of considerations that have caused us to choose the
approach that we are taking. Our judges will now sentence like every other
judge in this country and give reasons. That will mean that it will be better
when trying to appeal their decisions, because the other fact is that it is
difficult to have a sentencing appeal with the way our system works today. The
Court Martial Appeal Court must deal with the most favourable interpretation
available on the case to the accused instead of the exact reasons. Once this is
changed, they will confront the reasons. We think it is much better.
The Chairman: My second point is about sexual assault. I must say all sorts of
little red flags went up in my mind when you said that it will now be dealt
with within the military justice system rather than as it is presently, in the
civil court system.
Col. Fenske: I hope I did not say that or give that impression.
The amendment will give the military justice system concurrent jurisdiction with
respect to these offences, as it currently does with respect to virtually all
offences under Canadian law.
For example, if there is a sexual assault, it would still be dealt with in a
manner similar to all of our offences. If you are in Base Gagetown and the
military police know, the civilian police know, the prosecutor knows, and the
civilian prosecutor knows, there is day-to-day consultation in respect of who
should dispose of a case.
The Chairman:The comment was about the lack of jurisdiction to try sexual
assault cases committed in Canada. In other words, the military is presently
not trying sexual assault cases that occur in Canada. Under this bill, though,
it will also try those sexual assault cases.
Col. Fenske: Under this bill, the military will gain concurrent jurisdiction to
deal with those offences.
The Chairman: I predict some problems with that.
Col. Fenske: It is probably worthwhile to indicate that there is a basis for the
decision to move forward and seek concurrent jurisdiction with civil
authorities over sexual assault cases.
I mentioned earlier today that concurrent jurisdiction in respect of federal
offences involving sexual behaviour already exists and seems to be running
well. I think it is fair to say that sexual assaults undermine unit morale, and
without a doubt they undermine the ability of individuals to contribute equally
and to grow in the military.
The fact is that the military has no means to deal with this. You cannot
underestimate how important it is for an organization to be seen to act and
clarify a problem rapidly. It is with those good goals in mind that this
jurisdiction is being sought.
Senator Nolin: Am I to understand that, presently, there are no archives on
Col. Fenske: There is a kind of record. The record of the most recent summary
trials over a certain period -- two or three years -- were not being
systematically collected. The process has begun anew.
Senator Nolin: Some of the amendments suggested in your bill provide for public
and efficacious archiving.
Col. Fenske: The rules on that won't be in the Act. They'll be in the
Senator Nolin: My second question has to do with the choice of the members for
the court martial panels. In the civilian system, the selection of jurors is an
important process for the defence. Can the accused question the selection of
the panel members like in the civilian system, with challenges and all that?
Col. Fenske: It's not quite like on the civilian side. First, the choice is done
on a random basis with a system indicating lawful excuses, qualifications and
so on. The whole system is managed by the military judge-in-chief. That means
the actual choice is left up to the judges.
Second, when the members of the panel show up in court, the prosecution and the
accused can challenge and there is no limit.
Also, according to our regulations and guidelines, the selection process used by
the judges is open. Both the prosecution and the accused can ask to review the
The Chairman: Thank you very much, gentlemen. You have done an excellent job
here today, and it has been a fascinating morning. I understand that there is
an office consolidation of the National Defence Act, a little guide that the
military has. It may be of value to the members of the committee if you could
provide us with that as well.
Col. Fenske: We would be delighted to provide it to you, and I believe that we
can provide an electronic copy.
Senator Nolin: I should like that.
Col. Fenske: I will check. I think we can do that.
The Chairman: Thank you very much.
The committee adjourned.