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.
4:35 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
That said, there were occasions where the case was serious enough that we made counsel available.
4:35 p.m.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
But if the accused chooses, he can request a face-to-face meeting, rather than do this over the telephone, right?
4:35 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
I guess someone could, yes.
4:35 p.m.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
Okay.
Sir, could you expand a bit on your role as the director of defence counsel services? For example, what is the criteria of the position and the duties that you perform? What exactly does a director do within the military justice system? I have a little bit of confusion on that right now.
4:35 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
Unless it has changed, in those days I would also be counsel at court martial. I had clients and would defend people who were charged. Then when the system became one, we would usually receive a phone call from an accused who wanted to be represented at court martial and my second role would be to assign a lawyer who was working with me at the time, both from the reserve and from the regular force. Then once the trial was over, we also would have the responsibility to inform the accused, or the person who was found guilty, of their right of appeal and how to proceed. We would proceed with the first step of the appeal. Then it would be up to the appeal committee to decide whether or not an appeal could proceed under our supervision, or be paid by the director of counsel services, or if he would have to pay for it himself.
I was also given the mandate at times to outsource lawyers to appear in court martial because either we were running out of personnel, or we would be in a conflict of interest.
4:35 p.m.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
In paragraph 11(f) of the Canadian Charter of Rights and Freedoms, there's a specific exception to the requirement of trial by jury in respect of offences under military law that is tried before a military tribunal. Sir, would you recognize that special rules are required to ensure that court martial members are able to fully play their role in the performance of their duties when dealing with the offences under the code of service discipline, in light of their own experience and at the unit level in the maintenance of that discipline?
4:35 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
I surely agree with what you just said, yes.
4:35 p.m.
Conservative
The Chair Conservative James Bezan
Thank you. Your time has expired.
Mr. Larose, go ahead for five minutes.
4:35 p.m.
NDP
Jean-François Larose NDP Repentigny, QC
Thank you, Mr. Chair.
My question is for Mr. Dugas.
Thank you for being here. It's an honour to have you.
I want to discuss the issue of summary trials. I would say that context and culture are important factors. A bit earlier, we talked about the quality of the officers responsible for advising people who are subject to a summary trial. I do not agree. I want to tell you about something that happened to me.
In 1994, I was in training in Shilo, as a recruit. I spent seven weeks there. The environment was very challenging: very little sleep, intense training, temperatures of 30 degrees below, and so on. The instructors were tremendous. Our NCOs and officers had combat experience and wanted to teach us everything they could to ensure we were well-trained.
One day, an instructor even started crying because the situation was emotional. He had lost a friend in combat. At one point, we were given a day of rest, and when we got back,
we got charged. We had no idea what we were getting into. We were very nervous. Frankly, the only thing that was going through my mind, and there were six of us at the same time, was that we wanted to go to Mexico, because we had no idea what we were getting into. When we sat down with the officer who explained the process to us, we didn't hear anything. You have to understand that we were tired and we were nervous.
The fact that today we're talking about choices, I find that a little ironic. I think there's a double standard here. We say that the Canadian armed forces is unique, and yet we expect that human beings are going to respond normally as if everything is hunky-dory. We ended up going in front of the commanding officer and being charged three days pack drill. It was a basic mistake. I can only imagine people going overseas in combat situations where an officer is going to give them a choice.
I think Bill C-15 is good. It goes a certain way, but it doesn't go all the way.
Do you think Bill C-15 needs some improving as far as summary trials are concerned? I told you what happened to me, but I would say a lot of other members have had all kinds of experiences, including yourself, for that matter.
4:40 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
If you mean to suggest with that example that abuses are possible with summary proceedings, my answer would be that abuses were much more likely to occur before than they are now. One of the reasons is that, over the years, the Judge-Advocate General's office has increased the number of available officers on military bases. For example, when I was in Valcartier, I was in charge of the Valcartier reserve and the Bagotville reserve, whereas today, you have two, three, and sometimes four officers assigned to Valcartier. Another handles the reserve and yet another does Bagotville. The number has changed, and so has the ability to access counsel.
You, yourself, had a certain experience, and that's a good thing because it helps you understand. I'll give you an example.
When I was in Cyprus, I was reviewing a proceeding—actually, the judge advocate eventually intervened. A deputy commander's driver had run a red light. The deputy commander was sitting beside the driver when it happened. He was charged by his chief warrant officer. The deputy commander ended up being both judge and judged in the case. There was no malice in the situation. It just happened. Everyone thought that because he had run the red light, he would plead guilty.
Naturally—and this goes back to what we were saying before—when an individual tells their commander or deputy commander that they do not trust their judgment, that individual is court martialled. When they rejoin their unit, things are always a bit challenging. That's the feeling you get when you talk to people on the toll-free telephone line.
As for improvements, there again, I am inclined to refer you to Mr. Drapeau's detailed comments on the matter. It's not possible now, but a commander's decision could be subject to a review. I know it's harder, but it can be done. It's done in the case of the chain of command and it could be done in other situations, for example, with a court martial. However, it would require closer monitoring, which would likely involve recording the proceedings, among other things.
4:40 p.m.
NDP
Jean-François Larose NDP Repentigny, QC
What measures could be taken to further improve the situation?
4:40 p.m.
Former Director, Canadian Forces Defense Lawyers, As an Individual
Currently, there is no rule of evidence, or very little. I think there should be tighter controls. The Judge Advocate General put together a very clear directive of sorts as part of the last reform. But perhaps it should be incorporated into the QR&Os. That way, things would have to be done in a specific order and the procedure would have to be followed. It would require more detail. Obviously, those people are not lawyers, but people who have been assigned to operations, and usually they hold commander or deputy commander positions.
It is also important not to make the system so cumbersome that it turns into a court martial. But, so as not to overburden our commanders, a review system through court martial would probably be a good idea.
4:40 p.m.
Conservative
4:40 p.m.
Conservative
Corneliu Chisu Conservative Pickering—Scarborough East, ON
Thank you very much, Mr. Chair.
Thank you, witnesses, for appearing before our committee. I only have three questions, one for each of you.
Dean Holloway, the government has indicated that it would be amending clause 75 relating to criminal records. The amendment would exclude approximately 95% of convictions at summary trial from resulting in a criminal record.
In your opinion, does this amendment enhance the military justice system? Perhaps you could elaborate and give an example of a conviction in a summary trial that would result in a criminal record that would not be one on the civilian street. I passed my military law a long time ago , and I don't remember anymore.
4:40 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
This was a point of agreement between Mr. Harris and me. As was just said, there are a lot of unnatural stresses associated with service life, and all of us who wore a uniform did things under stress that we regretted, that we might even have known were wrong. We deserved to be punished for them and we were punished for them.
Whether that means that you shouldn't be able to go to the United States ever is a different thing. I agree with Mr. Harris's point, that most purely military offences should not attract criminal records.
4:40 p.m.
Conservative
4:45 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
Sure. I'll give an extreme example of it, and then I'll give a more commonplace example.
An extreme example of it is the serviceman who says,—excuse my language, Hansard—“Go to hell! I'm not going to cut my hair anymore.” He will be charged, convicted and punished for that. Presumably he will be ultimately released from the service. A position such as that is fatal to fighting effectiveness, unit cohesion, and so on in an organization such as the Canadian Forces, but does it mean that he should have a criminal record for evermore? Probably not.
4:45 p.m.
Conservative
Corneliu Chisu Conservative Pickering—Scarborough East, ON
Does it result in a criminal record? I'm asking you because you are telling me substantiating stuff, but does it result in a criminal record or not?
4:45 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
I don't know. But if the service person went one step further and slugged the person who was ordering him to have a haircut, that would attract a criminal record, and I'm not sure it should.
4:45 p.m.
Conservative
Corneliu Chisu Conservative Pickering—Scarborough East, ON
But if it is an assault, it is punishable with a criminal record also on the civilian street, isn't that right?
I'm asking this because I was serving in the military and I don't want any of the military to be treated separately or treated better than every other citizen. I was a citizen and I served this country. It is not that they use different treatment in the military, mostly, when you are looking at life in the garrison. When you go on operations, there are rules of engagement, and you know very well that is a different thing.
Can you elaborate on this? Which amendments would you want to see? I think Mr. Harris was alluding to amendments. How do you see these things balancing?
4:45 p.m.
Professor and Dean, Faculty of Law, University of Calgary, As an Individual
What I would say is that if someone is charged and convicted of an offence that is an offence under the Criminal Code, then I'd be inclined to suggest that it's appropriate for them to carry a criminal record. But if someone is charged with an offence that is purely a military offence, I'd be inclined to say that it is not.
I don't mean to be difficult, Mr. Chisu, but unless I had a full list before me, and I'd be happy to go through it one by one, I'm not sure I could give you a conclusive answer. I do stand for the principle that service men and women make mistakes in response to unnaturally stressful situations, and a criminal record shouldn't be the reward for having volunteered to serve their country.
4:45 p.m.
Conservative
Corneliu Chisu Conservative Pickering—Scarborough East, ON
I have a question for Mr. Hamel.
One of the propositions advanced during the debate on Bill C-15 at second reading was to impose a quota on the composition of the Grievance Board, specifying that 60% of the members must not have had previous military service.
The Grievance Board is an administrative tribunal, and you know that I have participated in different administrative tribunals. The role of the administrative tribunal is to apply expertise to a particular body of facts or mixed facts of law. Given this, do you think it is a logical proposition to have a quota that would exclude persons who have relevant experience from being selected as members of the board?
Specifically, I'm asking you why are you for the exclusion of a member who is a serving member in the forces? I think I understand from your proposal that you are against having a serving member on the board.
4:45 p.m.
Chairperson, Canadian Forces Grievance Board
Thank you for the question, Mr. Chisu.
No, it's the opposite, actually. Maybe I misspoke, but military experience in my view is an asset. What I said in my comment is that I also believe in variety and diversity. I don't think I said.... A quota to me would be an error. As the chairperson, all I'm interested in is getting the best board member available. I believe that excluding members based on their qualifications or because a quota has been reached would be inappropriate. That's my view.
If you put it in context.... Say, for example, that someone wasn't a cadet in his youth, just for reasons of having fun and deciding whether or not he was going to go into the military, and then had a successful career through many tribunals, maybe he would not be able to apply for a position. Alternatively, take someone who was in the reserves just to pay his tuition fees while going to college and never served afterwards in the Canadian Forces. He or she would also be excluded as a board member, if that quota was reached.
I think a serving member who has a grievance submitted.... For the Chief of the Defence Staff and for the board, I'm only interested in having the best available candidate. If that means that he or she has experience, so be it. If it means that for what is available at the time, he or she does not have the experience, so be it. But we should not be excluding, in my view, individuals from applying for these kinds of jobs because they have served in the military. I don't think there is tar attached to their bodies. I don't think they should be disadvantaged. I don't think they should be excluded.
4:50 p.m.
Conservative