Proceedings of the Standing Senate Committee on
Issue 39 - Evidence
OTTAWA, Thursday, October 29, 1998
The Standing Senate Committee on Legal and Constitutional Affairs met this day
at 10:55 a.m. to consider Bill C-25, an Act to amend the National Defence Act
and to make consequential amendments to other Acts.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, we have before us as witnesses
Lieutenant-General Charles H. Belzile, who is a member of the Dickson special
advisory group, and Ms Lise Maisonneuve, Special Legal Advisor to the same
Before we go any further, I should point out that there will be a memorial
service for the late Right Honourable Chief Justice Dickson this afternoon.
I have already explained to our witnesses that we will give them the opportunity
to make an opening statement and then we will follow that with senators'
Lieutenant-General (retired) Charles H. Belzile, C.M.M., C.D., Member of the
Special Advisory Group on Military Justice and Military Police Investigation
Services (March 1997): Thank you very much, Madam Chairman. Before I proceed
with the opening statement that we have prepared, with your permission, I
should like to indicate our group's particular regret at having lost Chief
Justice Dickson. He was a tremendous man to work for and I do not hesitate to
state that publicly on behalf of those who had the pleasure of working with
Madam Chairman, when you noted for the benefit of senators present that there is
to be a memorial service for him, you also indicated to me that it would be
appropriate to announce that there is also a memorial service this afternoon
for General Theriault; it will be held at the Roman Catholic Cathedral on
Sussex Drive at two o'clock. General Theriault, as some of you know, was
formerly Chief of the Defence Staff. He died of cancer ten days ago in
I understand, Madam Chairman, that there were some questions about the work that
we are currently doing, which is really a review of the previous special
advisory group report on which some of the changes to the National Defence Act
and police services were based. I should like to tell you officially that the
Minister of National Defence, in a letter of October 23, which I received today,
has asked me to carry on with the work of the Dickson group, as we have come to
call it. I have also this morning written a letter in reply accepting with
pride. I am pleased to report that the military police review group that is
doing part of the review, at least the police aspect of the review that we did,
is now officially reconstituted with me as Chair.
The Chairman: Congratulations.
Mr. Belzile: Good morning, ladies and gentlemen. In January of last year, former
Chief Justice Brian Dickson accepted the Minister of National Defence's request
to chair a special advisory group to examine military justice and military
police investigation services. Later in the year, that advisory group was asked
by the minister to study the problems of the quasi-judicial responsibilities of
his position, the intention being to eliminate all possible conflicts between
his responsibilities as minister responsible for the Canadian Forces and his
need to answer completely and effectively the concerns expressed to him by his
parliamentary colleagues. We concluded that, where it was not absolutely
necessary for him to have such powers, they should be removed from his
responsibilities and given to someone else.
Chief Justice Dickson was joined in these assignments by two other members, one
of whom was myself. As a former Commander of the Canadian Army, I was to bring
to the group my experience of military life, particularly in operational
command functions both in Canada and abroad. Mr. Bud Bird, a well-known and
respected politician and active businessman from New Brunswick, added to the
team his extensive parliamentary experience and the practical views of an
average Canadian citizen.
Our group also included three very good advisors who deserve mention. One is
retired Royal Canadian Mounted Police Assistant Commissioner Thomas, who is
sitting in the audience. His participation was particularly helpful when we
dealt with the military police investigation services. Ms Lise Maisonneuve, who
is here with me today as a witness, is a specialist in criminal law with
considerable experience in dealing with the special investigation unit for the
Province of Ontario. Finally, our counsel, who is unfortunately not present
today, is Mr. Guy Pratte, who gained an extensive knowledge of the military
when he was counsel for the Special Commission on the Restructuring of the
Reserves in 1995, which Chief Justice Dickson also chaired.
During our studies, we took great care to listen to all points of view and
especially to consult with all ranks of the Canadian Forces. We have been
gratified by the openness and candour with which Canadian Forces personnel
expressed themselves to us and by their eagerness to assist in our task. Often,
in contrast to the negative view presented in public in recent times, we found
them all to be devoted to their cause and articulate in presenting their views.
Many ordinary Canadian citizens also wrote to express their opinions, which
were reflected in our report.
Our reports reflected their genuine concern and recommended significant
adjustment to the military justice system, the military police investigation
services and the minister's quasi-judicial powers. Most of those
recommendations found their way, as appropriate, into Bill C-25, which your
committee is now studying.
It is important to remember that the Canadian Forces have the unique
responsibility and ultimate purpose of defending the nation. Even in peacetime,
members of the forces must perform in extremely demanding and often unusual
circumstances, where their lives may well be in jeopardy. At such times, the
integrity of the military chain of command can only be preserved if discipline
is instilled at each level of the military hierarchy and if there exists a
system of justice specifically designed to respond to those unique needs. The
Code of Service Discipline is the embodiment of that objective.
The military justice system, important as it is, must obviously be compatible
with our Constitution and the law of the land, particularly the Canadian
Charter of Rights and Freedoms.
The Judge Advocate General assumes roles related to military justice in the
Canadian Forces that must be set out in regulations. Some of those roles, such
as providing legal advice to accused members while also conducting the
prosecution on behalf of the forces, may very well be in conflict. We felt each
role should be institutionally separated so that the roles are performed with
the requisite degree of independence.
With regard to the actual disposition of disciplinary matters and more serious
offences in the Canadian Forces, over 90 per cent of the infractions of the
Code of Service Discipline are dealt with by summary trials rather than by
courts martial. Summary trials are relatively informal proceedings intended for
the more minor disciplinary problems that directly affect the military unit.
They are usually presided over by an officer to whom this authority has been
delegated -- usually a military officer of the line. The summary trial remains
an essential instrument to maintain discipline within the Canadian Forces and,
therefore, any concern over the constitutional validity of this process must be
resolved. We believe that this can be achieved by reducing the scale and
severity of punishment, by enhancing the right to legal counsel, and by
improving the knowledge and training of presiding officers.
Unlike summary trials, courts martial are formal proceedings reserved for the
more serious infractions to the Code of Service Discipline. A number of recent
changes to the courts martial process have increased, for instance, the
independence of the military judges. Nevertheless, the institutional
independence of the office of the Chief Military Trial Judge must be enhanced
further. It is also important to ensure that the respective roles of the courts
martial and the trial judge are appropriately discharged. In particular, it
should be the trial judge having the requisite experience who would pass
sentence after a determination of guilt. We also feel that senior
non-commissioned officers of appropriate rank should be permitted to serve on
courts martial when a non-commissioned member is being tried.
The military police perform a myriad of roles, most of which are related to the
support of military operations and should be controlled by the chain of
command. However, we were concerned that these command and control arrangements
may invite conflict with the investigative role of the military police. We have
therefore recommended that the military police investigators have a structure
that is independent of the chain of command and under the supervision of an
enhanced national investigation services.
That service is intended to report to a new position, the Canadian Forces
Provost Marshal, who, I believe, appeared in front of you yesterday, and who
would report to the Vice-Chief of the Defence Staff. As you well know, Bill
C-25 provides for the creation of a military police complaints commission whose
responsibility would be to investigate allegations of military police misconduct
or allegations of interference in the investigative process by the chain of
In summary, Madam Chairman, ladies and gentlemen, we believe that the
recommendations submitted in our reports of March and July of 1997 will enhance
the independence, fairness, transparency and effectiveness of military justice
in the Canadian Forces. We are satisfied that they are, for the most part,
reflected in the bill presently before you. Enactment of this bill into law
would greatly assist the Canadian Forces in their leadership, in the
maintenance of discipline, and in the accomplishment of their tasks on behalf
Madam Chairman, we welcome your questions.
The Chairman: Thank you very much. Madame Maisonneuve, have you anything to add?
Ms Lise Maisonneuve, Special Legal Advisor: No, Madam Chairman. I adopt General
The Chairman: In that case, we are ready for questions.
Senator Beaudoin: First of all, I would like to thank you for everything you
have done along with Justice Dickson and the other members of this committee.
Your work has proven to be extremely valuable. I am very happy to know that as
a result of this report, we will be able to see if any follow-up has been given
to the Dickson report. I have two questions for you.
My first question is on "Dickson I". "Dickson II" is the
opinion he gave thereafter, is it not?
Mr. Belzile: "Dickson II" was a follow-up on the quasi-judicial powers
of the Minister of National Defence, who had, as you may recall, authority for
convening, for the appointment of judges, and a large number of quashing and
elimination of findings and sentences, and that sort of thing.
Senator Beaudoin: In a way, that second report is as important as, if not more
important than, the first report.
Mr. Belzile: Let me explain to you, Senator Beaudoin, why it was done
separately. It was done separately really in the interest of time. Chief
Justice Dickson was sometimes a very hard taskmaster. We were given a task and
we had a time frame in which to do it; the question of the quasi-judicial
powers of the minister came at about the three-quarter point of our preparing
the first report. While accepting this task, he pointed out to the minister
that we were to finish our first report on time and under budget, and then we
would do the other one. The minister accepted that position, and that is
exactly how it was done; hence, the fact that there are two reports.
Senator Beaudoin: I would like to know a little more about the last column.
Apparently in "Dickson I" one recommendation is still ongoing, and in
"Dickson II" one recommendation is also still ongoing. Could you tell
me what those are about?
Mr. Belzile: I am not sure exactly what they are, but I understand from Colonel
Fenske of the JAG office that they deal with some of the things that are
currently in process, such as the training aspect and the certification of
military officers to conduct trials; these things are still in the process of
being implemented, because in many cases the regulations in National Defence
cannot be written until the act itself has been passed into law. Therefore,
there are some delays that are in fact an ongoing process. They are being
implemented where possible, but the regulations are not in place for some of
them, and they will not be until this is passed into law. If the Chairman
agrees, I will ask Colonel Fenske to add his comments.
Senator Beaudoin: Why not? I would suggest that to our Chairman.
The Chairman: Surely, please, if the committee agrees.
Hon. Senators: Agreed.
Mr. Belzile: Before Colonel Fenske speaks, I also point out that the review
group, which I chair as of this morning, is looking at the implementation
status of those items that deal with military police services. Inevitably, we
get onto the periphery and again get involved in the broader military justice
system, but we are not aware, on a day-to-day basis, of the status of the
implementation, except with respect to those items on the military police that
we are currently looking at.
The Chairman: Colonel Fenske, will you explain more fully perhaps for Senator
Colonel Allan Fenske, Deputy Judge Advocate General Advisory and Legislation,
Canadian Forces, National Defence Act Amendment Team: Thank you, Madam
Chairman. It is a pleasure to give you that additional information, Senator
Beaudoin. This chart has the highest level of abstraction of the work in
progress. There is a series of much more detailed charts underneath showing the
actual work plan. Here we broke down the four reports that form the core of
In Dickson I, the one that is outstanding is related to the Dickson
recommendation that there be a requirement for commanding officers who conduct
summary trials to be certified on the basis of a training program. I can tell
you that undertaking that recommendation is an enormous job. We have put many
people and much effort into this. We are pleased with the ongoing work. Our
estimate, and I underline that it is an estimate, is that we will have a
summary trial certification program up and running in the spring. We hope to
bring the necessary implementing regulations into force at about the same time,
should this committee pass this bill on.
The other point I will make for you, Senator Beaudoin, is that the implementing
regulations to this bill will set a clear legal requirement for the
certification training to occur.
The second Dickson recommendation that is not complete at this stage is that
there be a monitoring group to monitor implementation of the Dickson
recommendations. I think many of you know that the Honourable John Fraser is
the chairman of that monitoring group. It has issued one report to date, and if
I have my facts correct, we are expecting another report in December. Those are
the two outstanding ones.
I would add one caveat for you. In the interests of simplifying the chart, we
have considered a recommendation implemented if we have it in the bill, even
though the bill is not passed. It is public, we have committed to it, and
intend to do it. That is the only other qualification. I hope that is helpful.
Senator Beaudoin: I have a very general question, which I will address to
General Belzile because of his long experience. We heard a lot about the Judge
Advocate General. He is not a judge. He is the chief prosecutor, et cetera. I
understand this is an institution that came from Great Britain. We have it in
Canada. They have it in Australia. It probably exists to a certain extent in the
United States. I just do not know.
Some other countries, such as Germany and France, have another system, where
justice is not rendered in the same way. I have no idea whether it is better or
worse. Can you tell me if this idea of having military justice rendered by the
usual judges has been set aside because it is not part of our system and we do
not desire that it be part of our system? That is a very general question.
Mr. Belzile: I will try to give an answer that is not as general but that may be
a little useful. You have already made some of the comparisons between nations.
It is true that in large part, our military justice tradition comes from Great
Britain, as do a number of our other laws and our constitutional arrangements
and our type of government. Some have moved away from it, but by and large, the
Anglo-Saxon community, including the United States, Australia, Britain, and
Canada, has stayed with the same system.
The title itself raises the possibility of a conflict. He is both a judge and an
advocate. We have maintained it in the interest of traditions, because we think
that everybody in the system understands it, and we think it is a good system.
I suppose we are used to it. We think that evolutionary changes are better than
revolutionary ones, and we prefer that.
As to the military judges coming from the military system, whilst our nations
appoint civilian judges, yes, we have looked at that in the Dickson study. We
have not recommended a change. Our main reasons had to do with the military
context, the understanding of operations. Despite the obvious fact that we must
follow the laws of the land like everybody else, our military justice system is
a necessity for the primacy of operations. If we are ever asked to go into the
kind of contest that we hope never comes, the primary mission of the armed
forces is to win. That context carries many obligations on the part of the
chain of command, including an approach to training and to discipline that is
very military in nature. We have always chosen this and I have recommended that
it remains the same.
I have no doubt whatsoever as to the quality of the judicial judgements of
civilian judges. That is not the point that we are trying to make. Our point is
that the military is a special, and in some ways unique, community with unique
needs. We are hoping that, institutionally, we can at least offset some of the
concerns about the independence of the different functions.
Senator Grafstein: I am interested in one recommendation made by Dickson I, the
separate act for the Code of Service Discipline. What is the status of that?
By the way, Madam Chairman, I want to comment as well on Mr. Justice Dickson. I
knew him and respected him. I was asked to render a tribute to him in the
Senate. He will be sorely missed because of his capabilities and because of his
wisdom. As I said in my comments in the Senate, current judicial decisions
unfortunately are so prolix and complex that in many instances they surpass
understanding. Somehow judges have to be told to exercise greater
self-restraint. The late Justice Dickson was a model of judicial
self-restraint. I want to say to you, sir, that we recognize his wisdom and the
great contribution he made to Canada. That contribution is missed, as it is in
this particular set of Senate hearings.
The Code of Service Discipline seems to be a first principle in the
recommendations. It is almost the archway. What has happened to that?
Mr. Belzile: We recommended that it be made a separate statute. In fact, Chief
Justice Dickson felt very strongly about that. One reason was that the Code of
Service Discipline is the document that in many ways embodies how our military
justice system operates. If it ever requires amendments, those will be done
more easily if it is a separate statute, rather than opening up the entire
National Defence Act. I think this made eminent sense. Normally, amendments
deal with much more than the Code of Service Discipline, such as adjustments of
disciplinary powers based on percentages instead of amounts, and a plethora of
things that would require re-opening the act every time. You are much more
familiar with the parliamentary systems than I. We recommended that for reasons
that the department, of course, can explain better than I can. Since there had
not been a major amendment to the National Defence Act since about 1950,
perhaps this is not the correct time to try to separate the two. In the hope of
expediency, we thought that perhaps we could get the National Defence Act
updated, as it has needed to be for a long time, and the Code of Service
Discipline within it.
There may be some constitutional or institutional reasons for this of which I am
not aware, but the decision was made that this was the way it was going to be,
and then if that were still desirable in the future, it would be treated as a
separate issue. That is my understanding.
Senator Grafstein: What is the department's view? Before you start, I will tell
you that I share the late Mr. Justice Dickson's view that it should be in a
separate statute. I start with that bias for many different and broader reasons
than are even in his report, which we perhaps can go into. Quite frankly, I am
unhappy with the position that the department takes or the government takes with
respect to expediency. We have time. I am going to be here until I am 75. I
Senator Joyal: Do not tempt God.
Senator Grafstein: Certainly, I feel healthy. What are your comments?
Col Fenske: I am happy to give them. I should note that if you open your Dickson
I, you will see that I am a JAG advisor to the special advisory group, so you
can probably figure out what my personal position is.
This is an important recommendation, but one could argue that to some extent it
is one of form. Perhaps a better way to put it is that it is a matter of
architecture. To some extent, Senator Grafstein, I am speaking personally when
I say this. I would argue that the ideal target for the military justice system
is separate statutes for the Court Martial Appeal Court and for the Code of
I have a slide that I trot around, although I do not have it with me today. It
is a pie chart of the National Defence Act, and shows that approximately 75 per
cent of that act is in fact taken up with the Code of Service Discipline. If
you were to establish the kind of architecture that we would consider ideal, you
would have a separate statute for the Court Martial Appeal Court and a separate
statute for the code. That would reveal the hierarchy of the system. That
remains a target. The department has openly accepted that this is a goal that
we want to achieve, but, as with all things, pragmatic considerations enter
into it. There were too many things to do in the time allotted. If you refer to
the testimony in SCONVA of General Belzile and Chief Justice Dickson, you will
note that this issue was raised with them then too, and it was recognized that
it was a very, very big apple to consume in one bite. We have taken the first
If you look carefully at your bill, you will see that the Code of Service
Discipline has been drawn together into one place, one division, and most of
the previous spaghetti-like connections throughout the act have now been taken
out. There is another step to take, Madam Chairman, and the department is
behind in taking it, but it was just too big a step to take all at once.
Senator Grafstein: That was Mr. Justice Dickson's first concrete recommendation.
I assume that, in the organized way that he went about his business, he was
saying that this was a fundamental principle. I noted the reasons in the report
for that, but for us I think there is a deeper reason, and that is, the
importance of balancing two contrary principles. One principle is the
independence of law-making as it affects the rights of citizens, including
those who are in the service, on the one hand, and the accountability and
responsibility of the minister to Parliament, on the other hand. I do not want
to put words into Mr. Justice Dickson's mouth, but I assume that he was
expressing the opinion that setting this up as a separate statute satisfies the
notion of independence. Here is an independent code. It is separate and
distinct from the military. It has certain values that are consonant with
general values, amended of course because of the military mission, but it seems
to me to be a fairly important first principle.
I understand time. You say that you did not have time or that you had
difficulty. I do not suggest that you have not gone a long step in the right
direction here, but I do not know why it would be that much more difficult to
take the next step and just pull that section out and make it a separate
statute. I leave that for you. If there is more to that, we will come back to
it, but it strikes me as being pretty important, pretty fundamental.
Col Fenske: Senator Grafstein, I thank you for that comment. I think it is very
astute of you to note that the architecture can reflect independence and the
basic interrelationships of the code with the way the government works. Those
are targets. I assure you there are a lot of pieces to that puzzle that still
need to be put together in order to complete it. It is fair to say that with its
many concrete, tangible and immediate improvements, our institution thinks that
it is crucial to move this bill forward. We agree that this is an important
part of it, but that it was too big to chew off at this time.
Senator Grafstein: I turn to the next issue, Madam Chairman. I appreciate this
because it deals with the other side of the principle, which is accountability.
Here is where I take issue with the second report of Mr. Dickson. I turn to
recommendation No. 10 and, to a lesser extent, No. 11. Recommendation No. 10
We recommend the requirements set out in ss. 206(2) of the National Defence Act
for ministerial approval of the punishment of dismissal and dismissal with
disgrace be abolished.
The argument in the report is that a former Prime Minister, the Right Honourable
Kim Campbell, advised that as Minister of Defence, she experienced inherent
difficulties in dealing with this particular notion. Reading between the lines,
I assume she was pressured at one time to come to a particular decision.
Therefore, it would be better if this were one step removed, so that this
principle then goes to the Governor General -- in effect, to the cabinet. The
Solicitor General and Minister of Justice could then deal with it.
On the surface, that appears to be a good move, but again it seems to me to be
inconsistent with the particular nature of military discipline. I would want
the minister, who is a check and a balance against the military establishment,
to be seized of this matter, so that responsibility could not be diffused, as
it is when you spread it to the Governor General as opposed to a minister. I am
of the old school of ministerial accountability: Keep it narrow, keep it tight,
keep it responsible with the penalties. On the other hand, this seems to me to
be a bit of a cop-out, but I use that word very cautiously. In other words, if
a minister cannot handle it, let us throw it to cabinet and therefore nobody is
accountable. General, I invite your comments.
Mr. Belzile: First of all, Senator Grafstein, I do not think that by moving some
of those things, we were trying to suggest that the minister should not have
those accountabilities or responsibilities. In many cases, we surmise that the
military judge conducting the trial is probably better qualified to do this
sort of thing. At the same time, if you go to the other extreme and things go
all the way to the Governor in Council, it is my understanding that the
minister must nevertheless justify his actions to the cabinet. His
responsibility may be a little diffused, but I do not think it disappears
After consultations with many people, Chief Justice Dickson and the other
members felt fairly strongly that we should try to divorce the minister as much
as possible from the day-to-day running of the military justice system.
Therefore, we said at the outset that we should remove him from anything that
he did not absolutely need to control, leaving him capable of answering to his
colleagues in the House of Commons, or to the nation, for what is going on in
You will remember that at the time of former Prime Minister Campbell's tenure as
a Minister of Defence, she was placed in what she considered a very difficult
position in the House of Commons during Question Period. Any attempt to obtain
the necessary answers from the system would immediately be construed as
interference with the department's investigative and judiciary process. Chief
Justice Dickson was very firm in his comments on this.
As to the details of whether it is given to the right person, I believe it
really is the chief military judge or the military judge who sits on the bench.
To the extent that the raison d'être for an approving authority is the
personnel requirements of the service, which is the other matter, there does not
seem to be any reason why such a factor should not be brought to the sentencing
One of the tenets of the military justice system as a whole is similar to our
medical services. I know they are very different, but when somebody gets out of
line in the military, one of the first analyses we are going to do is consider
whether we still need him. Obviously, there are a lot of administrative
measures, but if you are in a difficult operational situation, you may very well
have people that you almost cannot afford to let go. We use the principle, as
medical services do all the time, that the primacy of operations calls for us
to return people to military duty as quickly as possible. If it goes beyond
that, then obviously we have decided we can do without him. Dismissing him, or
dismissing him with disgrace, is part of the sentence we think rightfully
belongs to the sentencing judge. That was the discussion in the special
advisory group, if my memory serves me correctly.
Senator Balfour: General Belzile, you referred to the breakdown of the treatment
of offences into two groups, 90 per cent dealt with in a summary way and 10 per
cent dealt with more formally, if I understood you correctly. I hope the
committee will forgive me. I came late to this study. I hope I am not going
over ground that has been covered elsewhere. In the 90 per cent category of less
serious offences, does the conviction form part of the individual's permanent
Mr. Belzile: The short answer is yes. The longer answer is that the category of
minor offences is constantly reviewed. In my day, it was wiped out after three
years. If it is a criminal offence, it is still tried under the Code of Service
Discipline by a military court and it will form part of his record.
Senator Balfour: A certain category then is expunged from the record.
Mr. Belzile: That is correct.
Senator Balfour: Is this a formal procedure, or a custom or practice?
Mr. Belzile: It is a bit of both. It is probably done in a fairly routine
manner, but, periodically, the conduct sheets of every individual in the forces
are reviewed. Any offences that fall within the minor category and are over
three years old are ticked off. I am not sure what happens for offences less
than three years old. The next time the person's service record is printed,
that conviction is eliminated.
Senator Balfour: Did someone wish to add to that response?
Col Fenske: Our administrative orders call for the automatic expunging of
convictions carrying a minor punishment, or a fine of $200 or less, after one
year, for reasons that I think are perhaps fairly obvious. Of course, you can
receive a pardon for any of the other convictions, as you can for any other
Senator Balfour: Is that by application, or automatic?
Col Fenske: You do not receive pardons automatically. You have to apply.
Senator Joyal: You mentioned that the origins of the position of Judge Advocate
General can be traced back to British tradition and that this bill draws its
inspiration from legislation in place in other countries, be it the United
States or Australia.
What is the status today of the Judge Advocate General in Great Britain as
compared to that provided for in the legislation? In other words, how much
independence is the Judge Advocate General assured in Great Britain compared to
the provisions set out in Bill C-25?
Mr. Belzile: I will ask Colonel Fenske to answer while I review my notes.
Fundamentally, the duties are similar.
Senator Joyal: I am not concerned about the duties as such, but more about the
independent status of this individual. These are two very different
Col Fenske: To begin with, Britain's Judge Advocate General performs a function
that is quite different from that performed by his Canadian counterpart. On
this subject, it is somewhat difficult to trace the legal Anglo-American
origins of this position.
Col Fenske: If you look at the practice and the organization, you will see that
the Canadian and American JAG systems are different from the others. In Canada
and the United States, the title "Judge Advocate General" refers to
the senior legal advisor on military law. The responsibilities are as you would
Pursuant to this bill, our responsibilities in Canada will in fact be fewer than
in the American system. The Judge Advocate General in the United States
actually superintends the court martial system. We have not done that in our
model. Our model separates the judges completely, so that they are totally
independent of the executive. That is the desire.
In the English system, the Judge Advocate General is a judge who sits for life,
until age 70, I believe. He performs a function similar to that of our Chief
Military Trial Judge under this bill. He is not the regular legal advisor to
the armed forces. There have been a number of changes in England in recent
years, and I have to be careful in passing this information on to you because I
do not recall all the details.
The systems that use this position of Judge Advocate General have a very
extensive administrative review process whereby the chain of command reviews
the findings and sentences of courts martial. In England, the Judge Advocate
General plays an advisory role to commanders in this respect also. He provides
the judges, and he is also responsible for the latter aspect. In our proposed
system, there will be virtually no chain-of-command review of court martial
decisions. It will be an appellate review, except in the most extraordinary
circumstances. I think I had best leave it at that.
Drawing an analogy between the Canadian or the American Judge Advocate General
and the English Judge Advocate General is very difficult. They have the same
title. They came from the same 14th century origins, when being both a judge
and an advocate was considered acceptable in an inquisitorial system. The roots
have spread in sometimes subtly, and sometimes not so subtly, different
directions in the Anglo-American world.
Senator Joyal: If I understand you correctly, the distinction you are making
between the British and North American systems is that in Britain, the Judge
Advocate General performs an essentially judicial function. He is a little like
the Chief Justice. He serves an administrative function in court and oversees
the running of the court itself. In Canada, the Judge Advocate General is more
like a Deputy Minister of Justice. He appoints prosecutors and both the
Director of Military Prosecution and the Director of Defence Counsel Services
act under his supervision. He oversees the administration of the military
justice system, rather than hear cases as such. Have I understood your
explanation, or am I missing an important detail?
Col Fenske: I did not catch your initial comments.
Senator Joyal: These issues are complex and I will try to put it in as plain
terms as possible. Is it correct that in the British system, the JAG's status
is more or less that of a chief justice presiding over courts martial,
responsible for the dispatching of the judges and the functioning, while in the
North American system, and particularly in this bill, the JAG's status is more
analogous to that of the Deputy Minister of Justice? The chief Crown attorney
answers to him, as does the director of military prosecutions. In other words,
he is more concerned with the other level of functioning of the system rather
than making justice, as such. Do I have a clear understanding or am I confused?
Col Fenske: I did not answer you immediately, Senator Joyal, because I missed
which actor you were putting in which box. Yes, that is close. I would say the
Judge Advocate General in England looks after judicial services. The one
addition that was certainly there in the past, and if I understand correctly,
is still there in a qualified sense, is the advice to commanders on
administrative reviews of courts martial. That is something that we no longer
want to do on a regular basis.
We believe the Canadian JAG should look, and does look, in the proposed statute,
like a military deputy attorney general, who is not responsible for the
judicial services, but the other services. Because nothing is ever simple, in
the United States, the Judge Advocate General has all of that under him. We
simply felt that that was not where we belonged. It is not part of the Canadian
tradition, and it is much more in keeping with our independence case law to
separate out the judicial architectural lines.
Senator Joyal: If we are to recognize and confirm a totally separate judicial
system from the normal one in our country, it is very important, in my opinion,
that we are assured that the rendering of justice is clearly established in the
principles of the rights of the defence and the rights of the Crown. It must be
totally separated from the function of the judges. To me, this is a very
fundamental principle in establishing a sound judicial system. As I understand
the bill --
-- the Director of Defence Counsel Services reports to the Judge Advocate
General, as does the Director of Military Prosecution.
In civilian society, it would be incongruous for the accused to be compelled to
get a defence lawyer from the Minister of Justice, the Attorney General, who is
pursuing him at the same time. How do we ensure that there is no conflict of
interest for the person who sits at the top of the pyramid and says: "Okay,
you are going to defend this one, you are going to accuse this one, and I am
going to appoint a guy who is going to judge"? At that point, there is
total confusion of all the functions. It certainly does not serve the
principles of fundamental justice, the system that we live with.
Where is the autonomy to ensure that since everything belongs to the military,
those principles are really well-served by the bill? This is a very fundamental
Col Fenske: I agree with you.
The Chairman: If I may interject here for a minute, I want to point out to
Senator Joyal that this same question was explored in quite some depth when the
department was before us the first time.
Perhaps you would like to carry on, Mr. Fenske.
Col Fenske: I am happy to explore that in depth again. It is very important.
However, you have Lieutenant-General Belzile and Madame Maisonneuve here.
Certainly this idea was discussed at length here and even more so in the
Dickson report. That is, the issue of not only ensuring that there is an
institutional separation among prosecution and defence and judges, but that
there is an institutional separation between prosecution, defence, judges, and
investigators. That is the way we do things in Canada. This has been a matter
of some discussion. I certainly do not want to hog the floor when there are two
experts on that issue here today.
The Chairman: You will have another chance at the department. Would you care to
comment, General Belzile?
Mr. Belzile: I understand Senator Joyal's analysis very clearly. I am referring
in particular to the practice of institutional separation that we have
recommended in our report. We feel that these concerns have been effectively
addressed. Our system may be somewhat different from the civilian system, but
one must recognize that we are trying to establish a system while remaining true
to the laws of the land. Consider a worst-case scenario. We are outside the
country and Canadian jurisdiction is questionable. The only court of law
available is a military court, in the Central African Republic, for example. It
therefore becomes totally impractical to meet the standards of need,
expeditiousness and fairness, while at the same time flying witnesses back to
Canada in an effort to have the trial conducted under the Canadian system.
Therefore, when abroad, with one or two attorneys representing the two parties,
it is still in the best interest of the chain of command to maintain formal
discipline in order to do the work that must be done, while ensuring that these
two persons are separate, institutionally speaking. Admittedly, the Judge
Advocate General appoints both attorneys and makes recommendations, but on a
day-to-day basis, he does not work for either party. He has superintendence of
the administration of military justice. He acts in the interest of the defence
as well as the prosecution. We are satisfied, as is the chief judge, that this
meets the needs standard.
Senator Joyal: When you talk about institutional separation, exactly at which
point does this separation occur?
Mr. Belzile: By institutional separation, I simply mean that the Director of
Military Prosecution and the Director of Defence Counsel do not work in the
same office, as was the case in the past. Their offices are probably located in
As for the administrative aspect, frankly, Colonel Fenske is probably better
able to answer that question. Simply put, the Judge Advocate General is someone
who oversees the administration of the military justice system. In no way does
he dictate to the prosecution or to the defence how they should conduct their
business. It is a principle which we have always followed. However, in this
instance, we wanted to establish clear standards of institutional separation
because at one time, these two persons quite often worked in the same office.
It was all the same law firm. It is split somewhat. At least, a very strong
attempt at separating them was made, which we believe is satisfactory.
Where do they fit in? On the administrative side. Eventually, someone will see
to it that they have access to a library and a place to work and that
facilities are available for the courts. These are all administrative
considerations. Theoretically, the supervision exercised by the Judge Advocate
General over these individuals is purely administrative.
Ms Maisonneuve: Here in Ontario, for example, if I represent an accused person,
then he is obviously my client. The same holds true for the Defence Counsel
Services mentioned in the bill. The accused, not the Crown, is the client. The
Crown has its own mandate and role to play as set out in the bill and the two
functions are clearly quite separate.
When I represent a client who is being assisted by the province's legal aid
services, my legal fees are covered by the government. Yet, I am an attorney
and I represent my client. I do not take my orders from the province as such.
The Crown Prosecutor in Ontario is appointed by the same government, therefore
we come under the same umbrella, so to speak. However, our roles are quite
distinct. Obviously, the government cannot tell me how to do my work, just as I
cannot tell the Crown how it should do its job. It is somewhat similar in the
The Chairman: Before we go on, I would point out that the bill does allow that
accused persons in the military can accept the counsel provided or they can
hire own, just as civilians have the opportunity to hire their own lawyers.
Senator Beaudoin: Who pays?
The Chairman: In that case, they pay, I believe.
Senator Fraser: Mr. Belzile, as you may be aware, the committee has been very
interested in the question of military judges' terms of office and the concept
of renewal. We are aware that the culture is different in the military. At any
rate, heretofore, being a military judge has not been a desirable career path.
It was something you did for a little while and then you went back to something
else. Nonetheless, given that the system is changing and there will be a whole
division of military trial judges, it seems possible that there will be some
judges who will want renewal instead of going back to the regular career path.
Of course, that raises questions about the pressures they will face as their
time for renewal comes up. Under what circumstances might judges seeking renewal
Mr. Belzile: In Bill C-25, the relevant clause says that a military judge is
eligible to be re-appointed on the expiry of a first or subsequent term of
office, but on the recommendation of a renewal committee established under
regulations made by the Governor in Council. I will not describe this as
comparable to the judicial review board that presumably exists for judges across
Canada. The renewal is not done at the whim of a specific person such as a JAG.
We are talking about a renewal committee of the Governor in Council, with
regulations prescribing its composition and process. That composition and
process will need to comply with paragraph 11(d) of the Charter, and in
particular, the applicable principles set out, I understand, in the P.E.I.
Reference and the Lauzon decision. In this changing area of law, we want the
ability to tailor the committee process in regulations.
That sounds like the formal answer. I repeat that I have served all over the
world, where we often have to apply our system to other jurisdictions in which
we work, for instance, in NATO, with SOFAS, and where the Germans have
jurisdiction on criminal cases unless they waive them to us. They waive them to
us in most cases -- or they did -- because they are satisfied with the way we
administer our own judges. They would rather not load their own dockets,
presumably, and they leave the Canadians to look after their dirty laundry, to
use the vernacular.
That also calls for very mobile judges. Our judges can actually go and preside
in many places, including sometimes under very difficult circumstances. It is
the nature of the military business that we move around every two or three
years. We are in many places, and it becomes a particularly stressful
situation, so that maybe a period of five years seemed to make sense. I think we
have gone to 10 years now, but 10 years of legal service, five years renewable.
Chief Justice Dickson did not see any problem with that. Of course, my own
judicial experience is unfortunately very limited. I really do not see the
concern. Institutionally, with the renewal committee approved by the Governor
in Council and in place, with the regulations approved, that review is probably
as good as the one that applies to other judges.
Senator Fraser: However, there is no renewal for other judges.
Mr. Belzile: No, but they can be removed, presumably.
Senator Fraser: There is a difference, though. There really is a difference
between being removed from the bench for cause and just asking to have a term
renewed. It is much easier to have your renewal denied than to go through the
whole formal procedure of being removed from the bench.
Col Fenske: I would like to add a couple of things here. To put it in a
straightforward way, I have the sense that there is a general concern that a
renewal process must necessarily impair independence.
Senator Fraser: I think the concern is not that it must necessarily, but that
the very real possibility exists that it might, particularly if the judge in
question happened to be presiding over a politically sensitive case as his term
was drawing to an end.
Col Fenske: There are a number of things that you might find useful in
considering the question, if I were to say that the argument is that renewal
does impair independence or at least that judicial independence is lessened by
renewal as a process. After all, 11(d) of the Charter tells us that you must be
sufficiently independent. The case law that is around it says that you must be
Senator Beaudoin: That is my first reaction.
Col Fenske: The second thing is that 11(d) of the Charter's case law makes clear
to us that there are varieties of formulas for achieving sufficient
independence, and that if you look at all of the case law and all of the
tribunals across the country, you will see that there is no uniform bright line
and no single formula and, indeed, the case law says you do not need to have a
single formula, that that would in fact frustrate what we are trying to be
achieve given the diversity of our tribunals.
If I were to take that argument, I would argue that it presumes, first of all,
that renewal does lessen independence, and that the executive can interfere
arbitrarily in the renewal process. I do not mean literally overriding it. I
think you mean something more sophisticated.
Senator Fraser: It is much more subtle.
Col Fenske: It is much more sophisticated than that. First, I think I would
argue, Senator Fraser, that, on the facts, both of those points are faulty.
Second, they are inconsistent with the case law that has developed on this
point, particularly in the Supreme Court of Canada and in the Court Martial
Judge Letourneau wrote the decision in Lauzon. I do not say what I am about to
say with any sarcasm. I applaud Justice Letourneau for his rigour and his
courage, but I think it is fair to say that he has been a critic of the
military. From the way we have treated the commission chaired by Justice
Letourneau, and his report, and the way that we have treated his judgements, I
think you can see that we consider him a constructive critic.
Justice Letourneau said point blank in Lauzon that having a renewal process does
not necessarily lead to the conclusion that independence is lacking, provided
that -- and I am referring to a note that I have on paragraph 27 of his
judgment -- the process is accompanied by substantial and sufficient guarantees
that ensure that the court and the military trial judge are free of executive
pressure that could influence the outcome of their decisions. I would say to
you, in an even simpler way, that they are free of the arbitrary executive
If you had asked me about this five years ago, I probably would have scratched
my head quite a bit, but the P.E.I. Reference has given us so much instruction
about how to conduct a process that protects from arbitrary executive
interference. The words used by the court in this regard were that the
compensation review process, and they were talking about compensation at the
time, would act as a sieve. In other words, committees must be composed of
representatives from the various branches of government and not dominated by
the executive. Then let them make and defend their recommendations. If the
decision is contrary to the recommendation, let the government explain its
rationale. Of course, it can also be reviewed by the courts. That is a
sufficient way. We do not have the regulations in front of you yet, but we have
a very substantial blueprint from which to work. Any renewal process that we
develop will have to comply with 11(d). I know that you do not see it here
today, and perhaps that is frustrating for you, but every competent court of
jurisdiction in this country can look at it. It can be reviewed under the
Charter and we do have to comply with its provisions.
If I could just switch horses for a moment. For example, Charter case law tells
us that because you can remove a military judge for cause, our removal
committee has to be predominantly judicial. We know that the committee has to
be predominantly comprised of judges. Judges should make decisions about
whether the conduct in question calls for removal. I know that is a long answer,
but this is probably the part of the bill where there is the heaviest reliance
I hope that the interventions you have had in a number of the sessions show you
that we have been paying very, very close attention to the independence case
law. It is not just in respect of military judges and military courts that the
independence case law has evolved quickly, subtly, and sometimes taken
directions that we did not anticipate. That is happening here. We now have the
P.E.I. Reference and the Lauzon decision.
Because of the direction we could see the case law going, we made the decision
last year to put this renewal process in regulations. It is so subtle, we
wanted to make sure that we were going to get it right the first time, and that
if we did not get it absolutely right the first time, we would have a way to
get it right quickly the second time.
The Chairman: Colonel Fenske, I am going to interrupt you because we do have the
witnesses before us today, as you yourself pointed out. I am sure you will get
a further crack at that same question when the department comes before us
Can our witnesses suggest what that they should like to see this review process
take into consideration when a renewal request from a military judge who wants
to be re-appointed for five years is reviewed?
Senator Joyal: Can we have the exact wording that our witness was reading? There
were two qualifications in the statement.
Col Fenske: I am quoting from my notes, which I believe I got down correctly, on
paragraph 27 of the judgment:
Having a renewal process does not necessarily lead to the conclusion that
independence is lacking, provided that the process is accompanied by
substantial and sufficient guarantees that ensure that the court and the
military trial judge are free of executive pressure that could influence the
outcome of future decisions.
That is one formulation out of many for avoiding arbitrary interference.
Senator Joyal: Did you say "substantial and sufficient guarantees"?
Col Fenske: We would be happy to provide you with the judgment if we have not
The Chairman: In the meantime, perhaps we could hear from our panel what their
suggestions might be.
Mr. Belzile: Madam Chairman, we really have not thought this out. I would prefer
to come back to this committee with some suggestions or perhaps something on
paper. We have also read the Lauzon decision, but this is subsequent to the
sitting of our own advisory group with Chief Justice Dickson. We wrote this
report last March, and obviously we were quite satisfied with the way this thing
was being set up. Unfortunately, the evolution of this process has not really
been in our bailiwick since then, except for an appearance in front of SCONVA,
where we reviewed it again. We are getting into territory that we have not
really thought about.
In short, my understanding is that with this renewal committee, after the
regulations are developed and approved by the Governor in Council, adequate
measures could be taken to ensure that substantial and sufficient guarantees do
exist, as indeed was pointed out in paragraph 27 of the Lauzon judgment. I am
afraid that I am not in a position to be of much more help than that.
Ms Maisonneuve: I will add that obviously we would undertake a detailed overview
of all the case law in that field, and there is a lot of guidance there. We
would have to do that before we could make any constructive suggestions.
Senator Moore: I have two questions. General Belzile, I am thinking about
Senator Joyal's questions dealing with the institutional separation of the
various functions within the military judicial system. In Dickson I, you
recommended the appointment of an independent director of prosecutions,
responsible to the Judge Advocate General. That is recommendation No. 8, in
clause 165 of the bill. I was surprised to see that there is no similar
recommendation for the establishment of a director of defence counsel services.
Is there a reason for that?
Mr. Belzile: Senator, there is no reason that I can think of right now, except
in the context of the whole institutional change. If one was separated from the
other, that presumably indicates by default that the other one was separated
from the first one. I know this sounds like an infantile sort of answer, but as
far as I can remember, we did not make a specific recommendation actually to
establish the position; we recommended that they remain institutionally
Senator Moore: I think it is a very important function. I think it merits equal
consideration and notation as the director of prosecutions. Maybe you thought
it was all going to spin out from No. 7, where you say that the JAG can provide
such advice in a manner that is independent. Maybe it is in there; I do not
know. I think that perhaps it should have been separated. That is your
recommendation, but legislators prepared the bill.
I want to get to the matter of the removal. The individuals in both of those
directorships, prosecution or defence counsel, must have been officers and
barristers for at least 10 years, and must serve with good behaviour for a
period not exceeding four years. With respect to the director of military
prosecutions, clause 165.1(2) goes on to say:
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 Council.
That same committee process is not available to the director of defence counsel
services. Do you have any comments about that?
Mr. Belzile: With regret, Senator Moore, I am going to turn again to my legal
expert to explain why it appears like this in Bill C-25 as opposed to our own
Col Fenske: Madam Chairman, I do not want to leave the impression that I relish
taking time from the speakers.
We noted your concern about that in your previous sessions, sir. We have
provided you with a background paper just recently, but you may not have had a
chance to look at it. We think that the positions are actually very different.
That paper sets out the issue at length and in point form for the most part.
The nature and scope of the duties of the director of military prosecutions are
different. The interrelationships are different. Those differences, in our
minds, called for the director of military prosecutions actually needing
something extra. It was not a question of the director of defence counsel
services being less important. I will just note a couple of the highlights of
First of all, the duties of the director of military prosecutions are much
broader in scope than those of the director of defence counsel services. The
director has responsibility for all cases tried by courts martial, the laying
of charges, court selection decisions associated with those cases, and legal
counsel on appeal to the minister. He provides advice to the military police in
the conduct of all their investigations, and is the final authority where
investigators and commanding officers cannot agree on what the right charge is.
Senator Moore: With the exception of giving counsel to the minister, I submit
that the director of defence counsel services gives that same advice to
personnel on the other side of the table.
Col Fenske: Senator Moore, I am not denigrating what he does.
Senator Moore: I am not suggesting you are, but I think that these roles are
equal. In terms of justice being done and being seen to be done, they are not
being provided for statutorily in an equal manner. I just think it is important
that it be that way.
Col Fenske: Senator Moore, another point worth making is that people who
routinely deal with the prosecution side are familiar with the case law, and,
traditionally, as law officers of the Crown, they exercise a quasi-judicial
Senator Moore: How do you mean? Every sworn barrister is an officer of the court
equally. We all take the same oath.
Col Fenske: We all take the same oath, at least within a provincial bar, but we
do not all have the same functions. For example, the director of military
prosecutions is expected to represent society. Therefore, the decisions that
the director makes inevitably put him in a position where he has to resolve
conflicts. Every prosecutor who has done that job knows that. There is no
expectation whatsoever that a counsel defending an accused must resolve those
sorts of things. We expect that a counsel defending an accused is very, very
partial and has only one goal in mind, which is to look after the accused.
Senator Moore: But the accused is also a member of that same society you talked
about. We are not going to agree on this.
Col Fenske: I hope we will agree at least on the principles, if not the
application. The defence counsel's duty is not to society. The defence
counsel's duty is to the client and only the client; that is a much narrower
Senator Moore: Yes, I agree with that. However, you are appointing the guy and
you are also setting the rules that he operates under. I am very concerned
about that institutional separation that my colleague spoke about earlier, and
this is one example that I see.
Senator Grafstein: My first comment will be very quick. It strikes me that there
is a fundamental difference between recommendation 17(b), the last
recommendation of Dickson II, and clause 96 of the bill. I will read 17(b):
We recommend that an independent review of the legislation that governs the
Department of National Defence and the Canadian Forces be undertaken every five
years following the enactment of the legislative changes...
The test there is an independent review undertaken every five years.
Clause 96 says that the minister undertakes a review and reports to Parliament
within five years. Independence is not there and the perpetual sunset clause is
not there. Any comments about that, Lieutenant-General? Just read 17(b), your
final recommendation, and clause 96. To me, there is a material difference.
Again, based on my knowledge of Mr. Justice Dickson, every word counted, so when
he said "independent", he meant independent. I do not think it can be
assumed that independence meant a ministerial review. That is point number one.
Point number two is that the recommendation called for review every five years
as opposed to only once. That is materially different. Do you have a comment,
Lieutenant-General? Are you comfortable with that or not?
Mr. Belzile: We placed 17(b) in our report to try to avoid having the same kind
of overwhelming changes occur again. We saw this as an automatic review every
five years, as was done in the United Kingdom recently. We contemplated a
review of all of the adjustments to the National Defence Act and the Code of
Service Discipline, which governs the application of military justice, every
five years. In fact, it was intended to be purely and simply a catch-up
Senator Grafstein: I understand that.
Mr. Belzile: But clause 96 reads a little differently.
Senator Grafstein: According to your report, the United Kingdom has a five-year
Mr. Belzile: That is right.
Senator Grafstein: Your recommendations call for review every five years, like
in the United Kingdom. However, the proposed legislation has review just once,
and no independence. It strikes me that the proposed legislation is really
materially different from the recommendations. Are you comfortable with that?
We will hear from the department later on.
Mr. Belzile: Yes, I would be comfortable with that.
Senator Grafstein: Then I will not beg the question. I have a final question.
The Chairman: There will be no fishing expedition to try to get the answer you
Senator Grafstein: No, I will not make a fishing expedition. I will have to give
Referring to clause 250.29, it seems that the complainant can be either from
within the service or from without. Is that correct? There is reference to a
quasi-independent complaints commission where the Provost Marshal can direct an
investigation for a complaint.
The Chairman: This is on page 74 of the bill.
Senator Grafstein: This is page 74 of the bill. I am just asking for your
comments on this. This is not an independent investigation. It is under the
Provost Marshal, having in mind all the checks and balances we talked about. I
assume that because the word "complaint" is used there, either
somebody within the service or outside the service could issue that complaint.
Ms Maisonneuve: You are correct.
Senator Grafstein: Keep in mind the concerns articulated by the opposition in
the other place on the RCMP Complaints Commission. Obviously, it is a citizens'
complaint commission, so it is somewhat different in nature. Are we satisfied
that we have protected the complainant here or provided enough independence in
the process for the complainant to pursue his or her complaint? I am not
talking about the independence issue because that is another question. It is a
hot matter in front of us.
It struck me that the opposition should complain less about the events than the
statute, because I think the statute is clear with respect to the RCMP. Here we
are about to craft a new statute and I want to know whether or not the
questions raised with respect to that complaint process have been considered
and incorporated into this provision.
Ms Maisonneuve: I am not aware, sir, of all of the complaints that have been
made about the RCMP Complaints Commission. Obviously, if you are speaking about
a case that is before the commission at this point in time, I cannot comment on
it. The commission is reviewing it and they will come up with their
As I understand it, the military police complaints commission will function in
such a way that any citizen, including obviously any member of the Canadian
Forces, can make a complaint about the conduct of the military police. The
first response is internal, just like the RCMP. As I understand it, the logic
behind that is that the department can be seen to take care of its own. However,
if the complainant is unsatisfied with the recommendations and the action taken
by the department, that person can go to this commission. The members of the
independent commission can then review and make recommendations if they see
fit. I am not sure if I am answering your question, but that is the way the
process will work. Therefore, there is a mechanism in place for the complainant
to have an independent body review the disposition of the complaint if the
complainant is not satisfied with the result from the Canadian Forces Provost
Marshal. Obviously, my comments are dealing with conduct complaints and not
The Chairman: Senator Grafstein, when the Provost Marshal was before us
yesterday, she spoke quite extensively on that particular matter. I am having
the blues from yesterday, with her opening statement, copied and they will be
brought in to you.
Senator Grafstein: I will defer that for the department and put the department
on notice about that as well. I will review those blues and then we can come
back to it again. It was appropriate to raise it at this time so they can have
an opportunity to respond to it more thoroughly.
Senator Beaudoin: We referred to some cases, the P.E.I. Reference case, the Généreux
case and Lauzon, but there is one case that is old but very good. It is the
Sussex case. I will bring it to the committee the next time I am here. Justice
should not only be done; it should be seen to be done. In French we have
It is not enough that justice be served. There must also be a clear appearance
that justice has been served. That is one of the problems we face, in my
That leaves many questions. It is very important to us that when we look at the
statute, justice should be seen to be done. It is not only a question of
structure; it is a question of legal drafting. You refer to your regulations. I
have been in the Department of Justice for a few years. I know what it is. I
have great admiration for the Department of Justice, but when we are talking
about the independence of the judiciary, I do not think it is good enough to
stick to the regulations. You have to stick to the statute. Regulations are
made by the Governor in Council. The statute is adopted by Parliament. It is
not the same thing. In my opinion, we should try desperately to put all of the
important principles in the statute itself and not in the 1,000 pages of the
You raised the point that we do not have the regulations, but, to use the
formula of the Sussex case, it should be apparent from the act itself that
justice is done. I do not think it is good enough to say, "Oh, yes, we
will see when we have the regulations." I wish to say that for the record.
I am very impressed by Chief Justice Dickson and I am impressed that you are
implementing his suggestions. We are here to see how good the implementation is
and this is why we ask so many questions.
Senator Joyal: I should like to continue the discussion we had previously on
institutional separation of functions. Clause 165.24 of the bill, page 41,
The Governor in Council may designate a military judge to be the Chief Military
No term of appointment is mentioned in the bill.
In my opinion, he has some important functions. A chief military judge or a
chief judge is the person who has the greatest responsibility to maintain the
independence of the system. The bill does not say, or at least I do not see it,
who his boss is in the line of command. To whom does he answer? Moreover, the
JAG is appointed for a four-year term. The Director of Military Prosecutions
will be appointed for a four-year term. The Director of the Defence Lawyers
will also be appointed for a four-year term. Why is it that those people who
are responsible for the administration of the system are appointed for four
years while, according to the bill before us, the judges are appointed for five
Senator Beaudoin: That is a very short term.
Senator Joyal: Stability is very important. I do not understand why all those
positions at the top of the pyramid have four-year terms, except for the Chief
Military Judge who does not have a term of appointment, according to 165.24,
165.25, and 165.26. Perhaps that is somewhere else in the bill, but I do not
see it. I tried to reconcile those terms with the principle of stability. We
wrestled with the principle of security of tenure of the justices as a
fundamental element of the independence of the judicial system.
The perception I have, although I might be totally wrong, is that this is really
a floating system. Everything moves after four years, and we start a domino
effect again. It seems to me that four-year appointments at the top of the
services create instability, and there is no guarantee that the continuity of
the system alone will maintain the principles that we are trying to achieve. In
this military system, everyone at the top is there for four years and after
four years, if they want to, they can get out. They can be reappointed, but the
reappointment process raises questions because all of the system is in-house.
There is no outside control there except the publication of the report by the
JAG that now exists, and the JAG is also appointed for four years. I cannot
find any parallel situation in the civilian system.
Could you expand on that question of the term of appointments? Also, I should
like to know to whom the chief military judge answers. Who is his boss?
You are shaking your head, indicating that he has no boss. Is he totally by
himself? Is he totally separate once he is appointed? Could you explain that?
Col Fenske: He has no boss. That is the explanation. He is a military judge and
he has no boss because he is supposed to be independent. Administratively, we
have made the office a unit so that it can draw on various people for support.
We needed to make that happen administratively. Here that is done somewhat
differently than in other courts. For example, you will see that there is a
court martial administrator built into this system. It is roughly analogous to
how courts are managed today in Canada. There are various patterns, but the
idea is to provide an administrator who can do the work on budgets and a
variety of other things apart from just the convening of courts martial.
The other point I would make, Senator Joyal, is that the Chief Military Judge is
appointed for five years. He is a military judge. Military judges are appointed
for five years.
Senator Joyal: There is an inference that he is there for five years.
Senator Beaudoin: Is the title to be, "Chief Military Judge"?
Senator Joyal: Yes. It is found on page 41. He, too, is on a moving slate of
five years. The terms are four years and five years.
Mr. Belzile: I do not know why the bill was drafted with the difference in
appointments of four and five years. I suspect that to a certain extent it is
due to the military's attitude about training and exposing people to a variety
of jobs for career development purposes. We move people as a matter of course
all the time in practically every function. For the military justice system, we
are really only saying that those terms of four and five years are the minimum
amount of time that those people should be there. I am aware of nothing that
prevents that same people from being reappointed for another four years.
Senator Joyal: That raises the very point that Senator Fraser mentioned.
Reappointments involve evaluation. They are not automatic. It is a not like
sending a card in to continue your subscription to a magazine.
Mr. Belzile: We are not talking about judges necessarily. We are talking about
the chief administrator of a defence counsel system or the chief administrator
of the prosecution.
Senator Joyal: Yes, but that is my point. Those people exercise a top
responsibility in the system. I really do not see how you can maintain the same
understanding of the intricacies of the whole system when there is an
instability factor built into the system, because after four years your term
expires or you have to apply to be reappointed. Of course, before you are
reappointed, somebody definitely reads your file. As I said, it is not
comparable to a magazine subscription renewal where you send in your
subscription card and the publisher continues to send you the magazine. You know
that in the military system nobody is reappointed unless his dossier is
reviewed. Somebody in the system must have that function, unless I am totally
mistaken. I do not want to exaggerate, but that is why the four years for those
top jobs seems to me to build into the system an instability factor at the top
level of the pyramid of the administration of justice in the military.
Col Fenske: Senator Joyal, the Deputy Minister of National Defence enjoys no
tenure. A comparison of various prosecuting officers across the country shows
that they enjoy no tenure. By putting in a term, we, on the other hand, have
guaranteed our people those positions for a period of time. We have not limited
people. It does not mean that those individuals will not be renewed. It means
that they have a protection. Most people performing similar functions enjoy no
tenure protection. They could be yanked from places in the civilian justice
system in less time. The object of this exercise was to provide a base line to
work around. I am surprised that you see it as a difficulty that we provided
that additional protection. As for terms, I cannot do this off the top of my
head, but I believe the Auditor General has a term, the Commissioner of
Official Languages has a term, the Human Rights Commissioner has a term. Terms
are not new to us.
Senator Moore: Not in the justice system.
Senator Joyal: Not in the justice system.
The Chairman: Not in the civilian justice system, if I may just interject there.
I go back to the only length of service that I know of, which was the gentleman
we had before us as a witness yesterday. It seems to me that he served as a
judge the first time for four years, the second time for two. I do not know
whether that is indicative, normal, or average.
Senator Joyal: He was a military judge. We are talking about the director of
military prosecutions and the director of the defence lawyers. We are talking
about the people who administer the system. Yesterday, the witness told us that
of 114 cases, one-third were abroad, and sometimes it is difficult. We were
sympathetic to that. However, the director of prosecutions is not in the field.
As I understand, he is situated at headquarters. He is not a person who travels
with a suitcase. He is somebody who sits in there and administers justice.
The Chairman: Senator Joyal, since this is very definitely a question for the
department to answer, perhaps when the department comes back to us we could
direct them to prepare an answer and also to give us a statistical evaluation
of how long people serve in comparable positions presently. Is that acceptable
Senator Joyal: Yes, of course.
The Chairman: We have the panel before us today representing the Dickson group,
and I think that most of our questions really have been directed towards the
department, which we will have before us later.
Senator Beaudoin: One point I should like him to think about is the Valenti
case. We need three conditions to have an independent judiciary: First, we need
tenure of office. I think that five years is not very long and I should like
you to think more about that. Second, we need security, financial security.
Third, we need autonomy when they are rendering justice. If one of those three
conditions is missing, something is wrong. I know that military life is very
different; I accept that and I agree with that, but the fact is that the
judicial careers and the legal careers are not very long, and I should like to
know why. I just raise the point.
The Chairman: We are serving notice to the department here.
Senator Grafstein: I think Senator Joyal raised an interesting question that I
had not thought of, which is that the administrators have to deal with files.
For local crown attorneys, a four-year stint is a very short time to deal with
ongoing investigations. We have only to look at some recent examples within the
military to indicate how long those investigations can take. There is a baton
effect here that might not be helpful.
It would be useful to know what the statistical case load is. In other words,
what is the average length of time for a case from start to finish? I would
assume, knowing the civil court systems, that four years is a pretty short
period for major cases.
The Chairman: I assume the department is taking this under advisement.
Senator Fraser: I will add to the notice given to the department. Paragraph 27
of Lauzon, to which you refer, Colonel, and to which Senator Joyal has kindly
drawn my attention, says specifically that the lack of standards for
reappointment does not offer such objective guarantees of independence.
The absence of standards governing the renewal of mandates does not provide
adequate objective guarantees of independence.
I understand your argument that it is more effective, more efficient, more
flexible, quicker, and easier to provide those norms in regulation, but it
seems to me that this passage confirms the importance of those norms. I should
like some indication of the thinking that is going on about what those norms
might be, how they might be arrived at, and what they would be based on.
The Chairman: Thank you, Senator Fraser. I thank our panellists today for being
very patient with us as we grill the department once again.
The committee adjourned.