Evidence of meeting #50 for National Defence in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-41.
A recording is available from Parliament.
4:25 p.m.
Col Michel W. Drapeau
I did not. I did act, on more than one occasion, as a presiding officer at summary trials, having been a commanding officer.
4:25 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Thank you for that clarification.
Professor Holloway, I'm from just down the road, in Waterloo, so welcome.
You mentioned in your presentation that one of the primary purposes of the military justice system is to preserve unit cohesion. Do you feel that Bill C-41 helps to achieve that goal, to further reinforce that goal?
4:25 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
Yes, I do.
4:25 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
You do. Very good.
There are some important elements and features of Bill C-41. I wanted to run through some of them and get your impressions, your perspectives.
I didn't hear any specifics in your presentation, Professor Holloway, so I just wanted to provide these specific elements and ask you to comment on them, starting with the judicial independence of military judges.
4:25 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
It's absolutely essential, in terms of the service people feeling that they're getting a fair shake if they elect trial by court martial—for the minority who do—that they know that the judges will not feel pressure from higher command. It's important, and I think this bill goes a long way in that regard.
4:25 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Okay, so it's an essential element.
Secondly, could you comment on the proposed sentencing purposes, the principles and objectives that are outlined in the bill?
4:25 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
I'll try. They mirror, to an extent, what's contained in the criminal justice system, but they have the added features of talking about unit cohesion, operational efficiency, and so on. So I quite like them.
4:25 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Okay. Thirdly, could you comment on the additional sentencing options, such as absolute discharges, intermittent sentences, and restitution?
4:25 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
I think those are good as well.
It goes back to the reasons. Unlike Colonel Drapeau, I'm not so skeptical about the current summary trial system. Its informality, by definition, gives wise commanding officers the opportunity to tailor sentences. If the right sentence is to say you're not going ashore until we leave here, that could be the right sentence, even though something like that is completely alien in the civil justice system.
The sorts of things this bill seeks to incorporate—codifying the wisdom of Solomon, I think—has always had appeal to me in terms of the system of military justice.
4:30 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Very good. Bill C-41 proposes to protect people against retaliation, persons who have made conduct or interference complaints concerning the military police.
4:30 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
Yes, that's important. One of the hallmarks of the grievance system—it's not perfect, as Colonel Drapeau noted—is that there are supposed to be no negative things that go along with having made a complaint through lawful channels. To the extent that this codifies that or extends it further, it has appeal to me.
4:30 p.m.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Okay. Lastly, again going back to your opening statement, you said that our military justice system has been one of the most studied in the western world. You also described it currently as “pretty darn good”. I think that was the quote. Does Bill C-41 help to make it better?
4:30 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
I think so. I didn't say this in the introduction, but after leaving the Canadian Forces I became an officer in the Royal Australian Navy. I wasn't a legal officer, but I did advisory work for the director of Australian naval legal services.
I can say, and I know this is going to be on the record, that the Australian approach to the reform of military justice is much more visceral, much less reflective than our approach in this country. That's why, as some of you may know, they've just gone through an awful time. There's been a constitutional challenge that has pretty much neutered the whole Australian system of military justice. It has undercut much of what Colonel Drapeau said they were trying to do.
We've not done that in Canada. We've had the chance, several times, to reflect and so on.
I think that Bill C-41 is not perfect, and if I were the parliamentary drafter there are things I might do differently. But I do think that in a reflective way, with almost 20 years now of hot operational experience to inform it, it has come a long way.
4:30 p.m.
Conservative
The Chair Conservative Maxime Bernier
Thank you. I will suspend the proceedings for three minutes to give the next witnesses time to take their seats. I'd like to thank Mr. Holloway and Mr. Drapeau for joining us today and for their presentations.
4:35 p.m.
Conservative
The Chair Conservative Maxime Bernier
We now continue with our 50th meeting.
We're happy to welcome Mr. Gratl.
Mr. Gratl is the vice-president of the British Columbia Civil Liberties Association.
Also, Mr. Dugas, testifying as an individual. Thank you for being here.
Mr. Gratl, you have the floor for seven minutes.
Mr. Gratl, you have the floor.
Merci.
4:35 p.m.
Jason Gratl Vice-President, British Columbia Civil Liberties Association
Merci, monsieur le président.
My name is Jason Gratl, and I am the vice-president of the British Columbia Civil Liberties Association. In my private life, non-volunteer life, I act as a criminal and constitutional litigator.
The British Columbia Civil Liberties Association, as many of you know, has taken an interest in the last decade in affairs involving national defence, and Bill C-41 is no exception. We are a non-profit, non-partisan, public interest organization devoted to the protection of civil liberties and human rights within British Columbia and Canada, and in addition in circumstances where some of our citizens are acting off Canadian soil.
I can say at the outset that the B.C. Civil Liberties Association takes the position that many of the amendments proposed by Bill C-41 do represent an improvement over the status quo, and we would support many of these provisions in Bill C-41. Where the bill is in our view found to be lacking is in its absence of attention to procedural fairness issues arising from the summary trial process. While many of those are beyond the scope of any improvements or amendments to Bill C-41, we believe that the principal problems or the greatest problems can be rectified with two small amendments to the National Defence Act.
The first amendment would be the removal of the provision allowing detention to be imposed as a sanction following a conviction under a summary trial. The relevant sections are found in section 163(3)(a) of the National Defence Act, in respect to commanding officers at summary trial, and 163(4), which involves a summary trial presided over by a delegate of the commanding officer. The first sets out the potential for detention for a period not exceeding 30 days, and the second detention not exceeding 14 days. In our view, those ought to be repealed. They are simple provisions to address in Bill C-41. As a pragmatic political question, it's available to the membership of this committee to address that particular issue within this session.
The second issue is that we would recommend an enactment of a restriction of the creation of a criminal record arising from summary trials.
The remainder of my remarks will be oriented to the question of how these proposed amendments or additions to Bill C-41 can be supported.
We begin from the principled stance that the Constitution of Canada is the supreme law of Canada as set out in section 52, part VII, of the Constitution Act. It's the supreme law of Canada. It's supreme over the National Defence Act, and absent any justification under section 1 of the Charter of Rights and Freedoms it can't be abridged. The larger analysis of the summary trial process for the B.C. Civil Liberties Association is informed by section 7 of the Charter of Rights and Freedoms, which, as the committee will be well aware, protects an individual's right to liberty and security of the person. There's a wealth of case law supporting the proposition that detention represents an abridgement of liberty.
That brings us into the question of whether the deprivation of liberty can be justified in accordance with the principles of fundamental justice. The principle of fundamental justice that has sway in this context is the principle that the greater the consequences to an individual resulting from a process, the greater the procedural protections must be. We see in the case of Charkaoui the possibility for deportation to face torture, so the level of procedural protection must be as high as possible. We see in a case called Rodgers from the Supreme Court of Canada that in cases where individuals have been convicted, the DNA can be taken even retroactively because the interest in that context is not that great.
So the greater the abridgement of interest, the greater the procedural protection might be, and here, with the deprivation of liberty, with the possibility of detention for 14 or 30 days, we fall somewhere along the high range of the requirement for procedural protection.
The committee is familiar with many of the problems with the summary trial process, the restrictions on access to counsel and the limited training opportunities for advising officers. One of the best sources for information regarding the problems with the summary trial process is found in the annual JAG survey of the summary trial process, where surveys were distributed to participants in the summary trial process.
The 2007 report—just to choose one, for example—reveals some troubling trends. Approximately 5% of persons tried by summary process reported that they were not offered an election to court martial. Those are not cases where no court martial option was available, but rather where, by statute, court martial was to be available and the individual was to be put to an election. Fully 5% of individuals who were tried say they weren't even given that option.
Only 76% of persons tried by summary trial process indicated they'd been given their choice of advising officer. That means the presiding officer dictated, contrary to the people's wishes, who their advising officer would be. And 49% of persons tried by summary trial process reported that their advising officer did not explain to them their right to speak with military defence counsel. As well, 70% of persons tried by summary trial process reported that the advising officer did not assist them with examining witnesses during the trial.
4:45 p.m.
Vice-President, British Columbia Civil Liberties Association
Thank you, Mr. President.
I can confirm that those problems and more problems are set out in the 2007 JAG annual survey. The answer pragmatically available to this committee is not to wholesale buttress and fix the summary trial process, but rather remove the consequences that should not flow from a process with this level of procedural unfairness.
4:45 p.m.
Conservative
The Chair Conservative Maxime Bernier
Thank you very much, Mr. Gratl.
I will now turn the floor over to Mr. Dugas for seven minutes.
4:45 p.m.
Jean-Marie Dugas As an Individual
Mr. Chair, members of the committee, I would like to thank you for your invitation to join you today to discuss the proposed amendments to the National Defence Act. I am honoured to appear, and I hope my remarks are worthy of your consideration.
My name is Jean-Marie Dugas, and I was a lieutenant-colonel with the Canadian Forces up until almost three months ago, when I retired. Some of you may remember that I appeared before this committee previously, when I was the director of Defence Counsel Services. That was the last position I held.
Based on my reading of the recommendations you made in your initial report and of the bill, you appear to have been paying close attention to what my colleagues and I have to say. I stand before you today with great humility and with the utmost respect for those who hold opinions that differ from mine.
The context does not lend itself to calling into question the relevance of the court martial system in 2011, so I will confine myself to addressing the proposed amendments, or lack thereof. I will focus mainly on amendments to the court martial system, its administration and the process that leads up to a sentence being handed down, if indeed this occurs.
Intermittent sentences are one item that deserves a closer look. In such instances, the offender's family situation and place of residence should be taken into consideration.
The six-month limitation on jurisdiction for the summary trial should be considered as the rule, not the exception. Another item for consideration is Reserve Force military judges and if they are excluded from the treatment.
With respect to the rules governing practice and procedure, power should be shared with the panel and the judicial branch.
The composition of the court martial panel should be taken into consideration, along with the requirement that an officer serve in the CF for at least three years before being eligible to sit on a court martial panel.
Furthermore, not extending the delay for producing rules of evidence can—and that is how it is phrased in the bill—result in rules that today are largely no longer valid. Another issue that should be looked at is the availability of sentences in the community for offences that are similar to civil offences.
The mandate of the director of Defence Counsel Services should be automatically renewed at the director's request. With respect to the appeal committee, the decision should be left to the discretion of the director—by this, I mean the director of Defence Counsel Services—according to recognized established criteria, as is done for the determination of legal action. Lastly, regarding the maximum fine of $500, few fines are below this amount, which makes this provision obsolete. The amount should be adjusted to at least $1,000, or perhaps to a figure that corresponds to a percentage of the member's pay.
I would like to draw your attention also to the following items, which were not addressed in the bill. There is the matter of the significant discretion given to the court martial administrator when selecting members of the court martial panel, the lack of transparency in the selection process for panel members, the lack of indication that there is a choice as to where a court martial must be held, the fact that the court martial administrator reports to the chief judge and the issuance of a subpoena.
Once again, thank you for your attention.
4:45 p.m.
Conservative
4:45 p.m.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
Thank you, Mr. Chairman.
Thank you, gentlemen, for coming today.
Mr. Dugas, in your former role as director for defence counsel services you had mentioned that officers in the chain of command have often intervened inappropriately. You cited the case of a general who had spoken directly to the chief military judge on a particular case, etc.
This committee heard from the JAG a few weeks ago about the issue of judicial independence, specifically with reference to a section of the bill allowing the VCDS to issue instructions in reference to particular issues. He testified that he felt this power would be used sparingly and outlined several scenarios where instructions should be issued, including security and logistical concerns.
From your experience, do you see any potential dangers in this clause? If you do, how could the language be adjusted in order to account for the need for the chain of command to retain power over the JAG--for example, in logistics and security--and the need for judicial independence in terms of the respect for rule of law?
February 28th, 2011 / 4:45 p.m.
As an Individual
I'm not certain if I understand your question when you are talking about the JAG. Are we talking about the judges?