National Defence Committee on Feb. 13th, 2013

[The Chair, Conservative, James Bezan]

I call the meeting back to order.

We're going to continue on with our study on Bill C-15. Joining us from the Department of National Defence, from the Judge Advocate General's Office, we have Colonel Michael Gibson, who is deputy judge advocate general of military justice. We have Lieutenant-Colonel André Dufour, who is director of law ,military personnel, and we have Lieutenant-Colonel Stephen Strickey, who is director of law, military justice—strategic, Office of the Judge Advocate General.

Gentlemen, I welcome you all to the table. I know you've been following our hearings closely, and I understand that Colonel Gibson will be leading off with your opening comments.

Colonel, you have the floor.

[Colonel Michael R. Gibson, Deputy Judge Advocate General of Military Justice, Office of the Judge Advocate General, Department of National Defence]

Thank you, Mr. Chair.

I would like to thank the honourable members of this committee for this opportunity to appear before you today to speak to Bill C-15.

As Deputy Judge Advocate General for military justice, I, together with my team, have a played a significant role in the preparation of this legislation. I am very glad to have the opportunity to appear today to assist the members of the committee in their consideration of the bill, for two reasons.

The first is that we are lawyers and members of the Canadian Forces. The system we assist in constructing and that we endorse is one that applies to ourselves. We live it every day.

My 32 years of service in the Canadian Armed Forces have taken me to over 60 countries around the world. Between us, Lieutenant Colonel Strickey, Lieutenant Colonel Dufour, and I have multiple operational deployments, including to Bosnia, Afghanistan, Congo, and Sudan. We thus understand first-hand how the military justice system must possess certain functional attributes, including portability, in order to fulfill its purpose. We are fully committed to both the effectiveness and the charter compliance of the military justice system.

The Canadian military justice system has two fundamental purposes: to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency, and morale, and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It thus serves the ends of both discipline and justice. These purposes are stated in the statutory articulation of purposes, principles, and objectives of sentencing in the military justice system set out at clause 62 of Bill C-15.

Simply put, an effective military justice system, guided by the correct principles, is a prerequisite for the effective functioning of the armed forces of a modem democratic state governed by the rule of law. It is also key to ensuring the compliance of states and their armed forces with the normative requirements of international human rights law and of international humanitarian law.

The second reason is that having listened carefully to the testimony of the witnesses who have appeared before you, there is a concern that there may be some misapprehensions about some of the provisions of this bill. I would like to briefly address two of them now.

The first relates to clause 75, concerning the creation of records within the meaning of the Criminal Records Act arising from conviction for minor service offences.

The origin of clause 75 was our concern that although it is necessary to maintain stringent discipline in the Canadian Forces and that this may require trying persons for what could be seen as relatively minor offences, it was not necessary for the maintenance of discipline to have the collateral effect of creating a record within the meaning of the Criminal Records Act to achieve this purpose.

This could have an adverse impact on service members seeking other employment following their release from the Canadian armed forces and, as you've heard in some detail, other consequences as well. In order to relieve what could be seen as the potential for an unintended and unnecessary harshness, we adapted the scheme that Parliament has already put in place in the Contraventions Act.

The effect of clause 75 would be, employing certain thresholds relating to both the objective and subjective gravity of the enumerated offences, to preclude the creation of a record for conviction of the enumerated offences, under the threshold of the specified punishments, and thus obviate the requirement for Canadian armed forces members to have to later apply for a record suspension.

The minister has undertaken that an amendment will be introduced matching the provisions of the one adopted by this committee during its consideration of Bill C-41.

In order to assess the impact of this proposed version in terms of dealing with convictions at summary trial, we conducted a detailed statistical analysis using statistics from the JAG annual report for 2009-10 as a representative sample. This assessment indicates that if the provisions of the amended version of clause 75 are applied for that year, 94% of the offences tried at summary trial would not have resulted in the creation of a record.

Taken together with the introduction in Bill C-15 of absolute discharges as a sentencing option, we would thus predict that approximately 95% of cases tried at summary trial would not result in the creation of a record under the proposed provisions. The remaining cases would be largely made up of the eight Criminal Code offences triable by summary trial. This version of clause 75 should thus be highly effective in achieving the desired policy intent.

The second issue relates to summary trials.

The purpose of summary trials is to provide prompt but fair justice in respect of minor service offences. Summary trials are also intended to contribute to the maintenance of military efficiency and discipline, in Canada and abroad, in times of peace or armed conflict.

Summary trials are vitally important to the operational effectiveness of the Canadian Forces. They are the workhorse of the military justice system, consistently trying about 96% to 97% of cases. They exemplify the attributes of promptness, portability, and flexibility.

It must be pointed out that some of the most eminent constitutional jurists of the charter era in Canada, former Supreme Court of Canada Chief Justices Brian Dickson and Antonio Lamer, and former Chief Justice of the Ontario Superior Court Patrick LeSage, have conducted independent reviews of the military justice system and have supported the importance and constitutionality of the summary trial system.

The portrayal of summary trials that has recently been advanced by some is, at best, a very partial depiction of the full picture that must be taken into account in making a responsible and accurate assessment of the fairness and constitutionality of the summary trial system.

I would be glad to amplify later on other factors that should be taken into account. It does bear repeating at this point, however, that no Canadian court has in fact ruled that summary trials are unfair or unconstitutional.

A major reason that there are not a large number of amendments concerning summary trials proposed in Bill C-15 is that Chief Justice Lamer, having reviewed them, did not identify a significant number of problems and did not recommend any changes.

Legislative reform of the military justice system involves a process of continuous improvement over time, just as is the case with the civilian Criminal Code. Bill C-15 provides important updates as well as a statutorily mandated regular independent review to help ensure that this is accomplished.

Bill C-15 will not be the last word on military justice. To borrow a phrase famous in legal circles, the military justice system is a living tree. Further legislation will be necessary in the future to respond to the recommendations of the LeSage report and to other issues, but this overdue Lamer response bill needs to be passed in order to get on with addressing the next series of improvements.

To coin a metaphor, Mr. Chair, it is necessary to move the Lamer response train out of the station so that we can bring the LeSage response train in, load that one up, and deal with the next set of improvements.

Thank you, Mr. Chairman. l would be pleased to assist the members of the committee by answering your questions.

[The Chair, Conservative, James Bezan]

Thank you, Colonel. I appreciate that.

We're going to go with the seven-minute round. Leading us off is Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair, and thank you, Colonel, for your presentation.

We'll have to leave the disagreement about the effect of the charter challenge to the evidence that we have before us from both yourself and the others.

I will repeat, first of all, what I said the other day, which is the fact that there are strong opinions in favour of the constitutionality of the military justice system by the Judge Advocate General and the lawyers, but that doesn't stop the charter challenges from being successful in specific individual circumstances. We've had that opinion from some of the legal experts who testified the other day.

I'd rather get to some of the technicalities here because what I'm concerned about is that with the proposed amendment.... I can't avoid saying that we did amend this the last time. We did have the assistance of the JAG. We did have an amendment accepted by this committee, and yet when it came before the House, it was gone. We were back to square one. It's only because of persistent argument in the House of Commons that we did get a commitment to put it back.

You say the only thing remaining are the eight Criminal Code offences that are still there, but that doesn't seem to jibe with leaving out a charge under section 83, for example, or section 85—sorry, section 85 is there, but section 83, for example, is basically disobedience of a lawful command.

That is not a criminal law offence. It's probably a serious offence within the military, or it could be. It might be minor or it might be serious, but in any event it's not a criminal law offence. I wonder why that's been left out. Is there a rationale for that?

[Col Michael R. Gibson]

Yes, there is, Mr. Harris.

I have perhaps a number of comments I could make in response to your question, but to address your immediate question, the way these exemptions are framed in the clause is both on the basis of the objective gravity of the offence, which is determined by the maximum punishment that Parliament prescribes for an offence when it creates the offence, and the subject of gravity, which relates to what's actually given in a particular case.

To answer your immediate question, when one looks at what Parliament has prescribed in terms of the objective gravity of the offence for section 83, it's punishable by life imprisonment; Parliament has said, in creating that offence, that this is among the most serious offences known to law. Therefore, given that objective gravity, Mr. Harris, it would seem not to be appropriate to include it in that list.

[Jack Harris, NDP, St. John's East, NL]

That doesn't make it a criminal offence.

The fact that the maximum punishment under military law is high doesn't mean that every instance of it is serious. For example, break and entry into a dwelling house has a maximum sentence of life imprisonment under the Criminal Code, but I don't think that anyone has ever been given that sentence. It recognizes that society doesn't take it very lightly, but....

It's not a Criminal Code offence to—

[Col Michael R. Gibson]

To clarify so that you haven't misunderstood my remark, I didn't say that the only ones that would be remaining would be Criminal Code offences. What I did say is that in terms of conducting a statistical analysis about the likely efficacy of this provision to achieve the policy intent, you have to start with a statistical summary from somewhere, and we used that particular data set. Among that data set, which we consider to be a representative sample, that was the distribution suggesting that 94% would not have resulted in the creation of a record.

Just before I amplify that point, if one were tried for the eight remaining Criminal Code offences in a court downtown and one did not obtain an absolute discharge or a conditional discharge, one would have a criminal record. To us it seems to be important not to differentiate between being convicted of that very same offence in a summary trial from what would happen downtown.

[Jack Harris, NDP, St. John's East, NL]

I think you're missing the point, though, that in the absence of the constitutional protections, there's a strong opinion that there ought not to be a criminal record.

[Col Michael R. Gibson]

I'm not missing it at all, sir. I just don't agree with it.

[Jack Harris, NDP, St. John's East, NL]

That disagreement exists and will continue to exist, I suggest, long after this testimony.

Number one, why did you not include the possibility of a conditional discharge as another alternative? Maybe you think it's unnecessary, and I'd like to hear your comments on that.

Number two, with regard to the provision in clause 75 saying that for someone who has been convicted before the coming into force of this act or who will be in the future, the provision does have retroactive effect and the records currently held by CPIC for these offences are going to be removed?

I noticed that in the Criminal Records Act that when you go through the process, or in the absolute discharge, there's a recognition that there has to be a specific amendment to the Criminal Records Act to remove the record of conviction. Would you consider working with us at clause-by-clause consideration to ensure not only that this is given retroactive effect, but that there are very clear provisions that instruct the RCMP, as is done in clause 62, to ensure that the records that exist are removed?

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Chair, I have a point of order.

[The Chair, Conservative, James Bezan]

You have a point of order, Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Mr. Chair, Colonel Gibson, as an official Government of Canada witness, is not required to comment or speculate on measures that were not provided for in the government bill. If he wishes to, of course he may, but he's not required to.

[The Chair, Conservative, James Bezan]

I'll just advise Colonel Gibson—

[Jack Harris, NDP, St. John's East, NL]

To that point of order, he can comment on the adequacy of the legislation to give effect to its apparent intention of wanting to make it retroactive.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Mr. Chair, Mr. Harris specifically mentioned a provision that has not been included in the bill and asked the witness to comment. He is not required to comment on a provision that is not in the bill.

[The Chair, Conservative, James Bezan]

On pages 1068 and 1069 of chapter 20 of O'Brien and Bosc, our rules and procedures, we talk about committees, and when we are talking about public servants appearing:

...public servants have been excused from commenting on the policy decisions made by the government. In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which involve the giving of a legal opinion, which may be perceived as a conflict with the witness’ responsibility to the Minister...

Therefore Mr. Alexander is correct. I'll leave it to Colonel Gibson to answer as he sees fit.

[Col Michael R. Gibson]

Thank you, Mr. Chair.

Mr. Harris, to address your first question, the possibility of a conditional discharge or the creation of some sort of probation scheme is very much a policy option that we have considered, and we have pursued discussions fairly extensively in the FPT forum—the federal, provincial, and territorial prosecution forum—of the possibility of creating that system. It is, however, fraught with a number of very practical concerns, particularly regarding jurisdiction over people who have left the forces or over civilians, and also funding.

A very brief answer to your question is yes, we have considered that. We are pursuing that as an option, but it isn't ripe yet to be put in legislation.

Second, with regard to your question about the effect of clause 75 as it exists in the current version of the bill, yes, I can confirm that it is meant to have retroactive effect in terms of the effect it is intended to accomplish. I would defer, I think, to the comments that have been made that it's not really up to me to speculate as to what additional elements the minister may wish to consider or not in terms of amending the legislation.

[The Chair, Conservative, James Bezan]

Thank you. Time has expired.

Mr. Strahl, you have the floor.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I'll give my time to Ms. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman, and colleague.

There seems to be some debate about the intended effect of the proposed subsection 18.5(3) contained in clause 4 of the bill, which would give the Vice Chief of the Defence Staff authority to provide case-specific direction to the Canadian Forces provost marshal. Can you explain why this provision is in the bill, and what it is intended to accomplish?

[Col Michael R. Gibson]

I'm glad you asked that question because, as someone who participates in policy analysis and in the drafting of legislation, I'm often surprised by some of the interpretations that people can seem to give to what is intended. Let me give you what our interpretation of the intent of that provision is, where it came from, and what it's meant to accomplish.

As has been briefly alluded to before, one of Chief Justice Lamer's recommendations was to put in the act the duties and responsibilities of the Canadian Forces provost marshal.

It's currently somewhat anomalous that after Bill C-25, part IV of the act actually mentions the provost marshal and specifies what his or her duties are in respect to the military police complaints scheme, but the act as it stands doesn't actually create the position, or mention what its responsibilities are or what its relationship is to the chain of command.

The provisions from proposed section 18.2 on are in response to the Lamer recommendation. In particular, you'll see set out in proposed section 18.4 the duties and responsibilities of the provost marshal position.

Of course, it's necessary to specify what the relationship of the provost marshal is to the chain of command and how he or she should interact with it. That is the intent of proposed section 18.5 and its proposed subsections. Proposed subsection 18.5(2) says that the VCDS may give general instructions or guidelines in respect of responsibilities described in the proposed section 18.4.

Then what seems to be under a little bit of discussion, or I would respectfully suggest misapprehension, are the provisions of proposed subsection 18.5(3), which provide that the vice chief may issue instructions or guidelines in writing in respect of a particular investigation. What's this about?

It's not intended to have a sinister effect. Without the transparency protections in the subsequent sections, I agree that one would definitely have a concern about investigative independence, but the actual intent here is to buttress independence of military police. With all due respect to those who've taken the contrary view, they simply have, as the British would say, the wrong end of the stick in terms of interpreting what this section is about.

It's intended to do three things. It recognizes the fact that in the unique circumstances of the Canadian Forces military police, they may operate in operational environments in which there is active potential for them to be required to conduct investigations in a zone of armed conflict. Everybody recognizes the possibility, and in fact the requirement, potentially arising for instruction or direction from the chain of command to the military police saying that, “No, you can't go and investigate that particular incident because there's going to be a fire mission put in there in 10 minutes. You just can't do it.”

What this is intended to do is specify, first of all, that there will be one point of contact, so you won't have various commanders in the field telling the local provost marshal, “You can't do that.” You'll have one point of contact—one dog to kick, one could say—who is the vice chief.

The second point is that he or she has to give that instruction in writing. Third, there's the very important transparency provision set out at proposed sections 18.4 and 18.5, which says that the default position is that the instruction must be made public. It gives the discretion ultimately to whether or not to release that, having regard to the impact on a particular investigation, to the provost marshal. So the provost marshal has the hammer if he or she is concerned about this, and it's transparent.

We think that if this is likely to happen in any event, it is far better to prescribe it in statute—to specify there's one person and one person only who can do it, and that it has to be transparent.

If there is a legitimate concern about investigative interference, then, of course, that is one of the provisions in part IV of the NDA, and that is one of the functions of the Military Police Complaints Commission. If the provost marshal or one of his subordinate investigators honestly felt that the instruction from the VCDS, which is transparent, was in fact improper interference, they could make an interference complaint to the Military Police Complaints Commission.

I've heard some people from the MPCC say, “Well, if it's prescribed in statute by default, we would never find improper interference.” I don't agree with that assessment. It's entirely possible for a legitimate statutory authority to be abused. In fact, courts and tribunals spend a fair bit of their time actually trying cases in which exactly that has happened.

The point is that if there was a concern about improper interference, an interference complaint could be made to the MPCC, and then they would have to do their job. They would have to apply the facts and the law, exercise their discretion, and make a finding and recommendations in respect of that.

To summarize, we consider that it's important to have one authority and for it to be transparent, and also to recognize that there is in fact a statutorily prescribed ability, in the event there was a legitimate concern about improper interference, for a complaint to be made and an investigation to be conducted in a transparent form.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.

It's been suggested by some that the summary trial system is outdated and offers inadequate protections for Canadian Forces members. Is the summary trial system fair, and what improvements to the system are currently being discussed?

[Col Michael R. Gibson]

That's an excellent question, Ms. Gallant. Thank you.

First of all, generally speaking, we do consider that it is fair, or we wouldn't endorse it. We're not in the business of running an unconstitutional justice system. It's not why we're here. We're lawyers for members of the Canadian Forces, and we have placed great weight in the independent assessment of the three very august external reviewers who have looked at the system and concluded that on balance, it is fair and constitutional.

How did they come to that conclusion? That's the part, having listened very carefully to what's going on before the committee, that has been largely absent. Of course they engaged in a section 1 charter analysis. I have to say that, unfortunately, if one is going to conduct a measured, balanced, and sophisticated assessment of this issue, you have to engage in a section 1 analysis. Having done that, they concluded that although there were certainly concerns about limitations on some charter rights, that on balance those limitations are justified by section 1, having regard to the pressing and substantial nature of the concerns that then animate the system.

There are a couple of really important things to note. Nobody is subject to what's called a true penal consequence, following the definition given by the Supreme Court of Canada in the Wigglesworth case of 1988. Nobody's subject to a true penal consequence, detention, reduction of rank, or significant fine unless they have first been offered the election between the summary trial and court martial and they've elected to be tried by summary trial.

The effect of that election is a waiver of certain constitutional rights. The Supreme Court of Canada has said that one can waive constitutional rights, in the Korponay case of 1982. Chief Justice LeSage in his review specifically alluded to that. To be effective, that waiver has to be fully informed and has to have the benefit of advice. In fact, there is a right under the QR and O article 108.18, and also a duty on the director of defence counsel services under article 101.20 to provide legal advice to the accused and his or her assisting officer in respect of that election.

One of the really key elements in ensuring that the election is properly informed is to have a competent and active assisting officer. This was one of the recommendations in the LeSage review for which we were particularly grateful: that he recognized and recommended that we have to up our game in terms of the quality and performance of assisting officers to perform that vital function.

To answer the question about what improvements are contemplated in response to the LeSage recommendation, which in fact we recommended to him, there has to be an improvement in training for assisting officers in order to ensure that they perform that very essential part of their function—that is, ensuring that the rights of the accused are protected before summary trial.

There is much more I could say, but the bottom line is that yes, we do assess that the summary trial system is currently constitutional, but of course we're continuing to look at that. We're grateful to receive recommendations, and there are things that can be done.

[The Chair, Conservative, James Bezan]

Thank you. Time has expired.

Mr. McKay is next.