|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:
October 6, 1998
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.
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?
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.
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?
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.
October 29, 1998
the Director of Defence Counsel Services reports to the Judge Advocate General, as does the Director of Military Prosecution.
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.
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.
Thursday, November 5,
The renewal of mandates does not provide a sufficient objective guaranty of independence.
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 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.
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.
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.