Thank you, sir.
It is an honour to be here to try to assist your understanding of this legislation. I want to bring two perspectives from my own work to bear on the summary trials issue, which is the one that concerns me in particular.
The first perspective is that of an author and a life-long student of sentencing. The leading textbook in the field is the one that I wrote; it's now in its eighth edition, and God knows how long it will go on. It just seems to be endless. It means I think a lot about what a sentence is. It seems to me that the leading case in the last century on sentencing from the Supreme Court of Canada, R. v. Gardiner, had it right. The judges quoted Sir James Fitzjames Stephen, who was, incidentally, the author of Canada's first Criminal Code. Stephen said:
The sentence is the gist of the proceeding. It is to the trial what the bullet is the powder.
I think that's true. It reflects the fact that this is a matter of fundamental importance. In fact, in one sense, it is the whole point of the exercise: what is a sentence and who do we punish with it? When we use the word “sentence”, it means that we are dealing with deserved punishment imposed for a public wrong at a fair and public hearing that respected all constitutional rights.
In our democracy that last phrase, “respected all constitutional rights”, is quite crucial. It's that respect, reflected in our law and practice, that produces the respect people have for the sentences arrived at in the justice system, or in any justice system. It's different from employment sanctions, RCMP discipline hearings, regulatory offences, and dismissal or other work-related penalties. None convey that same meaning. The meaning implies justice under law. It implies the rule of law, as does our Constitution, and therefore it implies all constitutional rights pursuant to the supreme law of Canada. The supreme law is, of course, the Constitution and the Charter of Rights and Freedoms.
Yes, court martial proceedings also produce a criminal record, as do some summary trials. There's no anomaly in having the same offence produce different results, one a criminal record and one not, which is what I'm arguing for, because the court martial process preserves the full meaning of “sentence” as I have discussed it with you: a public hearing, constitutional rights, and respect for the rule of law. They mean the same thing. However, if the same offence is tried in a process that does not have those qualities, then we shouldn't be thinking of it as a sentence at all.
If you don't get counsel, you don't get disclosure and you don't get the right to an unbiased tribunal that doesn't know the witnesses or that isn't a friend with the witnesses. That is a very different procedure than one we think emanates ultimately in a sentence.
The section 75 proposals in the bill that you are looking at, in my submission, are inadequate. Some 30-odd out of perhaps 2,500 trials in summary matters result in any form of imprisonment. It is unacceptable that any of them should, but what is important as well is that this is a very tiny number. Each one, however, is a violation of the right to liberty under section 7 of the charter that I believe cannot be justified.
No member of the armed forces, whatever the offence, should have any criminal record, and that's the consequence: there's a criminal record attached to these summary trials in some cases where the penalty is higher than $500 or $600 or any liberty is involved.
Justice Pat LeSage, now retired, referred to that as “a grossly disproportionate result”, and it is, because a criminal record, by and large, as I'll come to, does not go away.
The second perspective I bring is that of a constitutional litigator and editor of the Canadian Rights Reporter, a journal that prints all of the worthwhile constitutional cases that appear in our courts.
It has been said that when you enlist in the military, you waive your constitutional rights. This is nonsense. It is legal nonsense, because the charter has its own provisions for exempting certain laws, and each one must be justified on an individual, focused basis. You can't have a blanket exemption for the military about anything as general as that. The look at the legislation and the particular practice is fact-specific, and it can't be based on general concepts like the need for discipline in the armed forces, because that attracts every aspect of armed forces life.
Let me give you an example of how you apply the charter in a focused way. It may be acceptable to say that you're not going to have any counsel in a summary trial, no right to counsel as guaranteed by the charter in all other cases. You restrict it to minor cases so that you have a hope of justifying it. The government can try to do that. That may be okay. I have doubts about it, because as long as some persons can be subject to imprisonment, to confinement to barracks, I doubt that it's satisfactory.
However, assume that it is. You can't, if you've done that, attach all the consequences of a criminal conviction and criminal record to it, because that follows you forever. Pardons, by and large, no longer exist. We've replaced them with new wording. The RCMP makes no resources available to get them, but that's just bureaucratic hatred of pardons. By and large, you're never relieved of this, yet it could be imposed for a very minor offence, such as refusing to report for duty on time on three occasions. That's not a criminal offence the way we think of it. As long as this is drawn so badly, my submission to you is that you have to remove the criminal record consequence.
This charter justification matter is not a small issue. If one of our major institutions doesn't draft its provisions in a way that makes sure the liberty of someone who is serving his country is not inappropriately taken, then it's not his failure to obey orders or whatever it might have been: it's our failure as legislators who drafted it and signed on to it, and as citizens who allowed it to happen.
Thank you, sir.