Bill C-41 (Historical)

Strengthening Military Justice in the Defence of Canada Act

An Act to amend the National Defence Act and to make consequential amendments to other Acts

This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;
(e) modify the composition of a court martial panel according to the rank of the accused person; and
(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.
The enactment also sets out the Canadian Forces Provost Marshal’s duties and functions and clarifies his or her responsibilities. It also changes the name of the Canadian Forces Grievance Board to the Military Grievances External Review Committee.
Finally, it makes amendments to the delegation of the Chief of the Defence Staff’s powers as the final authority in the grievance process and makes consequential amendments to other Acts.

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone. Welcome to the 51^st meeting of the Standing Committee on National Defence.

Pursuant to the order of reference of Monday, December 6, 2010, we will be studying Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

It is our pleasure to have representatives from the Department of National Defence with us for the first hour, until 4:30 p.m.

Good afternoon, Vice-Admiral Donaldson.

Thank you for being with us.

We also welcome Mr. Alain Gauthier, Director General, Canadian Forces Grievance Authority.

And Mr. Timothy Grubb.

He is the Canadian Forces provost marshal.

Thanks for being with us. I will give the floor to Vice-Admiral Donaldson for seven to ten minutes.

[The Chair, Conservative, Maxime Bernier]

We now continue with the 50th meeting of the Standing Committee on National Defence.

Before starting, I want to inform the members that I will table tomorrow in front of the House our report, pursuant to Standing Order 108(2) and the motion adopted by the committee on Wednesday, February 16, 2011, that the committee recommends

That the Committee condemn the stoning of young women and men in Afghanistan and call on the government to take the necessary action to put an end to these stonings as as soon as possible and that it be reported to the House at the earliest opportunity.

That will be tabled tomorrow at 10 o'clock.

I'll also inform the members that you have until tomorrow, Tuesday, at noon, to give your amendments for Bill C-41 to the clerk, because we will start to work on this bill this Wednesday.

Do we have agreement on that? Jack?

[Jason Gratl, Vice-President, British Columbia Civil Liberties Association]

Merci, monsieur le président.

My name is Jason Gratl, and I am the vice-president of the British Columbia Civil Liberties Association. In my private life, non-volunteer life, I act as a criminal and constitutional litigator.

The British Columbia Civil Liberties Association, as many of you know, has taken an interest in the last decade in affairs involving national defence, and Bill C-41 is no exception. We are a non-profit, non-partisan, public interest organization devoted to the protection of civil liberties and human rights within British Columbia and Canada, and in addition in circumstances where some of our citizens are acting off Canadian soil.

I can say at the outset that the B.C. Civil Liberties Association takes the position that many of the amendments proposed by Bill C-41 do represent an improvement over the status quo, and we would support many of these provisions in Bill C-41. Where the bill is in our view found to be lacking is in its absence of attention to procedural fairness issues arising from the summary trial process. While many of those are beyond the scope of any improvements or amendments to Bill C-41, we believe that the principal problems or the greatest problems can be rectified with two small amendments to the National Defence Act.

The first amendment would be the removal of the provision allowing detention to be imposed as a sanction following a conviction under a summary trial. The relevant sections are found in section 163(3)(a) of the National Defence Act, in respect to commanding officers at summary trial, and 163(4), which involves a summary trial presided over by a delegate of the commanding officer. The first sets out the potential for detention for a period not exceeding 30 days, and the second detention not exceeding 14 days. In our view, those ought to be repealed. They are simple provisions to address in Bill C-41. As a pragmatic political question, it's available to the membership of this committee to address that particular issue within this session.

The second issue is that we would recommend an enactment of a restriction of the creation of a criminal record arising from summary trials.

The remainder of my remarks will be oriented to the question of how these proposed amendments or additions to Bill C-41 can be supported.

We begin from the principled stance that the Constitution of Canada is the supreme law of Canada as set out in section 52, part VII, of the Constitution Act. It's the supreme law of Canada. It's supreme over the National Defence Act, and absent any justification under section 1 of the Charter of Rights and Freedoms it can't be abridged. The larger analysis of the summary trial process for the B.C. Civil Liberties Association is informed by section 7 of the Charter of Rights and Freedoms, which, as the committee will be well aware, protects an individual's right to liberty and security of the person. There's a wealth of case law supporting the proposition that detention represents an abridgement of liberty.

That brings us into the question of whether the deprivation of liberty can be justified in accordance with the principles of fundamental justice. The principle of fundamental justice that has sway in this context is the principle that the greater the consequences to an individual resulting from a process, the greater the procedural protections must be. We see in the case of Charkaoui the possibility for deportation to face torture, so the level of procedural protection must be as high as possible. We see in a case called Rodgers from the Supreme Court of Canada that in cases where individuals have been convicted, the DNA can be taken even retroactively because the interest in that context is not that great.

So the greater the abridgement of interest, the greater the procedural protection might be, and here, with the deprivation of liberty, with the possibility of detention for 14 or 30 days, we fall somewhere along the high range of the requirement for procedural protection.

The committee is familiar with many of the problems with the summary trial process, the restrictions on access to counsel and the limited training opportunities for advising officers. One of the best sources for information regarding the problems with the summary trial process is found in the annual JAG survey of the summary trial process, where surveys were distributed to participants in the summary trial process.

The 2007 report—just to choose one, for example—reveals some troubling trends. Approximately 5% of persons tried by summary process reported that they were not offered an election to court martial. Those are not cases where no court martial option was available, but rather where, by statute, court martial was to be available and the individual was to be put to an election. Fully 5% of individuals who were tried say they weren't even given that option.

Only 76% of persons tried by summary trial process indicated they'd been given their choice of advising officer. That means the presiding officer dictated, contrary to the people's wishes, who their advising officer would be. And 49% of persons tried by summary trial process reported that their advising officer did not explain to them their right to speak with military defence counsel. As well, 70% of persons tried by summary trial process reported that the advising officer did not assist them with examining witnesses during the trial.

[Dr. Ian Holloway]

I think so. I didn't say this in the introduction, but after leaving the Canadian Forces I became an officer in the Royal Australian Navy. I wasn't a legal officer, but I did advisory work for the director of Australian naval legal services.

I can say, and I know this is going to be on the record, that the Australian approach to the reform of military justice is much more visceral, much less reflective than our approach in this country. That's why, as some of you may know, they've just gone through an awful time. There's been a constitutional challenge that has pretty much neutered the whole Australian system of military justice. It has undercut much of what Colonel Drapeau said they were trying to do.

We've not done that in Canada. We've had the chance, several times, to reflect and so on.

I think that Bill C-41 is not perfect, and if I were the parliamentary drafter there are things I might do differently. But I do think that in a reflective way, with almost 20 years now of hot operational experience to inform it, it has come a long way.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Okay. Lastly, again going back to your opening statement, you said that our military justice system has been one of the most studied in the western world. You also described it currently as “pretty darn good”. I think that was the quote. Does Bill C-41 help to make it better?

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Very good. Bill C-41 proposes to protect people against retaliation, persons who have made conduct or interference complaints concerning the military police.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

You do. Very good.

There are some important elements and features of Bill C-41. I wanted to run through some of them and get your impressions, your perspectives.

I didn't hear any specifics in your presentation, Professor Holloway, so I just wanted to provide these specific elements and ask you to comment on them, starting with the judicial independence of military judges.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you for that clarification.

Professor Holloway, I'm from just down the road, in Waterloo, so welcome.

You mentioned in your presentation that one of the primary purposes of the military justice system is to preserve unit cohesion. Do you feel that Bill C-41 helps to achieve that goal, to further reinforce that goal?

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you, Mr. Chairman.

Thank you, gentlemen, for coming.

This is the third attempt at this piece of legislation, and obviously we're trying to balance the rights of individuals within a military context.

Mr. Drapeau, you made some very compelling arguments. The question I would have is in your view what immediate changes would you suggest to Bill C-41 versus those that may come in future legislation, which I hope wouldn't be in the far distant future? In other words, after the third time, I think we need to get this legislation through, but if there are useful amendments that you think would be helpful, specifically in addressing the current summary trial process, could you provide those?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Okay, I just wanted to clarify that.

Mr. Drapeau, a lot of the stuff we're talking about is outside the scope of Bill C-41. It may be a good discussion, but it's outside the scope of the bill we're trying to get moved through here.

Are you aware that two of Canada's most eminent jurists, Chief Justice Dickson and Chief Justice Lamer, reviewed the summary trial system and made recommendations? I think government has followed 85 out of 88 or something like that. Both have endorsed the summary trial system. Do you agree with the chief justices or do you disagree with them?

[Colonel, Retired) Michel W. Drapeau (Professor, Faculty of Law, University of Ottawa]

Mr. Chair, let me open by thanking members of the committee for permitting me to appear before you this afternoon to present a commentary on Bill C-41.

Let me say at the outset that Bill C-41 contains a number of very useful changes. I recommend your support of these legislative measures. However, I also have a number of serious concerns about Bill C-41, most of which are addressed in my 12-page submission. I believe all members have received a copy of it.

Turning first to concerns, I personally find it very troubling that here we are, in 2011, and the government has still not implemented all of the recommendations that the late Mr. Justice Lamer made in September 2003. What's more, the government has ignored, without any explanation or justification, the central recommendation made by Justice Lamer--namely, the creation of a permanent military court.

What I find even more troubling is that DND appears to be in breach of its statutory obligation to conduct a second five-year review of Bill C-25. The first review was in 2003, and the second review should have taken place in 2008. We are now three years past that date, and to my knowledge there's been no independent review along the lines of what Justice Lamer recommended.

Let me address, in rapid succession, four concerns I have with Bill C-41..

Firstly, and of great concern, Bill C-41 is silent on summary trials. For a force of approximately 65,000 regulars, they have almost 2,000 summary trials every year. That's one trial for every 34 soldiers every year--a significant number. To put it into perspective, we have a total of 65 court martials a year. Despite the overwhelming number of charges heard at the summary trial level, and despite the fact that the summary trial proceedings are in need of repair, Bill C-41 ignores summary trial. It's almost as if it did not exist.

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

From where I stand, I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

The second issue is grievances. The grievance system as it currently operates is inefficient and unfair, because it fails to address the legitimate grievances of soldiers within a reasonable period, let alone within the statutory delays. Given that there are 700 grievances filed every year--one for every 95 soldiers--this has a large impact upon the rank and file.

Bill C-41 addresses the grievance process, but it does so largely for cosmetic reasons. In my view, if the committee were to approve the recommendation made by the department in Bill C-41, the grievance system would become worse. Why? There are two reasons.

First, one major flaw in Bill C-41 is that it will allow the Chief of the Defence Staff to become almost totally disengaged from the grievance system. From where I stand, fundamentally a commander cannot lead his staff, lead his troops, lead his soldiers if he is not personally interested in and aware of what ails his troops.

Another flaw is that the current grievance structure does not grant the Chief of the Defence Staff authority to approve any monetary remedy--not a red cent. Despite a suggestion by the Lamer report in 2003 to the contrary, it appears that DND is happy with the status quo. Considering that the CDS is in charge of protecting the lives of Canada's sons and daughters, and that the annual budget of National Defence is roughly $17 billion a year, I find it odd that the CDS has no authority to grant pecuniary remedies.

Before I leave the subject of grievances, as much as we need a Canadian Forces grievance board as an oversight committee, I believe that such a committee must be external and independent. More importantly, it must be seen as being external and independent. To be seen as being external and independent requires that the members of the grievance board be drawn from civil society, which is certainly not the case at present.

Third, through no fault of its own the Military Police Complaints Commission is as weak and toothless as an oversight committee can be and still be referred to as such. This is because care has not been taken to provide them with the required legislative provision empowering them to act as an oversight body.

I am surprised at the amount of attention being paid in Bill C-41 to military judges, compared to the absence of any mention of summary trial, or the banal changes to the Canadian Forces Grievance Board. As discussed in my paper, with a population of 65,000 regulars the Canadian Forces has a total of four judges handling a total of 65 court martials per year.

Court martial judges have been compared in the past to provincially appointed judges; however, when we compare them to provincially appointed court judges, court martial judges have a disproportionately low caseload. For such a very low number of trials--65--I would be hard pressed to substantiate such a number of judges, let alone increasing it by forming a panel of reserve judges. That's particularly so when we consider that at National Defence at the moment there are four defence lawyers overall. So you have four judges and four defence lawyers to look after the trial system.

In conclusion, in order for me to play a part in your examination of this bill there is much to think about and much that deserves careful study and contemplation before Bill C-41 can be voted into law.

I appreciate your attention, and I'm now available for questions.

[Claude Bachand, Bloc, Saint-Jean, QC]

I would also prefer to hear from the other witnesses before we consider the motions. These are very important and well-informed witnesses. Even if a few members are absent, I don't imagine that any votes taken today would have serious consequences.

I suggest we give the witnesses an additional 30 minutes at the very least, if not 45 minutes, and that we move on to motions 15 minutes before the bells ring. That would give us an extra 45 minutes, or thereabouts, with the witnesses. I think it's important to hear what they have to say. Personally, this habit of not giving each witness at least 30 minutes on average is inconsiderate of us. This is an attempt to bulldoze the process by trying to speed up testimony unnecessarily.

Mr. Chair, I want you to know that I take Bill C-41 seriously. I do not want it to be adopted hastily. I have motions and amendments that I would like to table and I do not want to be rushed into hearing from witnesses or proceeding to the clause by clause study. I agree that we should spend more time with the witnesses today.

[The Chair, Conservative, Maxime Bernier]

Welcome, everyone, to the 50th meeting of the Standing Committee on National Defence. Today, we have two items on our agenda, the business of the committee, and our ongoing study of Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

Do you want to go ahead right now with the witnesses and have ten minutes at the end to speak on committee business, or do you want to deal with committee business right now?

Mr. Harris.

[Pierre Daigle]

Again, all I'm saying is that after all the people we met, the investigation we did, the report we read, the legislation we read, this could have been done eight years ago, so what means should be used to do that?

I really took advantage of the fact that all the committee members here--and I read some of the earlier deliberations--are working towards helping the Canadian Forces and the members to be treated fairly. I'm saying now that this issue was raised by Chief Justice Lamer and that the Minister of National Defence agreed that we need to move on this, so it's whatever means he's been thinking of. I thought that now is probably actually the right time to deal with it, because Bill C-41 addresses this kind of issue.

How are you going to make the redress process, the grievance process--as the Minister of National Defence said to this committee--efficient, transparent, and fair, if right now there's unfairness in the CF and the Chief of the Defence Staff doesn't have the authority to give remedy to a soldier who has been wronged financially?

[Pierre Daigle]

Mr. Chair, I appreciate the comment that maybe there's a contradiction.

When I worked on that report after I arrived in the office in 2009 and when my office worked on that report a few years ago, I found that the former chief justice recommended that we amend the NDA to include that. Eight years later, it was not done, so when I wrote to the minister, I told the minister that there are other ways of doing it, because giving a financial delegation to the CDS could be done. When the minister's office stated in the media that to do this they would have to make a legislative amendment, I was concerned, because those legislative amendments hadn't been done for eight years with Chief Justice Lamer.

The minister himself said to me in a letter that we need to close this once and for all, and when I saw that it was not in Bill C-41, I saw this opportunity to close it right now. This is why I said it has to be in legislation: because if we don't do it, we'll wait another six years to find the proper way of doing it.