Committees

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

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 the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we are joined by the Honourable Art Eggleton, Minister of National Defence, and Brigadier-General Pitzul, who is the Judge Advocate General.

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.

[Translation]

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.

[English]

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 justice.

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 strategy.

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 Commission.

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 Complaints Commission.

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 presides.

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.

[Translation]

I will be happy to take part in your discussion of Bill C-25 and to answer your questions.

[English]

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 the bill.

Pursuing fixed-term appointments is a reasonable step to take in the military context. It allows pursuit of alternative careers within the military structure.

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 reasonable.

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 judiciary.

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 case?

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 with renewals.

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 you?

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 justice system.

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 it.

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 senatorial responsibilities.

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 that?

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 member.

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 the military.

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 military police.

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 certain incidents.

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 jurisdiction.

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 justice system.

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 proposed changes.

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 prosecutor.

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 requirements.

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 counsel?

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. Reference.

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 particular item.

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 these concerns.

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 consultation process.

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 function.

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 organizational ombudsman.

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.

[Translation]

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 Defence Act?

[English]

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?

[Translation]

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.

[English]

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 jurisdiction.

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' Act.

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 objective.

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 committees.

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 assistance.

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 body?

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 C-25.

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 martial.

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 Charter standards.

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 C-37.

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 cent.

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 important.

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" level.

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.

[Translation]

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 protection?

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.

[English]

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 principles.

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.

[Translation]

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.

[English]

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 court.

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.