Evidence of meeting #64 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.
A recording is available from Parliament.
4:15 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
It seems like a fairly weak argument, with the greatest respect to whoever put it forward.
I was surprised you don't have subpoena power. Why is that?
4:15 p.m.
Chairperson, Canadian Forces Grievance Board
Subpoena power is another issue that's still ongoing. It's an ongoing discussion. There's an obligation in the statute for the Canadian Forces and the department to basically give our board everything we require. We don't have an issue with that. We don't have a problem. What we request we get, sometimes easily, sometimes a little bit later. But we always get around it and get what we need to adjudicate on a case, i.e., provide the finding, a recommendation to the CDS.
Where the problem lies is that for everyone who's no longer in the Canadian Forces, the Canadian Forces or the department cannot help us acquire that information. If we're looking to acquire a piece of information that belongs to a retired member, short of holding a hearing and then potentially having to go before the courts because we don't have that power, we would have to go into a hearing, and have that member testify. If he or she doesn't come or doesn't want to provide the evidence, then we go to court and have a judgment to have that enforced. It's just a question of an ability to have the proper tool, when required. It's not to subpoena a CF member because we can have a hearing for that and we have no relationship problem for acquiring information. It's mainly for those cases.
I had a case last year where I came very close to having to have a hearing only to get a piece of information. I decided not to go there because it was the griever, and I said in that particular case if he didn't want to help his case, I wasn't going to hold a hearing for that. But had he been a witness, I would have had to hold a hearing, which is costly and time consuming.
Part of my mandate in the legislation is that I must do things as efficiently and fast as possible. The subpoena would actually alleviate that problem of going to a hearing and potentially to court to have a piece of evidence submitted to the board. That's why we're seeking that.
4:20 p.m.
Conservative
The Chair Conservative James Bezan
Time has expired and we do need to move on. We're going into our five-minute rounds of questions now.
Ms. Gallant, you have the floor.
4:20 p.m.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Thank you, Mr. Chairman.
Dean Holloway, can you please comment on the sentencing provisions in Bill C-15? In your view, is this a positive development for the military justice system?
4:20 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
I think so. The system we have, as with so many things we have in Canada, we have acquired through inheritance from the United Kingdom, and our history has diverged from theirs in the years since. I think most people in the system would have a vague sense about fighting efficiency, the kinds of things I talked about. In terms of actually giving statutory clarity to the principles according to which people are charged and convicted of military offences, I think it is actually quite helpful. It actually crystallizes it. Frankly, it gives courts, which might ultimately review this, a firmer yardstick against which to measure the propriety of what the military system has done.
4:20 p.m.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Okay.
Dean Holloway, can you comment on how the proposed amendments impacting military judges strengthen the military justice system?
4:20 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
Specifically, Ms. Gallant, are you talking about the retirement age, the security of tenure provisions?
4:20 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
There was a concern among ordinary sailors and soldiers about judges who stood to be promoted and have future postings. There was a fear that it would depend on how much you please those above you. It's a similar concern that we heard from Lieutenant-Colonel Dugas.
Fully separating the corps of military judges from the line officers in the Judge Advocate General branch, which was done some years ago, was a positive step in that regard. Still there was a lingering concern that one's pension depends on the length of service. A judge who was ruling in the wrong way might be ushered out the door earlier and that would have an impact on his or her pension.
Crystallizing the retirement date is, in principle, a very positive move. The last time I was here I think it might have been Mr. Harris, again, who was asking me questions about why the age of 60, why not the age of 75, like judges appointed under section 96 of the Constitution Act. I think the answer to that is that military judges, unlike civilian judges, have to go operational sometimes. We have had courts martial in Canada but held overseas. Military judges have to be prepared to put on boots and a heavy rucksack and deploy. Again, why is it 60 years? Why is it not 59 or 61 years? At some point, you just have to make a choice. It seems to me that's a rational justification for something other than 75 years.
4:20 p.m.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Dean Holloway, during your opening remarks before the committee on Bill C-41, you stated, and I'm paraphrasing here, that the purpose of the military justice system is to preserve unit cohesion and to ensure that young women and men will willingly place themselves in situations of extreme peril because someone tells them to, and for no other reason. You mentioned this a bit today.
Can you explain that further, please?
4:20 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
Sure.
We're in the process of bringing our troops home from Afghanistan. That was an example where young Canadians, who were raised in the same way that your children were raised, were placed in very unnatural situations.
First of all, they were told they were going to some place where there were people who would try to kill them, and they had no choice but to go. Then when they were there, many of them lived and served and fought in conditions that were alien to the lives of most Canadians. They had no choice, and they did it very well on the whole. They didn't desert. Unlike the Americans, we didn't have large-scale desertion. Our women and men did what they were told. They did it well, on the whole, and they did it because it's a system they have faith in, that they believe in.
It's well and good for us to reminisce about the Second World War, or even the Korean War, but that was a different generation, with different sorts of expectations. Afghanistan, it seems to me, was a crucible. Today's youth were placed against the measuring scale, and they measured up very, very well.
I think the organization of the Canadian Forces measured up very well. We learned things. Mistakes were made. If, God forbid, we ever have to do something like that again, I think we'll do it even better. But there weren't breakdowns in unit cohesion. There weren't breakdowns in morale. There weren't mass desertions. Our men and women acquitted themselves in a way in which every Canadian can be proud.
4:25 p.m.
Conservative
4:25 p.m.
NDP
Christine Moore NDP Abitibi—Témiscamingue, QC
Thank you.
Mr. Holloway, I would like to pick up on the matter of summary trials and clause 75 of Bill C-15.
According to the Queen's Regulations and Orders for the Canadian Forces, or QR&Os, prior to passing sentence, the presiding officer of a summary proceeding shall take into account many factors, including the number, gravity and prevalence of the offences committed, as well as the family problems and financial situation of the accused. What that means, then, is that, when two individuals of the same rank commit the same offence, there is no way to ensure that both receive the same sentence, owing to the numerous factors the presiding officer must take into account. I don't object to the requirement to take those factors into account.
Pursuant to clause 75 of Bill C-15, and even in its previous incarnation, Bill C-41, the determination as to whether the accused will be subject to a criminal record is based on the sentence imposed on the accused. I would like to hear your take on that.
Furthermore, looking at the amendments contained in Bill C-41, among the sections of the National Defence Act that were added, some were not added to the amending legislation. For instance, section 98 of the act concerns those who aggravate disease or infirmity. That was not included in the amendments under Bill C-41.
I have met people who were accused and subjected to a summary trial under section 98, because they had sprained an ankle during a particularly challenging leader's course and had asked for a bandage in order to be able to walk on the ankle for three days, as they did not want to have to start the very difficult course over again. It's common for people to do that kind of thing, depending on the mission. Since that section was not included in the amendments under Bill C-41, the accused could have been subject to a criminal record.
In light of the fact that numerous factors must be taken into account, I would like to know whether clause 75 of the bill could not use more effective wording, to prevent people from having criminal records as a result of a conviction or summary trial, a proceeding that would not have happened in the civilian justice system for the same offence or act. I realize, of course, that we're talking about legal language for a bill and that kind of thing isn't done on the fly. I would appreciate it if you could provide some suggestions in writing afterwards.
I'd like to hear your take on what I just said.
4:30 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
Thank you, Ms. Moore.
Forgive me, but I will have to answer in English. My French is not good enough to do your question justice.
I can't respond directly to why things weren't included in this version of the act. The drafters, I'm sure, would be able to give you that information.
In terms of the principle that whether you get a criminal record depends upon a number of factors, that is something that's no different from the civil system. A judge in a civilian court has the power to grant an absolute discharge, to grant a conditional discharge, to find someone not guilty, and even to deny that he or she has jurisdiction on the basis of the old maxim de minimis non curat lex. In that sense, in the same way that a civilian judge can take full account of the circumstances to determine the level of moral culpability and the appropriate reaction of the state, so too can a military judge, in the current system as well as in the proposed one, determine the appropriate punishment. I think in that sense there is direct equivalence between the civilian system and the military system.
4:30 p.m.
NDP
Christine Moore NDP Abitibi—Témiscamingue, QC
Coming back to the QR&Os, I want to be sure I understand correctly. So, on the basis of all the factors, there is no guarantee that the same sentence will be imposed for the same offence. Have I understood the QR&Os correctly?
4:30 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
Yes, you did.
4:30 p.m.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
Thank you, Mr. Chair.
First of all, thank you all for your service. I know that all of the things you have done in your service life have impacted everything you do here. This expertise is valued by this committee, so thank you so much for that.
Mr. Dugas, it was earlier mentioned that the right to consult counsel by a member on the election of either a summary trial or a court martial was not available. Could you clarify if there is in fact a right or no right to consult counsel?
4:30 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
Yes, and I'm so happy to be able to respond. We ran out of time on the other question that my colleague was answering.
Basically it's quite open now. I must say that if there is something that is extremely open in the Canadian Forces, it is to inform the member under any circumstances. You go on the website and the number is there. I can tell you that this 1-800 number is used by all members, not only for disciplinary purposes, but also for administrative purposes. Sometimes they will inquire about what they can do or where they can go. At the end of the day, it's always their choice. But it will be by phone; counsel will not be on site. I must say that it's probably one of the better services that we have in the Canadian Forces.
4:30 p.m.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
You're saying that this is all done through the 1-800 number, and it's not necessarily directly through individuals. I remember as an assisting officer I would advise guys to do that, and sometimes they would access the JAG directly.
4:30 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
There was a time when the services were not separated. When I was at Valcartier, I was doing court martial prosecuting in Valcartier, defending in the rest of the country and around the world, and there would be an afternoon when it would be legal aid. You just made sure not to be in a conflict of interest with a case that would come up. But as we speak, unless you're on that base doing a court martial as a defending officer, there will be no direct access to....
4:30 p.m.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
Okay. I've got a copy of the QR and Os here. Article 108.18, “Opportunity to consult legal counsel on election”, states:
(1) An officer exercising summary trial jurisdiction shall ensure that an accused making an election pursuant to article 108.17 (Election To Be Tried by Court Martial) is provided with a reasonable opportunity, during the period given to make the election, to consult with legal counsel with respect to the making of the election.
(2) Where a legal officer is consulted pursuant to paragraph (1), it shall be at no expense to the accused.
That has been in effect since November 30, 1997.
4:35 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
Unless they have the changed the practice since I left, “consult” was interpreted as getting in touch with counsel. It didn't mean consulting face to face.