Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 38 - Evidence

OTTAWA, Wednesday, October 28, 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 4:03 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is now in session. We have with us today Colonel Patricia Samson and Mr. Brian Grainger.

I believe everyone has copies of the biographies of the witnesses. They are both extremely impressive. Perhaps I should read a little of them into the record.

Colonel Samson has spent time as a teacher, as a member of the Ontario Provincial Police force, as a second Lieutenant in the Security Branch after her training in B.C., and as Deputy Base Security Officer at a Canadian Forces base. After she was promoted to the rank of Lieutenant-Colonel, she was Director of Security Operations 2 at National Defence headquarters.

She was posted with the United Nations in the former Republic of Yugoslavia. She has one master's degree in education and is currently working on her second master's degree in public administration.

I congratulate you, Colonel, on a most remarkable record.

Brian Grainger is known nationally and internationally. He is recognized for his leadership and design of tools and ethics programs for professionalism in practice. He enjoyed 18 years of progressively greater policy and management experience in the federal as well as the provincial justice sector and was the first head of education for the Canadian Judicial Education Centre.

He has been chair of the International Network of Ethics in the public service. He is co-author of "Implementing Ethics Strategies within Organizations" and "Corrections." He is President of the Ethics Practitioners Association of Canada, founding chair of the Ottawa Roundtable on Ethics, a member of the Canadian Association of Chiefs of Police and Adjunct Professor of Law at the University of Ottawa.

Welcome to our session this afternoon. We are fairly informal in this committee. After you have made your presentation, we will have questions from members of the committee.

Colonel Patricia (Pat) Samson, Canadian Forces Provost Marshal, Department of National Defence: Honourable senators, I am pleased to be here to talk about Bill C-25. I propose to highlight some of the issues within Bill C-25 as they relate to the military police, and I will try to confine my remarks to five minutes.

In recent years, the role of military police and the structure of the military police organization have been reviewed. The Special Advisory Group on Military Justice and Military Police Investigation Services and the Somalia commission have made recommendations regarding military police. In each case, the recommendations focus on two key areas requiring reform in order to restore confidence in the competency of the military police. The areas are the independence of investigations and related command issues, and accountability.

To address the issue of independence of investigations and the related process for the laying of charges, the National Investigation Service was organized. This unit provides independent investigative services to the Canadian Forces on both a national and international basis. The unit is organized to operate independently of the operational chain of command, to provide investigative services with respect to matters of a serious and sensitive nature, and has the authority to lay charges.

When discussing command and control issues, it is important to point out that the national investigation service is under my direct command and control. I, in turn, report to the Vice-Chief of Defence Staff for strategic organizational matters, but not for the day-to-day investigative operations.

My relationship with the vice-chief is outlined in an accountability framework that both of us signed on March 2, 1998. I believe a copy of this framework has been provided to you. It is found as an annex to the Canadian Forces Provost Marshal's annual report.

This framework, which was developed with the aid of a number of civilian consultants, is similar to the provisions of various provincial police acts that outline the relationship that must exist between police services boards and their respective chiefs of police.

This accountability framework also highlights the need to produce a report on an annual basis. This report will become one of six public reports that must be produced within the Department of National Defence.

The issue of independence in investigations, however, cannot stand alone. There is a need for such independence to be protected by a mechanism that will decrease the possibility of any abuse and increase accountability.

Bill C-25 proposes a number of amendments to the National Defence Act that are aimed at increasing the accountability of military police. The first is found at Part IV, which proposes the establishment of a military police complaints commission. This commission, which would be independent of the Department of National Defence, would be mandated to review, investigate and report on two types of complaints.

The first would be complaints about the conduct of any military police person as it pertains to the performance of any police duty or function. This aspect of the proposed legislation is similar to that found in the RCMP Public Complaints Commission.

The second part would address complaints about improper interference into a military police investigation by members of the Canadian Forces or senior members of the department. The proposed legislation would put the department on the leading edge of police accountability complaint mechanisms. We have been able to find no other complaint mechanism in relation to civilian or military police that addresses the issues of interference into investigations as directly as Bill C-25.

The second mechanism in the bill authorizes the establishment of a professional code of conduct. The proposed code will provide an overall model for professional conduct by the military police. We are in the process of preparing this code. In this regard, we are relying heavily on the experiences of the RCMP, and the Ontario and British Columbia police services.

Ultimately, Bill C-25 will not only enhance military policing, but will increase the public's trust in the Canadian Forces. The clauses dealing with accountability, the inclusion of the definitions of military police and Provost Marshall, and the powers of the military police as detailed at clause 156 are key to policing within the department.

Mr. Brian Grainger, Senior Partner, Grainger & Associates Inc.: Honourable senators, I am pleased to have this opportunity to say a few words about this legislation. Without any kind of condition, I should like to say that I echo the comments that have just been made by the Canadian Forces Provost Marshall.

I would like to point out that this legislation includes two very specific areas of importance for the professionalization of the military police. One, of course, is the notion of the military police complaints commission, which I will come back to in a moment; and the other is the professional code of conduct in which I have particular interest and, I would like to suggest, some experience. There are two others which are not so easy to see, but which are being worked on diligently by the Canadian Forces.

One is the notion of a Canadian Forces military police credentials review board and the other is the notion of military police professional standards. All four of these items go hand-in-hand and are extremely important.

Any presentation like my own would be remiss if it did not point out that the Somalia inquiry report aided in this process, or at least pointed out a number of useful things which the Canadian Forces have taken up. As well, the late Chief Justice Brian Dickson and his special advisory group put together some of the suggestions and ideas which are reflected in the legislation. I think he did an excellent job in that regard.

Today, I should like to concentrate on the military police complaints commission provisions of Bill C-25 which, as Colonel Samson just mentioned, are included in Part IV of the bill. In this regard, senators would be interested in how this section, among a number of related initiatives, supports the enhanced accountability and widens and deepens the professionalization of the Canadian Forces.

On the overhead projector behind you, Madam Chairman, you will see in graphic form what I am trying to point out. That is to say that this bill, supported by other initiatives that are in place and being built on now in the Canadian Forces at the Department of National Defence, is working toward this very professionalization and accountability mentioned by Colonel Samson and others who have appeared before this committee in the last couple of weeks.

It is essential to say that this is a larger picture than only the important elements of this excellent piece of legislation. It is important to keep the entire package in mind.

When the package was prepared, those who prepared it had accountability in mind. They also had in mind the distinct advice of Chief Justice Dickson in regard to the creation of these kinds of elements.

Speaking now from my experience in policing, there is no perfect system, as those who work in both civilian and military justice environments can attest.

The initiatives before you today, in particular the provision concerning the complaints commission, are based on several key policing lessons that have been learned over the last two or three decades in North America and in Europe. They include the independence of the police; oversight mechanisms for policing; accountability in regard to command and control, which includes elements such as audits, a framework like the one described to include the Vice-Chief of the Defence Staff; and of course the allowance that the Canadian Forces Provost Marshall has the ability and the authority to act, as is the case now.

More than that, I would draw your attention to the annual report, one of many to come, I am sure, of the Canadian Forces Provost Marshall, which is both transparent and open. In particular, I draw your attention to the most recent annual report of the Canadian Forces Provost Marshall, which lay out the situation across the military police in terms of its activities and its operations. It is typical and comparable to the annual reports of civilian police which are available across this country, North America, and so on.

I would like to conclude my remarks with a couple of critical questions that all Canadians, including the rank and file of the Canadian Forces, and certainly senators, have a right to ask about this and the related initiatives I have just discussed.

First, do the Bill C-25 amendments improve military police professionalism? Yes. Existing Canadian police service acts and accountabilities have been built into the operational and other oversight mechanics of this legislation.

Second, do he we need a military police complaints commission? Yes. It addresses concerns raised by the Somalia commission report and by Chief Justice Dickson's report. Will it be similar to that of the RCMP? It is modelled on the RCMP Public Complaints Commission and on several related police oversight mechanisms, which we can discuss if you so desire.

After the reforms are implemented, how will military police accountability compare with civilian policing? A close comparison on an item-by-item basis across all major Canadian police service statutes will show, can show, does show, that the accountabilities are addressed.

Senator Beaudoin: Thank you for your presentation. You referred two or three times to former Chief Justice Brian Dickson. I have the greatest admiration for that great jurist. He made a report to the Prime Minister on this subject. I should like to know from you, in your particular sphere, whether we have given effect to his recommendations and whether his suggestions have been implemented.

Of course, we cannot do everything in one day, but coming from inside the Canadian Armed Forces, what is your reaction? Is there an implementation? As we say in French --


Was there any follow-up to Chief Justice Dickson's report?


Col Samson: The recommendations in Justice Dickson's report which relate to the military police are recommendations 9 through 14. Every one of them has been implemented. We have taken a year and a half and we have succeeded in finalizing every one of them.

Senator Beaudoin: That is very good. I wish to congratulate you.

Col Samson: We have worked hard, senator.

Senator Beaudoin: I will ask the question to the Judge Advocate General at the courts martial level. I think the Judge Advocate General is now the prosecutor. He is no longer a judge.

Col Samson: That is not in my area of expertise. As long as I have a prosecutor with whom to discuss the laying of charges, I am happy.

Senator Rompkey: I have several questions and I am happy to hear from either of the witnesses. The first question is with regard to the military police and their independence, particularly at the local level.

At the local level, the military police are under the commanding officer. The commanding officer is enjoined to report incidents to authorities. What happens? Do you feel there are adequate safeguards to ensure that it does happen? Are there adequate sanctions to be imposed if it does not happen?

The second part of that question is with regard to the military police. If the military police are under the control of the local commanding officer, are they in fact independent? Could you comment on that in relation to the incident in Somalia when the police were not really called? Perhaps not enough police were sent in the first place, but there was a time lag in the referral to the police in that particular incident.

The short question is whether the events of Somalia could happen again under the new legislation.

Col Samson: I will take your questions part by part, senator. Yes, the military police on the bases do work for their local commanding officers. They do provide a policing role similar to that of a civilian police force in a town.

They follow the policies issued by my office. To ensure that these policies are followed and that there is no interference, I now have, as a result of the Dickson commission, an audit group that goes in and audits everything they do. If it is seen that anyone interferes, we do an investigation.

To complement this, of course, is the Military Police Complaints Commission, because any policeman who believes his commanding officer has interfered can make a complaint. That provides even more checks and balances and that is wonderful.

Senator Beaudoin: Did you say "any"?

Col Samson: Any police officer who is doing an investigation can complain. As you all know, an investigation can be as small as stopping a vehicle and asking the person for their name because they are speeding. That is the beginning of an investigation. Any police officer has that right. This is not limited. His supervisor also has that right. There are checks and balances.

The Vice-Chief of Defence Staff, as a result of his accountability framework, is responsible to ensure that an audit is done of the National Investigation Service and ultimately of all the audits we do. There is nothing hidden.

When it comes to operations, whether it is in Somalia or in Yugoslavia, for example, since the inception of the NIS, the military police go with the operators but they are not "my" military police. They belong to the commanding officer.

With each group, I send two to three NIS investigators, specially trained investigators. The unit provides administrative support, food, and lodgings, but they work directly for me and not for that commanding officer. Therefore, if there is any investigation, they come directly to me.

If, for example, a small group goes off some place without taking any military police because the group is not large enough, and if it is reported back that an incident has occurred -- as the commanding officers must report -- then it is my decision to send military or National Investigation Service people in to do the investigation. It is not the commanding officer's decision as it was in the Somalia situation. I am in control of the serious and sensitive investigations, like the civilian police.

Senator Rompkey: My next question is with regard to the civilian component within the military. I asked this question before and I wish to ask it again. I put it in the context of the parliamentary report and the white paper. Both of those documents dealt with the tooth-to-tail ratio of the Armed Forces, having more people in uniform at the sharp end and more people out of uniform at the blunt end. The blunt end covers those who supply the support -- cooks, dental assistants, perhaps nurses.

The question really is to what degree is the legal community involved in the Armed Forces in that category, starting with the Judge Advocate General.

The Judge Advocate General in this country is appointed by the Governor in Council and has, by custom, been a serving Canadian Forces legal officer. However, the National Defence legislation does not require the Judge Advocate General to be a serving military officer. In the United Kingdom and Australia, the Judge Advocate General is a civilian position.

Start with the Judge Advocate General and carry on through the legal community in the Armed Forces, including the appointment of judges. We discussed this to some degree last time. I would like to hear some of the pros and cons for use of civilian expertise within the military.

Mr. Grainger: The easy part of the question is to ask you to call on the excellent JAG staff. They are here to talk about the situation within JAG.

If the question is, compared to policing communities across Canada, are we using civilian expertise as best we can in military policing, then the answer is perhaps that it was not so true --

Senator Rompkey: I refer not only to military policing, but also to the military justice system.

Mr. Grainger: I can appreciate that. Forgive me for staying within the confines of the military police where I am more comfortable and more able to answer your question. The JAG personnel would be competent to address the rest.

Senator Rompkey: We have explored that with them.

Mr. Grainger: On the military policing side, it is to the credit of the Canadian Forces today that, over the last number of years, the Canadian Forces, and the military police provost marshal, in particular, have brought more people into the picture in looking at what is going on, through audits and so forth. They brought in other police services. There are two or three police services functioning in secondment categories and other categories with military police.

If the value of having that civilian input is part or most of the question, you are quite right; it is happening. If part of your question is whether we did enough of it before, my intuition tells me that we did not; but it is happening now. There is now more civilian input into what is happening. The specifics of that are, of course, in the hands of the current provost marshal.

Col Samson: Senator, one of the recommendations put forth by the Right Honourable Judge Dickson was that we set up a secondment and exchange program with the local police. We have done that. I have two RCMP members with me now. I have four or five people seconded with local civilian police forces so that we can learn from each other and grow. We have much to offer each other.

Security clearances used to be done only by military police. That has changed. Out of approximately 35 persons, I have one military police person. The others are all civilians, public servants. They do the job as well, if not better, than we do. I am very happy with their work.

As a matter of fact, as a result of another recommendation of the Dickson group, our security clearance background checks -- those being the checks where people knock on doors to ask your neighbours about your background, your habits, and so on -- have been turned over to the Canadian Security and Intelligent Service. Military police no longer do them. Military police will do law enforcement only.

So you are absolutely right, and we have made those steps. We will continue joining forces with the local civilian police to learn and to grow.

Senator Rompkey: Would you like to comment on the Judge Advocate General's position and compare Canada to Australia and Great Britain?

Col Samson: To tell you the truth, I am out of my league on that issue. I am very pleased with the advice I have been getting from the Judge Advocate General's office and I leave those issues in their hands.

Senator Joyal: Colonel Samson, to give us a general idea of your activities, could you tell us the nature of the conflicts that recur most often.

Col Samson: The complaints commission has not yet been set up. Within my staff, I have set up a shadow complaints mechanism, so that when the complaints commission is set up we can just plug into it and go.

The complaints we have been dealing with lately are similar to those that the RCMP Public Complaints Commission receives. They can be complaints of excess use of force by military police, of not ensuring that people's rights are respected, or of not correctly following policies and procedures. If you wish, I can send you a better list.

All of these are investigated in the way that we believe the Military Police Complaints Commission will work. Of course, how they will set up their procedures will depend on them and the desires of their chairmen. We are following the same procedures that the RCMP Public Complaints Commission is using now. We investigate and then we make recommendations.

Senator Joyal: How many commissioners will you have in the commissions that you will establish?

Col Samson: We have no commissioners within my organization because military police and one RCMP officer are dealing with them.

According to Bill C-25, I believe there will be a maximum of five.

Senator Joyal: How will those five commissioners be appointed?

The Chairman: I believe it is by Order-in-Council appointment.

Col Samson: Yes, it is. I have no connection with the appointments, nor do I want any, because I believe they must be independent.

Senator Joyal: That leads to my next question. How can we be assured that they will be independent? One of the most important elements in the administration of justice is to be sure that the persons making decisions are totally independent from those being complained about.

Col Samson: I presume it will be organized in the same fashion as the RCMP Public Complaints Commission is organized. Those commissioners are appointed. I was just reading the report of the RCMP Public Complaints Commission. Last year, they received approximately 2,600 complaints.

Senator Joyal: And how many members of the RCMP are there?

Col Samson: There are 15,000 members of the RCMP.

Senator Joyal: And how many people do you have to deal with?

Col Samson: We have 1,200 members.

Senator Joyal: So we could expect a similar ratio of complaints, unless the military police are more disciplined than the RCMP.

Col Samson: I would suggest that until people understand to what level the complaints commission goes, we will receive many more complaints because it is a new body. The RCMP received approximately 2,600 complaints last year and the commission investigated 300 of those. The other 2,300 were investigated by the RCMP. The RCMP reports to the RCMP Public Complaints Commission and indicates to that commission what steps it plans to take to correct the situation.

If the complaints commission agrees with the corrective measure, that is accepted. If it does not, they reinvestigate. I suspect that is what they will do with us. They would oversee any investigation I would do for the complaints commission. They would either approve it, or not. It certainly makes my job very transparent and open. Ultimately, they report on it.

Senator Joyal: As you know, there has been much interest among the Canadian public in the equality of women and men in the public service and in the Armed Forces.

The stories that we have heard about sexual harassment in the forces add to our perception that there is something different in the military compared to civilian life because of the line of authority and discipline that is so important and compelling for the performance of the forces.

How do you envisage the complaints commission ensuring the fairest treatment possible for female members?

Col Samson: The complaints commission will be dealing with complaints about military police. They will not be dealing with issues of sexual assault or sexual harassment. Sexual assault is a criminal offence and I take care of that with my National Investigation Service.

I assure you, senator, as a woman, that there is equality between the female military police and the male military police. If I do not believe there is that equality, I am the first to stand up. I believe the complaints commission will look at it the same way.

Senator Joyal: When you affirm that there is equality, I am certain no one around this table would doubt that. It is not only a question of stating it; it is also a question of knowing how the system is managed to protect the individual who is more "at risk" in the system, to prevent the systemic discrimination that might exist.

With great respect, Colonel Samson, you are a clear example of the realization of women's responsibilities within the Armed Forces. However, for those of us outside the forces, it is still a male-dominated system. That is to say, there are more male members than there are female members at all levels.

We understand that the changes are being proposed in respect of equality in the system. It is a system that has very peculiar characteristics in regard to discipline and the line of authority. In civilian life, that does not exist in the same way. Yet, we must try to understand how the system can be managed and operated to ensure women are protected within the system.

I am certain that many of my colleagues in this committee are preoccupied by the changes.

Col Samson: The Canadian Forces, as a whole, shares your preoccupation. Many initiatives are ongoing to ensure racial and gender equality. Everyone who enters the military must follow certain courses. It is constantly raised as an issue at all of our ethics conferences.

We consult with people such as Brian Grainger to ensure that these issues stay at the forefront of our discussions. I can assure you that it is a primary concern of the current CDS, my boss, the Vice-Chief of Defence Staff, and the deputy minister. It is a concern because we want the Canadian Forces to be seen as equal for everyone, no matter their gender or race.

Senator Joyal: How will that be reflected in your code of conduct?

Col Samson: We are currently working on the code of conduct. Mr. Grainger was one of the people who worked on it to ensure that it was transparent and open. I am only an advisor to the working group. This is not Colonel Samson's code of conduct. I want it to be a code of conduct that reflects the values of the Canadian public.

Mr. Grainger: The code that is under consideration and which will be part of the back-up to the legislation is the result of consultations across the country. We did that to ensure we would include elements to be found in all the police service acts. As you may know, virtually every police service act in this country contains the excellent framework and suggestions that Senator Joyal has just mentioned.

The other matter I would mention is that professionalization involves training. In the Canadian Forces, an enormous amount of effort has been put into the training of the military police. That has changed over the last couple of years. The kind of thing you mention, senator, is built into what we expect from people who graduate from any of the courses given in preparation for work in the military police.

If in the course of his or her duty, a military police officer found a person, male or female, contravening some aspect of the code, that person would come before the complaint commission, a tribunal not unlike the RCMP Public Complaints Commission and other tribunals. They would be held accountable for their behaviour, if that behaviour were found to be out of line. The code would be used as a platform to deal with that individual, male or female.

Senator Balfour: Senator Rompkey has asked, and Colonel Samson has answered my main question concerning the interface of the military police with its civilian counterparts. However, it leads to another question that interests me. Having completed the investigation process within the military in a garrison-type setting such as Gagetown, Edmonton or Ottawa, to what extent would it be feasible and/or desirable to transfer the prosecutorial aspect of dealing with offences to the civilian side? I am not referring to major offences, but to run-of-the-mill offences which, if I understand how the system works, must occupy a good deal of time, effort and expense on the part of the military. I believe the jargon is to send it downtown. I am thinking of motor vehicle offences, simple assault, and other offences of that type. Could you enlighten me on that point?

Col Samson: The Highway Traffic Act offences that are committed on DND property go downtown. There are offences on which we work jointly with the local civilian police and, in consultation with our prosecutor, decide if it is better to go downtown or to deal with the matter within a military court.

The minor offences that we keep within the military court are required for discipline. If these commanding officers are responsible for all of the people who work for them and are accountable for their actions, which they are, and if we want a disciplined force in times of crisis, then I believe it is necessary that these minor offences and, of course, the major offences, continue to go through the military court. I believe it is an absolute necessity. Again, I am only responsible for the investigative aspect and the laying of charges for serious and sensitive offences.

How the legal system works, and, in the legal sense, would it be better downtown or not, is something you would have to ask the Judge Advocate General's staff. In reality, they get upset with me when I try to be a lawyer, and I get upset with them when they try to be policemen.

The Chairman: Before I go on to Senator Fraser, I should correct the record. Senator Joyal asked how many commissioners there would be. I understand there would be six, not five.

Senator Fraser: In your opening remarks, Colonel Samson, you said that this system, once installed -- and I must say I find your confidence in it quite compelling -- would put us on the leading edge of such systems. In what way will we be leading? In what way will we be doing it better than others?

Col Samson: If we look at the complaints commissions that are in place now, whether it be the RCMP Public Complaints Commission or other complaints commissions across Canada, as well as those around the world, we see that they are in place to deal with complaints about the conduct of police in the performance of their duties.

I have not been able to find one complaint commission, which deals with the issue of interference into investigations. In Canada, we would be on the leading edge and that is wonderful.

I am sure it will come within the next couple of years, because many countries are probably experiencing the same problems we have had in our military. So we are on the leading edge.

Mr. Grainger: As a follow-up to that, I would ask the senators a question. I know time is always at issue in terms of legislation. If you examine the legislation -- and this is with respect to my good friends in the RCMP where I once worked --DNDCF have made improvements on that complaints commission. The improvements include notice, speed and transparency. Those are real improvements and the RCMP is using them for their own improvements. Every one is learning from each other.

The one thing that has not changed -- and I beg the indulgence of the senators -- is that recommendations back to DNDCF are still required. The RCMP has similar requirements, as does every police service act. I would remind everyone that we hold the chiefs of police services accountable for managing their service and they must do it. This helps to keep them accountable, but it does not take away their responsibility to operate their service, whatever service that may be.

Senator Joyal: I would like to come back to Colonel Samson's comment that you have implemented recommendations 9 through 14 in the report. I have recommendations 9 to 12 here. Could you expand on 13 and 14?

Col Samson: Number 13 refers to the merging of the special investigation unit of the military police with the National Investigation Service. We have done that.

Senator Joyal: It is already implemented?

Col Samson: Absolutely. We are only talking about what was left of the special investigation unit. Approximately 15 people were left and we merged them.

Number 14 speaks about the National Investigation Service being reorganized and tasked on a number of areas under the direction and control of the director general of security and military police. That was the title I had before I became Canadian Forces Provost Marshal, according to recommendation 11.

It was also recommended that we operate independently of the chain of command. That is also being done.

Investigative services were to be initiated with respect to all service offences of a serious or sensitive nature, or offences requiring complex or specialized investigation. That is being done. The National Investigation Service investigates only those areas. Minor offences are left to be investigated by the local military police.

Also, recommendation 14(d) stated that investigators should have the authority to lay charges. We have been doing that since November 30, 1997.

The service is to operate in cooperation with base and wing units of the military police and with other supporting units for logistical and administrative support. My detachments, my local area headquarters for the National Investigation Service, do get their administration and logistical support from the bases. Their pay records, their medical records, and so on, are being covered by the bases.

Review and oversight of operations are to be the responsibility of the Vice-Chief of Defence Staff facilitated by an annual report from the director general of security and military police. My first annual report was issued on March 31, 1998.

The Vice-Chief of Defence Staff has requested that the Dickson group come back to do an audit on the recommendations. This will ensure that we have responded to all of them and that they are indeed working. We will see if there are any further recommendations that would help this unit and the military police organization run more smoothly.

Senator Joyal: I wish to return to the matter of the presence of women in your service. As far as I can tell, at the municipal police level, when citizens see two officers, a woman and a man, in the same car, they generally assume they will be treated with more fairness than if they see two men. I do not know why. Perhaps we trust women more than men when it is a question of justice.

Are you contemplating some type of affirmative action in your recruitment program? As I understand it, according to recommendation 10, you will be responsible for selection and recruitment with respect to the military police. You will be in a privileged position to ensure that your service reflects equilibrium or balance. It will be much easier for you to ensure the best treatment possible for members of the Armed Forces, especially when they are female.

This is a policy question, which is very important. If you reorganize your service on new grounds, as you have said yourself, to put your service at the forefront, then this is one part of the elements which we would certainly appreciate in the Canadian Armed Forces. Can you expand on your approach and how you will implement that?

Col Samson: Senator, first, I must assure you that we are currently doing that. We want to bring more women into the military police. The selection criteria are very near and dear to my heart. We are researching what other police forces are doing.

If there is a man or a woman out there who meets the criteria, and they wish to join the forces, we bring them in. There are no biases. I will not permit it.

We have spoken with many other police forces, including the RCMP. Our selection processes are becoming extremely modern. Our training is done in such a way that it does not preclude women from completing it. In other words, we do not use the old way of training where one must pick up or drag a body that weighs 120 pounds or 100 kilos. Our training is realistic. Therefore, the training and the selection are not meant to preclude people. They are meant to get the best person for the job, and that is what we are doing.

Currently, approximately 10 per cent of our military police are female. As a matter of fact, I was discussing this issue with members of RCMP last week. Female members staff approximately 10 per cent of their service. Would we like to increase it? Definitely. Is our aim to increase it? Definitely.

However, if the women do not wish to join the military, it is hard to convince them otherwise. Unfortunately, until I have been given permission to drag women from the streets, I will have a hard time filling the positions with female applicants.

Senator Joyal: In order to give us a fair comparative background, what is the proportion of women to men in the Canadian Armed Forces?

Col Samson: In other occupations?

Senator Joyal: Yes.

Col Samson: The military is approximately 10 per cent female and the rest male.

Senator Joyal: Yet you said that you are not satisfied that this is a fair representation of women in the forces and that the best way to maintain some standard is to say there are not enough.

Col Samson: I would prefer to keep the area of discussion to the military police, my area of expertise.

The reason I would like more within the military police is because we have many complainants who are female. Many people who wish to speak to us are female. I have a higher requirement for more female military police than some other occupations.

Senator Joyal: Colonel Samson's statement illustrates why this is a very important issue. If this is a situation that will develop in the future, this is an important element.

I would like to thank you. Perhaps in your future annual reports you could contemplate that aspect of your activities. There is no doubt that Members of Parliament are very sensitive to this issue.

It would be beneficial to see in your report any improvements that you can achieve.

Col Samson: Thank you, senator, I have made a note.

Senator Rompkey: I wish to repeat a question that I asked when we had the Judge Advocate General and officials from his office before us. It concerns the complaints commission and the reporting of the complaints commission.

The complaints commission is to send copies of its reports to the Minister, the Chief of Defence Staff, the deputy minister, the Judge Advocate General and the Provost Marshal, depending on the nature of the complaint. They review the report before it is finalized and released to the complainant and the person who was the subject of the complaint. Why is that necessary? Is there not the perception of interference in what should be an impartial report? The person who made the original decision gets to review the decision before it is finalized and released to the complainant. Therefore, it is a question of the old cliché of justice being done and justice being perceived to be done.

Perhaps there is a good reason for it and we explored it last time. As I recall the previous testimony, it was with regard to procedures to be followed, decisions to be implemented, and steps to be taken. Perhaps we are talking about a second report all together.

This first report is an investigation or review of a situation. What is the necessity of having it subjected to scrutiny, reviewed and commented on by those people, before the report is released to the person who made the complaint in the first place?

Mr. Grainger: Senator, I noted with interest that discussion the other day. I am pleased we are returning to it. In addition to the discussion and the excellent answers that were given the other day, there are two types of answers that are useful here. Forgive me for not recalling the specifics, but I can get you the police accountability oversight literature which points out that, sadly, operating organizations and oversight organizations do make mistakes. Sometimes it is very important that a working copy or a draft go between the two to ensure that everyone realizes that they have a common or a level playing ground. We must all understand the same thing the same way, otherwise a shouting match may ensue and that can take up time.

I can assure you that there are backlogs in commissions of this kind around the world because people spend their time in territorial arguments around facts that were not discovered properly, or where there was no proper understanding between the parties. That is important.

Whether it is the Auditor General of Canada or these commissions, it is a courtesy in and around these kinds of situations to ensure that, if people see a resolution, they are then able to shorten the process and avoid a nasty report in three or four weeks.

Those two elements on top of the discussion the other day would address your question. If the impression is left to others that there is some sort of inequality, then we ought to correct it. However, that is not what it is meant to be. It is meant to ensure that the process works sufficiently and quickly, and that it is accurate. That is why the give and take should occur in that way. There is nothing more complicated.

Senator Rompkey: I wonder if the Provost Marshal would like to comment.

The question is not a reflection on any individual. We are all impressed with Colonel Samson's background. The question is not to personalize it in any way, it is a question of perception of procedure.

With regard to the answers, I can understand courtesy. However, there is also the question of courtesy to the person who made the complaint. Courtesy works both ways.

Col Samson: Further to discussions on procedures that I had with the Commissioner of the RCMP Public Complaints Commission, I can say that the system that we have in these interim reports is basically in line with what has worked in Canada with the other complaints commissions. I am comfortable with it. I believe that Canadians will be comfortable with it.

I have no arguments with it. I think it is necessary. If you wish, I am sure that she would be happy to speak to you. She will probably tell you that it works quite well and that it saves time.

Some of these investigations can go on for years. The complaints commission makes recommendations. We can argue back and forth and they can come to me and say that they do not want the recommendation that has been made. As Mr. Grainger indicates, we could do it as a courtesy and move on.

After all, the complainants want this to be over with. The military officer or the member of the RCMP has sometimes been living under a shadow for six months.

I am happy with the system. We should continue on with the way it is written here.

Senator Beaudoin: At the beginning, I referred to the Dickson report of March 25, 1997. The former chief justice was asked to give an opinion to Prime Minister Chrétien, or to the cabinet, on the same subject. I do not know what the exact question was. Perhaps they asked him whether his suggestions were implemented. I am inquiring for the purpose of the record here. It was probably a legal opinion.

Col Samson: I have no idea. I do know that the Department of National Defence did ask Chief Justice Dickson and his group to do an audit, and that audit is still ongoing. It started on October 1 and will continue until approximately December 15. It falls under recommendation 14(f).

Senator Beaudoin: I believe it would have been very valuable to have asked him whether it had been implemented. Is text available on this? Is it just a legal opinion? Is it an oral opinion?

Col Samson: No. They were given written terms of reference and they will report on or about December 15.

Senator Beaudoin: I see. They have not yet finished their work?

Col Samson: No, they have not.

Senator Beaudoin: What will happen now that Justice Dickson has died?

Col Samson: I believe that the co-chair, Lieutenant-General Belzile (retired), will be carrying this group with a number of advisers.

The Chairman: I understand that Lieutenant-General Belzile will be here tomorrow.

Senator Beaudoin: I shall wait for him, then.

Senator Moore: You stated that 10 per cent of the military police are female.

Col Samson: Approximately, yes.

Senator Moore: You have investigators who investigate sensitive matters and report to you directly.

Col Samson: Yes.

Senator Moore: Is that a special unit within the police force?

Col Samson: They are military police. There are 110 of them who have come together in a brand new unit. These investigators have received training in civilian facilities. Some of them have worked with the RCMP. In that particular unit, there are RCMP members working with us. There are men and women.

Senator Moore: How many are female?

Col Samson: Unfortunately, there are probably six. This is a very demanding job where they work long hours and are away from home a lot. People do not volunteer to join this unit. Some of them do not want to be away from their families that long.

Senator Moore: Further to Senator Joyal's question, if there were a female alleged victim of sexual harassment or similar offence in the service, would you ensure that a female police officer spoke with the alleged victim, as opposed to a male, to ensure that the alleged victim would not feel intimidated by a male investigator?

Col Samson: Most of our investigations are done in teams. When there is a female victim, I always try to ensure that there is a female investigator on the team. If we do not have one, we borrow one from either the local police or the local military police. Our aim is to make these people comfortable and not to re-victimize the victim. If they need any help, we get them the help they require.

The Chairman: I wish to thank you very much for your clear and concise presentation this afternoon.

Senators, our next witness is Colonel Bruno Champagne, Deputy Judge Advocate General/Chief of Staff.

Colonel Champagne, a graduate of the University of Ottawa law school, became a member of the Quebec bar in 1970. He enrolled in the Canadian Forces in 1973. During his military career, he served in various legal officer positions in the office of the Judge Advocate General in Winnipeg, Montreal, Ottawa and Germany.

Colonel Champagne served as a military judge from 1987 to 1991 and from 1994 to 1995. He has presided as president or judge advocate at 114 courts martial. He was promoted to his present rank in 1995.

Please proceed with your presentation, after which we will have questions.

Colonel Bruno Champagne, Deputy Judge Advocate General/Chief of Staff, Department of National Defence: Thank you, Madam Chair. I have no specific opening statement. General Pitzul and Colonel Weatherson have appeared before you on this bill. General Pitzul, the Judge Advocate General, has spoken and answered questions in respect of the appointment of military judges. This bill is attempting to bring the National Defence Act into compliance with several cases.

I understand that one of the reasons I was asked to come here today is that there are concerns about what it is like to be a military judge and whether I have encountered any pressure from the executive during my tenure as a judge.

I was originally appointed for one term, completed that term, and returned to another military position. I wish to elaborate on the question of "term" with regard to why the bill was drafted in the way it was.

As in my case, if military judges are appointed early in their careers, for instance, at approximately age 40, and if they are appointed until retirement age, they are barred from a full military career with the possibility of advancement, because they cannot be promoted without leaving the bench.

In my case, if I had not come out of the "term" at the time that I did in 1991, I could not have been promoted to the position of military judge because, at that time, we only had one position, the position of Chief Military Judge. It has not changed since that time. Previous legal officers appearing before the committee have alluded to why a "term" is considered to be appropriate within the system.

Military judges do not sit in a particular city or in a permanent courtroom. We sit across the country. At one point in time, we sat in Germany and other countries. In fact, I have conducted trials in Egypt, Cyprus, Germany, and England. It is physically quite demanding with respect to travel. At times you must work away from a law library. The conditions are difficult when courts sit, for instance, in theatres of operation, and you write decisions or prepare addresses for general courts martial, which is basically preparing a jury address. As an example, in Cyprus, where the temperature is 35 degrees, some people may want stay for 15 years. This is one of the reasons why a term of five years is included in the bill.

Basically, that is the extent of my presentation on that issue. Because other people have spoken previously, I do not wish to repeat what has been said. If I can be of assistance to the committee with respect to my experience, I would be pleased to do so.

Senator Beaudoin: Perhaps I should ask the same question I asked one hour ago. To what extent was the report of the Dickson commission implemented after it was tabled? We all know that in some cases the Supreme Court criticized the military judicial system because it was not really independent from the executive branch of the state or, perhaps, the legislative branch, I do not know. Many reforms were made after that. I wish to congratulate the forces for having done that.

We are now in a better position as far as military justice is concerned. However, I have a problem with the question of a five-year term and, in particular, with the renewal provision. I do not have any objection that judges be appointed for five or ten years. As a matter of fact, in many countries, especially in the "conseil constitutionnel" of some democracies, we have provision for the appointment of judges. That does not worry me.

However, the renewal provision worries me to a certain extent. Who is deciding to renew or not to renew? I am told that there is a committee which advises some authority to renew or not to renew. It may be that in the forces, contrary to the civilian justice system, people do not want to be appointed for a long time. In the civil courts, it is exactly the reverse. Judges are appointed until they reach the age of 75. They have very good security.

Senator Joyal: They want them to retire at age 65.

Senator Beaudoin: It is true that at age 65 judges want to take advantage of some supernumerary responsibilities, but there is quite a difference between the two. I understand that it is because of the context in the Armed Forces. You referred to that point to a certain extent in your own experience. What is it fundamentally?

Col Champagne: In the military, there is the aspect of disruption as well as the aspect of career progression that we try to maintain for military judges. This is why the term is the system that has been put in place. The term does not prevent someone from being reappointed for another five years and, possibly, to sit on the bench until that person reaches the age of 65.

Senator Beaudoin: Is it possible?

Col Champagne: Yes. The committee that will be set up will be composed of three members. If, upon expiration of the term, the serving military judge expresses a desire for reappointment, the committee will be able to look at him as well as other people, and reappoint him for an additional term of five years.

Senator Beaudoin: Does it happen in practice?

Col Champagne: It has not happened yet, because the committee is not in place.

In the absence of the committee, what has happened in the past is that some people have effectively been reappointed. However, they do not have the safeguards of institutional independence that the committee will now provide by way of its guarantees from interference by the executive branch of the government or the Judge Advocate General who is advising the minister. In future, this committee will make such a recommendation.

Senator Beaudoin: I understand that Chief Justice Dickson did not object to the renewal provision.

Col Champagne: That is correct. He did not object to the concept of term for military judges. I suspect he was reflecting what he already had the opportunity to consider when he was on the bench.

Senator Beaudoin: Did he agree with the five-year term and with the possibility of a renewal?

Col Champagne: He did not agree with the five-year term. He did not object to the fact that the appointment of military judges for a term was an encroachment upon their institutional independence. In fact, he agreed with the concept expressed in the Valenti case about the meaning of institutional independence and that the appointment for a special judicial task, which was the terms of the court, would preserve the institutional independence of the members of the court.

Senator Beaudoin: In the judicial system, as it is with civil courts, criminal courts, and some other tribunals, the system is clear cut. It is very independent. When a person is appointed as a judge of a superior court, a court of appeal, or the Supreme Court of Canada, there is no doubt in the world they are independent. They have financial security. They have no intrusion of the legislative and executive branches in what they are doing. When they hear a case and when they draft their judgment, there is complete autonomy.

We have a very good judicial system. In the military area, it is more complicated because the context is different. There is no doubt that we have made much progress and there is no doubt that we should continue.

As far as the career plan is concerned, I would like to know why the mentality is so different in the forces? It is probably because of the very different context.

Col Champagne: You are quite right that the context of career planning in a military organization is different.

We all agree the fact that the appointment of military judges is different does not mean that it is not judicially independent. It is simply different.

Senator Beaudoin: That is right.

Col Champagne: There are different ways of achieving institutional independence. We suggest that we are achieving it by term appointment.

The aspect of a military career has an importance for everyone in uniform. On day one, when you enrol in the Canadian Forces, even when you enrol as a military lawyer, you do not expect to become a military judge. What you see ahead of you is a career. Career progression goes with planning. People do not progress necessarily by fitting into positions or appointments, but by being promoted.

Perhaps this will explain where we are today. In the past, there was a perception and perhaps a reality that, by being appointed a military judge, you would not progress in your career. Why did that perception and that reality exist? It is because, as we went along and as the cases were developing institutional independence, we made changes to make the judges more independent. We said that the judges would not be evaluated on their performance. To meet the criteria of financial independence, we set up a formula to guarantee that their pay would not be affected by or related to their decisions.

One of the concepts in career progression is not having performance evaluations like everyone else in the Canadian Forces. Your file will never go before what we call a "promotion board." Basically, that is a board composed of officers trying to determine who is number one at the various ranks.

With attrition, normally, the people at the top are the people being promoted. Military judges never make it on to that list. Now the term will be fixed, unless the individual requests his appointment to be terminated, which is highly unlikely. At the end of the term, if the individual does not want to carry on as a military judge for personal reasons or for career reasons, and if he wants to come back into the mainstream to complete a full career, he will be permitted to do so. That is consistent with the progression of any other military career in the Canadian Armed Forces.

That is one of many factors underpinning why this job is different. I agree with General Pitzul that there are also disadvantages to the turbulence associated with travelling as a military judge. Some people have young families. Do they want to do that for 15 years? Some may very well want to continue. They may look forward to re-appointment. Others may say after five years that, for personal reasons, they want out. That possibility is permitted as well.

Senator Beaudoin: A judicial career in the army is entirely different from a judicial career in civil law, in common law, or criminal law, because it is a career. Judges are in the superior court. They may hope to be appointed to the court of appeal and, after that, the Supreme Court. Then that is the end of their career.

In the army, it is the reverse. If they want to become a general or a brigadier, they must leave the judicial career. The context is entirely different and that is probably one of the biggest difficulties here.

Some may accept an appointment for 5 or 10 years and plan to continue their military career after that. They are then no longer a judge. They are military personnel again.

Col Champagne: This is also the challenge. The interesting aspect of being a legal officer, of being a lawyer in uniform, is that you almost need a dual personality and a dual role in life in the military forces. Internally, we have discussed this many times. What comes first? Does the uniform come first or does my legal career come first? What am I?

To me, we are both. It is intrinsically intertwined. You must progress in everything you do, taking into account that you are an officer. You are representing the Crown or Her Majesty, serving the Government of Canada. At the same time, you are a lawyer and you have an oath to your bar association. You have a duty to act legally and ethically and to provide the best advice. Sometimes there may be conflicts. You must resolve those conflicts.

This may explain the difficulty, which you may perceive. When we become members of the judiciary, we are products of our backgrounds. Judges are still in uniform and they may have a desire to come back into the military. That is one reason the legislation is drafted that way. If they want to return to uniform, they may do so. So far, this has happened rarely.

A provincial court judge who does well and works hard may aspire to being appointed to the Supreme Court or to the Court of Appeal. For military judges in uniform who aspire to go to the appeal court, it is quite a step.

As a result of our background and where we are coming from, it is almost impossible to complete. This term will permit the maintenance of a dual identity that all legal officers experience as they are coming into the forces.

Senator Rompkey: I thank our witness for clarifying the role of the military judge and the situation in which a military judge finds himself.

My question relates to the general civilianization of the military or, as Senator Balfour put it, "going downtown." How much goes downtown now? How much more could go downtown? This question is in the context of how many tasks within the military can be done by civilians. Fighter pilots are one extreme. You cannot take an Air Canada pilot and put him into an F-18 because he would have to know a weapons system, rules of engagement, tactical considerations, and so on. On the other end of the spectrum, the dental assistant does not necessarily need to be military.

In that spectrum, where do the legal officers within the military fit? The Provost Marshal told us that more RCMP officers were being used in the police forces. I should like your comments on the question of how much of the military justice system is now being done by civilians and how much more can be done?

Col Champagne: Concerning the military justice system, perhaps I will answer the first part about what is done now. Generally speaking, we do not investigate the offences. For example, a military officer who is picked up in Ottawa for drunk driving on Saturday night will appear in Ottawa.

In the military, we have a nexus or connection. The court martial appeal court ruled several years ago that, for offences committed in Canada, if there is no military nexus -- in the sense that the case was not connected to the maintenance of military discipline -- we should not have jurisdiction.

Recently, the court martial appeal court reversed that pronouncement. They reviewed the National Defence Act and found that nowhere is there the concept of nexus, military nexus, jurisdiction over the person, and jurisdiction over the offence.

Theoretically, under the code of service discipline, the jurisdiction exists with respect to our members. In practice, however, that jurisdiction is not exercised when the investigation is done by other police forces. How much goes downtown is difficult to say. We do not have statistics because we do not capture that. Sometimes people may be arrested for something minor such as shoplifting and it may not necessarily be reported to us.

The core of your question is why do we need the military justice system. There are several reasons. First, the military justice system needs to be portable. For example, if you look at one case in isolation, a person is picked up for impaired driving in Ottawa. Why is he not tried in Ottawa? I suspect that the civilian court that exists could try him in Ottawa. However, the military justice system is in place to maintain discipline within the military community anywhere in the world. It must be portable.

To be portable, it must be understood by the people in uniform. It must be put into place so that, when we deploy to Bosnia, the very same system is in place.

In order to function in a military fashion and to deal with infractions that are military offences, we must have jurisdiction over these offences. When we deploy to other places, we need to expect the commanding officer, the dedicated officer, to be able to apply that system.

One of the elements is the portability of the military justice system that we need to apply in time of war. No one contemplates that we will go to war. However, we go to places where we must function as a military force. We need that system to be in place and to be effective. There is no other system in place for us to maintain it.

A second reason is the maintenance of military discipline. Who can best determine the requirements of military discipline within a section between a military unit and an infantry unit? This is why jurisdiction at the first level and the authority to lay charges remain within the military, so that these breaches can be properly assessed and dealt with by the military system.

I do not know if I have answered your question completely, but those are the two main reasons. We must be portable and we must have discipline in order to be operationally effective and fulfil the various mandates that the Government of Canada assigns to the force, overseas or at home. The ice storm, the Oka crisis, and the flood in Winnipeg are recent examples.

I do not think you want to deploy these people in a sensitive situation without being able to immediately sanction the breaches of discipline. You do not want to wait for the civilian system to proceed about two or three months later.

Military discipline needs to be done as soon as possible after an offence or allegation has been made.

Senator Fraser: Regarding the question of judges and terms of renewal, in reference to the past, this question may not be relevant because both you and others who have appeared here have seemed to suggest that being a military judge is not a job that anyone in their right mind would want to renew. Perhaps in the new improved system there will be more interest in having a career as a military judge.

In what circumstances could a renewal be denied?

Col Champagne: To a certain extent, I must answer that hypothetically because the regulation is in the process of being developed by the team.

One of the factors could be that the incumbent does not want to be extended. I suspect that the committee will use the same criteria that are used for the appointment of judges in other courts, that they will look at competence and the incumbent's desire to be renewed.

I am at a disadvantage here, because I have not researched the factors that will be used by the committee. However, I suspect that the main turning point will be the willingness of the incumbent to be appointed.

Senator Fraser: I am assuming that someone wants to be renewed. Will there continue to be no performance evaluation?

Col Champagne: There will be no performance evaluation. The judges', performance will not be assessed. If I understand the system properly, when judges are appointed there is a screening process. Superior court or Supreme Court judges make recommendations and the names are put on a list. One of the criteria is competence. People who have not proven themselves within the judicial community generally do not make it to that list.

Senator Fraser: I understand that, but we are talking here about people coming up for renewal. They will not have performance evaluations, at least in military terms. Is it envisaged that there would be some set of moderately objective criteria available at least to the review committee, separate from the military career track form of evaluation? Otherwise, how can a judge who is denied renewal know that the denial was fair and was not based on some form of institutional displeasure with a decision rendered during the first term?

Col Champagne: It could not be based on institutional displeasure because the institution will have no say in the recommendation of the committee or in the Governor-in-Council appointment.

When the three members of the committee look at someone, I cannot say what the default position will be. Will the default position be that you are not reappointed, or will it be that you are reappointed for another five years?

I suspect that if a person has expressed a desire and there is no counter-indication, the default position will be reappointment for another term. It is for the committee to make that recommendation.

I am quite confident that performance on the bench will not be a criterion, that the institution will have no say in what the committee recommends, and no say in whether the Governor in Council decides to renew a term or not.

Senator Fraser: Therefore we do not know in what circumstances someone might be denied renewal?

Col Champagne: I cannot answer that.

The Chairman: Senator Fraser, that would be a good question to pose to our witnesses tomorrow as well as to the representatives of the department when they are back before us.

Senator Moore: I found your exchange with Senator Beaudoin very interesting. As you probably know, your biography has been circulated. You served as a military judge from 1987 to 1991 and then went back on the bench from 1994 to 1995. You received your promotion in 1995. What did you do between 1991 and 1994?

Col Champagne: I must correct the record. I came out in 1990. I went back to Montreal and worked on the Oka crisis during the fall. I then returned and worked in the directorate of personnel legal services in Ottawa. Until 1994, I was responsible for personnel related issues such as redress of grievances, harassment, career policies, and so on. In 1994, I went back to being a military judge until I was posted out on promotion. That promotion was based on the performance evaluation report I received when I was out.

Senator Moore: Between 1990 and 1994?

Col Champagne: That is right.

Senator Moore: That is where I am leading.

Col Champagne: That illustrates the importance of allowing someone to go back into the main stream and continuing with a military career, rather than continuing as a military judge, unless that person has decided to forgo promotions.

Senator Moore: Yes, but the activities in which you were involved between 1990 and 1994 were basically judicial in nature, were they not?

Col Champagne: No, they were legal.

Senator Moore: Yes, legal.

Col Champagne: They were legal in the sense that I was providing legal advice to the department, but I was not in a judicial function.

Senator Moore: I should have said "legal".

If you had not taken that break from the bench, do you think that you would not have been promoted to the rank of colonel?

Col Champagne: I would not have had any performance evaluation report from 1987 to 1994 and, I suspect, I would not have been promoted. I was the judge in Généreux. The Généreux case was not yet before the Supreme Court of Canada. I was the object of all the pre-trial motions under the Charter, the Federal Court applications, and the adjournment requesting me to step aside. At that time, we were looking at how we could improve the system. We did not wait. In fact, by the time the Généreux decision went to the Supreme Court, most of the difficulties identified had been remedied by way of amendments. One of the remedies put into place was that military judges should not be subjected to performance reports. That is because Valenti preceded Généreux. We had already corrected the system. In fact, at that time the military judges did not get evaluation reports and their personal files did not go before any merit or promotion board. Basically, you knew that you would not be considered for a promotion.

Senator Moore: This is not just a perception, it is a reality.

Col Champagne: Yes. To counterbalance that lack of promotion, the compensation was increased. To meet financial independence, the pay was set higher than that of a Lieutenant-Colonel, for instance. The pay of military judges was set at the top of the range, plus 2 per cent, plus 8 per cent. Basically, it was the same rate of pay as a person who was not a judge, but who was outstanding as a legal officer.

The Chairman: You made it clear that being a military judge is a career cul-de-sac.

Senator Joyal: My questions are along the same line.


Colonel Champagne, you presided over 114 courts martial. How many took place in Canada compared to those held in foreign countries?

Col Champagne: Possibly two thirds were held in Canada.

Senator Joyal: Two thirds were held in Canada.

Col Champagne: One third in Europe. At that time, we had a base in Lahr, in Germany. A number of serving officers were there and we regularly had courts martial in Europe, mainly on offenses having to do with operating a motor vehicle and other offenses of this type.

Senator Joyal: This does not detract from your merit, but I often visited the base in Lahr. I did not find the place unpleasant as such. I do not want to lessen at all the difficulties you might have had in Egypt or Cyprus, especially at certain times of the year.

I was trying to have an idea, based on your career, of the particular problems you might have had being away from home, because this was one thing that was brought to our attention, the difficulty of staying in such a position in terms of one's family life or personal life, and so on. I am trying to see how important the problem might be for someone in a judge's position like you to have to work in a foreign country. When you do, it's necessarily an important factor.

If you are asked to go to Bosnia, it is not the same thing as going to Lahr, which is 30 kilometres away from Baden-Baden. The situation is not the same.

My second comment is further to the question asked by Senator Fraser. Based on what you know about holding a judge's position, and about military judges who leave the bench, you told us that they always have the impression of having a dual career, a military career and a legal one, since they always carry out their professional duties wearing a uniform. They have a choice of putting their knowledge at the service of the Canadian Armed Forces.

Generally speaking, can you tell us what kind of post they might hold during their career? You have described your own activities which had to do with the administration of military justice. Do the other judges follow career paths rather similar to yours?

Col Champagne: I can answer your second question first. General Pitzul, who appeared before the committee, was a military judge at the same time I was myself in such a position. He completed his term. He was given an administrative post and, subsequently, he left the service. He became the Province of Nova Scotia's Director of Public Prosecution. He came back as Judge Advocate General.

Captain Reed, who is in the navy, was judge as a Lieutenant-Colonel before 1987. He is now Deputy Judge Advocate General with Operations. He is responsible for providing legal advice regarding deployments, operations rules when troops are being deployed in Bosnia or in the Great Lakes region in Africa or elsewhere.

When Lieutenant-Colonel Desroches completed his judge's training, he came back and was put in charge of administration; he was Judge Advocate General for Administration until he was appointed as a judge of the Supreme Court in Prince Edward Island.

To come back to your first question, you are right, it is always pleasant to go to Lahr for several reasons. My comments were not really about Lahr. It is not one or two trips that matter, but the fact that you are always on a trip which, after a while, might be a problem for some people.

The court martial was supposed to last for a week, but it lasts more than that. You are in a place where there are no connecting flights. You are supposed to go back home, then from Kansas City to Fredericton in the middle of January because the cases are already registered on the roll. You run to catch up with time. You go on like this for six months, a year; at the beginning, it is something new to do. After three, four or five years, you might very well want to have a more stable life, to be able to go home at night and have diner with your family.

When you are a judge, it is a fact of life that you have a lot of responsibilities and a lot of work. When the court adjourns at four or five o'clock in the afternoon, for the judge, the real part of his work starts and it can go on until midnight, in hotel rooms, in difficult conditions. You can do it for a week or for a month, but after four or five years, a judge is bound to say that he has given what he had to give to military justice, and that although the commitment remains, it might be time for somebody else to do the job. When someone wants to get out, he has the opportunity to do so at that time.


Senator Joyal: Without putting you in a difficult position, I should like to ask you for comments on another topic. Taking into account the importance of maintaining the principle of security of tenure out of any institutional intervention, as Senator Fraser has said -- I know Senator Beaudoin has that preoccupation and, in a way, we all wrestle with it -- if the legislation were to provide for 10-year appointments, with the ability after five years of leaving, would it not make a circle square?

If a person feels at ease in that life -- which is a difficult one and we all recognize that -- that person would, nevertheless, be sure to hold tenure for a fixed period of 10 years.

On the other hand, if after five years a person has the conviction that he or she has contributed to the nation and wants to pursue another course within the military, that person would be able to resign. In other words, the military system could plan that some people may leave after five years. It is not just leaving it to their will, their discretion or their pleasure. There would be a specific term after which the person could decide to stay or to return to the level of administration suitable to his or her professional abilities.

According to the various cases that have enlightened the deficiencies, it seems to me that we could maintain those principles that we think are essential to maintain the impartiality of the system. On the other hand, we would give way to the difficulties which you have outlined for us. What do you think of such a system?

Col Champagne: That system is possible. Conceptually, if we accept that the principle of institutional independence can be maintained by a term appointment, and if we accept that as being the law of the land, then the length of the term is a modality. The principle remains the same.

The term respects institutional independence. The modality of the length of the term could be four years or six years. I suspect that for the drafters of the bill there was nothing magic in choosing five years. There is a term; should it be 5 or 10 years? For instance, could the committee put into effect the concept that you would like to see? The committee would be the vehicle to do that and it could do that very well.

What is the default position in the committee's opinion? Is it to terminate and replace, or is it to carry on? The vehicle is in place. The regulations could accommodate your suggestion about automatic renewals or moving to the 10-year term.

Senator Joyal: You understand the point then. It is to respect the difficulties of a career as you have outlined them to us. We are very sympathetic. On the other hand, in devising a new system, we must ensure that we come as close as possible to the principle of independence of the judicial system. Essentially, that is what we are trying to achieve.

On security of tenure, we must consider that there is a commission which will make evaluations. If there is no criterion for those evaluations, as Senator Fraser has said, then all the influences are on the table at the same time and it is difficult for us to consider this as a very tight system.

If we are to redraft the overall military judicial system, we want to be sure that we do not need to review it every year. Look at the size of this bill. It encompasses many aspects and we want to ensure that we are doing the right thing. Senators around this table are trying to achieve a balance that would respect professional careers, the functions of the military, as well as the principles of the system which we are trying to put into place.

Col Champagne: I support that entirely. I share your concern of wanting to have it right. I see shortcomings in the criteria for that committee, but I have not worked on that part. I suspect that tomorrow you and the experts who have drafted the bill will have an opportunity to explore the concept which will be in the regulations and the criteria to be applied. Hopefully, you can satisfy your concerns then.

Senator Balfour: Whether the term be 5, 10 or 12 years, would it not be feasible to build into the system a responsibility vested in the judge to apply for and be relieved of his judicial duties, without prejudice to his career, and to go back to other duties at any time during the term?

I see nothing sacred about having to stay in the job for that length of time. People may die, get sick or whatever. Would that offer possibilities?

Col Champagne: Yes. In fact, we already have that option. If any of the judges express a desire to be relieved of their duties, we will not force them to stay against their will.

Senator Balfour: Would that impair one's future career opportunities outside the system?

Col Champagne: No. Future career progression in the service will not be based on what a member did as a military judge. It will be based on what he does after he is out. The evaluation report is a yearly report. These are tight compartments.

Senator Balfour: On that basis, you could have a 15-year term without doing any damage to your desire to avoid locking someone into a career choice which could be a dead end or a cul-de-sac, as the chairman said.

Senator Joyal: My only preoccupation -- and we will raise this issue tomorrow with the department representatives -- is that we should not create a situation whereby all the judges resign at the same time because they are fed up. We must wrestle with this, as well.

If we give a person the option to stay or to leave at a certain point, it builds some kind of stability. Of course, there could always be a physical reason why someone might want to decline.

Senator Balfour: I am sure that if the members of the Court of Appeal of Saskatchewan resigned en masse, there would be many recruits to fill those positions.

Senator Joyal: Perhaps my preoccupation is wrong. Perhaps the waiting list or the pool of potential candidates is large enough that they could immediately be replaced. However, we want to ensure that we are not disrupting the system that we had in mind.

The Chairman: Thank you for your appearance here. Clearly, being a military judge is completely different from being a civil court judge where judges vie to remain and to progress to the "heaven" of Supreme Court. In the military, judgeship is a career cul-de-sac, sitting outside the main stream of promotion within the military. Therefore, some kind of term may well be a good idea.

The committee adjourned.