Proceedings of the Standing Senate Committee on
Issue 34 - Evidence (Bill C-25)
OTTAWA, Tuesday, October 6, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill C-25, to amend the National Defence Act and to make consequential
amendments to other acts, met this day at 3:31 p.m. to give consideration to
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, we are joined by the Honourable Art Eggleton,
Minister of National Defence, and Brigadier-General Pitzul, who is the Judge
Mr. Eggleton, we proceed in a fairly informal way here. We will turn the floor
over to you for remarks and then to the senators for questions. Please proceed.
Mr. Arthur C. Eggleton, MP, PC, Minister of National Defence: Madam Chairman,
first of all I would like to thank you and all honourable members of this
committee for giving me the opportunity to discuss Bill C-25. I am pleased to
be here to discuss this key element of the sweeping program of change that is
underway in the Department of National Defence and the Canadian Armed Forces.
This legislation is an ambitious package of amendments that will strengthen the
statutory framework governing the operations of the Department of National
Defence and the Canadian Forces. The amendments proposed in this bill will
amount to the most extensive amendments to the National Defence Act since its
enactment in 1950.
The Canadian Forces have demonstrated again and again that they are truly a
vital national institution. We, and all Canadians, have good reason to praise
their dedication and professionalism. Most recently, in the search and recovery
operation off Peggy's Cove in Nova Scotia, we have again seen the competent,
professional and sensitive manner in which members have handled their duties in
the most difficult of conditions.
In order to enable the Canadian Forces to complete the missions that are
assigned by the government, they must have the necessary tools. One of these
tools is the justice system. We must remember that this is an armed force,
trained for combat, requiring a distinct system of military justice. This
requirement follows from the uniqueness of the Canadian Forces' mandate, purpose
and roles, as well as the special responsibilities and obligations of its
members. Central to this uniqueness is the fact that military personnel may be
required to risk injury or death in the performance of their duties. This puts
a premium on discipline and cohesion of military units. This operational reality
has specific implications for the military justice system.
First, the Canadian Forces require a justice system that can try offences
against the ordinary law of Canada, as well as offences that are unique to the
military, such as mutiny or being absent without leave.
Second, the military chain of command, which is accountable not only for the
maintenance of discipline but also for carrying out the missions assigned by
the government, must play a key role in the administration of justice.
Third, the system must be able to try to punish violations quickly so that
individuals can be returned to service as soon as possible.
Finally, the system needs to be portable so that it can function wherever the
forces are deployed, whether it be in time of peace or conflict, either in
Canada or abroad.
In taking action to ensure that the Canadian Forces have the justice system they
need, we have sought advice from within the military, from the public at large
and from distinguished Canadians with special knowledge. The amendments
contained in Bill C-25 are a product of that process and are a key component of
the comprehensive change program under way in the Department of National
Defence and the Canadian Forces.
Bill C-25 has four principal thrusts that are aimed directly at the
modernization of the military justice system. First, it will clearly establish
in the National Defence Act for the first time the roles and responsibilities
of the key participants in the military justice system. It will set clear
standards of institutional separation for the investigative, prosecutorial,
defence and judicial functions. Second, it emphasizes transparency and provides
greater structure to the exercise of individual discretion in the investigation
and charging processes. Third, it modernizes the powers and procedures of
service tribunals, including eliminating the death penalty under military law.
Fourth, it strengthens oversight and review of the administration of military
We have also taken the opportunity that this legislation affords to address a
broad range of provisions in the National Defence Act. For example, Bill C-25
will modernize the provisions with respect to boards of inquiry. It will also
clarify the legislative authority for the performance of public service duties
by Canadian Forces' members, such as those services that were recently performed
during the ice storm.
I appreciate the opportunity to discuss any aspect of the bill with the
committee, but, in my opening remarks, I should like to outline our thinking on
four specific issues that have been raised by the bill. These are, first, the
recommendations in the Somalia Commission of Inquiry to provide for an
inspector general in the National Defence Act; second, the requirement for the
act to be amended to provide for an ombudsman; third, the jurisdiction by the
military on sexual assaults committed in Canada; and fourth, the independence
of military judges.
First, I will touch on the issue of the provision of an inspector general. It
has been suggested that the government has ignored the recommendation of the
Somalia Commission of Inquiry to establish an inspector general. We are
implementing approximately 83 per cent of the recommendations of the Somalia
Commission of Inquiry, including many on military justice. I can think of no
commission of inquiry in recent Canadian history whose recommendations have
received such across-the-board support or have been implemented so quickly.
While it is true that we do not agree with the specific recommendation
concerning the inspector general, we do agree with, and strongly support, its
underlying objective: the strengthening of the oversight of the Department of
National Defence and the Canadian Forces, including oversight by civilians and
by Parliament. To accomplish this objective, we have adopted a threefold
First, we have strived to strengthen our cooperation with existing oversight
bodies with which we are presently dealing, such as, for example, the Auditor
General, the Commissioner of Official Languages and the Canadian Human Rights
Second, we have substantially increased the annual and public reporting,
including mandatory reports to Parliament on defence issues. In fact, no less
than six reports will be made public and will be filed with Parliament.
Third, in Bill C-25 and elsewhere, we have added new, specialized oversight
bodies, such as the Canadian Forces Grievance Board and the Military Police
Our approach to oversight of the Department of National Defence and the Canadian
Forces has two advantages: First, it will increase civilian oversight; and,
second, it will provide for more specialized review mechanisms tailored to
specific areas. That is the main difference and the reason we do not support
the recommendation respecting an inspector general. In addition, the mandates of
the new bodies will more easily complement, rather than conflict with, those of
existing internal and external review bodies.
With the new bodies that the government is establishing, we see no need for an
inspector general. Quite simply, all the bases are covered.
There has been some comment that there should be provisions in the National
Defence Act for the position of ombudsman. As you may know, I have recently
appointed Mr. André Marin as the first ombudsman for the Canadian Forces
and the Department of National Defence. The ombudsman will provide information,
advice and guidance to all personnel, military or civilian, who believe that
they have been treated improperly. He will serve as a neutral and independent
sounding board, mediator and reporter. As such, he is in the unique position of
being able to make substantial and long-lasting improvements to the welfare of
the members of the Canadian Forces, their dependants, and the members of the
department. Given the nature of the ombudsman function, it is not necessary that
the position be set out in the National Defence Act.
The ombudsman carries enormous moral authority and credibility in the eyes of
the senior decision-makers within the department and the Canadian Forces, which
are derived in large measure from the neutrality and confidentiality of his
office and his direct reporting relationship to me. The authority of the
position will permit the ombudsman to be involved in cases that cannot be
resolved by the chain of command and to draw attention to any problems in a
public way. The ombudsman will report directly to me, and his annual report
will be made public.
Earlier this year, there were reports in the media about a number of incidents
or allegations of sexual assault in the military. Sexual assault is a crime,
and is treated as such. In addition to being inherently reprehensible, sexual
assaults committed in the military context undermine the ability of members of
both sexes to contribute equally to the Canadian Forces' mission. Sexual
assaults are highly corrosive of morale and unit cohesion. They diminish the
mutual respect and trust in fellow members which underpins military efficiency.
It is for these reasons that in Bill C-25 we propose amendments to the act that
would repeal the current limitation on the trial of sexual assaults in Canada.
That will give the Canadian Forces concurrent jurisdiction with civilian
authorities in respect of sexual assault, as is the case with the vast majority
of federal offences. The Canadian Forces already have concurrent jurisdiction
over virtually all federal offences, including offences of a sexual nature,
such as sexual exploitation, which occur in Canada.
The Canadian Forces are committed to treating sexual violence against members as
a serious issue in order to foster equality in the forces. Sexual assault
charges will be triable only by court martial over which a military judge
Turning to another key issue, Bill C-25 makes profound changes to the legal
framework for military judges. The legal framework for military judges, as it
existed in August of 1997, was addressed by the Court Martial Appeal Court in
the recent Lauzon case. The court found that standing court martial, and by
implication other courts martial, did not meet the requirements for an
independent tribunal under paragraph 11(d) of the Charter. The court ruling
reinforces the importance of a clear separation of judicial and executive
power, and that is one of the principal goals of Bill C-25.
To enhance the independence of military judges, amendments to the act have been
recommended through this bill in anticipation of decisions such as the one in
the Lauzon case. Under Bill C-25, military judges, like all federal judges,
will be appointed by the Governor in Council and they will be appointed for
five-year terms. Renewal and removal decisions in respect of military judges
will be made after having received the recommendations of a committee struck
for that purpose. The composition of the committee will be set by regulation
and will be balanced to ensure independence, effectiveness and objectivity.
Military judges will have an independent, effective and objective means to
depoliticize the process of determining pay. The pay of military judges will be
established in a manner that meets the requirements set recently by the Supreme
Court of Canada in the P.E.I. Reference. Bill C-25 will require judges' pay to
be reviewed regularly by a review committee. Changes to that pay will be made
on the recommendation of the committee. The composition of the committee will be
prescribed in the regulations, and the method will be an independent, effective
and objective means of dealing with the matter.
In the Généreux case in the Supreme Court of Canada in 1992, Chief
Justice Lamer noted that the strength of the military judiciary rests in the
use of military officers who are legally trained, and said that to deprive the
military justice system of this knowledge and experience would not benefit
either the Canadian Forces or the accused. That was an important decision on
this whole matter of a separate military justice system.
Military judges are key participants in that system, and these changes proposed
in Bill C-25 will strengthen their independence and the respect for our
military justice system.
Honourable senators, it has been almost 50 years since the National Defence Act
was first enacted as the first comprehensive national defence statute common to
the then three armed services. The world has changed significantly since then,
but the requirement remains to maintain our armed forces ready for combat,
peacekeeping and the many other duties that may be assigned by the government.
By modernizing the military justice system, the amendments in Bill C-25 will
enhance the efficiency and effectiveness of our armed forces and will enable
the men and women of the Canadian Forces, who do so much for us so well, to do
it better still.
I will be happy to take part in your discussion of Bill C-25 and to answer your
Senator Beaudoin: First, I congratulate you on the provision dealing with the
death penalty. It is a good thing, and it is in accordance with the spirit of
the Canadian Charter of Rights and Freedoms.
My question concerns the independence of military justice, which is dealt with
in the bill. The Supreme Court of Canada has spoken out on this issue. We must
have a more transparent and more independent military justice system. As you
know, Chief Justice Brian Dickson reported to Parliament on this matter. How
far does this bill go towards meeting the suggestions made by Chief Justice
Dickson? I have no problem with the pay of military judges being established to
meet the requirements set out in the P.E.I. Reference. In fact, I agree with
that. However, the term of five years is not very long. Perhaps that should be
longer. There is also the question of the extent to which a renewal or
non-renewal might affect the independence of the judge.
Mr. Eggleton: The work done by the special advisory committee chaired by former
chief justice Dickson was the guiding document in these amendments. It is
substantially what he and the committee recommended. By and large, it is also
the recommendation of the Somalia commission. There are some differences, but
there is a great deal of similarity in the recommendations of the Somalia
Commission of Inquiry and Chief Justice Dickson's report. However, the report of
the former Chief Justice was the guide behind this.
The five-year period is renewable. As I indicated in my opening comments,
renewal and removal decisions will be made by a special committee struck for
that purpose. That would depoliticize that particular process.
I will ask the JAG if he has any further comments to add to that.
Brigadier-General J. Pitzul, Judge Advocate General (JAG), Department of
National Defence: Mr. Justice Dickson's recommendations are fully contained in
Pursuing fixed-term appointments is a reasonable step to take in the military
context. It allows pursuit of alternative careers within the military
Military judges do not function in a static court. They are required to move
around the world to mete out justice, and they find it difficult to live out of
a suitcase for long periods of time. Based on the recommendations made by the
former Chief Justice, the fixed-term appointments contained in the bill are
When you have renewals, you always have the question of what influence a
fixe(null)d-term appointment has on independence. The decisions of the Supreme
Court of Canada in the Valenti case and others, indicate that fixed-term
appointments are acceptable in terms of pursuing the independence of the
Senator Beaudoin: I have no difficulty with fix-term appointments, whether for
five or even 10 years. However, the question of renewal does cause me some
difficulty. In many great democracies, people are appointed to constitutional
councils and courts for nine or 10 years, but there is no renewal of the term
because people believe that is not as transparent as a fixed term that is not
renewed. Why have you chosen to suggest renewal? Why do you propose a fixed
term and leave it at that?
BGen. Pitzul As I suggested, it would allow individuals who have completed a
term to pursue either another career within the forces, or to conclude a term
of travelling across the world exercising their functions. Many people feel
that five years is sufficient. I was a military judge for five years. It is a
sufficient period of time to carry out the rigours of the job.
The renewal process will be carried out by the renewal committee, as provided
for in the statute, and will follow the same terms and conditions as the
initial appointment. The concerns in the renewal process will be satisfied by
the independence and objectivity of that committee process. It will be similar
in structure to the committee that recommended the appointment of the judge in
the first instance.
Mr. Eggleton: It is a Governor-in-Council appointment.
Senator Beaudoin: A committee recommends whether there should or should not be a
renewal, but the decision is taken by the Governor in Council; is that the
BGen. Pitzul Yes.
Senator Beaudoin: Is there a committee which evaluates performance before the
renewal decision is made?
Mr. Eggleton: There is a committee process related to the removal of a person. I
do understand your question, but I will have to verify if the committee deals
BGen. Pitzul It is a different committee.
Mr. Eggleton: However, there is a committee.
Senator Nolin: Your department is a complex one, in that there are actually two
branches, the militarybranch and the defence branch. In positions of authority,
you have le chef d'êtat and a deputy minister. What is the boss under
Mr. Eggleton: The Chief of Defence Staff is certainly the head in the military
chain of command. The deputy minister is the head of the civilian department.
They both have very distinct functions and areas of jurisdiction. They
understand what is required of them. They both report to me. They collaborate
with each other in a number of areas in a cooperative way, but they both
understand that they each have distinct functions.
Senator Nolin: The act and the amendment that you are recommending to
Parliament, defines at length the rules and responsibilities of the military
aspect of your department.
Mr. Eggleton: That is right.
Senator Nolin: On the civil side, it is silent. Why?
Mr. Eggleton: By and large, civilian cases would be subject to the civilian
Senator Nolin: I am not referring only to the justice system. I am focussing
more on your reply to my first question. You said that they know their areas of
responsibility. The military aspect of your responsibilities is very clear. All
those responsibilities are clearly stated in the act. However, the
responsibilities of the deputy minister are not quite as clear, hence my
question. How do they know what their clear responsibility is and how do they
ensure that they function in perfect coordination under your responsibility?
Mr. Eggleton: I am not sure where you are going with this. Therefore, I am not
sure what kind of answer you are looking for.
The terms of reference for the deputy minister lay out the functions and areas
of responsibility that he has.
Senator Nolin: It is public and known by everyone?
Mr. Eggleton: As far as I know. I certainly understand it and they understand
Senator Kinsella: My colleagues will be surprised to learn of my own military
record. I was a member of the 112 Co. of the Royal Canadian Army Service Corps.
I was a private when I started, I became a truck driver, and I ended my service
as a private. I have honourable discharge papers to prove it.
I say that to set a background for my question. As you know, I come from the
province of New Brunswick, in which is located -- indeed, in the region of that
province which I represent -- the largest military base not only in Canada but
in the Commonwealth. Therefore, I often receive calls from military people from
the base and their dependants. Many of the items in this bill are associated
with the kinds of questions that I have been asked over the years.
I may add that, although I do represent the region where this military base is
located, I have yet to receive an invitation from the department to visit the
base. I hope that the people working with you will take note of that.
Mr. Eggleton: I think you are about to receive such an invitation.
Senator Kinsella: It is important that all agencies of the Crown take note of
the fact that there are two houses of Parliament, the Senate being one, and
that senators need exposure to these agencies so that we can meet our
As a former private reading the bill, I got the impression that it is for the
hierarchy. For example, there is an amendment proposed to allow non-officers to
become members of courts martial panels. I welcome that as a principle. The
general principle of adjudication by jurist ought to be by persons who are your
peers. That is an established principle of human rights. An amendment is being
proposed to the National Defence Act to allow for non-officers to serve on the
panels, but they must be above the rank of warrant officer.
I am interested in the political policy behind that change. Could you explicate
Mr. Eggleton: First, consider yourself invited to tour the base at Gagetown. I
will ensure that you have the opportunity to do that. I would be happy to
facilitate visits by all senators who have military bases located in their
geographic areas of interest. It is vitally important for you to understand
military operations and the involvement of our men and women in them.
This bill brings the military justice system much closer to the civilian court
system with which people are comfortable in this country.
A key objective here is fairness and ensuring that people of all ranks will have
confidence that they will be fairly dealt with by this system. That is vitally
important. It is also vitally important to have a greater sense of transparency
to build the confidence that we want our men and women of all ranks to have.
We are going to the non-commissioned ranks for the first time and bringing in
warrant officers. These are people who have an understanding of the
non-commissioned members -- the privates, corporals and others of those ranks
-- which I think can be quite valuable in ensuring that there is confidence in
the justice system. This is a positive move in that direction.
I will ask General Pitzul to comment further on that.
BGen. Pitzul I would echo the comments of the minister. Selecting the rank is
one choice. You select a rank that allows for a breadth and depth of experience
that enables a non-commissioned member to contribute to the jury trial or panel
process. There is an understanding of the military, the code of service
discipline and the specific needs at that rank level that perhaps would not be
achieved if it were opened to all ranks.
Senator Kinsella: Could you be specific? If, for example, this bill is passed as
is and a private is charged with sexual assault, what would be the composition
of the jury that would adjudicate such a case?
BGen. Pitzul The jury would be comprised of two officers and a non-commissioned
Senator Kinsella: There would be no privates?
BGen. Pitzul No, sir.
Senator Kinsella: Is it correct that on a matter of sexual assault one would not
be judged by a jury of one's peers?
BGen. Pitzul Not in the traditional sense; that is correct.
Senator Kinsella: Many of the members of the armed forces stationed at CFB
Gagetown live in Oromocto. If a sexual assault occurred there, currently the
matter would be dealt with under the civil procedure and the jury would be
composed of a cross-section of people. If we accept this amendment, the private
may be judged by a warrant officer on the board, or perhaps by officers. Is
that how it will unfold?
BGen. Pitzul The case would be adjudicated by a panel composed of two officers
and a non-commissioned member assisted by a military judge who performs the
function of judge at trial.
Mr. Eggleton: I wish to add that the military justice system is a different
justice system. It is a different kind of structure from the situation that
exists in society overall, in terms of the chain of commanded and the rank. It
always has been different. This opens it up a bit more.
Warrant officers have a great deal of information, knowledge, and years of
experience and wisdom that can be beneficial in this system. However, it is a
different system. Still, it is important that there be fairness, justice, and
that cases be dealt with as expeditiously as possible. Aside from major charges
that may result in someone being removed or incarcerated for some period of
time, we want to be able, for the cohesion of these units, to get a person
dealt with appropriately under this justice system and back into the service.
The cohesion of the unit is vitally important for the operational efficiency of
We already deal with cases of sexual assault outside Canada, but we feel we
should be dealing with them inside Canada as well. That kind of thing is very
corrosive to the morale and cohesion of our military units. It can threaten the
effectiveness of our operations, and that carries a great deal of risk. Our
personnel risk life and limb, in many cases, in different theatres of operation.
It is very important that we keep morale and cohesion high. We need to have a
fair, but swift, military justice system.
When you have men and women working together, they need to trust each other.
This is vital because, if their lives are on the line, one could be saving the
other. We cannot afford to have sexual assault occur. In many respects, the
penalties may well be tougher when we deal with it. It needs to be tougher for
the cohesion of the unit.
Senator Rompkey: In the context of the experience in Somalia, I want to ask
about the changes to the duties, the responsibilities, and independence of the
The problem in Somalia, as you will recall, was inadequate investigation of
certain incidents and failure to investigate others. We found that there were
too few military police with the regiment. Only two accompanied the airborne.
Commanding officers were slow to call in the military police to investigate
This bill proposes certain changes. Commanding officers are still the key
decision-makers, but they will be required to report all serious and sensitive
offences to the National Investigation Service. They can no longer dismiss
charges, and a charge will be a public document.
I still have some concerns, which I hope you can allay, with regard to the
independence of the police if they are under the command of the commanding
officer of the unit.
I understand that the National Investigation Service is separate and can do
pretty well what it wants. It can choose to investigate. In the case of the
military police with the unit in the field, are you satisfied that, under this
new system, the problems that occurred in Somalia cannot occur again?
Mr. Eggleton: There have been substantial changes in police investigations since
Somalia. We have military police -- MPs -- who perform a constabulary type of
role in different units both in Canada and outside. However, since September of
last year, we have had the National Investigation Service in operation. They
investigate serious allegations and sensitive matters. They are dealing, for
example, with sexual assault charges and also investigating all of the
allegations in Maclean(null)'s magazine articles.
The National Investigation Service is under the Provost Marshall, our chief of
police. Colonel Patricia Samson is the Provost Marshall. She, together with the
National Investigation Service, operates separately from the chain of command.
She reports to the Vice-Chief of Defence Staff, who is not directly a part of
the chain of command. She only reports with respect to general organizational
matters, not with respect to any specific cases. Those matters are under her
She is one of the persons who will report. I mentioned there were six new,
public reports. Hers is one of them. She will report, and the report will
become public on an annual basis. Additionally, she has been putting out
information monthly with respect to charges being investigated and how charges
are cleared, much the same as a police chief might do in a community --
providing information as to what is under investigation and the charges that
are being laid.
This all operates separately from the operational chain of command. No longer
can you have a case where the National Investigation Service of the Provost
Marshall lays a charge and the charge can be removed by the chain of command.
These are matters that, once they are laid, they must be dealt with in the
Substantial changes have been made since the days of Somalia.
Senator Rompkey: I understand that with regard to the National Investigation
Service, but are all military police under the direct supervision of the
National Investigation Service? If so, what will happen in the future to their
relationship with the commanding officer in the field? Previously, the
commanding officer had a lot of discretion as to whether he paid attention to
the military police or even whether he called them in. In the future, will they
be directed or even stopped by the commanding officer, or do they have some
latitude to pursue events on their own or through the chain of command?
Mr. Eggleton: Certainly not in any of the serious matters that come under the
National Investigation Service. There are still MPs -- military police -- who
operate within the chain of command, who do the regular constabulary type of
work. In fact, most of the cases where charges are laid for some violation to
the Code of Service Discipline are not of a major nature. Major incidents come
under the National Investigation Service. Most are not courts martial. They are
in summary trial form and are dealt with in conjunction with the chain of
command and the commander in each particular unit, either at home or abroad. By
and large, those offences are unique to the military system and are part of
trying to maintain that discipline and cohesiveness.
Serious charges, such as sexual assault, bring in the National Investigation
Service. It is quite independent of the chain of command. It has a different
process, in terms of reporting, through to the Provost Marshall. That is
substantially different from the way it used to be.
Senator Rompkey: What occurred in Somalia could not occur again?
Mr. Eggleton: I am always reluctant to say that what happened at one time can
never happen again. It can certainly never happen that way. If you take each of
the incidents in Somalia and look at the system at it is today, and the system
as it would be with these further changes in Bill C-25, it would be handled in
a substantially different way and have a substantially different outcome.
So many things have changed since Somalia, not only in terms of the military
justice system, but also in terms of training, leadership and performance, that
it would be hard to believe that anything like that could happen again. When
you have a large population such as we have in the military, the vast majority
of which are fine, dedicated men and women, there will always be problem cases.
There have been substantial changes since Somalia. It would be difficult to
conceive of those kinds of circumstances ever being repeated in view of these
Senator Fraser: I was particularly interested in what Col. Fenske said last week
when he was here about the need to preserve the utter independence of the
prosecutorial and defence functions. I appreciate the efforts that have been
made to ensure that. However, it is not only a question of facts, it is also a
question of the perception of their independence and that both services report,
ultimately, to the Judge Advocate General.
Will you have any special performance evaluation or promotion arrangements, the
kind of thing that I believe exists now for military judges, for these two key
directors of defence services and prosecution services?
Mr. Eggleton: Everyone is subject to evaluation. We are changing the whole
system of how it is done to ensure that it is more effective.
Senator Fraser: What I am looking for is a more independent system of evaluation
rather than through the normal chain of command.
BGen. Pitzul There is no evaluation process for military judges. The judiciary
is not subject to performance assessment. Neither the new director of military
prosecutions or the director of defence counsel services will be subject to
annual performance evaluation. However, the people who work for them will be
subject to performance evaluations by them. Thus, the director of military
prosecutions evaluates the performance of his or her own prosecutors. The same
is true with regard to defence counsel services. There is no intention to
assess the performance of the director of military prosecutions or the director
of defence counsel services.
Senator Fraser: Or of the unit?
BGen. Pitzul There could be a corporate assessment of performance, for example,
in respect of prosecutions, such as how many prosecutions do you conduct? How
long does it take to conduct them? In respect of defence counsel services, the
same situation will hold true. This will give us a picture of how well we are
performing as a system as opposed to individuals.
It is when you get into the area of individual assessment that you start to
impact upon independence. Corporate assessment is just responsible management
of any system.
Senator Fraser: There may be a bit of overlap here between the normal kind of
job evaluation or assessment that people go through and a rather more
independent review, given the sensitivity of these particular jobs. There is no
provision planned for any kind of outside review or independent review board;
is that correct?
BGen. Pitzul That is correct.
Senator Buchanan: I would congratulate General Pitzul on his appointment. Coming
from Nova Scotia, he was well prepared for the appointment.
Is there any change regarding how prosecutors are appointed under this new act?
BGen. Pitzul Yes, the minister will make the appointment.
Senator Buchanan: How were prosecutors appointed formerly?
BGen. Pitzul The director of military prosecutions will be appointed by the
minister. The individual prosecutors will be assigned their responsibilities
through the normal posting process for military legal officers.
Senator Buchanan: Under the new act will civilian prosecutors be appointed by
the director, or will it always be military prosecutors?
BGen. Pitzul It is always a military prosecutor, although we have a primary
reserve force structure whereby the prosecutorial service that we will be
setting up will be regional in structure. Thus, there will be maritime, western
and central prosecutorial regions. Within those regions, the regular force
prosecutor will be backed up by a reserve force prosecutor for whom we do not
have a requirement right now. They will all be Crown attorneys from the regions
in which they are practising. That is because we have sufficient in our reserve
force structure to have civilian Crown attorneys act as military legal
officers. They are the back-up for the regional regular military forces
Senator Buchanan: As I understand it, under the present act, legal counsel for a
person facing a court martial will be appointed from within the military
service by lawyers who are members of the military. Will that change?
BGen. Pitzul That will change in the sense that the director of defence counsel
services will be appointed by the minister as a permanent unit. It is not a
unit of the Canadian Armed Forces. It is a permanent sector of the Office of
the Judge Advocate General. The people who work there do nothing but defence
work. There are four positions established to do that. That is located in Ottawa
in a distinctly separate geographic area from my office. I have little to do
with those people, other than speak with the director who may have resource
They provide defence counsel services to members of the forces who have been
accused of service offences. The members of the forces have the opportunity to
have that service free of charge, at no expense to them, or they may elect to
be defended by civilian barristers at their own expense.
Senator Buchanan: I understood there is a proposed change to the present act
which would allow the accused to choose his or her defence counsel from within
the military. I take it that is not correct.
BGen. Pitzul That is not correct. The director appoints or assigns defence
counsel to the individual.
Senator Buchanan: Under this bill, as I understand it, the director may have
civilian lawyers on his staff. Those civilian lawyers will not be able to
represent an accused if he so requests. Is that right?
BGen. Pitzul He will not have civilian lawyers on his staff. However, he, like
the prosecutors, has access to the reserve force. In the reserve force, from
Monday to Friday, there are certain civilian barristers available, and on
Wednesday nights and Saturdays there are others.
There is a reserve force to which the director of defence counsel services would
have access. Right now, the senior reserve legal advisor, who is from Nova
Scotia, and I are developing a cadre of folks to which the regular defence
counsel services can select from a group of reserve force legal officers or
civilian barristers to assist in the defence.
Senator Buchanan: Let us say someone like Joel Pink from Halifax were in the
reserve, could an accused at a court martial ask that Mr. Pink be his legal
BGen. Pitzul He would ask that he be represented by a military legal officer.
The director of defence counsel services would canvass his resources. If the
name of Mr. Pink were made known to the director of defence counsel services,
and Mr. Pink was available, then he would be called out of the reserve force
and, yes, he could represent that individual.
Senator Moore: I went through the Lauzon decision last week. In that case, the
court held that the current process for the appointment, re-appointment,
removal, and remuneration of officers presiding over standing courts martial
was unconstitutional. The system did not provide adequate guarantees of
constitutional independence for those judges as required by section 11(d) of the
Charter of Rights and Freedoms.
In particular, the following concerns were expressed: (a) the fact that the
appointment and re-appointment of such judges was at the discretion of the
minister; (b) the absence of any standards in the act to govern the decision to
re-appoint such judges; (c) the fact that key persons involved in the process
for removing such judges did not themselves possess sufficient institutional
independence from the chain of command and from those with prosecutorial
responsibilities -- that is, the minister and the Judge Advocate General; and
(d) the absence of an independent, effective and objective mechanism for
setting the judges' pay levels.
Generally, could you comment on the Lauzon decision and its implications with
respect to Bill C-25 and the intended composition of the three committees?
There is a renewal, inquiry, and composition committee. The bill does not pose
any standard for the decision to re-appoint judges. Will the Lauzon decision
still pose a problem in that regard? Could you speak to the proposed
compensation committee and its constitution, particularly in light of the
P.E.I. Reference case?
Mr. Eggleton: The Lauzon decision was based on conditions as the court saw them
going back to August 28, 1997.
Senator Moore: That decision was recent, I understand, on September 18?
Mr. Eggleton: Yes, but it was based on conditions that existed over one year
ago. I have indicated today some substantial changes that would flow from the
implementation of this bill.
I will let General Pitzul go into details, but I spoke about how pay,
compensation, and removal would be addressed. I commented on the separation of
the system -- the investigative, the prosecutorial, the defence and the
judicial systems -- the separate streams, the separate appointments, and the new
role of the JAG in all of this. These things respond substantially, or perhaps
completely, to all the points raised in that case.
BGen. Pitzul That is accurate. The decision relates to the structure of the
appointment, pay, and removal process that existed at that time. For example,
since the time of the hearing of that case, the Canadian Forces has created a
separate unit for the chief military trial judge. They are a unit unto
themselves. They do not respond in any way, shape or form to the office of the
Judge Advocate General.
In Bill C-25, the appointments will no longer be made by the minister, but will
be made by the Governor in Council, like all other federally appointed judges.
The removal and re-appointment process will be done by a committee struck
pursuant to regulations made under the statute, and similarly with respect to
the pay of judges.
Senator Moore: That is the compensation committee?
BGen. Pitzul That is correct. The committee must be set up and meet the
standards set by the Supreme Court of Canada in the Monsieur le ministre, je
tiens à vous remercier d'être venu cet après-midi.P.E.I.
The Chairman: Senator Moore, if I may interrupt here, these are questions that
are being answered by BGen. Pitzul. The minister has agreed to stay for another
10 minutes. Perhaps we could go through with some fast questions for the
minister and then come back and get a complete answer from BGen. Pitzul on this
Senator Kinsella: It is important for us to have ministers before us because it
is only the minister who can answer the policy questions of government. We can
always have the officials come back to deal with the technical detail.
My question of policy is about the ombudsman. From a policy standpoint, I take
it that you believe in the office of the ombudsman and that you have
established one. Is there a legislative base for the ombudsman that you have
set up right now, or is it a ministry thing?
Mr. Eggleton: No. This is not an institutional ombudsman in the sense that most
provinces have an institutional ombudsman. This is an organizational ombudsman.
It is a different kind of ombudsman.
As I have said, the ombudsman will, in this case, deal with people in the
department or in the Canadian Forces who feel that they have not received
proper justice. He will give them advice, guidance or referral on how to deal
with their various concerns. He will try to bring about resolution of some of
He reports to me. He does not report to the chain of command at all, nor to the
deputy minister. He reports directly to me. It is an organizational ombudsman.
It is the first time this has been done. Every detail has not been totally
worked out, but we are in the throes of doing that now and he is in a
Senator Kinsella: The ombudsman concept, as it has developed in Canada, is an
officer of the legislature and is usually protected in his or her work as a
defender of the rights of the people by an enriched majority. I know in most of
the ombudsman acts across Canada, it takes a two-thirds majority vote in the
given assembly before you can remove an ombudsman.
The ombudsman is protected by the assembly. As a question of policy, how do you
see Parliament having adequate oversight, given the history of the last couple
of years and the great concerns that have come forward? The classical ombudsman
files a report with Parliament or with the legislature. This ombudsman is not
an ombudsman at all, it seems to me. It is some kind of internal administrative
Do you not see the need for an ombudsman for the military in the classical sense
of the term, an ombudsman who would have the protection of Parliament?
Mr. Eggleton: As I said a moment ago, this is not that kind of classical,
traditional ombudsman. It was never proposed in that way. This is an
The kind of ombudsman that you are talking about, which exists in a number of
provinces, does not deal with just one department or with grievances within one
department toward people higher up in the department. It is dealing with the
public at large in terms of their grievances about the government. It is a
completely different kind of function.
Any decision with respect to having the classical kind of ombudsman who would be
dealing not only with defence issues, but issues in every other department and
aspect of the federal government, is not a matter for a single minister or a
single department to determine. That is something for the government at large.
I do not want to comment on that. That is not in my jurisdiction.
The ability to create an ombudsman to deal with the many complaints and concerns
that arise within the organization is within my jurisdiction. It is a large
organization and I feel it is very appropriate to have an ombudsman to deal
with those matters.
In terms of reporting, and in terms of what I have said about transparency, the
ombudsman will have a great deal of moral authority and the ability to resolve
matters. The ombudsman will report to me annually. That report will be made
public and will be filed with Parliament so that there is an opportunity to
scrutinize it. It is not the kind of ombudsman you are talking about. It has
never been proposed as that kind of ombudsman. That is a separate question for
the Government of Canada overall.
Senator Nolin: Minister, since you are now taking French lessons, I will be
pleased to speak to you in French. In a few weeks from now, we will have to
examine Bill C-3, whose purpose is to establish a DNA data bank.
As the military justice system is being reorganized, will this Act be applied to
armed forces members who are being charged or convicted under the new National
Mr. Eggleton: I will get back to you on that one.
Senator Nolin: While you are looking for that answer, will you find out whether
or not it is the RCMP or the military police who will deal procedures such as
the taking of DNA samples and the conservation of them?
BGen. Pitzul In answer to your question, Senator Nolin, we are presently
negotiating the implementation of court records in order to be able to put into
their data bank all convictions obtained under our procedure. For the time
being, I cannot tell you whether Bill C-3 applies to us.
Senator Nolin: Let me explain why I feel this question is important: from now
on, sexual offences will come under the jurisdiction of military courts. You
will recall that one of the reasons given by the Minister of Justice when she
introduced Bill C-3 was to establish that new data bank. It seems to me that
this is an important policy issue.
Mr. Eggleton: We will get back to you on that question.
Senator Rompkey: I can save my question for the Judge Advocate General. I wish
to ask about the relationship between civilian lawyers and find out more about
how the reserves and active forces work together.
Senator Buchanan: The matter of sexual assault cases will now be the exclusive
jurisdiction of the military. Is that right?
Mr. Eggleton: Such cases will be tried in the military justice system in Canada.
They are already tried in the military justice system abroad.
Senator Buchanan: Why will sexual harassment still be handled by the Human
Rights Commission rather than by the military?
Mr. Eggleton: Sexual harassment, as reprehensible as it is, is not necessarily a
criminal offence. Even if there is no touching, for example, there is no doubt
that there can still be questions of behavioural problems which need to be
dealt with. We have a whole procedure to deal with that. We have harassment
advisers, not only for sexual harassment but also for other kinds of harassment.
We have a whole program for dealing with that kind of thing. Sexual assault is
a violation under the Criminal Code. That is a different situation.
BGen. Pitzul Being a lawyer, I wish to correct the record. The senator asked you
whether or not sexual assault offences would be in the exclusive jurisdiction
of the military. As you state in your prepared remarks, it is concurrent
Senator Beaudoin: Concurrent?
BGen. Pitzul Yes.
The Chairman: Minister Eggleton must leave now, however, I would ask the
officials to remain because we are not done yet.
Senator Moore: General Pitzul, I understood what the minister said about the
process with respect to the renewal inquiry and compensation committees. I
heard what he said at the first go-around and I heard what he said to me, but
my interest is in the composition of those committees. How do you propose that
will be structured to allow for sufficient institutional independence in view of
the Lauzon decision?
BGen. Pitzul I will invite the individual who has been preparing the regulatory
framework on that issue to join me. This is Lieutenant-Colonel Alex
Weatherston, who is part of the National Defence Act amendment team. He was
partly responsible for drafting much of Bill C-25 and will be involved in
creating the regulatory process to support the bill.
Lieutenant-Colonel Alex Weatherston, Member, National Defence Act Amendment
Team, Department of National Defence: As indicated in the bill, we will have a
renewal committee, an inquiry committee and a compensation committee. We are
modelling the provisions and our regulations on the provisions in the Judges'
We have drafted some of our regulations but they are Governor in Council
confidences at this point, which means they cannot be made public. However, we
can say that the committees will be following the principles laid down in the
Lauzon case that is, that the judges must be effective, independent and
In the Lauzon decision, for example, there was criticism of the Judge Advocate
General being a member of those committees. We do not see the JAG having a role
in any of those committees.
Senator Moore: Are the committees to be composed of people from within the armed
forces, or will civilians be involved as well?
LCol. Weatherston We believe the Governor in Council may appoint anyone.
Senator Moore: What are you recommending?
LCol. Weatherston We recommend that the Governor in Council appoint people
outside of the government.
Senator Moore: Outside the military?
LCol. Weatherston Outside the military; possibly civilian lawyers and judges. We
intend to have independent, effective and objective composition on those
BGen. Pitzul Those were the requirements in the P.E.I. Reference. When we look
across the country, we will see that compensation committees are normally made
up of people from outside the government.
Senator Rompkey: I should like to ask about the composition of the pool of legal
officers in the department.
The minister told us earlier that the system within the armed forces was quite
different. Yet, in answer to Senator Buchanan, and you have just said now, that
some of the committees will be appointed from outside the department and
outside the service, and that civilian lawyers in the reserve would also be
appointed. I am not sure they can actually take the lead role in courts martial,
but they are involved, perhaps on a backup basis.
I wish to ask about legal officers in the armed forces.
I ask this in the context of one of the recommendations we made in the
parliamentary review of defence policy, a recommendation which did not find its
way into the white paper. To get the most military output for our defence
dollar, we recommended rigorous examination of which military occupations and
trades can be filled by civilian employees and contractors. We said this should
be done with a view not only to saving money but to maximizing the
tooth-to-tail ratio of the Canadian Forces.
In other words, the job of the Canadian Forces is battle; it is essentially
either in defence or in attack. There are occupations within the Canadian
Forces that can be done by people who are not necessarily in the active force
full time. They can be done by reservists or, in some cases, by civilians. That
is the context in which I am asking my question.
I should like a further elaboration of how civilians and reservists are involved
in the legal process in light of the comment that the minister made that the
military justice system is a specialized system.
BGen. Pitzul The role and function of a military legal officer, both within and
outside of the military justice system, is not obviously confined to the
functions of trial, which are the functions that, on occasion, can be performed
by civilian counsel. That is true. It has been done in the past. Distinguished
members of the private bar regularly perform before courts martial. However, the
role and function of a military legal officer, working either as a prosecutor
or as defence counsel, involves trial work. As a prosecutor, it also involves
providing all of the advice to the national investigative service on behalf of
the Crown with respect to the investigation of offences -- things such as search
warrants and wiretaps, all the work a Crown attorney would do in the context of
a military justice system. For that, peculiar work and knowledge is required
within a military justice system. They must perform those functions outside of
Canada as well as within Canada. The reserve force Crown attorney can assist
clearly in the region, but his or her availability is not what one would always
like to have. That is the first limitation on the employment or a civilian
reserve force attorney. It is the same thing with the civilian bar.
Availability is the big question for them. They assist where they can, but it
is rather limited assistance.
In addition to a role as a prosecutor or defence counsel, military legal
officers perform a number of functions.
Senator Rompkey: When a reservist is employed, how is he paid?
BGen. Pitzul He is paid on a per-diem scale.
Senator Rompkey: Military scale?
BGen. Pitzul Yes.
Senator Rompkey: Not the normal fees he would charge as a lawyer?
BGen. Pitzul That is correct. There is a separate pay scale for them. I believe
they do it more for the valour. On more than one occasion, I have gone to the
partners of senior law firms and asked for one of their partners to assist us
with some activity.
Legal officers are also deployed in operations. The law of armed conflict and
operational law now requires that our units going overseas deploy with legal
counsel; the law has become that complex and rigorous for our units to apply on
the outside. It includes everything from status of forces agreements with
countries that we are visiting or passing through, to assisting members who
perhaps get into trouble in the local scene, to negotiating contracts for units
for the provision of services on scene. It runs the full gamut of legal advice
when a unit is deployed outside Canada.
Centrally in Ottawa, we have our areas of expertise in areas such as
legislation, pensions, and human rights, although we have some Department of
Justice counsel with us now to provide those areas of expertise. The role of a
military lawyer can go from A to Z, and it has a peculiar frame of reference
that a civilian practitioner does not always have the ability to come to grips
with. Having spent 25 years in the outfit, I can tell you that the experiences
are somewhat different from what one would find at the civilian bar.
Senator Rompkey: I asked you that question because I remember talking to Gen.
Scott Clements about the reserves when he was head of the air force. I do not
think we have adequately examined the role of the reserves. The attitude of the
air force towards reserves made a lot of sense to me. He essentially said, "When
we need people, we go out and find them, put them in a uniform and call them up
as reservists." That does not happen in the army or in the navy. In the
army, you have militia, and in the navy they essentially do maritime defence,
but the attitude of the air force was that if you needed someone, you found
him. You found someone with the competency that you needed, put a uniform on
that person, and made him or her a member of the armed forces. That made a lot
of sense to me. That is the context in which I asked that question about legal
BGen. Pitzul We are perhaps not as direct as that, but I can speak about the
plan that we have for our reserve forces. Their main role is to serve in a
backup role as prosecutor or defence counsel at trial. In addition, we have a
good cadre of ex-military lawyers whom we can engage in the writing of policy
or doctrine. We utilize them for that purpose, because a lot of them go out in
private practice and can then bring a mix of both private practice and military
legal experience together to assist us in the drafting of policy. We utilize
folks to do that. They are engaged in our military occupation to a significant
degree. They attend our conferences and our training when they can. We are
fortunate in this regard to have good representation.
Senator Rompkey: What is the pattern? Is there more involvement of civilians and
reservists, or are you maintaining the status quo?
BGen. Pitzul The pattern is for more of them, except that with the expansion of
domestic operational law, international law, and the law of armed conflict, we
see ourselves hiring reservists into the regular force. I have 15 vacancies at
present; we have just hired eight people and they are all reservists. It is
good recruiting ground. You bring counsel into the reserve force, see how they
perform, and you have a pool.
Senator Joyal: When I read in the newspaper the reports that were made following
the Lauzon judgement, I was surprised at the scope of the recommendations of
the judge in that case. The first question that came to my mind was: Is this
the first judgment since the enactment of the Charter of Rights and Freedoms
that deals with the judicial system within the military?
BGen. Pitzul The answer to that question is no. There have been several.
The issue with respect to judicial independence in the military arises from the
required balance of having a military judge in uniform capable of being
deployed anywhere in the world on short notice to render justice in an
effective, credible and transparent fashion. In coming to a balance of the three
tenets of judicial independence required of us by the Supreme Court of Canada
-- institutional independence, financial independence and security of tenure --
we, along with all the other judicial processes in Canada, have gone through an
evolution. We have perhaps even been evolving more quickly than other spheres,
to the point where you have before you what is in Bill C-25.
Senator Joyal: Am I right in saying that Bill C-25 is the first legislative
overhaul of the judicial system within the military following the various
recommendations since the enactment of the Charter?
BGen. Pitzul These are the first comprehensive amendments to the statute itself.
We have had amendments as part of omnibus bills dealing with required changes
as a result of our Charter coming into being in 1982. We have had amendments to
the Code of Service Discipline, which makes up the bulk of the National Defence
Act. Prior to the introduction of Bill C-25, no bill has ever addressed the
statute itself in a comprehensive way.
Senator Joyal: Are you saying that, since the enactment of the Charter, some
changes have been made to the regulation aspects of the judicial system as a
BGen. Pitzul Changes to the law.
Senator Joyal: Is this the first comprehensive overhaul of the legislation?
BGen. Pitzul Yes.
Senator Joyal: What puzzles me -- and I think any lay person would have the same
reaction -- is that this judgment was based on the legislation as it stood in
1997. The judgment is fairly recent. It is less than a month old. It is dated
September 18. I am surprised that, by a concurrence of circumstances, this
answers all aspects of the judgment in the Lauzon case. I find it strange that
we find all the issues raised by the judgment of the learned justice addressed
in a bill that was introduced a while ago and passed by the House of Commons
last May or June. This bill was tabled prior to the judgment.
My concern is to be certain that, in all aspects, the points raised in the
judgment are dealt with by the bill. I have not had time to determine if
everything is answered satisfactorily and completely by charting what was
recommended in the judgment and comparing it with the bill. This is important
because it is the key to the initiative. At this point, we are overhauling the
entire system. We must be satisfied that what has been dealt with by the
judgment is answered in a satisfactory way through the bill, taking into
account that the bill came before the judgment.
In the judgment the judge suspended the sentence for one year because the
legislation was to be overhauled. We must be sure we meet the criteria set
forth, including those found in the P.E.I. Reference. Some of us have some
concerns about the decision in the P.E.I. Reference, and we are still debating
that. The answers are not clear. There is room for interpretation, for instance,
on the compensation commission. Many of us have questions about that and the
way it performs.
The principles at stake are important. They deal with the separation of the
judiciary from the executive, and those principles are thinly defined in many
instances. Would it be possible to get LCol. Weatherston to prepare a chart
outlining the recommendations contained in the judgment, the amendments
proposed in the bill, and the provisions of the Judges Act? The compensation is
dealt with at length in the Judges Act, as well as the principles that have
been put forward in the P.E.I. Reference. It is only by comparing all these
aspects that we can satisfy ourselves that everything seems to be balanced.
The Chairman: I believe that is a fair question. Colonel Weatherston, perhaps
you could prepare a chart comparing this bill to these judgments. I do not
think we can bring Bill C-37 into this discussion because we are studying Bill
Senator Nolin: They can also highlight parts of Bill C-37.
Senator Beaudoin: There is some overlap between Bill C-25 and Bill C-37.
Senator Fraser: If I may just follow up on that last point, I believe the P.E.I.
Reference calls for mechanisms that go beyond the compensation committee's
recommendations. If the authorities, the government or the armed forces, do not
accept the recommendation, they must justify that. It can be appealed to a
court. Are those mechanisms defined in the bill? I did not find them, but that
does not mean anything.
LCol. Weatherston You would not find them because that will be covered in the
regulations, which will be dealt with by Governor in Council.
Senator Fraser: There is no ultimate appeal from the unhappy judges.
LCol. Weatherston There certainly could be if one of our accused is at a court
Senator Fraser: I am referring to the issue of compensation.
LCol. Weatherston That is right. If he believes that our judges are not being
properly paid in accordance with the P.E.I. Reference decision and the Lauzon
decision, he can raise that matter and go to the court martial appeal court.
Senator Joyal: Following on what Senator Fraser has asked, you said this is
being dealt with by the Governor in Council. Some of us who are lawyers or
learned legal experts like Senator Beaudoin know the difference between
Governor in Council and legislation. The protection is not the same. One, of
course, can be changed by a simple signature; the other must be debated in both
houses, be given three readings, and then passed. It is not at all the same.
Would it be possible for you to identify the points that are covered by the
Governor in Council regulations and those that are covered in the legislation?
LCol. Weatherston I can undertake to do that. The only point I would make in
response is that whether it is legislation and comes before this committee and
Parliament or whether it is Queen's Regulations, it will be law. It must meet
Senator Joyal: I agree with that. The end result is binding, but the process for
adoption is not at all the same.
Senator Beaudoin: Perhaps my question can wait until tomorrow, but I wish to
discuss the salaries of the judges in the military. It is part of the
independence of the judiciary. It is very clear in the Valenti case.
Previously, the court was criticized by the Supreme Court because the structures
were not transparent enough to address the issue of the independence of the
judiciary. What has been done to give effect to the decisions of the Supreme
Court in that area? What is provided now respecting the payment of judges at a
court martial? Do they have a certain financial independence?
BGen. Pitzul They are currently paid within a range which is set by regulation
by Treasury Board. By regulation, all military judges are paid at the top of
the range, plus 2 per cent, plus merit, up to a maximum of 8 per cent. The
extra 2 per cent plus the extra 8 per cent can equal 10 per cent, which is the
maximum they can receive.
There is no merit evaluation. Merit pay is given to all legal officers. It is
either "outstanding," "superior" or "normal."
They get "outstanding." To repeat, it is the top of the range plus 2
per cent plus "outstanding" when merit pay is paid. Merit pay is not
necessarily paid every year.
Senator Beaudoin: Financial independence of the judiciary is an important
principle. We are studying that to a certain extent in our hearings on Bill
However, the same principle applies to military judges. I understand that was
not previously the case. There are three elements: They must be independent
financially; they must be independent from the executive; and the executive
cannot intervene in the rendering of the decision, directly or indirectly. In
addition, they must be appointed for a certain term. If they are appointed for
only one year, it is not really independence.
BGen. Pitzul We had the Valenti decision of the Supreme Court of Canada in 1986,
and Généreux followed in 1990. It was for the Généreux
case that we adopted the current system for military judges. We are now in the
next evolutionary phase, having gone from a scale to a compensation committee
created by regulations. This committee will meet the requirements of the Supreme
Court of Canada and the P.E.I. Reference.
The difference is that judges will now be able to put to the compensation
committee in some fashion the nature of their pay, whereas before it was done
by Treasury Board. The judges received a fixed amount over and above what was
paid to the lawyers. They got the top of the lawyers' range plus the 8 per
Senator Beaudoin: In the P.E.I. Reference case, as you know, the justices of the
Supreme Court wrote much about the commission, and the interaction between this
commission and Parliament, and between Parliament and the courts. They also
touched on who has the final word. This is a delicate matter and it is very
The Chairman: I am interested in this concept of merit pay when there is no
evaluation of merit. You say that they may or may not get it. How do you
propose, under this new act, to determine whether they will get the 8 per cent
merit pay? Is it an automatic 10-per-cent bonus across the board for being a
military judge, or is it a guaranteed 2 per cent with the possibility of an
additional 8 per cent?
BGen. Pitzul If merit pay is paid, they get paid at the "outstanding"
The Chairman: They get the 8 per cent.
BGen. Pitzul It varies from 2 per cent to 8 per cent. For each rank, military
lawyers are paid within a range plus merit pay.
Senator Beaudoin: Does that apply to judges as well?
BGen. Pitzul Leaving judges aside for the moment, I would refer to the salaries
of lawyers, and that affects the remuneration of the judges. They are paid
within a range and, over and above that, they can get merit pay. Merit pay is
discretionary and it is a departmental decision. It is paid to all the lawyers
or it is paid to none of the lawyers. If it is paid to the lawyers, normally a
scale is followed. There are "outstanding," "superior," "average"
and "satisfactory" categories.
The Chairman: Is this based on some sort of evaluation of their merit?
BGen. Pitzul Yes, and because we do not evaluate the merit of judges, the judges
are automatically pegged at one place on the merit scale, which is "superior."
Therefore, the judges, by regulation, get the top of the range for their rank.
For example, a lieutenant-colonel will get the top of the range for a
lieutenant-colonel, legal, plus 2 per cent, and that is every year. Then, if
merit pay is paid in any given year to military legal officers, the judges get
the amount of money that goes to the "superior" category.
Senator Nolin: Without evaluation?
BGen. Pitzul Without evaluation.
Senator Moore: Is the 8 per cent a compounded amount including the 2 per cent?
BGen. Pitzul The 2 per cent plus the merit can never exceed 10 per cent.
The Chairman: So it is not compounded.
BGen. Pitzul It is not compounded.
Senator Nolin:The Senate examined that bill eight months ago. I wonder about
Section 154 of the National Defence Act, as well as the amendment proposed to
Section 156. Enlisted people are on duty 24 hours a day. Under the amendment to
the Criminal Code which included all federal statutes, is there a place of
residence? In other words, is a member of the armed forces protected under the
Charter in case of an arrest without a warrant?
BGen. Pitzul Yes, entirely.
Senator Nolin: Where is his or her place of residence?
BGen. Pitzul If the member lives in a barrack, his or her roomette is normally
considered the place of residence. If the member lives in another type of
housing, that will be the place of residence.
Senator Nolin: I only ask out of curiosity. How is it possible to give legal
BGen. Pitzul It can become complicated on a ship. A decision was made on that
issue in 1983. The bed, the cabinet or the locker of a sailor is considered his
or her place of residence and theses places are therefore protected under the
Charter. That is how we have interpreted the Act.
Senator Joyal: When the minister was here, he mentioned a rape case. He said it
is very important that it be expeditiously dealt with in the interest of
cohesion of the unit. I understood him to imply that the sentence would be
tougher than it would be for the same crime dealt with in civil jurisdiction.
Could you comment on that?
BGen. Pitzul I will respond to this question as I would were I on the bench.
Each case must be dealt with on its merits. Each accused is peculiar, each set
of circumstances is peculiar, and you apply the principles of sentencing to the
cases as you find them.
There are, though, principles of sentencing over and above those in the civilian
arena. In the civilian context, perhaps, one's reintroduction into the
community is not as great a concern to that civilian community as it is in the
military. Returning an individual to the military community must be seen in the
context of that community. You must remember the trust that each armed forces
member must have in the other in order to accomplish the mission. Therefore,
the impact of the conduct of the individual on the community is important. It
is an issue of military justice. If there has been abuse between rank levels,
so that the accused is a superior rank and the inferior rank is the victim, that
requires a more severe punishment than would otherwise be the case. In a
civilian context, rank makes no difference. In the military context it does.
The locale of the offence can be of extreme importance to the particular case,
whereas in the civilian context it may not be as important. For example, if an
individual leaves his post to commit his offence of sexual violence on an
inferior while on duty in a dangerous theatre of operations, the only reason he
could commit the offence was because he had control over the inferior in that
theatre of operations. Those are aggravating circumstances to the particular
case that perhaps one would not always find in the civilian context.
Perhaps those are the types of scenarios to which the minister is referring.
He is also referring to the cohesion and morale that a military unit must have
to function effectively. If you have misconduct in that unit, that misconduct
must be looked at within that context. Sometimes sentences can be more severe;
on the other hand, sentences can be less severe. Sometimes, assaults in a bar
are treated less severely than in the civilian context.
The military environment is rather unique. There are principles of sentencing.
They are the same as they are in the civilian context, but we have additional
Senator Joyal: According to the Charter, each individual is entitled to the same
protection of the law. As much as I subscribe to the idea that someone has a
responsibility in a dominant position -- and of course the court takes that
into account, as well as the conditions, be it in the civilian context or the
military context -- does merely belonging to a group, as such, entail a more
severe sentence? There is room for reflection on that point.
BGen. Pitzul We do not give a more severe penalty only because the person wears
a uniform. That is not the message that I wanted to convey. The military
context involves circumstances that are sometimes different and unique. We
apply sentencing principles in the same way a judge of the Court of the
Sessions of the Peace would.
Senator Nolin: Last week, Mr. Fenske seemed to have some difficulty to answer
when we asked him about the number of charges under summary procedure. Is there
a record and if so, how is it maintained? Is it public? Is there a minute-book
such as there is in civil courts? These questions concern the administrative
management or the corporate memory of what I would call the trial jurisdiction.
The answers that were given to us last week were not conclusive. Could you give
us more information on that issue?
BGen. Pitzul I was appointed to my job last April and I had been away for three
years. Before leaving, I knew that under orders that had been given, units were
required to provide this information. I believe, however, that due to budgetary
constraints, this procedure had to be discontinued. We are learning all over
again and we are in the process of establishing a military justice data bank
which will contain this information. I do not believe that there is anything
similar presently. I am not saying that it is a bad idea to have it.
Senator Nolin: If I understand correctly the answers that were given to Senator
Joyal, even if a case deals with a minor offence, a citizen could claim to have
the right to the same sentence as that which has been given to his colleague in
similar circumstances. If there is no record of these sentences, we will have
to rely on the individual memory of people.
BGen. Pitzul I agree entirely. If you look at my annual reports for Nova Scotia,
you will find a comparison of all offences, with the necessary information
about sentences. I intend to implement the same system.
Senator Nolin: This bill will not prevent you from doing so?
BGen. Pitzul No, indeed I am even required to provide an annual report that will
be tabled in Parliament.
The Chairman: There will be a statistical report from now on.
Senator Nolin: It is more than statistical. It is really the legal memory of a
BGen. Pitzul The plan we have now is for the creation of a military justice data
bank to which the public would have access.
In addition to that, there will a unit discipline file. The unit file, to which
the public will have access, is local. The military justice data bank, which
will be electronic and accessible to the public, will not be as up to date as
the unit file. The unit file will be completed daily. The electronic file will
be centrally relocated in Ottawa. By the time the unit gives a document to the
centre and it is put in the data bank, the data bank is probably 30 or 60 days
behind. However, if an individual wishes to go to a unit -- Cold Lake, Alberta,
as an example -- they can obtain accurate, day-to-day information. That is the
process we are creating -- an electronic data bank and a hard copy unit file.
The Chairman: Thank you very much for being here this afternoon.
The committee adjourned.