Hon. George Baker:

Honourable senators, I have a couple of words on this bill. Senator Lang, of course, is very familiar with introducing legislation. He served with distinction for many years in ministerial positions in the Yukon legislature. He served in many different functions and introduced much legislation.

However, honourable senators, I doubt he ever introduced legislation that created a mandatory retirement age of 60. Granted, this did pass the other place very quickly and will undoubtedly pass here in the Senate because of a deadline set, as Senator Lang said, by the Court of Appeal, which, as His Honour will know, being a former law professor, is made up of civilian judges. The Court Martial Appeal Court of Canada is made up of judges of the Federal Court.

Today all of the legislation in Canada, provincial and federal, specifies retirement ages that are far greater than 60 years of age for any judge. We know that at the Supreme Court of Canada, retirement is at 75 years of age. That was established in 1927 with the court of the admiralty, which would have been the Exchequer Court, the Admiralty Division. Senator Angus knows this quite well because he has litigated cases there and he has litigated cases before the Supreme Court of Canada.

Way back in 1927, the retirement age of 75 was established for the Supreme Court of Canada. Then along the way we made the retirement age for all superior court judges in the provinces 75. Why? That is because of the tenure-of-office requirement for judicial independence. There are three components of judicial independence. One is tenure of office. In other words, you are guaranteed to work until you eventually want to retire or you should want to retire. Second is a guarantee of sufficiency of income — in other words, a very large income. The third, which does not have to do with the Environmental Protection Agency of the United States or Governor Perry, pertains to the authority of the court.

There are five groups of court judges: military court judges; judges of the Tax Court of Canada; Federal Court judges; provincial superior court judges; and justices of the Supreme Court of Canada. The retirement age of those judges is 75 years at the Supreme Court of Canada, the superior courts of the provinces, the Federal Court of Canada and the Tax Court of Canada. The average age of a provincial court judge is 70 years, although it is 75 years in Alberta. I believe that Ontario changed the age from 65 to 70 years recently. That was the lowest age.

There is a great discrepancy in the tenure of office for federal judges because today we will pass into law a mandatory retirement age of 60 years. The minister's officials and the staff of the Judge Advocate General, who will undoubtedly appear before the Standing Senate Committee on Legal and Constitutional Affairs tomorrow, will have their staff read what has been said in the chamber. I hope they will pay attention because the committee passed recommendations some time ago related to military judges, and there was nothing in those recommendations about making a mandatory retirement age of 60 years. However, the requirement to eliminate the five-year period for reappointments was recommended. The second requirement is tenure of office.

The next is salary. Senator Lang makes the correct analogy that these judges were recruited from the military. No one else in the military makes over $200,000 a year as these judges make. The Judge Advocate General is tied to the wage of the superior court judges, which is $260,000 a year. Every superior court judge in this nation makes $260,000 a year, as does the Judge Advocate General.

An honourable senator said that someone makes more. Yes, the chief justices of the courts of appeal make more.

Senator Angus: The litigants make more.

Senator Baker: Honourable senators, a judge of a military court not only performs a military function, as we all know because we changed the law, but also administers the Criminal Code of Canada for people in the Armed Forces as well as for civilians. If a committee of the Senate went on a trip overseas and a senator broke the law, he or she would be tried by a military court. The senator would not have access to a Canadian court or to a court in the nation in which the offence was committed because the senator is part of a committee dealing with the military. If a senator accompanied the minister on a trip and broke the law in a foreign nation, he or she would be tried by a military court.

Military judges try every case under federal law except first degree murder and child abduction. Those only two exceptions are found under sections 280 and 283 of the Criminal Code. Otherwise, they try every single case except matters of civil law in Canada. We are dealing not only with military law but also with the Criminal Code — with every function of a provincial superior court judge in 95 per cent of his or her cases. The National Defence Act states that they are responsible for all of the duties that come under the responsibility of a superior court judge in a province.

The case reported in today's newspapers was of a soldier sentenced to four years of imprisonment yesterday because he inadvertently, according to the court, shot and killed his partner — another soldier — who was in the tent where he was staying. He was convicted of criminal negligence causing death, for which the judge said the minimum sentence is four years. He was also charged with and convicted of a matter under the military's Code of Conduct. Why was that? It was because he is in the military.

Honourable senators will also notice in that newspaper article that this was the second time this case was tried. Why was that? It was because an objection was made to the composition of the jury. Members of the Senate Legal Committee know that a jury in a military trial is not like a jury in civilian courts. The jury panel is comprised of five persons.

At the end of the same article, the lawyer for the convicted soldier said that he will appeal because of another matter in contention with the rules of the military court.

Honourable senators, in the mid-1990s we passed a law that gave military judges the jurisdiction to try everything under the Criminal Code and everything relating to federal legislation. It has been a process since 1995 of Charter violations, of correcting this and that, of striking out, and of reading in and reading down in terms of legislation. Senator Lang said that Bill C-16 will replace a provision in the National Defence Act that says a military judge is appointed after application every five years. That is not exactly correct, although I know it is in the briefing notes. The five-year provision was struck out about four years ago and does not exist today. One can read it because it is written there, but it has been excised by subsequent court judgments that determined it could not stand because it violates the Charter and is not saved by section 1 of the Canadian Charter of Rights and Freedoms.

What are we left with? I do not want to go on too long, but we are left with a bill that says we will make a mandatory retirement age of 60 years. In the committee's investigation during its study, we could find no evidence of someone saying that the retirement age should be 55 or 60 years. What should the retirement age be?

As His Honour knows from his former position as a law professor, we have many court cases and much legislation that determine retirement age. The Canadian Charter of Rights and Freedoms states at section 15(1) that you cannot discriminate against someone on the basis of age. Section 15(1)(c) of the Canadian Human Rights Act, which I drew out a moment ago, outlines the exceptions to discrimination.

Section 15(1) reads:

It is not a discriminatory practice if

Section 15(1)(c) says the following, which is what prevails in federal jurisdiction:

(c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;

Who works in a position similar to that of a court martial judge who administers all the laws of Canada, both here and abroad? The National Defence Act says superior court judges. It says that, according to their salary scale, court martial judges fall between provincial court judges and superior court judges.

The Human Rights Act of Canada says it is not discriminatory for an individual's employment to be terminated because that individual has reached the normal age of retirement for employees working in similar positions. The normal age of retirement for superior court judges is 75 and for provincial court judges is 70.

The difference is tenure of office. Some military judges may only be appointed at age 55, because they must be a member of a bar for 10 years before they can be appointed. What will they do at age 60 when they are making in excess of $200,000 a year and they suddenly have to retire because of this bill, which I know that we will pass?

Did they have tenure of office for judicial independence? They had the salary requirement and the authority requirement, but did they have tenure of office? What do they do when they reach the age of 60?

The only example I can find of people who have to retire at age 60 is Air Canada pilots. This was visited just about five months ago in court, and a decision was made that this was unconstitutional and not saved by the Charter.

There is a case, honourable senators, that throws a wrinkle in all I am saying and supports what Senator Lang said. It is a case of the Supreme Court of Canada called McKinney v. University of Guelph. That judgment said that it is unconstitutional, but it is saved. That case had to do with a university professor.

We are not dealing here with a university professor; we are dealing with the Canadian Charter of Rights and Freedoms, which only applies to government actions. The Canadian Charter of Rights and Freedoms does not apply to private actions in the workplace, only to government actions. In other words, it applies to Parliament, federal government employees, federal government legislation, federal government action and actions of the provinces. That is written in section 32 of the Canadian Charter of Rights and Freedoms, and that is what we are dealing with here.

I suspect, honourable senators, that this bill will pass. We have to pass it.

Do not forget what the Court of Appeal has said. In a case called LeBlanc, Corporal Alex LeBlanc was working at the 2008 Francophonie Summit. He was sitting in a truck on alert behind a hangar in Bagotville, Quebec. He had a submachine gun behind him and was tasked, along with another corporal, to watch the F-18 jets that were on alert in case they were needed because of the summit.

The driver of the truck left to use the washroom in hangar number 7. During the five minutes that he was gone, two sergeants pulled up on the passenger side of the truck in which Corporal Alex LeBlanc was seated. The sergeants looked over and saw that Corporal LeBlanc closed his eyes for 10 seconds. The judgment of the court was that in closing his eyes for 10 seconds Corporal LeBlanc violated the National Defence Act in that he did not behave as a soldier should behave while on active duty, and he was convicted.

Corporal LeBlanc appealed his conviction to the Court of Appeal. His lawyer asked for a stay of proceedings, in other words, for the entire matter to be dropped because the judge who heard the case was not impartial. The judge was appointed every five years and looked to the Judge Advocate General, the minister and the executive to be reappointed every five years. Therefore, not having tenure of office, the judge was not impartial.

In its judgment, the Court of Appeal said that they were fed up with having courts martial make rulings that this law should not be written the way it is. The Court of Appeal struck down four sections and gave the Parliament of Canada six months from June 2, 2011, to fix it, failing which the National Defence Act would be of no effect.

Obviously, honourable senators, this bill has to pass, and it has to pass quickly. If it does not, perhaps we will see another bill, because someone will challenge the constitutionality of what we are doing here today.

Do not get me wrong, I am supporting this.

Senator Angus: It is unconstitutional to have to retire at the age of 70.

Senator Baker: That is right. It is unconstitutional, according to the law today, as Senator Angus well knows, because he looks 25 years younger than he actually is. His mental capacity, ability and agility are greater than those of any lawyer at age 45, and he should not be permitted to retire at age 75.

It is against section 15(1) of our Constitution to discriminate against someone because of age. That is why every code in every province in this country has removed the word "65." Ontario was the last to do so in 2007. Every province had done so because it is against our Charter to impose a mandatory age of retirement of 75. The requirement for retirement at age 75 is in section 99 of the Constitution Act. It is actually a part of the Constitution as far as superior court judges are concerned.

I would hope that the minister and the JAG, who will be appearing before the committee, will have a look at this and say, "You know, maybe there should be a change made and make it age 70 instead of age 60, or prepare for another change to be made in the next legislation."

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