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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 6 - Evidence for November 23, 2011


OTTAWA, Wednesday, November 23, 2011

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, An Act to amend the National Defence Act (military judges), met this day at 4:16 p.m. to give consideration to the bill.

Senator John D. Wallace (Chair) in the chair.

[English]

The Chair: Good afternoon. Welcome Senate colleagues, invited guests and members of the general.

I am Senator Wallace, from New Brunswick and chair of the Standing Senate Committee on Legal and Constitutional Affairs.

Colleagues, we are here for our first meeting on Bill C-16, An Act to amend the National Defence Act (military judges). This bill was introduced in the Senate on November 16, 2011 and referred to this committee for study on November 22, 2011.

On June 2, 2011, the Court Martial Appeal Court of Canada delivered its judgment in the case R. v. Leblanc. In its decision, the appeal court determined that the provisions of the National Defence Act and the Queen's Regulations and Orders for Canadian Forces regarding the appointment and retirement of military judges do not sufficiently respect judicial independence as required by section 11(d) of the Canadian Charter of Rights and Freedoms.

In declaring provisions of the National Defence Act constitutionally invalid and inoperative, the Court Martial Appeal Court of Canada in R. v. Leblanc suspended the declaration of invalidity for a period of six months to allow remedial legislation to be enacted. The declaration will be effective on December 2, 2011.

Bill C-16 provides security of tenure for military judges until a fixed retirement age of 60 years, subject only to removal for cause on the recommendation of an inquiry committee.

This bill repeals current provisions of the National Defence Act which provide that military judges are appointed for a five-year term, renewable upon recommendation of a committee until they reach the age of retirement set out in the regulations under the act.

I am pleased to welcome before the committee The Honourable Peter MacKay, P.C., M.P., Minister of National Defence. He is accompanied by Brigadier-General Blaise Cathcart, Judge Advocate General of the Canadian Forces; and Colonel Michael R. Gibson, Deputy Judge Advocate General, Military Justice.

Mr. MacKay, we will begin today with your opening remarks followed by questions from our committee members.

Honourable senators, we originally thought the minister would be with us for an hour, but there is a vote occurring shortly in the chamber. We will move without further adieu to hear from our first witness and any opening the statement the minister may care to make.

Hon. Peter MacKay, P.C., M.P., Minister of National Defence: Thank you honourable senators. I am always pleased to be here. I will try to keep my opening statement brief so that we can move to questions.

As set out earlier, the topic today is Bill C-16, An Act to amend the National Defence Act (military judges). As you are aware, this is a bill that aims to ensure the continued and proper functioning of our military justice system, and in particular the trial by court martial.

Before I begin, let me express my appreciation to all of you for your willingness to deal with this matter on an expedited basis. In my view, that speaks to a number of things, but from a military perspective, it most notably speaks to your commitment to working with the military to ensure our that men and women in uniform have consistency. I know there is appreciation for the urgency of the passage of this particular bill, which is very narrow in its focus.

Bill C-15, which will be before you soon, will deal with some of the broader issues that have emerged as well.

There are members of the committee who will recall that I last appeared before this committee in March 2009. At that time my appearance was to deal with discussion around issues related to Bill C-60, which dealt with courts martial and a similar modernization of the act. Like Bill C-60, this bill, C-16, proposes some straightforward yet urgent amendments to the National Defence Act brought about by case law and challenges to sections of the act.

The government has elected to present these amendments in a focused and targeted bill to ensure their passage into law by December 2. The December 2 date has significance based on the judge's decision. I will explain why that date is important in a moment.

The amendments in this bill, however, form part of a more comprehensive package of amendments to update the act, which of course I look forward to discussing with you when we consider Bill C-15.

[Translation]

In June of this year, the Court Martial Appeal Court rendered its decision on the case of R versus Leblanc. Specifically, this ruling concluded that the process by which military judges are appointed — currently on a five-year renewable basis — does not satisfy the constitutional requirement for an independent judiciary.

[English]

The court gave Parliament six months, or until that date of December 2, to pass remedial legislation to update the National Defence Act. At that time, if not amended, the legislative provisions related to the appointment and tenure of military judges would be declared constitutionally invalid. This, I would suggest to honourable senators, could cause considerable consternation, instability and generally lead to more litigation.

Bill C-16 proposes avoiding this outcome by providing military judges with security of tenure to a fixed age of 60, subject only to removal for cause based on the recommendation of an inquiry committee.

Mr. Chair, honourable senators, we recognize that 60 is an earlier age for retirement compared to most judges in the civilian justice system, let alone this place, but we must keep in mind that military judges are still commissioned officers in the Canadian Forces. As a result, a balance must be struck between the need for an experienced judiciary and the need for maintaining a certain level of physical fitness and "deployability" of its members.

For emphasis, I underscore that members of this judiciary are active members of the Canadian Forces; that is, they are subject to the same rules and regulations as all serving members of the Canadian Forces, including deployability to such places as Afghanistan, Haiti or wherever Canadian Forces may be deployed. For this reason, 60 is the prescribed retirement age for members of the Canadian Forces. It is proposed that this would also apply to military judges for uniformity.

[Translation]

By ensuring security of tenure to the fixed age of 60, Bill C-16 will make a significant contribution to ensuring the continued independence of military judges within the military justice system. It will also help further bring the military justice system into alignment with Canadian legal norms and our Constitution.

Should, however, Bill C-16 not move forward quickly, the ability of military judges to hear and try cases will be put into question, causing uncertainty within the military justice system.

[English]

In conclusion, let me thank you once again for the important contribution that you make to maintaining the health and vitality of the Canadian Forces in your consideration of this bill and by recognizing the urgency surrounding Bill C-16. This will help to ensure that Canada's military, and most notably its judicial system, can continue to operate effectively in the service of Canadians.

I thank you, Mr. Chair and honourable senators. I will be pleased to take your questions.

The Chair: Colleagues, when it is necessary for the minister to leave to return to the house, I understand the brigadier-general and colonel are prepared to stay and answer any additional questions you may have. Our first question is from the deputy chair, Senator Fraser.

Senator Fraser: Welcome, minister; it is always a pleasure to have you with us.

I think I understand your reasoning about why the age of 60 was chosen, although I believe I have read that deployability is less iffy than it used to be because of the capacity for people to do video conferencing, pre-conferencing electronically and by telephone.

Still, it occurs to me that one of the advantages of having a higher retirement age for judges is that that judge can be in office longer and accumulate the wisdom that comes with experience. I know they are all competent when they are named, but the longer they serve presumably the more they learn and the more they understand. With a standard age now of 60, what do you think will be the average length of tenure of military judges? Do you have a fix on that?

Mr. MacKay: My sense is that the age would be consistent with the requirement under the Queen's Regulations and Orders, which if set at 60 is consistent with our current retirement age within the Canadian Forces. It is uncommon, to say the least, that a member would serve beyond the age of 60. There are exceptional circumstances and a time of war would certainly be one of them.

Senator Fraser: That I can see. What I am asking is how old do you think most judges are or will be under the new regime when they are named? How many years will they get to be judges before they reach 60?

Mr. MacKay: We are seeing judges named earlier and earlier, quite frankly. It depends, as in the selection of judges in the civilian system, on merit and the quality of the judge that we seek. We have members who, as you would be aware, senator, enrol in the Canadian Forces as early as age 17. In many cases they go on to attend law school while serving as members of the forces, but I would say the average appointment to this position tends to happen in the latter part of one's career, presumably in their late forties, early fifties.

Senator Fraser: I do have many questions, Mr. Chair, but I know the minister's time is short. If we have time for a second round, you can put my name down.

The Chair: I appreciate that, senator.

Senator Baker: I want to welcome the minister, and I hope he continues to do the great job he has been doing out East for everyone.

The three witnesses are all former litigators and the minister has the most experience in litigation. He has been in court more than any of the three. My main concern is that since the mid-1990s we have seen a proliferation of judgments saying that since the military courts have assumed responsibility for the Criminal Code, for all federal laws, that the role of the military judge has changed dramatically. We have seen many judgments where there were Charter challenges, successful Charter challenges, decisions reversed and so on.

Why set the age at 60 when the comparable judge in a superior court has a retirement age of 75? Why set the age of 60 if in fact, as we know under the Queen's Regulations and Orders, someone can even go on beyond 60 years of age if they apply to the minister or the Chief of the Defence Staff for an extension? Why set the age of 60 when you could have set it much higher?

Mr. MacKay: I would respectfully disagree, senator, in terms of the ability to set the age higher. To do so would go outside the Queen's Regulations and Orders. This comes back to military service, which is separate and apart from the responsibilities that would rest with a civilian judge.

You are absolutely right in suggesting and characterizing the fact that judges in our civilian system do serve to age 75, and I suspect that there are some who, given the opportunity, would stay longer, quite frankly. There is certainly reason behind your argument to suggest that people — present company included — make enormous contributions beyond the age of 60. The reality with military service is that there is that physical requirement, even for judges, to deploy and to meet a service standard of physical fitness.

I will tell you a little story that is apropos of the reaction of a young soldier versus a senior soldier that was told to me once by General Hillier, former Chief of the Defence Staff. He said when you tell a 19-year-old to run up a hill in the pouring rain under heavy fire, he will run up the hill; and when he gets to the top, he will say that was stupid. If you tell a 50-year-old soldier to run up the hill under heavy fire in the pouring rain, he will stand at the bottom of the hill and say that is stupid.

There is a different attitude that comes with age, seniority and perhaps perspective. That is not applicable to judges, but it is to illustrate that the expectations of young soldiers and those who serve to age 60 frankly remain the same. Even though it is unlikely and, as the previous senator mentioned, there are new and innovative technologies that allow for the use of video conferencing, the reality is that in places like Haiti, Afghanistan and some of the theatres of operation, you have to have a person on the ground to act in that capacity as a military judge, and they have to meet that service standard that is expected of every serving member. That has been upheld by the Supreme Court of Canada, and this bill is consistent with those Queen's Regulations and Orders, as well as the case law.

Senator Baker: The Queen's Regulations and Orders permit someone to stay on beyond the mandatory retirement age.

Mr. MacKay: Usually for a year or two at the discretion —

Senator Baker: At your discretion.

Mr. MacKay: Yes, they could stay on, but not in the capacity as a military judge. They could stay on as a colonel or they could serve in some other capacity.

Senator Baker: However, before that, the judge has to retire. That is another way of putting it.

Mr. MacKay: Correct.

Senator Baker: You mentioned that the Supreme Court of Canada has judged this to be lawful. However, when we read case summaries before the grievance board, a decision of January 12, 2011, the Chief of the Defence Staff disagrees with the grievance board about the retirement age — this is after you made 60 the compulsory retirement age; you increased it.

It says here that the board acknowledged that any resulting change in the policy would not cover this particular person. However, they said, based on jurisprudence, that discrimination based on age is no longer justified as a reasonable limit within a free and democratic society in virtue of section 1 of the Charter.

The Chair: I am sorry to interrupt. The minister, I believe, has five minutes before the vote. If there is a point, can you get to it quickly?

Senator Baker: I would let the minister go, but I would like to go back on the record for the other two witnesses who could answer that question. I thank the minister. He has a thorough knowledge of this subject.

Mr. MacKay: Mr. Chair, I do apologize to all the honourable senators. I will undertake to do my best to return, but I leave you in very able hands with these gentlemen. Again, I do thank you for your consideration of this bill.

The Chair: We appreciate it, Mr. Minister. We were very pleased to have you here.

Senator Baker: Can I continue?

The Chair: Yes, please continue, senator.

When we read these cases summaries of the grievance board and the response of the Chief of the Defence Staff, we see things. For example, the minister mentioned the Supreme Court of Canada; it says the Chief of the Defence Staff was of the opinion that the Supreme Court's decision in McKinney in 1990, in which it was held that the mandatory retirement age is not discriminatory, remains the applicable jurisprudence, while the opposite and more recent trend on the same matter was rendered by inferior courts, including the Federal Court and your own court of appeal.

It is, according to our Charter, not lawful to limit individuals — I am not talking about general classifications that you can negotiate or make a judgment on — to a retirement age that is set at 60 when it would not be fitting to do so. I would suggest to you that the function of a judge does not require that person to be retired prior to him going beyond the age of 60.

Brigadier-General Blaise Cathcart, Judge Advocate General of the Canadian Forces, Office of the Judge Advocate General: First, Mr. Chair, let me thank you for the kind invitation to appear before the wise Senate yet again. I was here last on Bill C-60 and had an engaging debate on a similar issue. I am privileged to be back before you.

If I may come back to first principles, as we lawyers like to do, much of your question, Senator Baker — and perhaps Senator Fraser's question — focuses on age and then linking it to retirement. I think it is a nuance but an important point that the bill is suggesting that the end of the appointment as a military judge is at the age of 60.

Retirement is separate from that piece of legislation. Retirement occurs under the Queen's Regulations and Orders. Hence, those provisions that you mentioned about the ability to extend apply to all officers. The only age that 60 relates to, other than those officers, is the judge in the proposed legislation. It is a bit of a nuance, but an important one.

Senator Baker: Everyone else can go on beyond, but the judges cannot.

Brig.-Gen. Cathcart: It is not retirement based on age; it is end of appointment as judge at the age of 60.

We are saying that after that period of time, you may, like any other officer, continue. You may not be retired at that point. Your time as judge is finished, but you may not be retired as a member of the Canadian Forces if the minister or the chief in the appropriate circumstances under the Queen's Regulations and Orders says you are extended.

Getting back to the issue of the human rights aspect, I think, with respect, the cases are clear from the Supreme Court that have upheld the mandatory retirement ages, which is again the whole circle of people — not judges, but all officers and non-commissioned members. That is reflected also in the Canadian Human Rights Act, which makes a very specific exemption for the Canadian Forces to allow them to have mandatory retirement ages.

I would respectfully take issue that the trend or the case law is there to appoint where decision makers would say we are bound by a different case.

Senator Baker: To argue whatever you wish to argue, for or against; I agree with that.

In conclusion, Mr. Chair, we all read the judgment that was made regarding your salaries. Madam Justice L'Heureux-Dubé was a member of that board and she made recommendations at the end. She had a few separate comments; did you read them?

Brig.-Gen. Cathcart: I think you are referring to the Military Judges Compensation Committee.

Senator Baker: Yes, in which the judges argued that they were like superior court judges — their functions were more than just military in nature — in order to be granted a salary higher than that of a provincial court judge, which the government did approve, in excess of $200,000. That argument is used there in the name of judicial independence. Yet, you set the age of 60 in an argument against, some would suggest, judicial independence as it relates to other judges.

Madam Justice L'Heureux-Dubé suggested at the end of that report that there should be no distinction between federal judges and military judges. Do you have any response to that general observation that I have just made?

Brig.-Gen. Cathcart: Again, to go back to the first principles, we have to start from the point that the Supreme Court in R. v. Généreux recognized, that there is a separate and distinct military system. Otherwise, we would not be having these discussions; we would run it under a civilian system.

I think, as the court recognized, that must mean something. What that something is, I believe, is a wide spectrum of policy choices open to the Government of Canada at whatever points in time to decide what does that mean?

What does a separate military justice system mean? Whether you are talking about prosecutors, defence counsel, judges and all the representatives you would find in a civilian system, what does that mean? What does that look like in a military justice system? When it comes to judges, I think the government's policy choice — which Parliament adopted — was that there is a difference between a civilian judge and a military one.

The military judge must, by law, be a military officer with at least 10 years at the bar before they can be appointed. I believe that fairly reflects a policy analysis to say, "There are certain qualities about being an officer — your experience, your understanding of the culture of the military — that allows you." I am not necessarily saying I disagree with Madam Justice L'Heureux-Dubé because she was in a specific scenario about pay. However if it is wrapped up in the security of tenure argument — which is the Leblanc case and what Bill C-16 is about — then it is just a policy choice. I think age 60 gives more certainty from a Court Martial Appeal Court of Canada perspective than five years renewable. That is where the policy decision is at the moment.

Senator Lang: I think it is safe to say everyone around the table accepts the fact that the principle of tenure is being met in the bill. The only area of real discussion is the question of age and whether that age is appropriate.

What I have learned from examining the bill and information provided to me, age 60 is based on the fact you are a military officer. However, just as important is the question of physical fitness and being able to do certain things that perhaps a civilian judge would not be asked to do.

Could you expand on the required level of physical fitness? There is another area of concern. The way I understand it, as we age there are possibilities of further physical disabilities. They come in to play once again in your fitness and ability to go to other theatres and places for the purposes of perhaps being called upon. Could you comment on that?

The other issue was raised yesterday in debate by my learned colleague Senator Baker. He was quite concerned about the welfare of judges when removed from the bench at the age of 60, what they would do with their time, and if they would be able to afford the time they will have in the remaining years.

Perhaps you could explain to us what happens from the point of view of pensions to people who take on the onerous job of a judge after the age of 60.

I have one other question. How often does the request for an extension come forward at the mandatory age of 60? How often is it done on behalf of members of the force at the age of 60, going on for another year or three in other capacities? Has it happened?

Brig.-Gen. Cathcart: Thank you for those questions. I will try to deal with them. Perhaps I could deal with the first two — the fitness and potential disability issue — in a combined way.

Again, my favourite phrase is, "Back to first principles." In the Canadian Forces we have something which I know many senators are aware of — which is recognized under the Canadian Human Rights Act — called the universality of service principle. In basic terms, that principle means everyone serving in the Canadian Forces is essentially a soldier first. In order to be a soldier first you have to have fundamental military skills — such as the ability to carry weight, stretchers or a fellow soldier if they are wounded — and fitness requirements to do that.

I have to do it as Judge Advocate General. The Chief of Defence Staff has to do it. Every member, including judges, must to do that. That principle has been judicially considered and approved. It is reflective of the fact that at the core, each person in the CF is expected to be — on short notice on occasion — deployed to scenarios where they may not only have to look after themselves. They may have look after their buddy in a trench.

Going back to Senator Fraser's point about modern age with VTC, it is true. There are technical advances being made. In the Canadian Forces, we often find ourselves in places in the world where we do not have that technical capability, and certainly not immediately. If we do, it is consumed by the commanders trying to maintain the mission on the ground first.

For example, in the recent case in the public of Captain Semrau — and killing the Taliban in Afghanistan two years ago — part of the court martial deployed to Kandahar sat and took evidence. At that point, the military judge had to have the same skill sets that I mentioned, in addition to the ability to handle a weapon. When you are in Kandahar, even in the most common of circumstances there are things like rocket attacks. It is not expected that the judge would simply run to a bunker and say, "I am a judge and that is all I can do." Speaking as a lawyer, if they have to rely on a judge or a lawyer to help fight our way out of something, that is not desirable. The reality is the CF expects everybody to do that.

That principle is really what is behind the overall concept of everybody being in a fit state. That is why, if someone develops a disability — loss of a limb, a medical case or diabetes — we have a process that applies to all soldiers. It would look at their medical ability to continue in the job.

All of those are very important. Government policy decisions ultimately approved and enacted by Parliament ensure that all members of the Canadian Forces across the board meet those standards.

The last issue is extension — in the broad sense — beyond compulsory retirement age. First of all, there is a bit of misunderstanding. It is not just a question of the member who reaches the age of 60 to request to stay longer. Within the concept of putting the judge aside — because they have that appointment until 60 — any other officer or non- commissioned member would say, "I would like to stay." At the first instance, it is the chain of command which has to say, "Do we have a place for this particular individual?" It is not simply because they are 60 and we feel compelled to keep them longer, et cetera. At the initial level, the chain of command would have the ability and the right to say, "Sorry, no we do not."

If the chain of command believes there is a place for the individual, the request is forwarded — through the whole chain of command — ultimately to the Chief of the Defence Staff, who then decides based on criteria. Usually, they are based on the needs of the service. If he believes we have to maintain that particular soldier, sailor, air person or Special Forces trooper, there is ability under the QR&O to extend that.

I do not have the precise numbers at my fingertips. I can say, from experience, that the numbers of requests that go up on a yearly basis are very minimal. There may be a handful — half a dozen, perhaps — and that would be a generous guess, I think. Out of those, I am not aware personally of any that have actually been approved by the Chief of the Defence Staff. Ultimately, in his opinion, there was not a requirement to keep that individual beyond that age.

I will ask Colonel Gibson to address the pension issue.

Colonel Michael R. Gibson, Deputy Judge Advocate General, Military Justice, Office of the Judge Advocate General: Honourable senators, as members of the Canadian Forces, the pensions of military judges would be determined by the Canadian Forces Superannuation Act. In other words, they have the same pension scheme as other members of the forces because they are members of the forces. As you are probably aware, pensions are calculated under that act on the basis of the average for the best five years of the member's service. Given that our military judges are very well paid, there is certainly no concern they would be at a disadvantage compared to anyone else in the forces, nor that they would be in a position where they would not be able to have a comfortable retirement.

Senator Meredith: Thank you very much for coming this afternoon. As we study this legislation we are contemplating how it will affect the National Defence Act. Can you elaborate on how this legislation will impact your current operations?

Brig.-Gen. Cathcart: As you know from the Court Martial Appeal Court decision in R. v. Leblanc, we have to make a change. The section was ruled to be unconstitutional and the court gave six months for this to be rectified, which time expires on December 2. If the legislation does not pass by that date, there will be a significant amount of uncertainty in the military justice system. It will be open to defence counsel at the very next court martial to say that the CMAC has ruled this to be unconstitutional and the government has not provided a fix. There would be uncertainty as to what the judge could decide.

If the legislation does pass, it will give clear certainty to everyone, both inside the military and those observing from the outside, that there is now a certain age at which the appointments of judges will end. As the minister said earlier, judges have to have 10 years at the bar before being appointed, so they are usually appointed in their early to mid forties. This would give them 15 to 20 years of certainty before they reach the age of 60 when their appointment would end. That would be very advantageous in terms of providing the certainty that any justice system requires.

Senator Meredith: The minister spoke in his presentation about the urgency of this being acted upon. Maybe you could touch on that. Could you also compare this legislation to Bill C-15?

Brig.-Gen. Cathcart: Thank you for that question. As most know, the original plan of the government, going back to Bill C-7, Bill C-45 and Bill C-60, was to introduce important legislative changes following the first independent review of the National Defence Act done by former Chief Justice Antonio Lamer. Due to various prorogations and elections, all those attempts died on the Order Paper. We can never control all the events of life. Courts martial went on and Leblanc came up at the same time as the government was looking to reintroduce the bill to effect the Lamer recommendations.

Leblanc focused specifically on security of tenure. It was found to be unconstitutional and the government was given six months to provide a fix. That is the reason for the urgency, which is very real.

The bill was originally designed to be what is now part of Bill C-15, which is the larger piece, which I am sure senators would like to have a go at when it comes here. Most of us are familiar with the long standing attempts to get the Lamer recommendations implemented.

Bill C-15 recognizes that Bill C-16 may have been passed by the time it is passed, but Bill C-15 would take precedence if there is a difference in the language. We do not think there would be a conflict.

Senator Joyal: I will refer to chapter 4 of the Lamer report, which I am sure you know by heart, which deals with the subject matter of this bill. I understand that this bill gives effect to Lamer's recommendation 5(1), which reads:

I recommend that military judges be awarded security of tenure until retirement from the Canadian Forces, subject only to removal for cause on the recommendation of an Inquiry Committee.

Section 2(2) of the bill is along those lines.

However, I believe that on the next page there is a difference of opinion. The bill proposes that the inquiry committee be established under regulation made by the Governor-in-Council.

Lamer's recommendation 6, which is on page 22, reads:

I recommend that the National Defence Act be amended to include the composition of the Inquiry Committee that may make a recommendation that a military judge be removed for cause and the factors that the Inquiry Committee must take into consideration when making such a recommendation.

Lamer suggests that the factors and the inquiry committee status be included in the National Defence Act. You propose that it be established under regulation made by the Governor-in-Council.

Why did you depart from the recommendation of the Lamer report?

Col. Gibson: We did not. Chief Justice Lamer recommended, as you indicated, that the Inquiry Committee be moved from the regulations, the QR&O, where it is presently constituted, into the act, and that provision is among the clauses in Bill C-15. Bill C-15 would establish the Inquiry Committee under the act and would specify the criteria that it needs to consider in respect of making a recommendation.

The shorter answer is that the government accepted that policy recommendation and it is included in Bill C-15. The reason it is not in Bill C-16 is that it is designed to be as streamlined and succinct as possible in order to pass by December 2. It is the government's intent to follow through with the Lamer recommendation in Bill C-15.

Senator Joyal: In other words, when the government comes back with Bill C-15 it will amend section 2(2)?

Col. Gibson: If you give me a moment, I will point you to the clause in Bill C-15 that deals with this issue.

Senator Joyal: The Lamer report says:

The composition of the Inquiry Committee and the factors to be considered are set out in the QR&O. Such important matters should be spelled out clearly in primary legislation to avoid any real or perceived executive interference. The NDA should therefore be amended accordingly.

Col. Gibson: The government has concurred with that recommendation. The same provisions that are in Bill C-15, which is currently before the Commons, were present in Bill C-7 introduced in 2006, Bill C-45 introduced in 2008, and Bill C-41 introduced in 2010.

Senator Joyal: Why did you not put it in subsection (2) or subsection (3) to follow up on that same issue of the appointment of judges?

Col. Gibson: It is the government's hope that Bill C-15 will progress expeditiously through Parliament and receive consideration in the near future. The judgment was made that the core issue raised by the Court Martial Appeal Court in Leblanc had to be addressed expeditiously, which is why Bill C-16 is so streamlined.

You are quite right that the whole package of amendments in Bill C-16 is extremely important, and we hope they will be considered in the near future.

Senator Joyal: When you read the judgment in Leblanc, to which the minister alluded in his presentation, and when you read paragraphs 61 and 62 of the Leblanc decision in the Court Martial Appeal Court of Canada, it is very clear that the court wants to prevent the appearance of interference from the executive.

As you know, if you try to reflect along the lines of how a judge of a superior court or Supreme Court would be removed, he or she would be removed through an independent inquiry. It would not be in the hands of the executive, or where the executive could have a say or change the rules to target a judge in particular that would not have been favourable to the views of the military administration or the government generally.

It seems to me to be a very essential element when we want to entrench security of tenure that removal is as important as appointment to ensure that the person feels they are totally independent in exercising their judicial function.

Col. Gibson: We agree, and the government has clearly agreed that there are various aspects of judicial independence that are important to address. That is why, at clause 45 of Bill C-15, the issue of the inquiry committee is addressed. That would propose to amend the National Defence Act to create a new section 165.31 regarding the inquiry committee. The factors that you were inquiring about would be specified in the new section 165.32(7).

The Chair: Senator Joyal, I would like to finish the first round, if you would care to go to the second round.

Senator Joyal: Yes, of course.

[Translation]

Senator Chaput: Under the current system, military judges are appointed for a five-year renewable term until they reach the retirement age. Are there judges whose term of office was not renewed? If so, as a general rule, on what grounds?

[English]

Col. Gibson: There have, to date, been no judges who have made application under the currently existing scheme who were not renewed.

Senator Chaput: They have all been renewed?

Col. Gibson: Of those judges who made application.

[Translation]

Senator Chaput: You mentioned earlier that they had 20 years. Therefore, on the average, for how many years did they hold office? Approximately how many years?

[English]

Col. Gibson: There are currently four military judges, one of whom was appointed at the age of 50 and the other three who were appointed in their early forties. Under the proposed scheme, if they cease to hold office at age 60, hypothetically one would have been in office for 10 years and the others, potentially if they went to that age, for approximately 20 years.

[Translation]

Senator Chaput: In civilian courts, judges are appointed following a rigorous selection process, anyway, that is what I am told. Do we have a comparable process for the selection of military judges? Can we expect a different process or are we keeping the same one?

[English]

Col. Gibson: The current process for selecting and appointing military judges is very closely parallel to that applied to civilian superior court judges.

There is an entity called the Military Judges Selection Committee, which assesses applications made for aspirants to be appointed as military judges. In fact, we have a contractual arrangement with the Commissioner for Federal Judicial Affairs, which is the same body that does the assessment process for civilian judge applicants; they do the mechanics of the process.

The five members of the Military Judges Selection Committee, who include a retired civilian superior court judge, a nominee of the Canadian Bar Association, a nominee of the Judge Advocate General, the officer occupying the position of Chief of Military Personnel and, in order to ensure the perspective of non-commissioned members is represented, the Canadian Forces' Chief Warrant Officer, sit as a committee to assess the files of applicants for the military judiciary. They make recommendations in respect to the suitability of those applicants in a fashion closely analogous to that which occurs in the civilian system. That recommendation is provided to the minister, who would then, in a fashion similar to that which occurs in the civilian system, consult with his colleagues; and appointments are ultimately made by the Governor-in- Council.

The short answer to your question is that the process is closely parallel and, in fact, involves the same entity that does the mechanics for assessing civilian applicants.

[Translation]

Senator Chaput: Generally speaking, what percentage of candidates are recommended for appointment versus the number of candidates who have applied?

[English]

Col. Gibson: My understanding is that the advice of the Military Judges Selection Committee to the minister and to the government is meant to be confidential. I understand there may be cases in the past, I believe, in one of the Military Judges Compensation Committee reports, where there was reference to it. However, the shorter answer is that in order to protect the integrity of the process, there should not be a disclosure of that ratio.

The Chair: If the amendments proposed by Bill C-16 are adopted, would this result in any significant changes in cost to the military justice system?

Col. Gibson: The short answer is no, there would be no changes. We need military judges. There have to be military judges in place, so there would be no incremental cost associated with the passage of this bill.

Senator Fraser: Brigadier-General Blaise, I would like to come back to this business of extensions, "back to first principles," to use your words.

A profoundly important principle in giving security of tenure to judges is that they be and be seen to be independent. When we have had a five-year renewal term, this has allowed situations to arise in which some persons might have a reasonable apprehension of bias because the judge would be hoping to be renewed and, consciously or unconsciously, be influenced in reaching a decision in the hope that the minister would renew the term.

If judges are allowed extensions, even if it is not as judges, it is continued employment, presumably at a fairly high level, in the Armed Forces. Does that not go contrary to that elementary principle? In what way is it essentially different to say I can hope for continued employment from saying I can hope for continued employment as a judge?

Brig.-Gen. Cathcart: Again, as you highlighted, the essential difference is just that. First, the extension for anybody in the Canadian Forces beyond the age 60, in this case, of mandatory retirement is extremely rare in any circumstance. The issue as a judge, if I understand the question correctly, might be well my time is coming to an end here but I still want to be employed. Maybe I have to act in a certain way to convince the chief or the minister that I want employment as something other than a judge when this appointment is up.

Obviously, I do not pretend to get inside the mind of any particular CF member, including a judge, but the reality is the intent is to create the clear certainty so that for that period from appointment to age 60, there is no doubt that there is no aspect of interference from the Chief of the Defence Staff or the executive — the minister or any part of the executive — during that period of time. If, at the end, the individual still wants to be a serving member of the Canadian Forces, then they obviously step down. They are no longer a military judge; they are any regular officer again and they can make their own career choice in terms of requesting an extension for some other CF position.

Senator Fraser: They would still have to do that by being approved up the chain; it would not be automatic.

Brig.-Gen. Cathcart: Absolutely; but this would be the same for any CF member. At that point, they revert to being an officer within the legal trade, but not a judge.

Senator Fraser: The point of tenure is surely that judges are not like anybody else.

Anyway, I understand your argument and you understand mine. I do not think we quite agree on this, but let me ask a follow-up question for the sake of understanding the system. I was prompted to this by something the minister said when he was talking about why the age of 60 was chosen. He said it is because that is what is in the Queen's Regulations and Orders; so is the extension capacity.

However, if you wished to, would it be that difficult to change the QR&Os? Is it any more difficult to change those than to pass a bill?

Col. Gibson: I am biting my tongue, because in practical experience it is difficult to change the QR&O.

To reiterate what the JAG said, the constitutional principle at stake here is security of tenure. I think the suggestion that the provisions of the QR&O 15.17, the possibility of subsequent employment are so remote and marginally unlikely that it is not credible to suggest that would — in the mind of any reasonable person — feature into the assessment of independence.

To give more factual background, military judges would typically be coming to the end of a long military career. Once they reach the age of retirement they would be eligible to collect their annuity immediately. It is highly unlikely that someone would say, "I can collect my annuity tomorrow stick around for substantially lower pay as a general service legal officer than I was getting as a military judge." On a purely rational basis it is highly unlikely anyone would make that calculation.

Senator Fraser: I have one more question that should be simple to answer.

The guts of this bill, that is to say that a military judge ceases to hold office on being released on his or her request or on attaining the age of 60 years. That precise passage is repeated in Bill C-15 on page 18. The two bills were tabled same day in the House of Commons. Why bother putting that language into the other bill as well this one?

Col. Gibson: Senator, in response to your question, yes, the provisions are exactly the same. That was done by design. There is a coordinating amendment contained in Bill C-15 which provides that if both bills come into force, it is the provisions in Bill C-15 that would take effect. That was done in recognition of the reality that one can never presume the will of Parliament or the fate of specific bills. If both bills progressed through Parliament so expeditiously that they would pass contemporaneously, it was necessary to specify clearly in the coordinating amendment that the provisions of Bill C-15 would take effect.

They are symmetrical and the same. This bill was carved out in recognition that in the real world, a streamlined bill would likely to achieve passage first.

Senator Fraser: It is what I call an "After you, Alphonse" set of amendments. Colleagues may recall that I really do not like them, however that is why it was done.

The Chair: I am stating the obvious in saying this, but on Senator Fraser's point — when all is said and done — you had to make absolutely certain this amendment met the drop dead day of December 2. That was it. You have a safety valve in there. You have two opportunities to do it with two bills, but that was critical. As I understand, it was for that reason there was duplication between Bill C-15 and Bill C-16. You had to make that deadline. Is that correct?

Brig.-Gen. Cathcart: That is correct, chair.

Senator Runciman: I have a clarification following along with what Senator Joyal was raising with respect to Justice Lamer's recommendations. You were indicating that all of those recommendations have been followed in terms of Bill C-15 if they are not encompassed in this bill. We understand the need for streamlining, but I think you indicated the remainder of the recommendations referenced by the justice are contained in Bill C-15?

Col. Gibson: Senator, to be clear on that point we calculate that of the 88 recommendations made in the Lamer report, 28 have been implemented — either in practice in regulations which could be made without explicit statutory authority — and four of them in Bill C-60. Of the remaining recommendations, 36 would be included in Bill C-15 and a number of others would be accomplished in regulations which would rely upon statutory authority being provided in Bill C-15.

The short answer to your question is the government's intended legislative response to the remaining Lamer recommendations would be contained in Bill C-15 and accompanying regulations.

Senator Runciman: That is good to hear. You indicated there are four judges currently serving. Is that the normal complement?

Col. Gibson: Yes. There is no fixed complement. The assessment of the number required depends on the case load in the system. Four has been the number for a number of years.

Senator Runciman: What is the average case load? How busy are the judges?

Col. Gibson: As you are aware, there are two tiers in the military justice system; summary trials and courts martial. The summary trial system deals with the bulk of cases in the military justice system; typically around 96 per cent. That number has been running around 2,000 a year.

The number of courts martial is typically around 75 a year.

Senator Runciman: Are they based in Ottawa or across the country?

Col. Gibson: One of the key attributes of our system that we consider to be required to fulfill the two fundamental purposes of the military justice system — alluded to in Bill C-15 — is portability. The CF operates around the world including in Afghanistan. It is necessary for the military justice system — to accomplish those goals of promoting operational effectiveness and doing justice — be able to follow the forces. We conduct courts martial across Canada and deployed locations.

Senator Runciman: You talked about the standard of fitness as one of the primary drivers behind the age requirement for mandatory departure.

Is that an annual test that everyone in the military has to pass through? Could you describe that for us? If someone fails that, what is the recourse?

Brig.-Gen. Cathcart: Essentially, there are five fundamental tasks that I have alluded to, including stretcher bearer and the ability to carry a load like your buddy.

The CF spent a lot of time and effort determining how to do that. One way is just to do it, but that takes a lot of time when you are talking upwards of 60,000 members on an annual basis to determine that level of fitness.

There are two types of tests. One is the CF EXPRES test and takes place in the confines of a gymnasium where all members are required to do a shuttle run, sit-ups, push-ups and strength testing.

There are two ways to pass. One is to meet a basic standard. If you go further beyond the standard of fitness, you are exempt from testing for one more year because you have achieved such a high standard in this first test.

If you fail, there is an opportunity for remedial training. It does happen. Like any test, people fail so you do remedial training — often one on one, like a personal trainer — and then you are tested again.

If you fail the second time career action is started, which could lead to your release from the Canadian Forces because you are not the meeting the fitness standard.

The other way — in the army in particular — is with something called Battle Fitness Test. You have seen the gear. You put on a full rucksack and do a 13-kilometre march with a weapon. Everyone deploying in a mission like Afghanistan — including lawyers — would have to go through that Battle Fitness Test if they have not done the EXPRES test. If you fail, there is a period for remedial training. Ultimately if you do not pass, the immediate result would be you are not deployed and then you are likely going down that path of career action that could result in a release.

Senator Runciman: Every military judge has to put on the gym shorts and running shoes once a year.

Brig.-Gen. Cathcart: That is right.

Senator Baker: I would say that is an individualized assessment and I do not think it holds much water. I know people in their sixties and seventies that are far more fit than people in their forties. I think that is a weak argument.

Before I ask my final question I want to congratulate both of you on the excellent job you have been doing in addressing all these problems that have come up recently because of judgments in the courts martials courts.

For example, it is not true, I do not think, to say that right now there is a five-year term for judges. My recollection is that back in 2004, with R. v. Joseph and R. v. Nguyn, that five years was struck out of the law. Am I wrong?

Col. Gibson: Senator, there have been trial-level judgments at courts martial to varying effects. They were not consistent, and that was one of the reasons why Bills C-7, C-45 and C-41 sought to install the standard of security of tenure until retirement. The Court Martial Appeal Court now in Leblanc has definitively resolved the issue for us by ruling as they have.

Senator Baker: Did your chief judge rule in three or four cases that he severed those words, five years?

Col. Gibson: He did.

Senator Baker: He did. Exactly. So that is not into effect.

Col. Gibson: Could I respond?

Senator Baker: I will put the question, and then you will have lots of time.

The Supreme Court of Canada has not addressed the question of security of tenure as it relates to military court judges. There has been no judgment by the Supreme Court of Canada on point.

You are quoting a judgment of a university professor, McKinney, who had a dispute with the Guelph University. That is a different matter. That came under section 9.2 of the human rights code of the Province of Ontario. That has nothing to do with the Canadian Charter of Rights and Freedoms as directly as your case does.

In those circumstances, it would have made very good sense to appeal the decision of the Court of Appeal — you had 30 days to do it — to the Supreme Court of Canada. No, you had 60 days to do it. That would take about a year to hear. In the meantime, the five-year restriction would not be there, and you could have brought in all of these amendments at the same time. If you had to wait for a judgment of the Supreme Court of Canada, we would have had something definitive in law addressing all of these various questions relating to the judges.

I might say that Colonel Gibson has done a marvellous job at explaining our military law. The last time I heard him was at Yale University.

Col. Gibson: Senator, there are several points I would make in response.

Like any trial level court, there is no stare decisis in respect of judges at the same level of rulings of court martial judges. There were judgments of different military trial judges to different effect.

The Court Martial Appeal Court, which is the supervisory appellate court, did consider these issues in part in the cases of Parsons and Dunfy but essentially declined an opportunity to definitely rule. In one sense, Leblanc certainly makes the law clear. Stare decisis applies in respect of rulings of the Court Martial Appeal Court on the trial judges.

With greatest respect, senator, I would take slight issue with one observation that you made in respect of Supreme Court of Canada judgments. In Généreux, the Supreme Court pointed out, 1992, that the constitutional requirement of independence does apply to military judges, just as the Supreme Court of Canada has generally articulated in Valente, but the manner in which that can be accomplished did not necessarily have to be exactly the same as in the civilian system. The point is that the constitutional requirement under section 11(d) of the charter clearly applies to military judges.

In respect of your question about opportunities to appeal, I would go back to the basic point. Chief Justice Lamer made a policy recommendation in 2003 in his report that military judges should be given security of tenure until retirement. The government accepted that policy recommendation. That recommendation was reflected in the provisions in Bill C-7, 2006, Bill C-45, 2008, Bill C-41, 2010. The government has tried repeatedly to actually implement that policy recommendation, so why would one appeal a recommendation that the government had already accepted, is really the question.

What is different about the situation about Bill C-16 after Leblanc from those previous bills is that they provided for security of tenure of military judges until the age of retirement to be specified in regulations. Following what the Court Martial Appeal Court emphasized in Leblanc, this bill would provide a specific age to remove any uncertainty. The short answer to your question is that we have been trying for a long time to implement this policy.

The Chair: I would remind each of you that, following this panel, we will have Mr. Ian Holloway, Dean Law at the University of Calgary, who will be joining us by video conference. Dean Holloway is available as soon as we finish this panel.

Senator Joyal: I will be brief. To use the same words that you used when you concluded your answer to Senator Baker, this bill encompasses or entrenches some of the policies that you have been pursuing in previous bills. Again, not presuming the will of Parliament, to quote what you have said in previous answers, you are halfway from the recommendation of the Lamer report, and you will ask us to approve a bill which is, prima facie, defective in terms of the inquiry committee that should be established in the case of a removal of a judge. Again, since it was already in a bill that was tabled, in Bill C-15, you already had the wording. It would not have been a great change to the bill we have in front of us if it had been added as subparagraph 3, and we would have settled it finally and made it complete in terms of reform. I submit that to you humbly, because we cannot presume the will of Parliament and when Bill C-15 will be adopted, that meanwhile we will live with a half-full glass. I do not doubt your sincerity about the policies that you want to entrench in those amendments, but again you had an opportunity there to settle that point forever.

Col. Gibson: Chief Justice Lamer made a policy recommendation that the existing provisions in respect of the inquiry committee, which are currently constituted in regulations, be moved into the act for greater visibility to provide an enhancement of perception of judicial independence. We absolutely agree, and, as we have already discussed, that policy recommendation is reflected in the provisions of Bill C-15.

The criteria specified and the essential nature of the operation of the committee is already there in law. It is a question of perception, of elevating it from the regulatory level to the statutory level, a valid and worthy undertaking, but, with the greatest of respect, I would disagree with the suggestion that the status quo in that sense is in any sense constitutionally deficient in respect of the independence of judges. The provision for the inquiry committee is already there.

Senator Joyal: I do not want to argue with you. I will do it in another forum.

If you read sections 61 and 62 of the Leblanc decision, appearance or preventing appearance of executive interference is part of the neutrality that the system of neutral justice should be offering to the public.

My last question, Mr. Chair, is about Lamer Recommendation No. 7, temporary suspension. Lamer was recommending that article 19.75 of the QR&O be amended to exempt military judges from temporary suspension of judicial duties. In your answer to Senator Runciman that you had implemented many of the recommendations in terms of amendments of the regulations, can you confirm to us the temporary suspension has been removed from 19.75 of the QR&O as Justice Lamer recommended?

Col. Gibson: Senator Joyal, if you would grant me a few moments, I can come back to you once my assistants confirm what we have actually amended. I do not want to mislead the committee. Certainly it was our intention to address that Lamer recommendation.

The Chair: That concludes this portion of today's hearings. Brigadier-General Cathcart and Colonel Gibson, thank you for your appearance here today. It was very thorough.

Colleagues, we will now continue with our consideration of Bill C-16, An Act to amend the National Defence Act in respect of the tenure of military judges.

Our next witness, who we are very pleased to have with us today, is Dean Ian Holloway, from the faculty of law at the University of Calgary. Dean Holloway is appearing by video conference.

Welcome, Dean Holloway, it is very good to have you here.

Ian Holloway, Dean, Faculty of Law, University of Calgary: It is an honour to be with you all — and with you in particular, Mr. Chair. I am a neighbour of yours, so to speak; I am originally from Saint John, New Brunswick.

The Chair: There are probably some further questions I should ask you then. I believe I know your family, now that you say that.

Dean Holloway, again thank you. We will start, if you have an opening statement you care to make, and then we will have questions of you, I am sure, from our senators.

Mr. Holloway: I do have a brief statement. As you all know, I am the Dean of Law at the University of Calgary; I have been dean here since July 1 of this year. Prior to that, I was the Dean of Law at the University of Western Ontario for 11 years.

In addition to my academic experience, I spent 21 years in the Royal Canadian Navy. I retired as a chief petty officer. Subsequent to that, I spent 6 years as an officer in the Royal Australian Navy. I do not claim to be an expert on the system of military justice, but I certainly have been a subject of it for a big part of my life.

As you all know, this bill represents a move to further enshrine the concept of judicial independence within the ranks of the military judiciary. It is a short bill, but in my view it is elegant in its formulation. It replicates, as closely as possible, the same process that is used for the removal and retirement of civilian judges; and it responds directly — in my assessment, in any event — to the concerns expressed by Mr. Justice Létourneau in the Leblanc case. To the extent that I can, I am delighted to be of assistance to you as you consider this bill.

The Chair: Thank you for those comments.

Senator Fraser: I would like to ask you whether, in practice and in law, you think 60 is a good age for the compulsory retirement of judges, from their position as judges.

Mr. Holloway: In law, I think it is neutral. It could be 60, it could be 50, it could be 70. The key to meet the legal requirements of independence is there is no fear or favour to be gained or avoided.

In terms of practice, I think it is not a bad cut-off, retirement age, in the sense that military judges have to deploy. We saw that in the Semrau case, the tragic case where an officer in the Canadian Army was accused of having committed a mercy killing. For at least part of that trial, as I understand it, the court martial sat in Afghanistan.

To that extent, military judges have to be prepared to deploy operationally, to undergo the same pre-deployment training and so on, and that requires a certain level of fitness and stamina that would suggest, to me in any event, an early retirement age rather than 70 or 75, as is the norm for superior court judges in civilian life.

Senator Fraser: As my colleague, Senator Baker, pointed out a few minutes ago with our earlier witnesses, if deployability — that is physical fitness — is the criterion that operates to fix the age of 60, there are many 60-odd-year- old persons, persons over 60 who are extremely fit and make a point of remaining extremely fit. Is it excessively arbitrary?

I could see an older age being fixed, because the likelihood of physical fitness clearly does decline as age advances, but 60 does seem a little young.

Mr. Holloway: In law, the notion of "arbitrary" suggests a lack of reason. I do not think that one could say it is an arbitrary age. I completed the New York marathon and I finished at a much slower rate than people in their seventies. Of course it is true that there are plenty of people much older than 60 who are extremely fit. What I would say is there is no magic to the particular age of 60. In some provinces — I think in Nova Scotia, where I was first admitted to the bar — provincial court judges at least used to retire at 65, whereas in other provinces it is at 70. Can we say that Nova Scotia is unconstitutionally arbitrary or unlawfully arbitrary because they chose a different age? I am not sure. A considered decision was made, a considered assessment was made, that 60 was the right age. I certainly have no knowledge or background which would suggest to me that that is inappropriately arbitrary, as a legal term.

Senator Fraser: Here is a question that has nothing to do with the law but I was just so interested. How did you get into the Australian navy? How did that happen?

Mr. Holloway: I went to Australia to do a Ph.D., and I thought I was going to stay for a year or so, and then one year became two, became three, became four, and I decided I guess I will be here for a while. I enjoy the military service, and so I resigned from the Canadian Navy, and applied to join the RAN.

Senator Fraser: You did not have to be a citizen to do that?

Mr. Holloway: I did have to be a citizen, but that was not a problem. I have, like many Canadians, dual citizenship.

Senator Fraser: Thank you. That is a personal question, but I am grateful to you for taking it.

Mr. Holloway: Thank you, senator.

Senator Meredith: Thank you, professor, for appearing before us this afternoon. Going back to the qualifications of the judges, and obviously we talked about their physical fitness, and the brigadier-general has indicated to us that it is so important in the deployment of these judges across the globe to be able to move rather quickly and be able to also carry the equipment necessary to defend their colleagues.

We have heard that it is important for these judges to be well qualified. What are your views on this in terms of those who are now, as to Senator Fraser's point with respect to the age, fully tenured past 60? What are your views on that in terms of them and that this bill is saying we need to have them leave their position as a judge at 60 but not to leave the military itself?

Mr. Holloway: I think they have to leave the military too. I am a bit out of date on this, but I thought 60 was the retirement age for all service people. Perhaps I am wrong on that.

Senator Meredith: To my understanding, Brig.-Gen. Cathcart indicated the age of retirement for judges at 60 with this legislation, however they do not have to leave the Canadian Forces at 60.

Mr. Holloway: Then you are more informed than I am, because my understanding was that 60 was the retirement age for all service personnel. To that extent, as I read this bill, it was intending to ensure consistency of treatment, that judges would be treated no differently, for retirement purposes, than any other member of the Canadian Forces.

The Chair: Senator Angus?

Senator Angus: I will pass, if I may, Mr. Chair. I had to go out for a minute and I missed the sequence. I do not want to duplicate anyone's questions.

The Chair: Dean Holloway, as I am sure you are aware, the basis of Bill C-16 is as a result of the decision in the court martial appeal case of R. v. Leblanc. Bill C-16 is responding to that decision. I am wondering if you have reviewed R. v. Leblanc and if you feel that Bill C-16 adequately responds to the concern of the court in that case.

Mr. Holloway: I have read the judgment a few times. Let me say a few things. First, I think you all know Mr. Justice Létourneau is a very distinguished jurist and has a long association with the court system, the military judicature system of courts martial that we have in Canada. I am inclined to defer to him, because I have a high regard for his abilities as a judge.

Leaving that aside, I think the bill does address his concerns. In his judgment he talked about the three prongs of judicial independence: financial, administrative and reappointment. This bill certainly deals with the concern that was at issue in the Leblanc case, and that was this whole question of how tenable it was to have a system whereby judges in the service did not know how long they would be judges.

As you all know, we were kind of in limbo until the Leblanc case. Part of the legislation had been struck down, but it was uncertain, until the Court Martial Appeal Court pronounced on it, how secure that ruling was.

To my mind, the bill does address the concerns expressed by the court.

The Chair: Thank you for that response.

Senator Baker: Dr. Holloway, do you have any thoughts as far as the Canadian Charter of Rights and Freedoms, section 15(1)? It says you cannot discriminate against someone because of age. The Canadian Human Rights Act that provides, in 15(1)(c), that as far as retirement is concerned there is an exception to the word "discrimination" if you are required to retire at the age in which a person performing your similar function would retire. In other words, the military judges, as you know, now perform a huge task, even greater than that of any judge in our society, because they have to adjudicate matters that pertain to the National Defence Act and all of those regulations. They also have to adjudicate all matters under federal law, including the Criminal Code, with a couple of exceptions. I think there is an exception at section 280 of the Criminal Code for murder and child abduction.

Mr. Holloway: Yes, inside Canada, that is right.

Senator Baker: Of course, they have a jurisdiction outside of Canada, which our superior court judges do not have in the civil cases.

They have this huge responsibility. A reasonable person would say that if you have a comparator for a military judge today, it would be a superior court judge, or perhaps a provincial court judge, who have tenure to age 70, in the case of provincial court judges, as you pointed out, and to age 75 if it is a federal superior court judge. There have been some judgments that say it violates the Human Rights Act at section 15(1)(c) in that the retirement age must be in the area of someone of similar work, and it would also violate the Canadian Charter of Rights and Freedoms.

Do you have any thoughts on that with respect to setting the retirement age at 60?

Mr. Holloway: It is a great question, senator, and a very perceptive one, if I may say so.

I understand that this is not what you were suggesting, but if someone were to suggest that setting retirement age at 60 for members of the Canadian Forces is unconstitutional, then that is a much bigger issue than you are dealing with in Bill C-16. We cannot lose sight of fact that military judges are officers who hold the Queen's commission. They are military officers. They exercise a particular role, just as priests and members of the clergy, doctors and dentists do in the Canadian Forces.

If we say that it is unconstitutional to make judges to retire at 60, does that mean that military doctors can work until they drop? In fact, in many civilian hospitals there is no retirement age for doctors now. I am not sure that the exercise of comparison is as simple as saying a judge in uniform equals a judge in civilian life. The exercise of comparison is a bit more textured than that.

Let us, for the moment, consider the retirement age of judges in civilian life. To my knowledge, the constitutionality of different retirement ages for provincial court judges across the country has not been undermined. It is possible for provincial court judges in Nova Scotia to have a different retirement age than they do in Quebec and for those two provinces to have a different retirement age for judges than in Manitoba. If that is constitutional, then I am not sure that we can presumptively say it is unconstitutional for another type of judge to have a different retirement age.

Senator Baker: It would have to be challenged, but who would have thought that the retirement age of 60 for Air Canada pilots would have been challenged as it has been? As recently as four months ago, the Federal Court of Appeal — or was it the Federal Court of Appeal — in the particular case of Valnier ruled that it is unconstitutional to have a retirement age of 60, although 75 per cent of the pilots were polled in a referendum and said they wanted their retirement age at 60 because they get a great retirement package of about $130,000 a year. However, one person challenged it, and it was judged to be unconstitutional.

In this case, there could be a judge who could challenge that.

Mr. Holloway: There could be; it may well happen. I do not know how many pilots Air Canada has, but there are many. There are, as I recall, four military judges. Our services have just come through an extended period of extraordinary commitment, and it may not be for a while that we see significant overseas deployment that way again. However, it is not inconceivable to think that we could have had all four judges having to deploy, and if one of those judges happens to be 74 and a half years old and just not up to it, what sort of a burden does that place on the system? Does one have to take into account the practical system and the strains that could be placed on it?

Senator Baker: That was a good answer.

Before I ask my last question, because the chair will cut me off soon, let me tell you that you are absolutely correct. The retirement age is 60. You were correct there, but what Senator Meredith was referring to was that in the Queen's orders, section 15.17 allows extensions to be given upon application to the Minister of National Defence or the Chief of the Defence Staff. Therefore, extensions can be given, and that was verified.

Here is my last question to you: Do you know Justice L'Heureux-Dubé?

Mr. Holloway: Yes, I appeared before her.

Senator Baker: Yes, you did, at the Supreme Court of Canada. She was very kind to you. She ruled in your favour.

Mr. Holloway: She did.

Senator Baker: I want to ask you now if you agree with her in her assessment of military judges. She was on the panel, and she was comparing military judges to judges of the Tax Court of Canada in that the military judges do not have jurisdiction in civilian matters, and the Tax Court of Canada, in civil matters, does not have jurisdiction in criminal matters. However, in every other respect, they travel the country and they are alike. Her conclusion is the following:

In my view, these are the proper criteria which militate in favour of a unified federal court system . . .

The entire argument made here suggests that the military judges are so close to the functions of superior court judges that they should receive the same salaries, and they should receive the same tenure of office. They certainly have the third component that you mentioned in judicial independence, and that is that they have the jurisdiction — the power.

Do you now agree with Madam Justice L'Heureux-Dubé, since she agreed with you, so greatly in that judgment before the Supreme Court of Canada?

Mr. Holloway: I am not competent to judge salaries. In terms of the broader issue, no, I think there is a profound difference between military judges and judges of the tax court. In the same way, we say that we want people who sit on workers tribunals or labour relations boards to bring to bear a particular expertise reflecting a deep understanding of the domain and the milieu in which they work. That is why beginning in the 1970s the Supreme Court of Canada was pushing the bureaucracy of the civil service to professionalize the process of administrative adjudication.

You have to remember the work that these military judges do may involve two soldiers slugging one another but slugging one another in a particular context and in a particular social setting that is alien to we who are civilians.

I think it is critical for judges to have an understanding of that, to have a real feel for what might seem to us, as civilians, to be mere rudeness, but what that might mean if it takes place on a warship that is 600 miles from anywhere, in the middle of the Atlantic Ocean, in a blizzard, in June. Telling someone else off can have a very different context in a hurricane at sea than if it is at a university, like where I work, for example. That is why I think that Justice L'Heureux-Dubé, notwithstanding her wisdom generally, may have overstated the case a bit on that particular issue.

The Chair: Dr. Holloway, I have one final question, coming back in particular to Bill C-16. As you know, in R. v. Leblanc, the Court Martial Appeal Court found the military judges' tenure provisions to be constitutionally invalid and inoperative. However, the court did suspend the declaration of invalidity for the six-month period, which will end December 2.

I am wondering what comments you might have concerning consequences that could be incurred within the military justice system if Royal Assent was not received by December 2. How critical do you see that in the military justice process?

Mr. Holloway: I think it is about as critical as it could get. If we say that it is an axiomatic principle of our judicial system — in fact, we should say judicial systems — that at the apex sits the court, and if the foundation of that court is knocked away, then it is hard to see how, at the end of the day, things could be unified.

I will say that the servicemen and women that I served with are loyal, noble, hard-working and self-disciplined people, so I do not imagine that the world will come to an end overnight. However, at the end of the day, if we are going to have the rule of law, we need a judiciary, for that is the lynchpin of the rule of law. If the constitutional foundation for these four judges on whom such responsibility rests is knocked away, I think that is problematic.

Senator Meredith: That was my line of questioning to the professor, as to the fallout if this does not get Royal Assent by December 2, as has been stated by the brigadier general and also by the minister, and the urgency for this particular piece of legislation to go through. You, in fact, have answered my question.

The Chair: Thank you. That concludes our questions and time with Dr. Holloway.

Thank you so much, Dr. Holloway. It was a pleasure to have you here and it was very helpful to us. It was significant to me to be reminded of where you are from originally. Your credibility was immediately established once I heard that, although it was never in doubt.

Mr. Holloway: Thank you very much, Mr. Chair and senators. It really was my honour to be with you this afternoon.

The Chair: Colleagues, that ends today's hearing. We will back in this room tomorrow morning at 10:30 to consider clause by clause of Bill C-16, and we will then continue with our consideration of Bill C-46.

(The committee adjourned.)