Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence, September 25, 2003
OTTAWA, Thursday, September 25, 2003
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-35, to amend the National Defence Act (remuneration of military judges), met this day at 10:55 a.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Our first order of business today isBill C-35. Once we have completed the testimony and questions on this bill, time permitting, I propose that we move in camera to discuss future agenda items of the committee.
I welcome our witnesses, Lieutenant-Colonel André Dufour, Lieutenant-Colonel Michael Gibson and Major Doug Elderkin.
Gentlemen, I understand you have a presentation, following which there will be some questions from senators. Please proceed.
[Translation]
Lieutenant-Colonel André Dufour, Director, Legislative and Regulatory Services, Department of National Defence: Honourable Senators, I am pleased to be here today to give you an overview of the critical components of Bill C-35. My presentation will focus on three areas of the bill. As you know, the proposed changes do not necessarily appear in numerical order in the text.
[English]
In the first part, I will deal with the proposed enabling provision that would allow Treasury Board to make regulations with a retroactive effect. I will discuss the change made to section 12 and the consequential change to section 165.22.
In the second part of my address, I will deal with some of the provisions that would clarify the provisions of the National Defence Act that deal with DNA warrants.
In the third part of my presentation, I will deal with amendments that would provide consistency between the French and English versions for four provisions in the National Defence Act, the NDA.
In 1997, the Supreme Court of Canada, in the reference concerning the remuneration of judges of the P.E.I. Provincial Court, rendered an important decision. The court ruled that there is a requirement to have an independent, objective and effective mechanism to deal with the compensation of judges. In a sense, the effect of that judgment was to ensure that the financial security of judges would be free from inappropriate influence on the part of the executive branch of the government.
[Translation]
The court has also ruled that there are three critical components to meeting the requirements set out in section 11(d) of the Canadian Charter, namely the security of tenure of judges, financial security and the institutional independence of the court.
In 1992, further to the Supreme Court of Canada's decision in the case of Généreux, the National Defence Act was amended. In addition, substantive amendments were made to the Queen's Regulations and Orders for the Canadian Forces (QR&O) to meet the institutional independence requirements.
[English]
In 1998, in the case of Lauzon, the Court Martial Appeal Court applied the principles of the 1997 Supreme Court decision in dealing with the P.E.I. provincial judges and found that the existing system of establishing the remuneration of military judges was not adequate. The court gave one year to have the appropriate changes made.
In 1999, to satisfy this requirement, a Military Judges Compensation Committee, MJCC, was established by regulation to inquire into the adequacy of the rate of pay for military judges and to make recommendations to the government.
[Translation]
As you know, in 1998, the Judges Act was amended to create an independent, objective and effective body to rule on the question of the financial security of civilian judges. Thus was established the Judicial Benefits and Salaries Commission. The pertinent legislation, specifically section 26(1.1) of the act, listed objective factors on which the commission should base its recommendations. Factors to be considered included prevailing economic conditions, the role of financial security of the judiciary in ensuring judicial independence and the need to attract outstanding candidates to the judiciary. The same factors are listed in section 204.24 of the Queen's Regulations and Orders for the Canadian Forces.
[English]
The gist of the amendment of section 12(4) of the National Defence Act is to enable Treasury Board to make regulations on the pay of military judges retroactive to the date of the commencement of the period of review. At the present time, section 12(3) simply allows Treasury Board to prescribe the rates and conditions of issue of pay. In a sense, once the MJCC makes its recommendations to the government, the Minister of National Defence makes the recommendation to Treasury Board and, ultimately, Treasury Board would then be fully authorized to prescribe the rate of pay of military judges with retroactive effect to the beginning of the review period.
There is a requirement to conduct a review every four years, as stated in the Judges Act. The first one started September 1, 1999. The next review period for the MJCC commenced September 1, 2003. The MJCC is due to submit a report by the end of May 2004. The members of that committee were appointed on August 29, 2003, and their mandate is in effect as of September 1, 2003. The chairperson of the committee, appointed by Order in Council, is the Honourable Peter Cory, Q.C., of Ottawa. The members are Mr. Ian D. Clark of Toronto, who was nominated by the Minister of National Defence, and Ms. Claire l'Hereux-Dubé, who was nominated by the military judges.
Once the report of the MJCC is made public by the minister, within 30 days after receiving the report, the minister must respond to the MJCC report within six months. Obviously, without presuming the MJCC recommendation, it is possible that the recommendation would be retroactive to the beginning of the review period; that is to say, September 1, 2003.
As it is not absolutely clear that Treasury Board could pay judges under the current section 12(3) of the National Defence Act with a retroactive effect, an amendment to the National Defence Act is required. That is why we are here today.
Although the government authorizes pay and benefits, the process itself by which this payment is achieved should be absolutely clear.
[Translation]
I would now like to focus on the second issue broached in the bill, namely the question of DNA.
The second set of amendments concerns the authority to issue DNA warrants under the National Defence Act and is aimed at clarifying the provisions pursuant to which such warrants are issued.
In 2000, the National Defence Act was amended further to changes to the Criminal Code of Canada. Subsequently, Bill S-10 was tabled in the Senate.
[English]
The National Defence Act currently provides that DNA warrants may be issued under section 196.12 or under 196.13. This is somewhat technical, but I will try to provide examples as to why we recommend those changes. Section 196.12 contains the substantive provisions that allow peace officers to apply to a military judge for a DNA warrant authorizing the taking of bodily substances for the purpose of forensic DNA analysis. On the other hand, section 196.13, dealing with telewarrants, offers an alternative to a peace officer to obtain a warrant by telephone or by other means of telecommunication where it is impractical for the peace officer to appear before a military judge. However, the statutory authority for the actual issue of a warrant, based on the information submitted by telephone or by other means, under section 196.13, is only section 196.12. Section 196.13, dealing with telewarrants, is not removed from many provisions of the National Defence Act. However, reference to section 196.13 is not made in other provisions of the National Defence Act, dealing with DNA specifically.
We have adapted the National Defence Act provision to be precisely comparable with the Criminal Code. Current section 487.05 of the Criminal Code, dealing with information for warrant to take bodily substances for forensic DNA analysis, is equivalent in substance to section 196.12 of the NDA. Current section 487.1 of the Criminal Code is equivalent to section 196.13 of the NDA, dealing with telewarrants.
For example, at clause 4 of the bill, the words ``under section 196.12'' were added to ensure that the warrant is always issued under section 196.12. At clauses 6 to 9, the reference to section 196.12 was removed to ensure clarity in the identification of the statutory authority. Previously, we had reference to the two numbers, 196.12 and 196.13.
In a nutshell, the reference to section 196.13 has been removed from many provisions in Division 6.1 of the National Defence Act dealing with forensic DNA analysis.
[Translation]
The current provisions of the National Defence Act do not allow for these distinctions to be drawn. Accordingly, the proposed changes will, in our opinion, clarify the powers surrounding the issuance of search warrants for the purposes of conducting DNA analyses for medical and legal reasons. The proposed changes will also bring these warrants in line with the provisions of the Criminal Code.
Regarding the third part of the bill, in cases where minor, corrective amendments are warranted, Senator Atkins was wondering why some stages of the process were inconsistent. Minor, corrective amendments are generally made through an omnibus bill.
In this particular instance, the proposed amendments concern section 153(d), 196.17, 249.21 and 273.63 of the Act. The purpose of the proposed amendments is to provide consistency between the French and English versions of the act, in accordance with Bill C-25 enacted by Parliament in 1998.
[English]
The Chairman: Thank you very much. Before we go to Senator Beaudoin, I have a couple of quick questions for clarification, if you could help me, LCol. Dufour.
The DNA warrant section that we are amending to come in line with the Criminal Code for requests for warrants through various telecommunications, does it expand in any way, shape or form the power or authority to receive the warrant?
LCol. Dufour: No. It is intended to make the provision comparable to the Criminal Code only.
The Chairman: The process for review of remuneration is September to May, six months. Is that normal?
LCol. Dufour: That is consistent with the Judges Act. There is a period of nine months from the time the members are appointed until they table their report, which will be May 2004.
Senator Beaudoin: Mr. Chairman, at the outset I wish to say a few words. All of us here were here in 1997. After many weeks and many meetings, we finally changed the military court system. I have always taken the attitude that it was the minimum that we finally obtained.
I am sure that Senator Nolin, Senator Joyal and others would refer to the mandate of former Chief Justice Lamer because he had a mandate to study some problems that are close to this problem. This is just a starting point.
Why was this subject not addressed in 1997? That is my first question.
My second question is in regard to financial security. Clause 3 of the bill replaces subsection 165.22(1) of the act with the following:
The rates and conditions of issue of pay of military judges shall be as prescribed by the Treasury Board in regulations.
That is quite something. The judicial system should be independent, and it should be seen as independent. That is based on the Sussex case, which I often reference. I have a problem with this. Why is it not stated in the statute itself?
Honourable senators will remember that in 1997 we discussed at great length the independence of judges as central to their duties and functions because no one should intervene. We analyzed the MacKay case and the Généreux case. We respected the minimum. I wonder if we respected the question of independence.
We are concerned with martial courts. We know that the judges are not there all the time, contrary to the judges the civil and criminal law courts. Finally, in the Généreux case, the Supreme Court came to the conclusion that it is acceptable. As I said, it is not very strong high in the independence area.
I would like to hear LCol. Dufour's answer to the two questions that I have raised.
LCol. Dufour: I will deal with the first question of why the amendments were not made in 1998. We did amend sections 12 and 35 of the National Defence Act in 1998, which were major amendments contained in the 100-page bill. We ensured that amendments to the Judges Act were made in our act. We were given one year by the Court Martial Appeal Court to change our regulations or the act, and the decision was taken to do so. I cannot say if it was right or wrong, but the decision was taken to proceed by regulation considering the timeline and the proper operation of the court martial system.
I cannot answer for the minister what the decision was at the time, but a decision made was to proceed by way of regulation. The MJCC also had a requirement to produce its first report in 1999, and there was a delay.
I am sensitive to the argument of Senator Beaudoin. I am not here to say whether or not the court has dealt with it. I think you are raising a new point that has not been argued in Généreux, for example. The honourable senator's point surely has some merit. However, at that time, it was seen as expedient to address this matter by regulation.
Senator Beaudoin: If I may intervene, there are three points — ``inamovibilité,'' financial security and independence.
Senator Joyal: The key word is ``institutionally.''
Senator Beaudoin: When you say that you do not know why they proceeded by way of regulation, financial security is very important for the third power of the state. We leave that to the executive only. This is what regulations are about.
Prima facie, it looks very bad. The executive may change the salaries of the judges.
[Translation]
That is a fairly strong statement.
[English]
Senator Nolin: Before we get into the answer, I want to add to that.
[Translation]
We are familiar with the Généreux case on which you base your argument. However, the Judges Act establishes remuneration for traditional civilian court judges.
In Généreux, the fact that legislation was enacted to deal with this matter was never called into question, since under the Constitution, Parliament is responsible for establishing the remuneration of members of the judiciary.
In your opinion, does this constitutional responsibility extend to military tribunals? If so, why establish a distinction between resorting to the use of Parliament's legislative authority? This is the crux of the whole debate, namely the issue of independence.
LCol. Dufour: Military tribunals are courts much like the ones to which you alluded. They rule on human rights issues and defendants can be harshly penalized if found guilty.
The proposed legislative amendments would allow the department to proceed by way of regulations rather than legislation once all of the various options have been weighed. To date, this option does not appear to have given rise to any legal challenges. However, we are mindful of the arguments that you are raising. Are the proposed regulations adequate in terms of satisfying the rules of independence pursuant to section 11, in particular as regards the financial security of judges?
When I became Director of Legislative Services at DND one year ago, a number of critical changes were in the offing. A committee was scheduled to meet shortly and the situation was deemed urgent. We opted for the approach outlined to you today. The bill as tabled could certainly be improved upon in the foreseeable future. In fact, the National Defence Act must be reviewed every five years.
Therefore, I respectfully submit that this solution is also an option, if, after the necessary legal opinions are given, the conclusion reached is that this approach is too risky.
Senator Beaudoin: I see a prima facie problem in so far as financial security is concerned if this item remains in the regulations. While judges go about performing their duties, the Governor in Council will be able to amend their salaries. Correct? I disagree with that proposal. In 1997, we set minimum remuneration levels for the judiciary.
[English]
It is the minimum, but I do not think you are at the minimum. I am not sure of that. Do not forget that the military judges have to answer to the concept of ``inamovibilité.'' Very often, they are appointed for a certain period of time. That is a little problem.
The third point — and you must answer the third point — is independence within the institution. Well, if you play with the salary or the treatment, is it independence really? I do not know what former Chief Justice Lamer would say. However, he was very important to the Généreux case. His current mandate is very important.
Senator Cools: Mr. Chairman, I take it this is our first meeting and that we should be having several more meetings on this bill and on this subject. I just want to clarify that point. These issues are indeed difficult and complex.
The Chairman: When I reviewed these amendments, my first thought was that I did not think we would need more than one meeting.
Senator Cools: I think we should plan a couple more. I have a speaking engagement at 12:00. I do not know at what time this meeting is scheduled to adjourn, but I know that I must leave at 12:00. I am very eager to know whether we will be having other meetings or public hearings on this bill. For example, we have heard discussion about institutional independence, but in the case of military judges, is the institution the courts or is the institution the Department of National Defence and the military? It will take us quite some time to sort some of this out. In my humble opinion, the historical sense of judicial independence did not apply to military judges. In my own understanding, the military is the oldest social organization in the world, and it had its own collection of medical people so that it could just pick up and travel. Military judges are able to travel to the location of the event. In the instance of courts martial, it would take on a different form. Most of the infractions that military judges deal with are relatively minor, with all due respect. For example, a case may involve two or three fellows who went to a pub on a base in a foreign country and got into a brawl. We are discovering that this bill deserves some serious consideration, and I have many thoughts on it.
The Chairman: I am certainly in favour of calling upon additional witnesses. I am in the hands of the committee. Initially, I said that the substance of this bill had to do solely with remuneration of military judges and retroactivity, which is fairly standard in judicial compensation. I believe LCol. Dufour said that the process of determining whether there will be an increase in remuneration takes somewhere in the range of six months.
If the committee thinks, after hearing from our witnesses this morning, that we need to hear from others then, by all means, we will hear from them.
Senator Beaudoin: One point in favour of LCol. Dufour. There is a difference between military judges and other judges. I accept at the outset that the difference may be the ``inamovibilité'' because they are in a special position. Appointed judges are active in their positions until the age of 75. It may be difficult for military judges to remain active until that age for various reasons. That being said, I accept the point outlined in the Généreux decision.
On the other side, we must comply with issues such as financial security and the independence of the institution. We must accept the fact that it may be impossible to retain judicial appointments in the military until the age of 75 years. However, we are still obliged to comply with issues of financial security and institutional independence, which we cannot avoid.
[Translation]
Senator Joyal: Several members of this committee, including senators Beaudoin, Cools, Nolin and myself, recommended changes to the bill in so far as the remuneration of judges was concerned to establish benchmarks. We felt that the committee needed a benchmark of sorts and guidance to avoid vague discretion. Such a provision was warranted given that the committee had an important, essential obligation to fulfill and given that the second principle, namely financial security, needed to be upheld.
In your presentation, which I found extremely interesting, you are asking us to make an exception to the current system governing judges salaries and to opt instead for the regulatory route.
As Senator Nolin pointed out earlier, the Généreux case makes it clear that remuneration levels should be legislated and no one has yet to propose an alternative approach.
[English]
As we say in English: You depart from that. The onus is on you to prove why and to prove that this exception is justified to satisfy the principle. Your report put it the other way around — reversed the tables.
I have spent many hours with honourable senators discussing the remuneration of judges following the decision in P.E.I. Also, we must consider the future proposals of former Chief Justice Lamer as he conducts his inquiry. We must be prudent when we depart from the existing system that was put in place within the framework of the P.E.I. case.
It is my understanding from colleagues around the table that if you want to depart from this system, prove to us that the system would be more efficient to serve the principle. Otherwise, we would be tempted to revert to the general formula. That is the way we view this approach.
In other words, try not to finesse the system because you feel that there has been an oversight in the regulation process. I am trying to characterize and be nasty, but only to ensure that I am well understood. That is the committee's preoccupation on the issue.
Senator Bryden: I am unsure that it is fair to ask the witness before us to answer the questions that Senator Joyal and Senator Beaudoin are putting forward. These are fundamental techniques of the courts. These gentlemen came here to do a couple of important but technical things.
Assuming that the system is okay, could there be a retroactive application? That is what we are asking. Our witnesses did not have anything to do with the policy of doing this by regulation versus doing this by statute.
Our first decision must be who to invite to appear before the committee for questioning. Should it be the Minister of Defence or should it be the Minister of National Defence and the Minister of Justice? Should it be the Minister of Defence first and then bring the Minister of Justice in to ask if this will work?
Senator Nolin: Public policy; you are absolutely right.
Senator Bryden: I agree. I have been in the position our witnesses find themselves in and one can only go so far. They have done a good job at setting things out, but we need to make that decision.
The Chairman: We could do that as we move along, Senator Bryden. Perhaps LCol. Dufour will comment on that point as well.
Senator Cools: In defence of these gentlemen, I am a great supporter of the military in this country. I would like to make one small intervention before we go too far down the road and are too committed to some of these terms. In my mind, although not in former Chief Justice Lamer's mind, they still remain vague and unsubstantiated. One is ``institutional independence.''
The military is a unique organization. It is intended to be an independent organization and very self-contained. It has its own polices, judges and medical system. It is intended to be a self-contained unit under the control of Her Majesty, the Commander-in-Chief.
I am not sure that some of these concepts apply to them. Before we go down the road of being too committed as a committee to judging very harshly the proposal in the bill that has to do with the use of regulations for prescribing salaries, we should have before us much more testimony by a few more witnesses.
Senator Joyal was saying that we not move too far away from the scheme. I have no doubt that the same persons who drafted the other bills have also drafted this one. The same policy cast of mind is at work.
Senator Joyal made a bit of a mistake. I disagree strongly with adhering to the P.E.I. decision. I thought that the P.E.I. decision was a provincial decision and had no relevance to superior court judges. I disagree with our supporting — ``our'' meaning the government adopting the position that those judicial compensation positions should be permanent institutions — the use of the Judges Act to create those entities on a permanent basis. I was not a member of the committee at the time, but some of what I said is on the record.
A sound set of arguments could be put forth to defend the clause 3 of this bill. Therefore, I would like to hear more testimony on the relationship, if there is any, between the military judges that are being described and the other judges under section 96. I would be very interested to know, as well, how the pay schemes of all the militaries in the world are determined. Are we following the British model, or is this bill a departure?
This matter is not a boiler-plate. The military is a unique organization. The military is an independent institution in this case and needs institutional independence. That is not to say that the military can go galloping off on a frolic.
This bill is complex, and it is unfortunate that it has been couched in this limited, judicially-determined definition of judicial independence.
``Judicial independence'' has never been a judicial term. It has never been a legal term. It was always of a political maxim that evolved for very important reasons. The judicature section of the BNA Act states that salary should be fixed and provided by Parliament. However, these judicial commissions do the fixing. We just do the providing. I have many questions about that, but my mind is open on clause 3.
Mr. Chairman, I would urge that we seek some strong clarification. I read the minister's press releases, and I see a certain amount of legal confusion in this.
While we are at it, Mr. Chairman, perhaps we could find out more about what judicial independence is. Judicial independence is not the what the judges say it is. We have a say in that as well.
The Chairman: LCol. Dufour, did you wish to comment on the points raised by Senators Joyal, Bryden and Cools?
LCol. Dufour: Yes. In answer to the question eloquently posed by Senator Joyal, in light of the case law and the argument put forward, it would be risky for me to give an answer now.
Senator Joyal: We understand that. As we say in Quebec, ``Do not take it personally.''
Senator Bryden has made a very valid point, but it is important to make it in our deliberations this morning.
LCol. Dufour: Senator Cools mentioned other systems of military justice. We are looking at what other jurisdictions are doing, but we must comply with the Charter. That is the bottom line.
Senator Nolin: It is not a political dogma.
Senator Joyal: It is a policy decision.
LCol. Dufour: On the criteria of security of tenure —
[Translation]
With respect to security of tenure, judges are currently appointed to five-year, renewable terms. If I am not mistaken, in Généreux, the Supreme Court held that this arrangement was adequate.
Military and civilian requirements differ when it comes to judges. When conflict arises, military judges are deployed around the globe. The Office of the General Counsel does not have a large pool of qualified candidates, either in the reserve or the regular forces, from which to select potential judges. In 1992, the Supreme Court recognized that this represented an additional responsibility.
The current system is not perfect and for the past year, we have been considering ways it could be improved upon. An independent review by an emeritus judge was scheduled to take place before December 10, 2003. With that in mind, we drafted the bill now before the committee. We felt that this was the best possible approach, one that could have staved off the independent review by Justice Lamer.
Internally, we could have proposed a system similar to the current one and amended the Judges Act. However, would this have been adequate, given the recommendations of the Honourable Justice Lamer further to his independent review? That explains in part the problems we faced in formulating a policy in this area. We needed to be certain that over the long term, our military judges would be protected. No doubt these are basic legal questions, but military justice is a distinctive field.
Senator Nolin: Nevertheless, you do admit that section 11(d) of the Charter also applies to the military justice system, with the necessary adaptations.
LCol. Dufour: Yes.
Senator Nolin: You should not read anything political into this. The principle is entrenched in the Constitution of Canada. Therefore, you are bound to uphold these important obligations.
LCol. Dufour: I agree.
Senator Nolin: The principle of an independent and impartial judiciary is not the brainchild of a Senate committee. We merely tried to enhance through legislation a process that we already viewed as being independent and impartial. However, you do not feel that your position vis-à-vis the rules of fundamental justice is ambiguous.
LCol. Dufour: No. Nonetheless, in 1982, section 11(f) of the Constitution specifically referred to military tribunals and to trials by jury.
Senator Joyal: There was a very specific reason for including that provision. I recall very clearly discussing this subject nearly 22 years ago. The nature of the exception must be considered along with the exceptional circumstances. However, the general principle is not being called into question.
LCol. Dufour: I agree.
Senator Joyal: We were very concerned at the time about the nature and impact of the exception.
Senator Nolin: Aside from the issue of judicial independence, I agree with the points you have made. We do not object to any of the amendments that you are recommending. The basis for your arguments is the Criminal Code, which is quite admirable. Moreover, I am surprised that these matters did not come to our attention when we initially reviewed the National Defence Act. No doubt Justice Lamer will make mention of this fact in his report.
Getting back to Senator Bryden's comments, we have no intention of grilling you on fundamental policy questions. That is not our role. However, the committee cannot suspend its work.
I understand your argument about the desire to expedite this problem. Nevertheless, to proceed in this manner is unacceptable. Our goal should be perfection, and nothing less. Canadians expect Parliament to take effective action and so, we must act effectively.
Therefore, the committee chair has a responsibility to put questions to the appropriate authorities, to the Minister of National Defence and in particular, to the Attorney General who advises the government on these fundamental questions. The committee will need to hear from the Minister of Justice to understand how it is possible to stray in this manner from the courts' interpretation of section 11(d). Discussing the independence of the courts certainly does not reflect a particular political vision.
[English]
Senator Joyal: I want to follow up on another dimension of the point raised very accurately by Senator Bryden. Considering, as you said, LCol. Dufour, that former Chief Justice Lamer will deliver his report almost two months from now, which is soon, and considering the reflection that collectively in this committee we have had before on the remuneration provided by the Judges Act and the amendments that we made at that time in this committee to that act, my approach would be not to oppose the bill as drafted presently. However, I would have a better conviction that the system needs to be overhauled if there is a pledge to us that the system will undergo a review following Mr. Justice Lamer's report. If we could get such an undertaking, I would be satisfied. I do not want to block remuneration. If it needs to be adjusted, it should be adjusted and paid. That is fundamental. Let us pay what we owe.
On the other hand, there is a general principle at stake here. As a chamber of Parliament that has a specific mandate to review legislation on the basis of the Charter, we must satisfy ourselves that if we have a reasonable doubt that there is something in a bill that raises the issue, it must be properly dealt with in a reasonable period of time by the proper authorities.
As this is a question of policy, as Senator Bryden has mentioned, we need the undertaking from the proper authorities in the system. If we could get that, I would feel satisfied that we have done what we need to do as a committee. We could report to the Senate, to the full chamber, that we will have the capacity to maintain the satisfaction of the constitutional principles that are at stake in military justice.
I was one of those who had to be sensitized to the particular conditions under which military justice operates. On the other hand, the exception must be framed in a constitutional context. Could we get that?
LCol. Dufour: I took note of your comments, Senator Joyal. I will ensure that the appropriate authorities can speak to those issues, and I will make sure that the appropriate authority is before you. Honourable senators need this reassurance that we can proceed.
Senator Joyal: I do not know what my colleagues think, but that could be a way of addressing this issue.
Senator Bryden: I think we need something in writing. We will need a letter. I do not know where else to go, but the letter — if there is no other appropriate authority — should come from the minister saying that he will respond. It may involve other people as well, but we need an assurance that once the review is done and has been considered — and if it is possible, let us put a time-frame on it of within six months of the review being provided — that the minister would appear or cause to appear before this committee the appropriate personnel to address the three issues as they apply to the military justice system.
Senator Nolin: The letter that you refer to, Senator Bryden, would that be to explain the undertaking by the minister or to replace the testimony of the minister? It is important to understand from the proper authority in the government why they took such an approach, which is, for us, different from the proper approach.
Senator Bryden: I would see the letter as the undertaking. It is the undertaking to appear and make the explanation.
Senator Joyal: I would support the letter approach. We have had precedents here in this committee where undertakings have been given. For example, there were amendments to the Electoral Act. The then Leader of the Government appeared, and we drew his attention to the fact that other sections of the act needed to be amended. That would have meant sending the bill back to the House of Commons, and there was an election time frame to consider. We asked the minister to send a letter indicating his commitment to reappear with the proper amendments at the first opportunity to open the bill. The minister did return with the amendments, which we dealt with expeditiously. He honoured his word, we honoured our commitment and everyone was satisfied that the principles of the act were maintained. We have precedents in this committee that might be helpful if you were to mention them to your people. I believe that the Minister of Health also did that. We could operate on that basis, as suggested by Senator Bryden.
Senator Beaudoin: Our witness referred to the exception that was made for national defence in the instance of a court martial. My only comment is that it was based on the Constitution and not on the regulations.
The Chairman: I have one quick question that is completely aside from the previous discussions and is technical in nature. When we see housekeeping legislation related to the Criminal Code, and particularly police powers, I am concerned that we not inadvertently broaden those powers. If we want, we will do it overtly but not inadvertently. I refer to clause 6 of the bill and proposed subsection 196.18(1) of the act in respect of the sample-taking process, the English version of which states that ``as soon as is feasible after the samples have been taken,'' a written report is to be prescribed and submitted. The French version adds:
[Translation]
``le plus tôt possible dans les jours qui suivent''.
[English]
The parameters seem much broader in the French version than in the English version.
Senator Beaudoin: In French, they have something.
[Translation]
Senator Nolin: The phrase ``le plus tôt possible dans les jours qui suivent'' is somewhat redundant. To say ``le plus tôt possible'' would have sufficed.
[English]
The Chairman: Is that a little broader?
Senator Nolin: It is like two layers.
Senator Beaudoin: It is to be expected that it would not necessarily be broader.
Senator Nolin: It means ``as soon as possible in the following days.''
Senator Bryden: It is consistent with saying ``in the next week.''
Senator Nolin: It implies ``as soon as possible.2
The Chairman: The English version says, ``as soon as is feasible after the samples have been taken.'' The French version says, ``as soon as possible in the following days.''
Senator Beaudoin: It is not exactly the same thing. I do not know why the drafters worded it in that way.
The Chairman: Why did they say that?
LCol. Dufour: It was stated in the bill that passed in 2000, and we have not changed the wording.
Senator Joyal: It is reproduced textually the same way it read at that time.
LCol. Dufour: Yes, that is correct.
Senator Nolin: This will give us the opportunity to correct those words.
Senator Beaudoin: Because the words were used previously is no reason to leave them this way.
Senator Joyal: There is a point. If I may, I want to be sure that our witnesses do not feel targeted.
As committee members, we are always wary when we are told, ``Oh, don't worry, this is just a housekeeping bill.'' Then, when we look closely, we realize that it is not related just to housekeeping at all. I am referring to a current bill, but I will not mention its name because we are still wrestling with it. We are always suspicious of that formula. It is best not to use it with this committee.
If the intent is to reproduce the provisions of the NDA, which contains an element that is not identical in the English and French versions, and we want to maintain the same elements contained in the NDA, then we would have to produce it thus, unless that would be a mistake. However, a judge faced with those two versions would use his or her judgment to establish the intent of the wording.
I would not be tempted to amend the clause, even though, as the chair said, there is a discrepancy between the two versions, unless we amend both at once. The principle is to maintain the concordance between the two. If we were to amend one, we would have to amend the other. Otherwise we would be exchanging the required proof parameters.
Senator Bryden: As the sponsor of the bill, I suggest that we have enough information on the table so that the chair and the staff can coordinate with DND to provide the undertaking discussed earlier, which will come back to the committee as acceptable or not acceptable. I believe there is a consensus to proceed without amendment, to do our clause-by-clause study of this bill to amend, and to report it back to the Senate. Would that occur next Wednesday?
The Chairman: That would be our intention.
Senator Nolin, am I to understand that you would be satisfied with a letter from the minister clarifying the three points that were raised?
Senator Nolin: No, that is exactly what I do not want. I will give you an example. I want the Minister of Justice to tell us, as a matter of public policy, why he wants to distance himself, or why he has agreed to distance the military justice system from section 100 of the British North America Act, 1867, which states:
[Translation]
100. The salaries, allowances and pensions of the judges of the superior, district and county courts (except the courts of probate in Nova Scotia and New Brunswick) and of the admiralty courts in cases where the judges thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada. (53)
Senators will recall the lengthy debate that took place over the amendment aimed at allowing the Honourable Justice Louise Arbour to take on international duties.
Could the minister responsible for advising the government on judicial matters explain to us why he agreed to distance himself from this issue and to recommend through this bill that remuneration be fixed by way of regulations? How can this move be reconciled with the interpretation given by the courts of section 11(d) of the Canadian Charter of Rights and Freedoms? How can we remain independent and impartial given the interpretation of section 11(d) of the Charter and section 100 of the Constitution Act, 1867? The three witnesses who have testified today cannot answer these public policy questions. In my view, a letter would allow for the possibility of conducting a cross-examination.
[English]
Senator Beaudoin: I have a point to make. When we see the words, ``paid by the Parliament of Canada,'' that is not the government but that is the legislature. Thus, it is a legislative matter and not a regulatory matter.
Senator Nolin: We understand one another.
Senator Bryden: At one point we did, I thought. It is intended that we would obtain a letter of undertaking for someone to appear before this committee, once the review is completed, to deal with the effects of that review and the reasoning for a different scenario in the military justice system as compared to the civil justice system. We need to have that witness appear before us. We cannot do that in a letter. We need an undertaking.
I believe it would be useful, Mr. Chairman, for you and the staff to draft a note to assist us in getting what we want.
The pay is being set by government regulation. The issue is whether that satisfies, for military purposes, the three criteria that have functioned previously.
The Chairman: Again, I must put the question to Senator Nolin to ensure that we are all on the same page. My understanding of Senator Bryden's comments is that we would proceed with the normal course regarding this bill and then follow up with a meeting for which we would already have had an undertaking with the appropriate minister to deal with issues raised with respect to the independence of the military. I am not sure that I am getting a positive indication from you on that, Senator Nolin.
[Translation]
Senator Nolin: I understand very well what the Honourable Senator Joyal is saying and I share his opinion when he says the process of granting retroactive remuneration should not be delayed unduly.
However, it would be timely to invite the Minister of Defence, along with the Attorney General of Canada, to come before the committee to explain why, for the sake of expediency, a decision was made to go this route, and to agree to testify again before us after the former Chief Justice of the Supreme Court has tabled his report.
I do not want to wait until we have Justice Lamer's report in hand. I want the Minister of Justice to confirm to us that the same rules must apply to both military and civilian courts. That is a fundamental, undeniable principle.
Should we agree to endorse this bill? Yes, because we want judges presiding over military tribunals to be more generously remunerated and as quickly as possible. However, it might be a good idea to hear from the witnesses' superior, for whom I have tremendous respect, and in particular from the Attorney General, namely the Minister of Justice.
[English]
Senator Bryden: That is fine. It will simply have to be put together and done as soon as possible.
The Chairman: I would like to thank LCol. Dufour, LCol. Gibson and Maj. Elderkin for being here with us this morning. Your information has been very helpful.
The committee continued in camera.