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Bill C-25 - National Defence Act, An Act to amend the National Defence Act and to make consequential amendments to other Acts

Selected interventions by Senator Joyal in the following Legal and Constitutional Affairs committee sittings:

Tuesday, October 6, 1998
  • According to the Charter, each individual is entitled to the same protection of the law. As much as I subscribe to the idea that someone has a responsibility in a dominant position -- and of course the court takes that into account, as well as the conditions, be it in the civilian context or the military context -- does merely belonging to a group, as such, entail a more severe sentence? There is room for reflection on that point.
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Wednesday, October 28, 1998
  • That leads to my next question. How can we be assured that they will be independent? One of the most important elements in the administration of justice is to be sure that the persons making decisions are totally independent from those being complained about.
  • As you know, there has been much interest among the Canadian public in the equality of women and men in the public service and in the Armed Forces. The stories that we have heard about sexual harassment in the forces add to our perception that there is something different in the military compared to civilian life because of the line of authority and discipline that is so important and compelling for the performance of the forces. How do you envisage the complaints commission ensuring the fairest treatment possible for female members?
  • When you affirm that there is equality, I am certain no one around this table would doubt that. It is not only a question of stating it; it is also a question of knowing how the system is managed to protect the individual who is more "at risk" in the system, to prevent the systemic discrimination that might exist. With great respect, Colonel Samson, you are a clear example of the realization of women's responsibilities within the Armed Forces. However, for those of us outside the forces, it is still a male-dominated system. That is to say, there are more male members than there are female members at all levels.

We understand that the changes are being proposed in respect of equality in the system. It is a system that has very peculiar characteristics in regard to discipline and the line of authority. In civilian life, that does not exist in the same way. Yet, we must try to understand how the system can be managed and operated to ensure women are protected within the system. I am certain that many of my colleagues in this committee are preoccupied by the changes.
  • I wish to return to the matter of the presence of women in your service. As far as I can tell, at the municipal police level, when citizens see two officers, a woman and a man, in the same car, they generally assume they will be treated with more fairness than if they see two men. I do not know why. Perhaps we trust women more than men when it is a question of justice.

Are you contemplating some type of affirmative action in your recruitment program? As I understand it, according to recommendation 10, you will be responsible for selection and recruitment with respect to the military police. You will be in a privileged position to ensure that your service reflects equilibrium or balance. It will be much easier for you to ensure the best treatment possible for members of the Armed Forces, especially when they are female.

This is a policy question, which is very important. If you reorganize your service on new grounds, as you have said yourself, to put your service at the forefront, then this is one part of the elements which we would certainly appreciate in the Canadian Armed Forces. Can you expand on your approach and how you will implement that?
  • Senator Joyal: In order to give us a fair comparative background, what is the proportion of women to men in the Canadian Armed Forces?

Col Samson: In other occupations?

Senator Joyal: Yes.

Col Samson: The military is approximately 10 per cent female and the rest male.

Senator Joyal: Yet you said that you are not satisfied that this is a fair representation of women in the forces and that the best way to maintain some standard is to say there are not enough.

Col Samson: I would prefer to keep the area of discussion to the military police, my area of expertise. The reason I would like more within the military police is because we have many complainants who are female. Many people who wish to speak to us are female. I have a higher requirement for more female military police than some other occupations.

Senator Joyal: Colonel Samson's statement illustrates why this is a very important issue. If this is a situation that will develop in the future, this is an important element. I would like to thank you. Perhaps in your future annual reports you could contemplate that aspect of your activities. There is no doubt that Members of Parliament are very sensitive to this issue. It would be beneficial to see in your report any improvements that you can achieve.

Col Samson: Thank you, senator, I have made a note.
  • Without putting you in a difficult position, I should like to ask you for comments on another topic. Taking into account the importance of maintaining the principle of security of tenure out of any institutional intervention, as Senator Fraser has said -- I know Senator Beaudoin has that preoccupation and, in a way, we all wrestle with it -- if the legislation were to provide for 10-year appointments, with the ability after five years of leaving, would it not make a circle square?

If a person feels at ease in that life -- which is a difficult one and we all recognize that -- that person would, nevertheless, be sure to hold tenure for a fixed period of 10 years. On the other hand, if after five years a person has the conviction that he or she has contributed to the nation and wants to pursue another course within the military, that person would be able to resign. In other words, the military system could plan that some people may leave after five years. It is not just leaving it to their will, their discretion or their pleasure. There would be a specific term after which the person could decide to stay or to return to the level of administration suitable to his or her professional abilities.

According to the various cases that have enlightened the deficiencies, it seems to me that we could maintain those principles that we think are essential to maintain the impartiality of the system. On the other hand, we would give way to the difficulties which you have outlined for us. What do you think of such a system?
  • You understand the point then. It is to respect the difficulties of a career as you have outlined them to us. We are very sympathetic. On the other hand, in devising a new system, we must ensure that we come as close as possible to the principle of independence of the judicial system. Essentially, that is what we are trying to achieve.

On security of tenure, we must consider that there is a commission which will make evaluations. If there is no criterion for those evaluations, as Senator Fraser has said, then all the influences are on the table at the same time and it is difficult for us to consider this as a very tight system.

If we are to redraft the overall military judicial system, we want to be sure that we do not need to review it every year. Look at the size of this bill. It encompasses many aspects and we want to ensure that we are doing the right thing. Senators around this table are trying to achieve a balance that would respect professional careers, the functions of the military, as well as the principles of the system which we are trying to put into place.
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Thursday, October 29, 1998
  • I am not concerned about the duties as such, but more about the independent status of this individual. These are two very different considerations.
  • If we are to recognize and confirm a totally separate judicial system from the normal one in our country, it is very important, in my opinion, that we are assured that the rendering of justice is clearly established in the principles of the rights of the defence and the rights of the Crown. It must be totally separated from the function of the judges. To me, this is a very fundamental principle in establishing a sound judicial system. As I understand the bill --

[Translation]

the Director of Defence Counsel Services reports to the Judge Advocate General, as does the Director of Military Prosecution.

[English]

In civilian society, it would be incongruous for the accused to be compelled to get a defence lawyer from the Minister of Justice, the Attorney General, who is pursuing him at the same time. How do we ensure that there is no conflict of interest for the person who sits at the top of the pyramid and says: "Okay, you are going to defend this one, you are going to accuse this one, and I am going to appoint a guy who is going to judge"? At that point, there is total confusion of all the functions. It certainly does not serve the principles of fundamental justice, the system that we live with.

Where is the autonomy to ensure that since everything belongs to the military, those principles are really well-served by the bill? This is a very fundamental issue.
  • Stability is very important. I do not understand why all those positions at the top of the pyramid have four-year terms, except for the Chief Military Judge who does not have a term of appointment, according to 165.24, 165.25, and 165.26. Perhaps that is somewhere else in the bill, but I do not see it. I tried to reconcile those terms with the principle of stability. We wrestled with the principle of security of tenure of the justices as a fundamental element of the independence of the judicial system.

The perception I have, although I might be totally wrong, is that this is really a floating system. Everything moves after four years, and we start a domino effect again. It seems to me that four-year appointments at the top of the services create instability, and there is no guarantee that the continuity of the system alone will maintain the principles that we are trying to achieve. In this military system, everyone at the top is there for four years and after four years, if they want to, they can get out. They can be reappointed, but the reappointment process raises questions because all of the system is in-house. There is no outside control there except the publication of the report by the JAG that now exists, and the JAG is also appointed for four years. I cannot find any parallel situation in the civilian system.
  • That raises the very point that Senator Fraser mentioned. Reappointments involve evaluation. They are not automatic. It is a not like sending a card into continue your subscription to a magazine.
  • Those people exercise a top responsibility in the system. I really do not see how you can maintain the same understanding of the intricacies of the whole system when there is an instability factor built into the system, because after four years your term expires or you have to apply to be reappointed. Of course, before you are reappointed, somebody definitely reads your file. As I said, it is not comparable to a magazine subscription renewal where you send in your subscription card and the publisher continues to send you the magazine. You know that in the military system nobody is reappointed unless his dossier is reviewed. Somebody in the system must have that function, unless I am totally mistaken. I do not want to exaggerate, but that is why the four years for those top jobs seems to me to build into the system an instability factor at the top level of the pyramid of the administration of justice in the military.
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Thursday, November 5, 1998

  • Colonel Fenske, I should like to underline this point in the minds of all my colleagues. I will do so with an analogy. When we patriated the Constitution, we entrenched the obligation for the federal minister to call a first ministers' conference on aboriginal issues. A conference was called and it produced the results that it produced. That was the end of it.
  • Colonel Fenske, I want to return to the issue brought up yesterday about the substantive criteria that should be implemented for the removal of military judges. You mentioned a number of objective criteria and then you said "the trial record of the judge in question." This is the one thousand dollar question. It is impossible to contemplate that the record of someone who is being considered for renewal or refusal of renewal would not be under scrutiny. In your view, how would you manage the right of a military judge to have access to his trial record in the way that the panel would consider it?
  • This is the crux of the matter. Again, when Judge Létourneau said:

[Translation]

The renewal of mandates does not provide a sufficient objective guaranty of independence.

[English]

I think he was referring to criteria and process. How do you set out the process so that it does not remain in the hands of the military executive but ensures that there is sufficient independence from the executive in the process to make sure that we maintain that objectivity that is needed to come to the conclusion that the renewal is done on objective grounds?
  • I still believe that to ensure that the process is totally acceptable, it is better that, in the process, the composition of the board or some of the criteria or parameters of evaluation are spelled out so that the discretionary aspect of it is framed, to try to eliminate the capacity of the arbitrators to intervene in a way that does not ensure the independence of the system. This is essentially my concern.
  • Senator Joyal: We can make the scenario that there is a judgment, such as we had in the case of the Létourneau judgment, in which there is a suggestion or a comment that some provisions of the act are not totally accurate and should be amended. Then the Minister of Defence may want to strengthen or change the act. You never know, because, as we have all realized, we are in a field where there are emerging rights and procedures to better protect the rights and freedoms of individuals.

I understand the scope of the first paragraph, but the first paragraph, too, is wide, because it says that the review might be not only on the provisions of this act, but on all the acts.

Senator Nolin: It is even more than that. It is all the legislation, and I will have a question for Senator Grafstein on that.

Senator Joyal: It has as its first target this bill, and then it says "et des autres dispositions," and other legislation that governs the Department of National Defence and the Canadian Forces. It is pretty encompassing as a review.

Senator Nolin: I prefer that.

Senator Joyal: I am not opposed to it. I am trying to share with my colleagues the way we understand what we are doing here, because it is an important thing.
  • Senator Joyal: We started on the basis of proposed clause 96 of the bill, and the comment made by the late Justice Dickson. The objective of this bill is essentially to overhaul the judicial system within the military, which operates differently from the justice system for civilians. Taking into account the exceptional provisions in that bill, I have concluded that it is beneficial to have a permanent five-year review process.

However, if we are to adopt the words in the proposed amendment "and other legislation that governs the Department of National Defence and the Canadian Armed Forces," I cannot agree with the amendment at this time. As a legislator, I would need to hear witnesses from the department and the Armed Forces before I could vote for that today. We did not hear from them, nor did we have any special evidence in front of us that the armed forces and the Department of National Defence should have a regular five-year automatic review.

We are establishing something particular there and we have not had the evidence to support that in front of us, except for the horror stories we have heard -- and we have all heard them. I say this with the greatest respect for the Department of National Defence, but you hear horror stories everywhere. However, the Auditor General is there to pick up on them and to report to us, and we have other forums to deal with them.

To legislate on this today, without further discussion on those two aspects of the Department of National Defence and the Canadian Armed Forces goes beyond what we are contemplating in Justice Dickson's report and the original idea that we had to entrench a process of reviewing the judicial system within the armed forces.

I should like to hear from my colleagues about whether we should come back to what we were looking at in the beginning, when we suggested that. The objective of this amendment is to give a chance to the runner. This legislation is new and it is a major change from past procedure and the way military justice was run in the past. It will involve a lot of changes and a lot of adaptation of the system. It is fair that we would have a review of this system after five years.

The Chairman: The previous phrase then becomes redundant in the use of the words "the National Defence Act, as amended by this Act." It should say, "The Minister shall cause an independent and comprehensive review of the provisions and operation of this Act to be undertaken from time to time."

Senator Forrestall: I thought there was some clarity there. It is not Bill C-25 that our colleague is proposing to amend; it is the National Defence Act.
  • Senator Joyal: I wish to comment on Senator Rompkey's points about a specialized committee of the Houses of Parliament doing the review. I would much prefer that the review be done independently and that we review it, for obvious reasons. To do such a review, it would be necessary to study many cases. Although we do have the expertise to do that, I am not sure that it would be the best use of the time of members of either house. I prefer to trust the experts, especially in matters such as the administration of justice. Although your proposal has merit, it would not diminish the role of both houses of Parliament to review a report prepared by experts.

    To return to a point made by Senator Grafstein on a qualification made by the late Chief Justice Dickson, section 17(b) of his report recommends the following:

    ...an independent review of the legislation that governs the Department of National Defence and the Canadian Forces be undertaken every five years following the enactment of the legislative changes required to implement the recommendations contained in this Report and in our March 1997 report.

    In other words, it is a review of the legislation, but only insofar as that legislation is amended or considered in his recommendations that deal with military justice. So there is a very well-defined scope there. In my opinion, we must stick to that. That is our mandate and that is essentially what the act entrusted us to do. As I said earlier, we did not hear any other evidence with regard to the other aspects of the Armed Forces, and there are many. I believe that if we stick to the original proposal, with the addition of "independent," which is an important element, and as long as we cover what Justice Dickson recommended, we will be doing our job.
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