Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 40 - Evidence

OTTAWA, Wednesday, November 4, 1998

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-25, to amend the National Defence Act and to make consequential amendments to other Acts, met this day at 3:35 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, this session of the Standing Senate Committee on Legal and Constitutional Affairs is called to order. We have with us today Colonel Fenske, Lieutenant-Colonel Weatherston and Commander John Maguire.

Colonel Allan Fenske, Deputy Judge Advocate General, Advisory and Legislation, Canadian Forces, National Defence Act Amendment Team: Honourable senators, I am pleased to be here to explore Bill C-25 further.

During the past two or three sessions a number of issues have come up in your deliberations. We have provided you with some information. We have undertaken to provide you with further comment orally on other issues.

With that in mind, I am prepared to make some brief remarks on a number of issues that seem to have interested you over the past two or three sessions. I will try to limit those remarks to a few minutes on each point to give the background and the thinking of the team and the design behind the proposed legislation. Perhaps that will assist you in your discussion of the bill.

We did provide your clerk with some written materials recently that address two issues. The first issue is the statistical information regarding the lengths of terms of service of various positions within the military justice system. That was requested during the last session. The various materials provided to you do summarize the various appointments in respect of military judges, prosecution officers and the defence over the past ten years.

We have also provided your committee with the benefits of our research over the past 10 years regarding the length of time that it takes to deal with a court martial case. Our analysis covers more than 550 cases in the court martial system. We reviewed the average time from the laying of a charge until the disposition by the trial court and determined that the average amount of time was approximately 3.5 months. That is perhaps the first hint that the military justice context is different than the civilian trial context.

Certainly nobody feels the loss of Brian Dickson more than I do. Chief Justice Dickson did provide his thoughts to the House of Commons Standing Committee on National Defence and Veterans Affairs, which we will call SCONDVA. We have brought along a transcript of the May 11 hearings he attended.

I commend the transcripts to you for study and I refer to only one portion of the transcript. It is at page 10 of the 26-page transcript. A question was asked of Chief Justice Dickson by Mr. George Proud. The question was the following:

My question for you is whether you think the bill accurately reflects the recommendations you made. Because occasionally, when a good idea is translated into legal text it is lost in that translation and we are left with something less than what was intended. Can you tell us today if this has happened anywhere in the bill that you've seen, that it's not the way you intended?

Now, I do not quote this to pat ourselves on the back. I quote this for your information because this is the best place where I can find Chief Justice Dickson speaking his mind generally. He replies:

I think the answer is yes. I admire the work that was done between July 25, when we submitted our second report, and I think December 4, when all of this came out in Bill C-25. I thought it was a remarkable bit of work on the part of the JAG branch and the people who were assisting him in the preparation of this bill.

My point is to make clear that we are committed to the recommendations and he thought we had lived up to our commitment.

I make that point at a general level. I would commend the transcript to you on the more detailed points because he and General Belzile did have a fair amount to say on behalf of the special advisory group.

I want to make one other preliminary point regarding context before I turn to the issues.

The SCONDVA report entitled "Moving Forward -- A Strategic Plan for Quality of Life Improvements in the Canadian Forces" stated in part:

In reflecting upon the work we have done over the past months and the volumes of testimony we have heard, there is no doubt in our minds that the Canadian Forces are an institution with special needs and enormous challenges. There is no equivalent occupation in civil society. The unlimited liability which members assume once enlisted immediately sets them apart.

I use that issue of context because this bill is attempting to ensure that the code of discipline and military justice adequately reflect Canadian legal values and traditions. In so doing the bill has brought that code more in line with the processes in the civilian criminal justice system. However, at the same time, this bill is trying to continue to meet the needs of the military.

It is trite law to say that the court martial is an institution that is unique. It has developed from our traditions and our history. It is accepted in appellate case law related to military justice.

The Supreme Court of Canada has taken the issue of context quite seriously. I will quote from the headnote of the majority decision in R. v. Généreux as written by Chief Justice Lamer, with Sopinka, Gonthier, and Iacobucci concurring. It is noted regarding the military justice system:

The existence of such a system, for the purpose of enforcing discipline in the military, is deeply entrenched in our history and is supported by compelling principles. The accused's right to be tried by an independent and impartial tribunal must thus be interpreted in this context and in the context of s. 11 (f) of the Charter, which contemplates the existence of a system of military tribunals with jurisdiction over cases governed by military law. In view of s. 11 (f), the content of the constitutional guarantee of an independent and impartial tribunal may well be different in the military context than it would be in the context of a regular criminal trial.

I am continuing at another place in the decision:

It would not be reasonable, however, in this context, to require a system in which military judges are appointed until the age of retirement. The requirement of s. 11 (d) are sensitive to the context in which an adjudicative task is performed.

Judge L'Heureux-Dubé in her dissent stressed even more the issue of context.

This case arises in the context of a military tribunal and, in interpreting s. 11(d) of the Charter, sufficient weight must be given to that context. The contextual approach is a tenet of constitutional interpretation which is of paramount importance.

I do not want to belabour that. I sense that a number of members are seeking a baseline in order to better understand some of the proposals in familiar terms. Some of the explanations which we offer are in terms of an organization that does not have an exact analogy.

The first issue which had a fair amount of discussion was that of a fixed term for military judges. The comments which we would provide regard the theory behind the bill. The Charter does not require judges to hold office for life. The appointment of military judges for fixed terms is an accepted exception to that norm. There is a norm whereby most of our criminal judges are nominated for life.

In the Généreux decision, and the decision before it on which Chief Justice Dickson sat called MacKay, substantial deference was given to the context in which military law had arisen over the centuries. Consideration was also given to the needs by the military justice system today.

Chief Justice Lamer noted in another Charter case that each system has its own justification. The system traditionally has built in practical viability and acceptability.

This kind of constitutional guarantee has similarities in other countries. It is necessary is to provide appropriate standards which ensure independence and impartiality of the persons discharging the functions -- and I would underline this emphasis -- while yet preserving the essential features of the systems concerned. I am raising for you the issue of the balance that this bill is trying to strike.

Having said that, the fixed-term appointment for military judges was endorsed both in the Court Martial Appeal Court and in Généreux in 1992. There are two points which come out of those judgments, one I have more or less discussed already.

The first is that the Charter does not require, nor would it be appropriate to impose, uniform standards on all tribunals.

Second, and this is a direct quote from the Lamer judgment in Généreux:

It would not therefore be reasonable to require a system in which military judges are appointed until the age of retirement.

That is provided, in summary, that the legislative and regulatory structure protect those judges against the discretionary or arbitrary interference of the executive.

The special advisory group noted that the fixed-term approach had found favour in Généreux. I believe you noted that from the last session. It was not proposed that that the fixed-term approach be altered.

Recently, in the Court Martial Appeal Court, Létourneau in Lauzon had made clear the Court Martial Appeal Court's commitment to fixed terms.

On the issue of fixed terms, Bill C-25 represents a substantial increase in the certainty of the appointment and the length of the appointment for fixed terms. It provides important safeguards that are not there now. I would like to summarize those for you.

First, under the current system, the one upon which the court commented favourably in Généreux, the term is normally four years and not less than two. It is the minister who appoints. Under this bill, the Governor in Council appoints, as is the case for all federal judges.

Second, the term is for a fixed period of five years. That represents a substantial step forward. We are talking about the Charter case law in this area, but this is a theme that I would leave for your consideration.

The Charter case law on independence is still evolving, and it is evolving in a fairly complex pattern. When this bill was drafted last summer and last fall, it was drafted in anticipation of the P.E.I. Reference which did come down prior to our finishing the draftsmanship. Of course, we analyzed that very lengthy, very complicated set of judgments at great length.

I confess to you, honourable senators, we are still analyzing that judgment. It is very complex. It does not specifically speak to military judges. However, we think that the principles in that judgment are principles to which we must give credit.

Because of its complexity, because it is new and because the area of law is changing, we want to ensure that we get it right. It may take us more than one try to do so. For that reason, we have not tried to set out something more ambitious in respect of the next issue, which I believe was of substantial concern to many of you, namely, renewal.

In speaking to renewal, I think it would be helpful -- and I am sure you will tell me if it is not -- for you to be able to assess the current state of affairs; the perennial problem with terms; the effect of the amendments which require a renewal committee; how the committee composition and process could work to ensure there is no arbitrary interference of the executive; and, in response to one or two questions that we have had, the kind of objective criteria which might be considered.

Renewability has been a feature of fixed terms since their enactment in 1991. There were no fixed terms before 1991. Specific adjudicative tasks without the benefit of tenure were the norm.

It was in Généreux that this issue was litigated. In anticipation of the judgment between the Court Martial Appeal Court and the decision in Généreux, we had changed our regulations to meet, we hoped, the principles that we expected would come from Généreux. We had the good fortune to have the court comment on the provisions that we put in place.

Those provisions -- of four-year terms and normally a two-year minimum renewable -- were in place at that time and have been in place since then.

The change that Bill C-25 would bring is not to introduce renewal. It is to provide for a renewal process in regulation to require the recommendation of a committee. At the moment, there is no such requirement; they are simply renewed.

We are endeavouring to work with the process which has been discussed in the P.E.I. Reference in terms of judicial compensation. We are hoping that we can draw from a specially-struck committee the benefit of a structured process that acts -- and I am using the language of Chief Justice Lamer in the P.E.I. Reference now -- as a sieve to remove the possibility of arbitrary executive interference. That process ultimately provides for a recommendation. The committee has only one function. It is struck independently and it has only one function, namely to provide a recommendation to the Governor in Council.

The first point is that the renewal committee is our attempt to ensure that the decisions made on renewal are not made in the dark; that they are not made strictly by the military executive or the executive. In this case, we are reaching for something which has been applied to other judicial tribunals and, indeed, most judicial tribunals in Canada.

It is a very important point that we are trying to leave with you. I have the sense that some of you may have viewed this as an opportunity for the executive to intervene in, perhaps, an arbitrary way. That is the exact opposite of what we are trying to achieve.

I should explain what we are trying to do with renewal. You have the current dates of appointment of all our military judges. The first renewal committee cannot be held before 2005. For the moment, all our military judges are at the beginning of a new term. Of course, we did not know this when we were doing the bill last year; and we were trying to accommodate whatever would happen.

However, it is important for you to know that some of the considerations into our approach do have a bit to do with time and a fair amount to do with complexity. I would note that there is a five-year review that is likely to intervene before we get there, and you can make what you will of that particular fact.

If I step back and apply the sorts of principles that we have been able to draw from the P.E.I. Reference, the renewal committee will have to be capable of acting independently and not be dominated in its membership by the executive. It would provide a non-binding recommendation to Governor in Council.

I would note that that is outside the military hierarchy. Therefore, I suppose if I were looking at this process, I would be asking myself: Where is the opportunity for the executive to interfere arbitrarily? There is an executive decision at the end. Presumably it is defensible, or not, on the basis of rationality, and presumably it is review-able. However, there is a decision at the end and it would be difficult to see, if the process set out in the P.E.I. Reference or a like process is followed, how it could be arbitrary. That would be my first concern.

Senator Fraser asked on at least two occasions about the issue of objective criteria. I would like to give a response that I admit in advance is incomplete and must be addressed at a relatively high level of abstraction, but I hope it will give senators a sense of what we are trying to achieve and how we are trying to do it.

Before I do that, I would like to ask: What is the perennial problem with terms? The perennial problem with any term -- whether that of the Commissioner of Official Languages or that of a military judge -- is that, at the end of the term, there is an ability to be reappointed and this raises a question. So many of the terms in the Canadian government context are susceptible to reappointment, and that is also often the practice of our allies. Yet there is always the difficulty, the nagging point at the back of one`s mind, and sometimes at the front, of whether that individual will do something in their decisions to garner pleasure so that perhaps the re-appointment decision will go in their favour.

In the context of the military justice system, renewal has not been a problem for us to date. We do not force judges to judge involuntarily. Many judges are happy to take a break. Some judges are happy to continue. We have been fortunate not to have many situations where there has been a disagreement about that.

What is the benefit of having this committee? If you were to apply the kinds of principles considered in the P.E.I. Reference, referring the single issue to the committee would raise a number of principal points. First, what would be the role of one of these committees? It would protect courts from political interference by interposing this independent body with one job -- to make a recommendation between the judiciary and other branches of government.

Chief Justice Lamer was at pains during the P.E.I. Reference to note that compensation is, in the end, an inherently political act. So how can these buffers be set up?

I would suggest, honourable senators, that the issue that we have tried to address, in terms of the problem with terms raises a political issue, too, and is susceptible to the same kinds of strategies.

What would the objective be of such a committee? Quite simply, to depoliticize the process.

What is the modality? You set that body a specific task of issuing a report to the executive. In the context of compensation, that report clearly must also go to the legislature when you are talking about judges under the Judges Act. That is not necessarily the same thing with the military and with military judges.

It is interesting that Chief Justice Lamer was also at pains to note that the detailed institutional design is best left to the executive and the legislature. In our case, it will have to be the institution and perhaps some representatives of the judiciary. He notes in the P.E.I. Reference that different provinces should be free to choose different procedures and arrangements suitable to their needs. Since the standard of independence cannot be uniform, there must be scope for local choice.

I would add to that everything else that has been discussed in terms of renewal. To be clear, we want to ameliorate one final concern with terms by using an analogous process to the one discussed in the P.E.I. Reference.

I would like to leave the process aspect alone now. We still trying to get the best insight that we can from the P.E.I. Reference judgment. We are looking to involve representatives from the various branches of government which have a stake in this, including at the least the judiciary and the administration.

Our reading of the P.E.I. Reference suggests that it is a very dicey proposition to suggest, even in this circumstance, that the executive could dominate this committee. We would be looking for modalities to ensure that the committee's composition and structure reflect adequately the stakeholders but allow it to remain independent of the military chain of command.

We had the opportunity, the other day, to refer to the one line in the Lauzon decision which talks about objective standards. I believe it is quite clear when you look at the judgment in P.E.I. Reference that the objective standards that are in play could well involve the composition of the committee, the committee process, and the structuring of the recommendation. All of these could be standards that would enable one to know that their recommendation is objective.

I am referring to my own notes in respect of the P.E.I. decision, but I want to make it clear that my reading of that decision has the chief justice suggesting that objective criteria are desirable but not always necessary in all cases.

Having said that, I must say that our preliminary thinking is subject to the necessary caveat that, because this is a regulatory process, I cannot warrant that the Governor in Council will make that regulation. This is, however, our goal.

It must be obvious by now that the main problem in terms of a renewal scenario is to balance the desires of the individual who wants to renew and the needs of the institution. The object of the renewal committee and its process is to ensure that that decision is not made as a naked exercise of executive authority.

There are two types of considerations, the first being the systemic requirements of the Canadian Forces, including the requirement for military judges in general. What if we had twelve military judges but, for whatever reason, there was only enough work for eight? What if we had twelve positions for military judges, a requirement to hear cases in English and French, and only two bilingual judges? There are a number of objective criteria that could be used to look at this issue. What if a series of military judges had exercised their option not to renew and there was a dearth of experience and continuity on the bench?

What if there was a compelling military requirement to employ an officer -- and I stress this -- after the completion of that officer's full term in a capacity that is non-judicial? That is a hard question. If the military is making that decision as a naked exercise of discretion, you have no way of explaining how the considerations were made in having them reviewed. It is not in the open. We are trying to get it out in the open.

Of course, there are mundane criteria, such as whether an individual has reached compulsory retirement age. Our position is not firm at this stage and there is varying practice in the country in analogous situations, but it is possible that we could consider whether the individual will have reached retirement age during the term.

That issue could go either way, but it would be fair to look at it. The current scheme would provide for people to serve to retirement age, notwithstanding that they were nominated for a term which extended beyond it. These are the kinds of criteria which we would consider.

We have looked very carefully at whether the renewal committee would be precluded from looking at the trial record of the judge in question. Speaking for the team that is trying to design this and obviously not for the Governor in Council, the current view is that we have provided for removal in this legislation. If you are not happy with a military judge because of his decisions but cannot remove him, those are the decisions you will get.

It is our hope that we have accomplished two key principles with this. The first is that the executive action will be far from arbitrary, that it will be rational. The second is that executive intervention on the issue of renewal will not be related to the trial record and, for that reason, even if it were the military executive making the decision, the trial judge could not do something with his decisions to please them on renewal.

That may sound a little convoluted, but that is where we are trying to take it.

In conclusion, I will reiterate that it would not be the military executive making this decision but rather the Governor in Council on the basis of the committee's recommendation.

I apologize for the length of that point but, although it is covered by only a very few words in the bill, it covers a very large area. It is a sore point which we have been trying to address and a point about which a number of you have been concerned.

My next point was raised by Senator Moore and perhaps it was picked up as a concern by a number of others. Senator Moore has referred to it as the lack of symmetry between the director of military prosecutions and the director of Defence counsel services.

We have provided you with a detailed analysis of how we got to this position. I hope you have had a chance to look at this but I will go through it briefly in case you have not.

When you look at the bill, you may wonder why the positions do not look alike. All of our consultation, study and experience have suggested that these positions are not alike and that the requirements of the position of director of military prosecutions are significantly different from those of the director of Defence counsel services.

I would like again to give you the benefit of the design thinking. It began with no removal committee protection at all for either one. That was based on the fact that no prosecutor that we could find, other than the director of public prosecutions in Nova Scotia, enjoys the protection of tenure and removal for cause. In his case, that protection requires a resolution of the Legislative Assembly of Nova Scotia. He stands alone. The academic writing in relation to the prosecution function has, in recent years, stressed the conflicting pressures on prosecutors.

The genesis of these amendments has the important idea of removing the prosecution function from the chain of command in the military. It is these kinds of considerations that caused us to think that, in the case of the director of military prosecutions, it was prudent for us to take that one additional step.

Prior to making the recommendations that were made, research was done. We have looked all across Canada but we cannot find an individual who runs a legal-aid plan that has the kind of protection that we have given to the director of military prosecutions. That also factored into our thinking.

I should like to point out that the bill asks the director of Defence counsel services to provide an optional legal-aid plan. Members of the Canadian forces are in no different situation than any member of the Canadian public in respect of the code of service discipline. They have a right to counsel and they can choose their counsel. However, we put people in some strange places and we run a system where speed is a hallmark of the system.

It is a process that is not exactly the same as you would find in the Canadian criminal process. As a result of all these considerations, we have, for as long as I can remember, provided legal aid to people subject to the code of service discipline by asking only one question. Namely, are you subject to the code of service discipline? There are no financial criteria. There is nothing like that. If you are subject to the code of service discipline, you are entitled to that legal aid.

The system that we are asking the director of Defence counsel services to run is modestly simpler than some of the other ones that exist in the provinces. It has its own idiosyncrasies but we believe that assessment is about right, based on our judgment.

In our analysis, the scope of the duties of the director of military prosecutions -- and we have pointed this out to you -- is broader. The nature of duties are more complex. The interrelationships of the director of military prosecutions with the public, with the chain of command, with the military and the Canadian community which the prosecutor represents, are more complex and more given to conflict. The director of military prosecutions makes state decisions in respect of intrusive state power against individuals.

These reasons cause us to think that protecting the director of military prosecutions by that removal committee was a good idea and that we did not need to go that far in respect of the director of Defence counsel services.

While the language of the bill may suggest a certain symmetry, we do not believe that there is symmetry in the jobs that are performed. The director of Defence counsel services, as you may know, is not unprotected. It is very clear that this individual cannot be given specific instructions in relation to how individual cases are conducted. We have drawn this from the Nova Scotia legislation. That should be a powerful inhibitor because it would be unlawful to intervene. Hopefully, that is a sufficient inhibitor.

The Somalia commission of inquiry looked at the organization in support of military justice. In chapter 40 of their report, they made a number of recommendations. One of the recommendations was that the legal organization in support of military justice would have a prosecution wing, an advisory wing and a defence wing. They made no recommendation for any additional protections for either side.

Those are all of the considerations that would be pertinent in assessing that issue. As a result of that, the design team was of the view that such protection would not be necessary for DDCS.

I will now move on to the next issue that was raised for discussion in committee, the five-year review. We thought it would be useful for you to have the benefit of our thoughts on this issue.

It was noted by Senator Grafstein that the Dickson review group recommended a review every five years and that recommendation was accepted. The Dickson review group did not recommend that we amend the legislation to provide for a mandatory five-year review. That particular idea has an interesting history in the United Kingdom, which, as far as we know, is the only place that occurs.

The English have had a longstanding, historical mistrust of standing armies and that mistrust goes back to the days of Cromwell. Since the Restoration, there has been a convention in the United Kingdom that the army gets a new lease on life periodically. The number of years has varied periodically. Currently, it is every five years.

The minister has indicated that the recommendation of the Dickson advisory group is supported. This bill makes it crystal clear that we will be reviewing in five years.

A very important nuance to remember about the Dickson recommendation is that it does not tie the hands of the government on how to accomplish that review. They want it to be independent and that has been undertaken.

It is a fair inference that when this review takes place, Defence will be back before both Houses. At that time, everyone will be in a better position to assess whether the extremely novel procedure that is used in Great Britain -- and not used anywhere else in our experience -- is the procedure to be adopted or whether a different procedure is to be adopted.

That is the position which has been taken, and that is the position upon which the bill was drafted. It is my responsibility to ensure that you understand clearly that the commitment was for a five-year review. Some of you will know that review is an ongoing affair at Defence now, and it has been moved into a very prominent place in our oversight mechanisms. No less than six reports will be coming to Parliament every year between now and the time that this review occurs, in addition to the review of the workings of this bill.

One other point was raised.

Senator Grafstein, if I have misunderstood it, I am sure you will correct me.

My review of the transcript of the last session suggested that you were anxious about the protection of people who made complaints to the Military Police Complaints Commission. I did want to provide you with, again, the thinking behind the bill.

First things first: The Military Police Complaints Commission has many very original features but it is roughly analogous to the similar institution in the RCMP and roughly analogous to many of the review boards overseeing provincial police forces. In that area of practice, we do not find what I think we would call, in the vernacular, whistle-blower protections.

The first point is that that concern is not unique to MPCC. The analogies which we have drawn upon have not suggested to us that it is necessary for this to occur.

Our experience has not suggested that it is necessary, particularly in the context of the Military Police Complaints Commission. We do not need to protect members of the public who have no linkage to the institution, and members of the Canadian Forces are under a statutory obligation to report wrongdoing. It would be very inconsistent on our part to try to punish them for doing their duty.

In summary, we have paralleled what has happened in other institutions and have not felt the need to go the extra step for whistle-blower legislation.

That completes what I believe were the issues which were raised. I hope I have addressed everything. If not, I know you will remind me.

The Chairman: You may be sure of that, Colonel Fenske.

Senator Beaudoin: I thank you for your remarks and, in particular, for the document which you have circulated.

I see exactly what I want to see on page 10. I have always been concerned about whether the bill before us, Bill C-25, complies or implements or gives effect to the Brian Dickson/General Belzile board or commission. I see here that 99 per cent of the recommendations in the first and second reports are now reflected in Bill C-25. The word "reflected" is important. They are not implemented but they are reflected.

You may recall the report which Mr. Young, then Minister of National Defence, sent to the Prime Minister in which he recommended that the first report be implemented in full. That has virtually been done.

This addresses my main concern about this bill. I have several questions, but I do thank you for the chart which explains clearly what has been done since the work of Brian Dickson and his colleagues.

It is true that, under section 11(f) of the Charter of Rights and Freedoms, our country has envisaged a civilian system of justice and a military system of justice. In the Généreux case, the Supreme Court of Canada said that very clearly. I do not have any problem with that.

As to the renewal of term, it is my concern and perhaps the concern of others here that, in the judicial world, we do not often see renewal. Some constitutions may authorize that. I would like to know from you what Chief Justice Brian Dickson thought about that. Did he say somewhere that he agrees with the renewal of a term?

Col Fenske: That is a good question. A full reading of the May 11 proceedings, along with several of the pieces found in the two reports, should lead you to the conclusion that he was aware of it and had thought about it. It becomes a matter of argument, from my point of view.

As some of you are aware, I served as the JAG adviser to the Dickson commission, so I do have some insight into what was said. However, given my position here, I would prefer not to advocate that, if you will so allow.

Senator Beaudoin: Do you have something in writing, such as your earlier quote at page 10?

Col Fenske: There are a number of things that we can say. I do not have the citation before me, but somewhere in this May 11 SCONDVA transcript, General Belzile is asked what he thinks of military judges, appointments for term, and why should they not be civilian.

A very pointed answer comes back from General Belzile and there is a modest discussion of renewal. Apparently that exchange is at pages 7 and 8 of the transcript.

Senator Beaudoin: That is another question. The first question asked by Pierrette Venne was a comparison between the civilian system and the military system.

I accept, because it is in our Constitution, that there is nothing at all which precludes Canada from having a different military judicial system. It is obvious.

Col Fenske: You need to read carefully that exchange and you will find, on page 8, the reference to renewal. Of course, it is a fair inference to be drawn from the reading of this transcript as a whole that both Chief Justice Dickson and Lieutenant General Belzile appeared on behalf of their commission to give further insights into their work; that they approached the SCONDVA hearing as something of a tag team. Each spoke when they wished.

As a matter of argument and insight from someone who was sitting in the room when this was going on, I would argue that Chief Justice Dickson is not known to sit quietly by when someone talks about judicial independence in a way with which he disagrees.

Senator Beaudoin: I agree with that.

Col Fenske: My point is that the issue of renewal is discussed in this exchange with Pierrette Venne at the end. There is a very telling commentary by General Belzile. I have not yet found the citation.

Senator Beaudoin: General Belzile said that to us the other day when he appeared here. There is no problem there.

Senator Moore: On page 8, he says:

I think that something very similar will happen in practice because there really is no administrative advantage to constantly changing judges.

Col Fenske: That is at the centre of the page, page 8, right underneath the 1605 block.

I read that as indicating to you, who can read this and form your own impressions, that they were thinking about renewal. They had assessed it.

Senator Beaudoin: I have no doubt that he dealt with that renewal mechanism.

Col Fenske: I would make the point that the man sitting right beside him, two inches away, and also testifying on these pages and who shared the commission with him, would not have sat silently by had he disagreed.

Senator Beaudoin: If he did not react, it is obvious that he did not disagree. The renewal of clause 96 is clear-cut.

The only question I have left is the DNA test. We have in the Senate recently adopted the amendment. We are now facing the question of whether we must amend Bill C-25 to authorize the court martial judges to be able to issue orders relative to DNA samples or whether we will do it in Bill C-3, when Bill C-3 will come before us. We have already authorized the civilian judges to be able to issue orders relative to DNA tests.

The question is whether we should not give the same power to the court martial judges in respect to DNA tests and to have the same power as the civilian court judges. Maybe there is a reason why we have not said anything about it, but I would like to know that from you.

The Chairman: Senator Beaudoin, this is a difficult question because, of course, Bill C-3 has not been discussed within this committee nor passed by the Senate. It is still out there somewhere. The only bill we have before us at this point is this particular bill, and it would be very difficult to amend this bill to agree with some future bill that may or may not pass.

Senator Beaudoin: That is another argument that we may make. If we have already done it for the civilian judges and now we are concerned with the court martial judges, why should we keep silent? In other words, if it were not the case with the civilian judges, I would agree entirely with you, but we have settled that problem.

Now we have the problem of the court martial judges and we have the choice of doing that right away or in the future. Is it not more logical to do that right away when we are dealing with court martials? That is my question.

Senator Bryden: As a supplementary question, before you answer, can a court martial judge order a DNA sample? That is what we have now. That is the question which Senator Beaudoin is asking.

Col Fenske: We have provided you with a synopsis sheet on the issue of Bill C-3. We were asked two questions which basically amount to whether Bill C-3 will apply to military members and whether it will be the RCMP or the military police who will deal with the taking and conserving of the DNA samples. Those are the questions we were asked.

The answers to those questions are that Bill C-3 will apply in respect of the people in the Canadian Forces. The question is how and how much.

Second, under the Criminal Code today, a DNA warrant can be sought by a peace officer from a civilian judge. Military police investigators are peace officers in respect of persons subject to the code of service discipline, and of persons on Defence establishments. Accordingly, they can currently apply for DNA warrants. We indicated to you in our backgrounder that we have a number of people in our national investigative service who are qualified to do this but, at this stage, our inquiries have indicated that we have not found it necessary to execute one of those warrants yet.

Senator Balfour: Therefore, the answer to the question is yes?

Col Fenske: The answers to the questions posed by this committee the last time have been given. When we gave you that information, we felt that your questions had begged the other issue, which is the issue you raised today. The answer is that there is a gap in that legislation. It does not provide for military judges to make those answers.

I am not one to advise you on process, but my understanding is that this bill is not about DNA. Nothing in the purpose of this bill deals with DNA.

Senator Balfour: The answer is no?

Col Fenske: The Minister of National Defence is not responsible for DNA.

Senator Beaudoin: I understand your answer. In other words, we deal here with the court martial system in our country, following a very important report from Brian Dickson and others. That is something. I am impressed by what has been done.

Some of my colleagues stated that we either amend the bill right away or we wait until we come to Bill C-3. Logically, I do not see why we should wait if we are sure that it should be done right away.

I can foresee someone arguing that the amendment is not in accordance with the principle of the bill on second reading, but this is not what you are asking anyway.

Col Fenske: Senator Beaudoin, in the note we provided to you previously, we made it clear that we are working now with officials of the Department of the Solicitor General to resolve this issue.

You would not be surprised to know that we are not masters of DNA policy. I do not say that in any humorous sense; it is a confession. We are working out how that bill specifically would need to be amended. It would be very difficult from our point of view to take it any farther than that with this bill.

We do not actually have a full understanding of what Bill C-3 will look like after your analysis of it.

The Chairman: I must agree with what you are saying, Senator Beaudoin. Since this committee has not yet held hearings on Bill C-3 and has heard no evidence about Bill C-3, it would be very difficult to amend the bill presently before us with regard to what we may hear and decide in the future about Bill C-3. It may well be that this gap has been observed and identified. When we have the hearings on Bill C-3, it may be in order to suggest that the government draft another bill <#0107> and I think it will take another bill -- to allow courts martial to order the taking of samples such as this.

Senator Beaudoin: Given section 96, we may deal with that in the next five-year review, if you are not in a hurry. It does not look like you are in a hurry.

The Chairman: That would be another route.

Senator Beaudoin: Yes, that would be another possibility.

I raise the problem because it is the only problem that worries me now that I have heard everything and seen those beautiful sentences of former Chief Justice Dickson.

Col Fenske: Senator Beaudoin indicated that we seem comfortable with delay. It would not be responsible for me to let that remark go without this comment.

I indicated to you that we are working on this now. It would be problematic to have a scenario where we find ourselves forgoing important cases over which we have concurrent jurisdiction because our court martial cannot make the requisite order at the end of the trial. That is why we are working with the Department of the Solicitor General and its officials.

I simply cannot help you in respect of the choice that you have in terms of what it is that you must do. Outside of this committee, I am doing my best to ensure that we solve this issue.

Senator Beaudoin: Your explanation is clear-cut.

Senator Fraser: I wish to revisit the question of renewal and criteria. I thank you for your very careful explanation of where things stand now. I understand that you are talking at the moment about current thinking and that nothing has yet been adopted.

That being said, is there a set of standard criteria in writing for renewal committees?

Col Fenske: You may recall that I caveated my answer to you based on our difficulty in analyzing this.

Senator Fraser: I do, but one of the criteria could clearly be "subject to operational requirements as set out in writing by...," et cetera.

Col Fenske: I gave you three examples of the criteria we are talking about -- staying out of the trial record; the personal suitability based on objective criteria; and institutional requirements based on objective criteria.

The P.E.I. Reference indicates that such criteria are not necessary but would be best. Our design team is shooting for the best, but we have yet to work out all of the kinks. I think it improves the independence argument if you can have up-front criteria -- perhaps not exclusive -- that will dominantly shape the consideration of the committee.

Senator Fraser: I am not drafting the rules, but you could have at the bottom of your list any other criteria that the authorities may bring to the attention of the committee, as long as the judge in question is given a copy of the criteria.

Col Fenske: The vision is that, in regulation, we will know in advance how the membership of that committee is appointed. It will provide for their appointment. If I have understood the P.E.I. Reference well in respect of independence, effectiveness and objectivity, in order for that committee to be independent, the committee itself will have to be appointed for a term.

We will set it up in the regulations so that we know who these people are. The selection process will be there, and then we will provide a secretarial process -- something fairly informal, with the ability to make it formal if necessary -- for them to hear from the stakeholders, get their information and make their decision.

Senator Fraser: The rule of thumb, I take it, is that someone who wishes to be renewed will be renewed, unless there are institutional constraints. As one of your colleagues put it, the default position is to renew unless there is an overriding reason not to renew.

Col Fenske: I think it will end up that way. That is one of the reasons I pointed to what I thought was very perceptive language by General Belzile in the SCONDVA hearing.

We have routinely renewed many people over the years. The object is simply to get that renewal process out in the open and to be able to better defend the decision.

Senator Fraser: Will the committee's recommendations be made public?

Col Fenske: I do not know. I had not thought of that.

Senator Fraser: At the very least, will the committee's recommendations be made available to the judge in question?

Col Fenske: Yes, absolutely.

Senator Fraser: Otherwise there is clearly potential at the ministerial level for someone to short-circuit the independent process.

Col Fenske: The reports would have to be made known to the judge. The judge would be a participant.

Senator Fraser: I see.

Col Fenske: There are a number of possibilities. There might be personal information involved. I am not sure what those modalities would entail.

I would be thinking about looking at a number of analogies. Some of you would be aware that a number of provincial courts provide for renewals. I do not know whether they are made public, but we would be looking at the mainstream activity in making that decision.

The Chairman: Honourable senators, we will continue this session tomorrow morning at 10:45 a.m.

The committee adjourned.