National Defence Committee on Feb. 27th, 2013

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you.

[The Chair, Conservative, James Bezan]

Mr. Harris.

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

Thank you, Mr. Chair.

The suggestion by Colonel Gibson that the French version is also part of the interpretation is a fair point, except that the amendment is actually seeking to bring about conformity between the wording in the French section and the English section, so that's all the more reason why it would be a reasonable thing to do.

Nobody here is perfect, and this is not a suggestion that a significant error has been made here, but what we're suggesting is that on the advice of Mr. Justice LeSage, and given the example of even our discussion here today, it seemed to make good sense to have what day we're talking about specified. To those who are not experts in legal interpretation, and we're talking about a lot of people who are not experts in the law who are subject to all of this, it might be worth ensuring that it actually says what it is purported to mean by your explanation here today.

[The Chair, Conservative, James Bezan]

Mr. McKay.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Nor would I offer any commentary on the capacity of members opposite, but one prefers to resolve ambiguities prior to rather than subsequent to an issue. It seems to me that if I have misinterpreted—quote, unquote—the drafting as is, the crown in fact leaves itself open to a position that it commenced prosecution on month 13 after the offence, rather than within 12 months of the offence. I suppose as a defence counsel one should just sort of sit in the weeds and wait for that.

As to the French/English, again, if the French is very clear and it means what you say it means, then presumably it would be helpful if the English were as clear as the French.

I'll leave my observations at that. I read it, then I reread it, and I thought, “This is the government's position.” Essentially it's an 18-month window. Mr. Harris' amendment is essentially a 12-month window. But you tell me that yours is a 12-month window as well. It seems to me that if the crown has an opportunity to clarify ambiguity at the point of drafting, it would be a good time to do it; otherwise, you'll leave yourself a bit exposed.

[Col Michael R. Gibson]

Very briefly, Mr. Chair, in canvassing this issue—and absolutely, we're fans of clarity, we all are—with the drafters, their response was that those additional proposed words would be what's called “surplusage” and would actually detract from clarity. That's their interpretation.

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

Then why didn't they change the French?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

The French is fine.

[The Chair, Conservative, James Bezan]

It's fine.

Are there any final comments?

(Amendment negatived [See Minutes of Proceedings])

Do you have a question, Mr. Harris?

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

Yes. I have a question on proposed subsection 35(1.2).

Assuming we know what proposed subsection 35(1.1) says, proposed subsection 35(1.2) says, “The accused person may”—once again—“in accordance with regulations made by the Governor in Council, waive the application” of that section. In other words, he doesn't have to be charged within six months, and his trial doesn't have to be within one year if the accused waives that. His right, or the permission to waive that, or the circumstances under which he can waive that, are set out in regulations by the Governor in Council.

Once again I ask, what's contemplated by that? Why would there have to be regulations of the Governor in Council if such a waiver is contemplated?

[Col Michael R. Gibson]

Mr. Chair, the answer is that, generally speaking, if one is constructing a procedural scheme involving process, our general approach is to prescribe that process in more detail in regulations rather than clutter up the act. Clearly, the right to waive would be set forth in statute in the National Defence Act.

The mechanism, the timeframe, and how and to whom the accused would have to make that application would be prescribed in regulations. It's entirely consistent with the general sort of way we approach law in the system in terms of not cluttering up the act with great levels of detail.

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

What's the incentive for the accused to say “try me after six months”, or “try me after a year”, or “try me two years down the road” by summary conviction?

[Col Michael R. Gibson]

It's an interesting question, Mr. Chair, because this was canvassed in a Court Martial Appeal Court case called Grant, and it was also canvassed before the Standing Senate Committee on Legal and Constitutional Affairs in their review of Bill C-60. What they essentially said was that they could envisage circumstances in which the accused may consider it to be in his or her interest to have the matter dealt with by summary trial, notwithstanding the expiry of the limitation period, and in essence they would give that option to him or her.

In general terms, of course, summary trials are more expeditious than courts martial. They occur much more rapidly. They generally occur with less publicity. It would be up to the accused to make his or her assessment, with the appropriate advice, as to what they thought would be in their best interests.

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

But doesn't that give the military police or the military an option, then, to avoid the six-month limitation period for matters that would be normally tried by summary conviction matters, and for the authorities within the military to decide that they're going to charge somebody in a circumstance where a court martial is the only option to file a charge, which would or could lead to more serious consequences? You're really getting around limitation period here.

[Col Michael R. Gibson]

The short answer, Mr. Chair, is no, because the way the provision is framed is that the accused person may, in accordance with the regulations, waive the application, so it's the accused who has the option to waive. It's not an option that's initiated on the part of the chain of command.

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

Well, sir, with respect, if I'm the accused person, I don't get to be an accused person unless a charge has been laid. If a charge has been laid under a particular provision, I am in circumstances where you're creating an incentive, even though you can't lay a charge that can be dealt with under summary conviction after six months.

In my books, what you're talking about here is a circumstance where we can't lay a charge that would be tried summarily, but we'll lay a charge under court martial proceedings so it can only be dealt with under court martial, and that puts the accused at a disadvantage. Obviously, there's an incentive there for him to waive this, but you're effectively dismissing the six-month limitation period.

[Col Michael R. Gibson]

Mr. Chair, I guess I would say I don't agree that it's an appropriate interpretation. The purpose of laying charges, of course, is the maintenance of discipline. Those have to be dealt with in accordance with law.

What we're really talking about here is a question of jurisdiction. The default position would be that there would be no jurisdiction to try that particular charge by summary trial if it's laid outside the limitation period or if more than one year has expired. In that circumstance, the default position would be that if the charge were to be tried, it would be tried by court martial. This merely preserves an option for the accused, if he or she considers it to be in their best interests, to waive the application of the limitation period.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

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

Chair, the point is that it preserves choice, if the accused wishes to exercise choice even after six months.

[The Chair, Conservative, James Bezan]

Okay. Good.

(Clause 35 agreed to on division)

(On clause 36)

NDP-18 is a consequential amendment to NDP-17, so—

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

It's actually not consequential, sir, but there's not much point in moving the same amendment and making the same arguments.

[The Chair, Conservative, James Bezan]

They essentially are the same. They are consequential, so they are grouped together in the vote.

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

Well, you can.... I'll withdraw the amendment.

[The Chair, Conservative, James Bezan]

Are there any other comments on clause 36 that are different from what we just heard?

(Clause 36 agreed to on division)

(Clauses 37 to 40 inclusive agreed to)

(On clause 41)

We have amendment NDP-19, reference number 5993967. This proposes to delete line 14 on page 18 of the bill, up to line 24 on page 19.

Mr. Harris, do you want to move that?

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

Thank you. I do move that.

Amendment NDP-19 is with respect to the reserve military judges system. We believe it's unnecessary. We would rely on the arguments made to this committee by Colonel Drapeau, who testified on February 11.

We're also looking at the dissenting opinion by Commissioner Norman Sterling in the report of the Military Judges Compensation Committee, who talked about the existing workload of military judges being what he called the lowest amount of compensation, the lowest number of days, of any court, so their workload can't be compared with the superior courts. He was concerned about the cost of this.

But here we are in fact creating more judges when it's not necessary. We don't think it's necessary, and it's regarded by Colonel Drapeau as an extravagance. It's unnecessary to add this other layer of military judges to a system that's already over-resourced, shall we say.