Proceedings of the Standing Senate Committee on Legal and
Issue 41 - Evidence
OTTAWA, Thursday, November 5, 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 10:52 a.m. to give consideration to
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, we are continuing the hearing we began
yesterday on Bill C-25. We still have questioners on our list from yesterday.
Senator Ruck: I have a long involvement with military history with respect to
the service of blacks in the two world wars. I wrote two books on the Black
Battalion of World War I. They literally had to fight for the right to fight
for their country. It was a rather unusual and unique situation.
In World War II, the barriers were down. Blacks were able to join the military
but, again, there were problems in the early years of that war. In a period
when war erupts, there is a stampede to recruiting stations. Canadians are
extremely loyal people. At any indication of problems where the country is in
danger, Canadians flock to recruiting stations. This happened in World War II as
it had in World War I. Blacks were interested in serving their country. Again,
as in World War I, they had a problem in the early years. They were told, "We
will call you when we need you." Eventually, a fairly large number of
blacks were admitted to the military services.
Blacks also volunteered for peace-time forces. There appeared to be a change in
ideology. Many blacks got into the peace-time forces. However, there were still
some stumbling blocks. During World War I and World War II, one of the major
stumbling blocks was the inability of a black person to enlist in the navy.
This may also have applied to the original settlers of our nation, the
aboriginals. I am not sure what kind of problems they had, but blacks
definitely had problems because a policy was in place.
When the Royal Canadian Navy came into being in 1910 under the government of Sir
Wilfrid Laurier, rules and regulations were put in place. The first regulation
with respect to enlistment stated explicitly that all recruits had to be
members of the white race. That regulation was in effect until 1943.
Piercy Haynes was a native of British Guiana who came to Canada as a young boy.
He was a minority because the majority of people he chummed with were members
of the white race. When the war broke out, many of his comrades went into the
navy. For some reason or another, westerners wanted to serve in the navy. In
naval sources, they were referred to as "fresh-water sailors" because
they had not been around the ocean.
Piercy Haynes decided he wanted to do that also. He went to a recruiting station
in Winnipeg and was told to try the army. The recruiting officer turned him
away. Piercy refused to accept that. He got in touch with military officials.
The late former premier of Nova Scotia, Angus L. Macdonald, had his secretary
write Mr. Haynes a letter indicating that the regulation in place was in the
best interests of minority people. They were sure he would understand that
explanation. However, Mr. Haynes did not buy that statement. He kept pursuing
the matter, and finally the navy agreed to take him. By the time the war ended,
there were another half dozen blacks in the navy.
I do not think Piercy Haynes ever went to sea. He came to Halifax. He is quite
musical and spends a fair amount of time playing with the naval band in
Another branch of service where there were problems was the Royal Canadian Air
Force. There was a gentleman from Dartmouth by the name of Allan Bundy, a high
school graduate and a black man. He had seen other school chums go to the RCAF,
and he thought it was just a matter of going to the recruiting station. He went
to a recruiting station in Halifax on Barrington Street, not too far from the
CNR station. When he went there, he was refused entry into the RCAF and told to
join the army. Again, he pursued the matter.
When conscription came into force, the RCMP visited his home because he did not
respond to his notice to enlist. He wanted to go into the RCAF, and he felt if
he was not good enough for the RCAF, why should he be good enough for the army?
He told the RCMP to arrest him because he was prepared to go to jail. Along the
line, however, something happened. He received notice to report to a recruiting
station and was accepted into the RCAF.
The Chairman: Senator Ruck, I would remind you that we are speaking of military
justice and Bill C-25. I am prepared to allow you to make a short statement.
However, I invite to you direct your concerns to the military officers we have
before us this morning.
Senator Ruck: We are now hearing that blacks can reach a certain rank in the
Canadian forces at the present time, but there then seems to be a cut-off
point. I am not hearing this from a lot of people, but I am hearing it from
The highest-ranking black person so far is a lieutenant-colonel. I do not know
the reason for this. At this point in time it appears that no blacks have gone
that route, for whatever reason.
Blacks should have the same opportunities as everyone else. There should be no
favours, but if they are qualified they should have the same opportunities.
They are loyal and they want to serve their country in any capacity.
The Chairman: Thank you, Senator Ruck, for sharing your concerns with us.
It is probably unfair to ask our witnesses to respond to your concerns right now
as they are off the topic of Bill C-25 and military justice. Perhaps our
witnesses can get back to you, through this committee, with some statistics on
the highest rank that a black person has reached in the armed forces, the
present number of black people serving in the armed forces, and if there are
presently any black people attending military college.
Senator Nolin: What is the status of visible minorities in the justice system of
Colonel Allan Fenske, Deputy Judge Advocate General, Advisory and Legislation,
Canadian Forces, National Defence Act Amendment Team: I appreciate the
opportunity to have the benefit of Senator Ruck's experience. I did not know
that he is a known author of two books in this area.
I feel that I can make two or three remarks, both as an officer and as a lawyer.
These remarks may be confined to professional views that do not necessarily
represent the absolutely precise official views of the department, but I am
here to help this committee in respect of Bill C-25.
First, Bill C-25 does not address the issue that Senator Ruck has raised in any
way, and it is entirely appropriate that the bill not do so.
Second, the Canadian Charter of Rights and Freedoms prohibits discrimination on
the basis of race. The Canadian Forces, as an institution of government, is
bound by the Charter. Many of the discussions that we have had in this
committee relate to Charter issues.
I wish to reiterate that it is the policy of the Canadian Forces and of the
Department of National Defence that both the department and the forces
represent the face of Canada to the extent that we can make that occur. Once we
get into the details of that commitment, my expertise falls off. I would not be
able to provide you with any kind of detailed response.
Senator Ruck, we have taken notes on the questions the chairman has asked. We
will provide you with a response on those statistics for the benefit of the
committee and, in particular, yourself.
Senator Nolin: My question was whether there are any lawyers or judges from
Senator Joyal: As well, what is the number of women in those positions?
Senator Nolin: I was trying to confine my question to the interesting and
profound remarks expressed by Senator Ruck.
Col Fenske: When I had a chance to speak, I had resolved that I would correct an
oversight that I made yesterday when we were introduced. I was rather
incomplete in indicating that my colleagues with me yesterday were
Lieutenant-Colonel Alex Weatherston and Commander John Maguire. The colleagues
upon whom I depend daily is a larger group.
One of the people I have with me today is Commander Jane Harrigan. That should
be a partial response your question. The majority is a growing minority in my
branch. That is certainly the case in the office of the DNDCF legal adviser,
who is the civilian legal adviser to the institution where I work.
On the subject of lawyers, the institutional commitment that I referred to is a
commitment that applies across government. If you were to walk around any of
our offices, you would find that that commitment is being achieved. Can we do
it? Can we do it better? Is it something that we have on our minds? Yes, it is.
However, you will find that in the legal branch there are a growing number of
women. This is also the situation on the justice side of our office. You would
also see visible minorities when you looked around.
The Chairman: We also had before us the Provost Marshall who was a woman, and a
capable one in her evidence before us.
Senator Fraser: This does not require a response today, but when you are working
with your colleagues to provide responses to Senator Ruck's points, could you
also include information about any outreach or affirmative actions that the
military may have in connection with visible minorities? A fair amount of work
has been done for women. Is there a parallel or comparable policy or absence of
same for visible minorities?
Col Fenske: We have taken note of the question.
Senator Grafstein: I had not meant to piggyback on Senator Ruck's intervention;
however, it brought to mind a recent program that I viewed on television. In
the midst of my other duties, I have not had a chance to pursue it. However,
since we are asking military questions along these lines, a naval officer was
prevented from serving with the services in the Middle East, apparently because
he was Jewish. The United States overcame that problem years ago. Quite
frankly, when they had a debate between the United States and Saudi Arabia that
prevented Jews from entering the country, they made that a pre-condition, and
that was satisfied.
Perhaps you could give us an update on that case. I believe that person has
since left the service. I am not sure about that. However, that is a recent
example of what Senator Ruck was alluding to about a different attitude within
the military than was generally known. Again, I do not ask for it today because
we are getting farther afield.
I wish to tell Senator Ruck that, in my maiden speech to the Senate about 14
years ago, I dealt with this point from a different perspective, namely, the
role of Canadians of Japanese descent who served Her Majesty in the First World
War, were given land claims in British Columbia, and then found that in the
Second World War those land claims were inappropriately taken from them,
notwithstanding the fact they had served with distinction in the First World
War and as a result had been given the vote. The question of racism pertained
obviously to those black Canadians, but also it was endemic in society. I bring
that to the public's attention because it took us until literally a decade ago
to rectify that horrible episode in Canadian experience. This terrible case of
racism was remedied under Mr. Mulroney's leadership. That is all documented in
my first maiden speech. I will not bore you or others with it, but I would be
glad to send it to you, Senator Ruck, because it still makes good reading.
Getting back to our case here, let us test the legislation here a bit on the
complaint mechanism. Let us assume for a moment that a junior officer who is
black or of a visible minority, or whatever, has a complaint that his elevation
in the services is limited because of his race. Let us test the modality within
the process, because it is relevant to us. We are looking at the question of
complaints. How would that work?
First, someone issues a complaint. The complaint then goes to the review board.
The review board makes an interim report to the senior officers -- that is, the
command structure. That report is not made public to the complainant. The only
time that the complainor or the complainee receive it is in their final report.
The only way that the complainee can get the information report is by using the
information offices of the Privacy Act.
Give us some help on two questions: first, the content of the complaint and how
it would work; and, second, whether it is appropriate that a complaint,
properly made, allows a complainee or the complainer to receive only the final
report while the command structure receives an interim report.
Col Fenske: The first issue was a Charter issue. I was not quite clear on how
your question was framed. It seemed to be framed in the Military Police
Complaints Commission context. If your concern was -- and I do believe I caught
this much of it -- that an individual was concerned that they had not been
promoted for an improper factor, that would be the sort of thing that would be
the subject of a grievance.
Senator Grafstein: That would be a grievance form.
Col Fenske: That would be one venue for this issue. Another venue would be the
Canadian Human Rights Act. There are multiple venues upon which that issue
could be moved, including informal venues within the department. The obvious
one is that it is the kind of thing in which the ombudsman might get involved,
if other processes were failing or had been completed.
We have in place a system that is being put up for dispute resolution and is
intended to try to resolve these things outside of formal dispute resolution
mechanisms. A number of processes would be brought to bear.
On the other question that you asked, I simply do not know how I could improve
on the answer that you received the other day from Brian Grainger.
Senator Grafstein: I will check the testimony. I came in late and if that area
was already covered, then I will not take the committee's time to deal with it.
Col Fenske: It was dealt with at length.
Senator Grafstein: Let me deal with my major concern, then. There are a number
of others, but I want to give you my major response to your testimony
If I am not stating the issue and your response correctly, please correct me.
Last week, we asked you to respond to the concern in the Dickson report that
stated that the legislation should include a provision that the minister should
undertake an independent review every five years. Your response to that was
that the notion of that provision related to the Cromwellian era, and I do not
deny that. There was, in fact, a tension between successive armies since the
days of Cromwell and Her Majesty the Queen in the United Kingdom.
Clause 96 has a more recent origin, and that is the sunset principle. When
governments are concerned that legislation is changing and there is not a
mandatory requirement by government to review those changes, there are two
routes from which to choose. One is a sunset clause which says that "unless
re-enacted, the bill falls"; the other is a sunset clause that is a
perpetual review clause.
You gave us the Cromwellian line. In response to that, I am saying that there is
a notion that since legislation is evolving, it requires a perpetual response.
Without hearing from the late Mr. Justice Dickson himself, I believe that he
was as much taken by the more recent responses of perpetual review than,
perhaps, the Cromwellian theme. I was not there; I can only look at his report.
His report is clear. It recommends an independent review by a minister every
five years. The legislation says that the minister undertakes a review and
releases a report to Parliament within five years.
Let me tell you why this is of some significant concern to me. Many provisions
here cause me some concern. First and foremost is the fact that Mr. Justice
Dickson's major recommendation -- because of expediency, you have told us --
could not be encapsulated in this report. In other words, a separate statute is
required to deal with the discipline code.
I must accept that because we are confronted with this act, but surely one of
the ways to satisfy the concerns raised by Mr. Justice Dickson by statute would
be -- having in mind the rolling door mechanism of Ministers of Defence, who
are rarely there for more than a year or two or three -- an independent review
of this statute within five years, as well as Mr. Justice Dickson's
recommendations and how they have worked.
I cannot see, Colonel Fenske, how we can be satisfied with an undertaking by the
minister, primarily because I am not sure that either we or the minister will
be here in five years. In fact, I am sure the minister will not be here in five
years. We may still be here, Senator Beaudoin, but the minister will not. To be
fair, I am not satisfied with your response. I wanted to lay out my position as
clearly as possible and give you a chance to take another crack at it.
Col Fenske: I have a number of points to make in that respect.
First, if I recall correctly -- and I have not looked at it in the last two
years -- the English statute is an example of both put together. The statutory
basis for the army falls if it is not done within five years.
Senator Grafstein: That is a traditional sunset clause.
Col Fenske: Everything falls. There is no basis for the army.
Senator Beaudoin: Everything falls?
Col Fenske: Yes, unless it is re-enacted.
My discussions with a number of people who have insight in this area have
referred to that concept today as very British. I recall the word "ritualistic"
being used in a small restaurant in northern England while I was talking to
Peter Rowe, one of the academics who watches these things very carefully. When
we analyzed it, our assessment was that it was ritualistic and, in our own
Senator Grafstein: There is no argument about that.
Col Fenske: Second, the idea of the compulsory phrase "in legislation"
or "shall be reviewed every five years" is also over-energetic and
inflexible because there would be a number of issues associated with it.
Third, I am satisfied that we have complied with Chief Justice Dickson's
As you say, you were not there. I am unable to say I was not there, and I am
unable to say too much about what I was doing there because of where I am now.
However, I can tell you that we did consider the review and thought that the
most important part of this commitment is that there is an official commitment
by the minister for this.
In this statute, the minister who is in place in five years must do that review.
That review will cause this issue to come before Parliament again.
Senator Joyal: Once?
Col Fenske: Once, but it will come before Parliament again. When it is before
Parliament again, we will have had the benefit of the experience of working our
way through what we are now doing. It is our feeling that everyone will be in a
much better position to decide whether the draconian approach of a five-year
mandatory rolling review was really where we needed to be.
As you look around at how this bill has been structured and how the department
and the Canadian Forces have reacted within the spirit of this bill, which is
already being implemented in many ways within ancillary processes -- and I am
thinking, for example, of Colonel Samson, who was here the other day -- two
things should come to mind. First, there is a dramatic increase in the
commitment to parliamentary oversight and defence oversight of military
activities in this bill and in the current activities of the department and the
forces. There will be no less than six new reports. By this bill, there will be
two new boards. Second, the commitment to review again is there in the
legislation. A ministers' monitoring committee is currently monitoring the
The Chairman: Chief Dickson's recommendation was that an independent review of
the legislation that governs the Department of National Defence and the
Canadian Forces be undertaken every five years following enactment, but it did
not say to whom that review should be given.
Col Fenske: That is correct, or how it should be given.
The Chairman: Within the legislation it says that there will be one review after
five years, but it will be to the minister.
Col Fenske: The minister has accepted the Dickson recommendation. The end result
is that the department and the government have accepted the recommendation to
review every five years. In the legislation, we have provided for the first
review, with an opportunity for Parliament to reassess this issue in five
years, when we get there. It must be obvious to you that we must get back to
Parliament in five years.
Senator Beaudoin: But only once.
Col Fenske: When we get back to Parliament, Senator Beaudoin, I am sure that
this issue will not be lost. I am sure people will be in a much better position
to decide whether such an intrusive, draconian provision -- one which does not
find a place anywhere other than in England, with its particular historical and
constitutional context -- is necessary.
Senator Grafstein: We have a clear understanding of the department's position. I
do not want to belabour this point. We clearly understand. I only have one
small-P political comment to make about your response.
It has been my observation -- and this is shared by a number of my colleagues --
that the Department of National Defence has been underserved and underassisted
by a lack of regular reviews by Parliament. In my view, Parliament has not done
its duty with respect to the Department of National Defence and, in that
respect, the department has been woefully maltreated by Parliament. That is a
mea culpa on behalf of Parliament. I can show you that in five or six different
Having experienced the lack of positive oversight on the defence establishment,
I would have thought the defence establishment would welcome a five-year review
so that it could make its case in a public and mandatory fashion, as opposed to
having to siphon it through the minister. I leave that for the department
because I can understand the department's concern; I can understand the
minister's concern. To my mind, this will bring the issue to Parliament in a
fulsome way, as opposed to a report which will come forward but not see the
light of day.
Col Fenske: As you say, I hope I have made the theory behind the bill. I told
you the theory behind the bill, but there is another point. The position the
Dickson commission is made clear, first, in its report, where it does not ask
that it be legislated; and, second, in the response you received from
Lieutenant-General Belzile and Lise Maisonneuve when they said they were
satisfied with this.
The other point you raised on parliamentary oversight causes me to remind you
that some of the issues raised by several senators earlier in this meeting
really relate to quality of life. A number of these issues have been talked
about and have been the subject of some of the hearings by the Standing
Committee on National Defence and Veterans Affairs.
If individual senators do not have a copy of the report entitled, "Moving
Forward -- A Strategic Plan for Quality of Life Improvements in the Canadian
Forces," I will ensure that with the answers to your questions we will
provide you with a copy of that report.
Senator Joyal: Colonel Fenske, I should like to underline this point in the
minds of all my colleagues. I will do so with an analogy. When we patriated the
Constitution, we entrenched the obligation for the federal minister to call a
first ministers' conference on aboriginal issues. A conference was called and
it produced the results that it produced. That was the end of it.
There is a difference between -- if I can use non-legal terms -- one kick at the
can and an entrenched process. What we are dealing with here is an entrenched
process. An entrenched process is a continuing obligation, not a ritual one. I
do not want to trivialize that. We respect Great Britain for all the traditions
that we have inherited, most of which are definitely worthwhile. We are not
dealing with that here.
We are dealing with a judicial system which is outside the civilian one. We are
ready to recognize that it has its own disciplinary responsibilities and its
own particular functions. We are totally agreeable to trust the proposals which
you have put forward.
On the other hand, to counterbalance that kind of exceptional "system"
which you ask that we entrench in the legislation, we must satisfy ourselves
that there is an entrenched process to ensure that, regularly, the system works
well. If it needs to be adapted, then that will happen, in order to avoid
Senator Grafstein's suggestion that in the long term we may find ourselves in a
situation like the one we find ourselves in with the Létourneau
We say that in all respects because we value the importance of the armed forces
in the Canadian reality. We are not adverse to the army at all by trying to
discuss and wrestle with that issue. We are trying to better protect the
credibility of the overall system because it operates on different grounds from
the civilian one. That is, essentially, what we have in mind.
When Chief Justice Dickson made those recommendations, he probably had that
perception in mind. I do not want to debate that more because we have a bill
here. After you leave the room, we will have to discuss amongst ourselves what
we will do with it. It is essentially what we have in mind.
In plain terms, I think that was the objective of the questioning from Senator
Col Fenske: I want to be clear that I never took your intent in any other way. I
thank you for reiterating it; but I believed from every word that was said that
your concern was for the better government of the Canadian Forces and the
However, I should tell you that the issue of the rolling five-year review was an
issue that received substantial discussion. When I say to you that I know what
that recommendation means, I do know what that recommendation means. We may
need to be back here in two years, not in five. We may need to be back here in
three years, not in five. If we must be back here in three years, being back
here in five years again is a big problem.
There is a certain inflexibility that goes with the English approach that I
noted in my discussions with a number of people who are close to that approach
when we were over there two years ago.
It is those kinds of concerns that are on the minds of the people who drafted
the bill. If we can get to a steady state -- and I do not suggest to you that
we are in a steady state today -- we will be in a much better position to
I take your comment that your concern is to get the issues before Parliament
more often. My thinking, based on what I am is seeing, is that you will see
this system before Parliament significantly more often, purely and simply
because of the kinds of changes that we have made here. They are the more
subtle ones that most people do not notice.
How much of the code of service discipline and its key processes have we shifted
from regulation to statute? That is a way of understanding the commitment and
the assessment of the reality that goes with that commitment.
The more that we put up there, the more it means that this statute must become
something which is seen more often in Parliament.
Senator Moore: I want to pursue the topic that we discussed at least twice
before with respect to the removal of the Director of Military Prosecutions and
the removal of the Director of Defence Counsel Services. I read your response
to our first review of this matter.
I listened yesterday when you talked about the lack of symmetry between the two
positions and how you viewed one as being broader than the other and how the
Director of Defence Counsel is not unprotected.
I found these to be very institutional responses. I did not feel there was a
tension or enough accent placed on the whole idea of justice being done and
being deemed to be done. It is more than a listing of what the jobs entail.
As you were talking yesterday, I was reflecting on how I might feel as a member
of the armed forces charged with an offence. To me, both these directors are
equal. They are each on the respective sides of the adversarial bar trying to
put forward the respective cases. It is very important that they both have the
same standards of appointment and removal.
In terms of being sensitive to what a member of the armed forces who is charged
might perceive to be his or her situation from the public point of view -- and,
in view of recent activities in recent years, I think the forces must be
sensitive to this issue -- it is important that they both enjoy the same removal
process. I also think that is important in terms of the Lauzon case and the
whole idea of administrative independence, where one director is afforded a
review of his or her situation by way of inquiry committee and the other is not
afforded that right.
For example, a defence counsel who is very good may be arguing a case that is
quite controversial and things may overlap in terms of appointment. That is to
say, the term would be up. How is there a feeling of security for the defendant
to know that his team will be there when he needs them and that they will not
be removed? If they are to be removed because their performance was good but not
in step with what the military would like to see happen, how does the defence
side know? How do they feel comfortable that the director will enjoy the same
protection, if you will, of removal as the Director of Military Prosecutions
Col Fenske: There are a number of comments that arise from those questions. I am
unable to see the application of the Lauzon case here. The kind of independence
that is at issue in the Lauzon case is not the kind of independence that is in
place for defence counsel.
Senator Moore: That dealt with the judiciary. However, I am suggesting to you
that there is an analogy here.
Col Fenske: I am responding to that analogy. Most people who studied
independence understand that independence is a value that is there to protect
the integrity of the judicial process. When you look underneath "integrity"
and look at the kinds of safeguards being put in for "independence,"
it really turns on an assessment of risk. The fact that there is a Charter
guarantee for independence in the case of judges and no such guarantee, except
in Nova Scotia, for either prosecutors or defence counsel, tells you what the
current state of the law says, to some extent, about the litigants.
You asked about an accused's perception. I would argue that an accused's
perception is focused on his relationship with his counsel. The position of
Director of Defence Counsel Services is a management position. It is
specifically drafted so that if the director feels that he wants to take on
cases, he may. However, when the director takes on cases, he is like any defence
counsel. This bill makes it clear that you cannot get into the relationship
between an accused and his counsel. That is the current state of the law in
The idea that people who have no business in the defence relationship could
somehow intervene between the accused counsel is one with which I am struggling
to work. If I were an accused and I were being dealt with by a Canadian Forces
court martial and I had to get counsel, my perceptions would be guided by my
Charter right to counsel, by the fact that I am a Canadian citizen and that
right applies to me, and by the fact that most Canadians have to pay for
counsel unless they can qualify for legal aid. In my particular uniformed
situation, or the situation of a civilian subject to the code of service
discipline, I have this additional opportunity that other Canadians do not have.
I would be assessing whether my counsel and I got along and whether I could
trust my counsel.
The test is for a reasonably informed person being aware of all the relevant
circumstances. If I were a reasonably informed person who as aware of all the
relevant circumstances, I think I would find the concern that you express to be
I do not suggest that some of the circumstances that I am discussing are not
things for which you must dig; however, when you look around for an ordinary
Canadian and say that no other legal aid director has this kind of protection,
that would satisfy most people.
My other question is: Why does this other person have it? I might look at a
number of events in the past five years and understand that, "Does this
not make this prosecutor more fair and independent of the people for whom I
used to think he or she was working?"
Senator Moore: That is exactly my point. The Director of Defence Counsel must
answer to someone as well. I do not understand why you did not put this in at
Col Fenske: It is clear in the bill that the Director of Defence Counsel
Services does not report to JAG for the handling of individual cases. The
solicitor/client relationship between defence counsel and an individual accused
is a closed book, period. The Judge Advocate General is not involved in that.
That is the reason.
Senator Moore: To whom does he report? He must report to someone.
Col Fenske: He reports to his bar. Each of our counsel has the same obligations
to his professional bar, his provincial bar, as does any other defence counsel.
That is where he reports. He reports to his bar and to his accused client.
Senator Moore: I am talking about the director here.
Col Fenske: I am referring to the director when the director is acting as
Your suggestion was that the detector takes on a controversial case. I presumed
from that statement that he was acting as counsel. I do not understand. I have
never seen that happen.
Senator Grafstein: As a point of clarification, are you saying that a lawyer who
happens to in the military is an officer of the court in the same way that a
lawyer acting in a civil court is an officer of the court?
Senator Nolin: That is what he said.
Senator Grafstein: That cannot be correct. This is not a court under the
Constitution. This is a special tribunal set up with court-like powers.
Col Fenske: These officers are lawyers. Their job is to act as lawyers. In order
to do that job, they must be members of the provincial bar.
I did not think this was relevant, but I will now put this forward. For the
purposes of the conduct of legal duties, the Canadian Bar Association code
applies to our people uniformly. When you say, "to whom does this counsel
report," in that sense his responsibility is to his bar.
Senator Grafstein: I do not want to belabour the point, but I will make a brief
comment. I may be wrong, but if you are a lawyer, you are called to the bar of
Ontario, or the bar in whatever province. Under oath, you are sworn to be an
officer of the court. You have the fiduciary and legal responsibilities to be
an officer of the court; that is, to the court under the Constitution.
Here, you are a military officer and you have sworn to uphold your
responsibilities as a military officer. At the same time, in your military
capacity you are acting as a lawyer with respect to a non-constitutional
Senator Beaudoin: That is addresses in the Charter at section 11(f).
Senator Grafstein: Bear with me. I am talking about duties and responsibilities
here. It is somewhat different. I will not get into it. It is another
complicated question, but it is somewhat different.
Col Fenske: I do not understand the concept that it is not a constitutional
Senator Nolin: It is a constitutional court but I think you refer to judicial
Senator Grafstein: That is right.
Senator Nolin: When you say it is a special court, of course it is special. It
still respects all individual rights and the Constitution. It is special
because the objective is different.
Senator Grafstein: I will leave that for another day. To my mind, there is a
difference with a distinction.
Senator Beaudoin: Section 11(f) of the Charter, which is the Constitution,
refers to military courts. The Supreme Court of Canada said clearly that we
have the civilian and court martial system of justice. It is right in the
Constitution. To me, there is no doubt in the world.
Senator Moore: I do not see the difference. I think they are senior levels and
the idea of one being lesser than the other is very unsatisfactory.
Col Fenske: I should like to make clear to you, Senator Moore, that no one
regards one as lesser than the other. No one who has worked on this bill is
suggesting that one should be preferred over the other. Based on the facts that
we have been able to ascertain -- and they include the context in which we
worked for many years -- we have concluded that they have different needs and
they perform different functions. When we put all of those together and judge
them against the way similar officers are dealt with in Canadian criminal
justice and then take that back and put it against our own experience, we
concluded that this was not necessary.
As I pointed out the other day, we started with the point that removal was not
necessary for either one of them. We then looked at our peculiar circumstances
over the past five years and the history of courts martial that actually have
the executive dealing with the constitution of the court and running the
prosecutor. I do not know whether this point was made to you clearly. Until very
recently, the prosecutor was the direct agent of the military authority who
convened the court. It is with that history in mind that we felt we needed to
go this extra step.
Over that same history, there has never been any suggestion that the defence
counsel was somehow caught up in that particular vortex that gave recognition
to the constitutional issues on independence which have occurred over the past
10 years. It is that whole assessment that has caused us to conclude that it
was not necessary. We are trying to do the right thing.
Senator Joyal: Colonel Fenske, I want to return to the issue brought up
yesterday about the substantive criteria that should be implemented for the
removal of military judges. You mentioned a number of objective criteria and
then you said "the trial record of the judge in question." This is the
one thousand dollar question.
It is impossible to contemplate that the record of someone who is being
considered for renewal or refusal of renewal would not be under scrutiny. In
your view, how would you manage the right of a military judge to have access to
his trial record in the way that the panel would consider it?
Col Fenske: This is an important issue because it takes you back to the very
basis of that inherent defect in terms which I mentioned yesterday. That defect
has not prevented Canada from having terms, but it does exist and we are trying
to address it.
The object of this exercise is to improve independence. First things first. The
issue that you raise has two dimensions: the independence dimension and the
process dimension. I should like to touch on the process dimension first.
We are not contemplating secret proceedings which will result in a judge
learning that he or she has been or has not been recommended for continuation.
One of the concerns on my mind as an individual trying to design this -- and I
reiterate the caveat that I added yesterday, that ultimately the Governor in
Council approves it -- is that we have a fair process. In order for the
committee to be independent, we will have to put the committee's process in the
hands of the committee. That is about three-quarters of the answer in terms of
the process dimension.
There is probably a need for the committee to have the ability to use a fairly
wide process. They may want to work as a secretariat sometimes. They may want
to have a bit of a hearing sometimes where a judge may come in with counsel.
You cannot have judges negotiating personally. It is anathema. There will
probably be a requirement to ensure that the judge in question has entitlement
to counsel for the purposes of bringing any submissions that the committee
might want, that he or she has the right to be present and has the right of
access to the record of the committee and the report.
These things, by the way, are not new. If you look at the way the two boards --
that is, the Military Police Complaints Commission and the Canadian Forces
Grievance Board -- are set up in this bill now, you will see that both have
been given the ability to control their own proceedings. If look at the way
boards of inquiry are handled under the National Defence Act, you will see that
the person who is subject has access. None of this is new. Administrative law
That would address the first issue, namely, the process dimension. As for the
second issue, we are back to the independence aspect.
We find this very difficult. A number of the discussions we have had to date
have people saying, based on gut instinct, that there must be an opportunity to
look at the record. I am not sure of that at all. If a judge's record is so bad
that you do not want that person to be a judge, we have removal provisions. If
you cannot get into those removal provisions because it is not that bad after
all and it might be telling you things you do not want to hear, then you
probably do not belong in there. That is the current thinking.
The difficulty is that, in strict theory, if you have an independent process
that the military executive does not dominate and does not take a major role
in, you can cleanly argue that the concern about a term is gone. If that
independent committee were actually to look at the record, I think you would
have a clear answer on the independence question, but would you have the right
answer on the issue of policy? That is the problem.
Senator Joyal: This is the crux of the matter. Again, when Judge Létourneau
The renewal of mandates does not provide a sufficient objective guaranty of
I think he was referring to criteria and process. How do you set out the process
so that it does not remain in the hands of the military executive but ensures
that there is sufficient independence from the executive in the process to make
sure that we maintain that objectivity that is needed to come to the conclusion
that the renewal is done on objective grounds?
Senator Grafstein: It is subtle but important.
Senator Joyal: Yes. This is essentially the answer to the question in proposed
section 165.21, when it refers to regulations made by the Governor in Council.
That is where we can solve the issue in a way satisfactory to our preoccupation
around the table.
Col Fenske: I hope I made clear yesterday that that is the very intent.
I risked your indulgence yesterday in speaking at great length on the issue of
renewal. I covered the issue of renewal at a level of detail that I would not
have done normally, because of how important it is. We are already at work on
setting up that process in regulations, and I had indicated yesterday that some
of the basic design elements, based on our assessment of P.E.I., must include
that that committee is there for a term, that it is representative of the
various branches of government, that it controls its own process, and that its
only job is to give a recommendation.
I may have intimated yesterday that Lauzon is not the only word and not the
final word in respect of how we do this. Indeed, on the issue of criteria, the
Lauzon case is misleading. It is actually inconsistent with the P.E.I.
The chief justice in the P.E.I. Reference is very clear. He says -- and, I
mentioned this yesterday -- that there must be room for local choice, that we
cannot set out exactly how you do it, and that the executive and the
administration are in the best position to design it. He also said that, while
desirable, objective criteria may not be necessary.
I said yesterday, in particular in response to Senator Fraser, that our own
thinking was that there had to be at least three key elements or criteria,
which I mentioned, and that we could not tie the hands of the committee. If we
have picked the committee well, we do not want to tie their hands. That is a
fairly complicated amalgam, but I am confident that it will turn into a process
that is outside of the chain of command, that is affected by the decisions, and
that it will lead to a single recommendation to Governor in Council. Many of
you are very familiar with how Governor in Council works. If you can figure out
which of the four ministers on Governor in Council on any given day will be
affected by a decision two years in advance, then you are doing a wonderful
We actually think that we will have reduced the risk to more-than-acceptable
Senator Joyal: I still believe that to ensure that the process is totally
acceptable, it is better that, in the process, the composition of the board or
some of the criteria or parameters of evaluation are spelled out so that the
discretionary aspect of it is framed, to try to eliminate the capacity of the
arbitrators to intervene in a way that does not ensure the independence of the
system. This is essentially my concern.
Col Fenske: We agree with you, Senator Joyal. The removal committee regulations,
which are already out from many years ago, do follow the kind pattern that you
are suggesting. They were criticized by Justice Létourneau in Lauzon and
will have to be changed. When we did them the first time, we did not have the
same guidance in the case law about committee composition. We must change them
now. We are not without some means to construct this.
Senator Beaudoin: Senator Joyal's point is interesting and your answer was very
interesting, too. You used often the expression, "We are working on this."
I understand that, and please continue. This is the thing to do. You have made
much progress. There is no doubt about that. I want to make it that clear for
the purposes of our record. That is true especially with respect to the reports
of Dickson, Dickson 1 and Dickson 2.
With regard to Somalia, we have been a somewhat silent around this table. We did
not have much debate. I look at the record. Recommendation 48, accepted.
Recommendation 38, implemented, and number 33. Recommendations still ongoing,
five. What do you mean by that? Are you continuing to think about it? Will you
find a way?
From time to time, you say that something will appear in the regulations. As a
jurist, when it is very important, I prefer that it be in the statute than in
the regulations wherever possible because regulations may be changed much more
easily. I agree that we need the regulation system. Everything cannot be in the
statute. However, when it is a fundamental issue, such as independence of the
judiciary, then I prefer that it be in the statute.
I am comforted by the fact that you will be back "within" five years.
It may be in two years or perhaps in three years. Perhaps it will take two more
years to finish the job.
I should like to know, for the purposes of the record here, what are those
remaining five cases are about?
Col Fenske: We have not gone into detail on this. I have a number of points to
make for you.
I made this point when we tabled this small form, which is highly inadequate in
terms of detail and for the purposes which you just referenced. When I tabled
this, I indicated that there are a number of other work plans and status
reports which are available to the public regarding what we do here.
You asked whether we are thinking about this or doing anything about it. The
best answer I can give is that, of the 104 recommendations made, 94 were
accepted; 87 have been implemented.
I would note parenthetically that, in respect of the Somalia commission itself,
83 per cent of its recommendations have been implemented. When you abstract
from that those which relate to military justice, the implementation is down
slightly to about 80 or 79.5 per cent.
In respect of those military justice implementations, they are virtually all
implemented and, Senator Beaudoin, I should like to know about any other
commission of inquiry which has had 80 per cent of its recommendations adopted
and addressed within 10 months of issuing its report. We did go looking and we
decided we were doing okay in this area. I hope our track record shows that we
are working earnestly on this.
Senator Nolin: There is no doubt about that.
Senator Beaudoin: I congratulate you on that.
Col Fenske: We are trying to keep this brief and when we say "ongoing",
we mean we are working on it. I can give you a status report on the ones that
Senator Beaudoin: Is the point raised by Senator Joyal one of the five cases?
Col Fenske: No; that solution is already in the bill.
Senator Grafstein: I apologize that I must leave. I thank you for your testimony
and particularly for the material provided to us. You did alleviate one of my
concerns about the average length of time to deal with charges and my major
concern with longevity and the length of judicial appointments or
quasi-judicial appointments. I look forward to participating with the committee
on the deliberations on this report.
Senator Beaudoin: Regarding those five cases, then, we are dealing with a
fundamental problem in the Constitution. Judicial independence is at the very
basis of our democratic system. We have given a lot of consideration to the
first and second Dickson reports, and rightly so. Obviously, Chief Justice
Dickson was a great jurist. However, on Somalia, we have been almost silent. I
want to know more about the five points on which you are still working.
Col Fenske: It is important that I clarify for you again, as I did when I
provided the chart, that this is in respect of the military justice aspects. A
detailed status report of how we are doing on our implementation plan is
available on our Web site. The minister's monitoring committee is reporting to
the minister in December on our progress.
Regarding the five ongoing issues, we turn first to recommendation 40.4. Chapter
40 was the chapter in relation to military justice in the Somalia report and
recommendation 40.4 states:
The Queen's Regulations and Orders be amended to circumscribe the discretion of
a commanding officer with respect to the manner of conducting summary
investigations to ensure that these investigations are conducted according to
the guidelines in Canadian Forces Administrative Order 21-9, dealing with
general instructions for boards of inquiry and summary investigations.
That was basically to ensure that they had a solid guideline that you do not use
an administrative investigative tool for disciplinary purposes. Many of you
with criminal law experience will have a number of cases in mind, such as
Westray. The object of that exercise is to make sure that the investigative
function gets confined down administrative lines. We are working on that now.
There is a related recommendation that will require us to amend our regulations.
The guidelines in that same administrative order are to be amended to provide
that summary investigations be restricted to investigation of minor
disciplinary misconduct or administrative matters. If someone was absent
without leave, for example, we would not suddenly expect that Westray would kick
in. They asked to have those who conduct summary investigations to have more
training. This project team is not working on that but it is being done.
We are talking about having regulations amended. I think most of that work is
done in draft form. We are talking about providing training to our commanding
officers. This might be a bit of a stretch but if my recollection is correct,
part of this will work into the certification training package which I
mentioned previously. We are hoping to have it ready in the spring of next year.
The Somalia commission raised another interesting and somewhat perennial issue
for those of us who do military justice/criminal work. That is the suggestion
that punishments such as fine options, community service and conditional
sentences, which have been available in the civilian criminal process, should
be made available within the military justice system. That is a rather deceptive
recommendation because built into the recommendation is a premise that nothing
like that is being done now in military justice.
We have a number of minor punishments which involve extra work and drill, et
cetera, which are, in some respects, analogous. They do not fill that whole
alternate series but they are out there. We are looking at fine options and a
number of others. On this issue, I can tell you that we have not made any
decisions. We are still looking at it.
Recommendation 40.41 recommends that legal officers receive increased training
in matters of international law, including the Law of Armed Conflict. Over the
past five years within the institution training in international law, in the
law of armed conflict and in the rules of engagement, has been in a very steep
climb and it continues.
Our notes indicate that there are resource challenges involved with it. The
undertaking of training is ongoing and we are seeing progress.
Finally, Recommendation 40.44 states:
40.44 Legal officers providing advisory services should educate Canadian Forces
members before and during deployment on local law, the Law of Armed Conflict,
and Rules of Engagement.
This item is very important. We have been in the forefront internationally,
preparing manuals and doing this sort of thing. There is always more to do but
it has become routine for this sort of thing to occur before deployment occurs.
I am reminded my by my colleagues that the monitoring committee report to which
I alluded was tabled today at 11 o'clock.
Senator Nolin: I assume that all the regulatory documents will go to Parliament
at the same time.
Senator Beaudoin: Are those regulations coming before Parliament and in our
Standing Joint Committee of the Senate and the House of Commons for the
Scrutiny of Regulations?.
Col Fenske: No. Most of the regulations which would implement this are pursuant
to the National Defence Act and are exempt from scrutiny.
Senator Beaudoin: They are exempt? They are invisible?
Col Fenske: They are not invisible. They are visible and applicable.
Senator Beaudoin: As we say in the Civil Code, "You should not ignore the
law, but you must be able to see it somewhere."
Col Fenske: You can. Those to whom it applies have it available on their desk
tops and in their institutional binders of regulations. The regulations are
available in law libraries across the country. However, they are not subject to
the scrutiny of the committees.
The rationale is built into the exemption and it is the limited class exemption.
It is an issue that the Somalia commission has raised. They have said that they
should be published in the Canada Gazette. We are looking at that.
If they must be published, then they are not exempt. If they must be published,
then they will end up in the committee. That is the one of the things that we
I do not actually have a position to put forward on that one yet. It is not a
military justice item, per se, that I am handling although it does fall within
Senator Balfour: I would think that regulations of this type should most
certainly go before committee.
Senator Moore: If a judge wishes to be renewed and the renewal is denied, to
whom can the judge turn to have that decision reviewed?
Col Fenske: Are we talking about today, or are we talking about under this bill?
Senator Moore: We are talking about under the proposed bill.
Col Fenske: That is the very point of the renewal committee. That is the very
problem and we put those few words in to cure that problem.
The idea is that when the judge is at the point that the term is coming up and
the judge wants to renew, that request will be referred to that committee. That
committee alone can make the recommendation which would then be referred to
Governor in Council.
Senator Moore: Does it go to committee whether a judge expresses an interest in
renewal or only if he expresses an interest and it is denied? Or can the judge
be denied only by the committee?
Col Fenske: The recommendation is referred to the committee. That is the idea
that is in our heads.
I mentioned the other day that that there are three scenarios and only one is
problematic. If the judge does not want to renew then nothing will go to the
committee. If the judge does want to renew, one would hope that the committee
would think it was a good idea also.
The third scenario is that there is a conflict between the institutional needs
and the desires of the judge. That is the one which is the most likely to
provoke the most discussion and analysis when it goes to committee. Whatever
the committee describes as a recommendation will then go to Governor in
Senator Moore: Is a copy of that committee report is made available to the
Col Fenske: I would hope that the committee report would be made available to
We have not decided about a process regarding interim reports, but I would find
it difficult to imagine that we would craft such an elaborate process <#0107>
that is, a three-person committee with a single issue -- that would not have an
interim report sent to someone.
The idea is that the committee would be seized with the issue -- that is, it
would be a master of its own process as to how it deals the with the issue --
and would hear submissions in whatever way seems best for the committee, for
example, by telephone, mail, or in person. The committee would then make its
decision and let people know about that decision. The judge is a person affected
by the decision.
Senator Moore: I just wanted you to say that for the record.
Col Fenske: I am happy to say it twice for the record.
The Chairman: Thank you very much for your presentation today.