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