Bill C-15 (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.

[Gilles Létourneau]

Thank you.

I'm willing to acknowledge that there are substantial reforms proposed in this bill, which I accept. To show you how it's sometimes hard to understand why they stop at that, for example, if you take the civilian court, the judge who gets an offender in front of him can decide to suspend a sentence for two years and allow a monitoring of his behaviour. If at the end of the two years he's been of good behaviour, he can grant an absolute discharge or conditional discharge, which means he has no criminal record.

We don't get that here in the military. They can suspend the execution of the sentence, but the sentence is passed. What I'm talking about here is the suspension of the passing of the sentence to monitor.

Unless I've missed something because I was still sitting on the court, I see that there is an absolute discharge mechanism in Bill C-15, but there's nothing about conditional discharge. Conditional discharge ends up with the same result, except that you have the sword of Damocles hanging over the head of the guy: if he's of good behaviour, then everything is wiped out, but if he fails, then he gets a sentence.

Why do we stop at that? I don't know. If you look at the bill as a whole, there are a number of provisions like that.

I'll give you another example. There's a provision dealing with the power to arrest. If you go back to the bill, you'll see that the police have the power to arrest, but a duty not to arrest if it's a less serious offence and you know the identity of the person and there's no likelihood that the offence will carry on, and so on. This is borrowed from the Criminal Code, no doubt about it, except that they have not borrowed the code entirely.

If you go back to sections 495 and 496 in the code, you will see that this duty not to arrest applies to less serious offences and to hybrid offences. What's a hybrid offence? A hybrid offence, like sexual assault, is an offence that can be prosecuted summarily—we have summary trials in civilian courts—or as an indictable offence. If the person is arrested for sexual assault, because it is a hybrid offence there is a duty not to arrest unless the conditions of the code are fulfilled. What we are importing here is a duty on the military police officer that is less stringent than what we have on the civilian police. I'm not sure this is constitutional, and I'll tell you why.

In the Gauthier case in 1998, the Court Martial Appeal Court was facing an abuse of police power to arrest. The unanimous Court Martial Appeal Court ruled that the guarantees found in the Criminal Code were imported by the charter into the National Defence Act and found that the arrest was unlawful because there was a duty not to arrest.

In the Du-Lude case about six or seven years later, the Federal Court of Appeal gave $10,000 to a soldier who had been unlawfully arrested when there was a duty not to arrest, as a result of the Court Martial Appeal Court decision in the Gauthier case, on the basis of a violation of his constitutional rights.

However, here we have a provision that gives less than the Gauthier and the Du-Lude cases have been giving to a solider.

I'm sorry if I took too much time.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair, and through you to the witnesses, thank you for appearing today.

My questions will be for Justice Létourneau.

I know that you have been intimately involved with the military justice system for many years now and that you have made many public comments with regard to the potential for reform.

There is a preamble to my questions, which are two.

The bill currently before this committee proposes several changes to improve this review and reform cycle; specifically, Bill C-15 proposes to fulfill the Lamer report recommendation to entrench independent review provisions in the National Defence Act.

Bill C-15 also proposes to move beyond the limitations of Bill C-25 review mechanisms by permitting a greater focus and in-depth review; by allowing a given review to focus on specific thematic issues, such as military justice grievances, the Canadian Forces provost marshal, and the Military Police Complaints Commission; and by changing the review period to seven years between reviews as opposed to the current five years. This will increase the likelihood that any review would be conducted only after a sufficient period of time has elapsed to provide an adequate track record upon which to base subsequent assessments of the operation of provisions.

My questions are these: first, do you think that this iterative approach is a prudent way to approach military justice reform? Second, do you think it is a good idea to implement the recommendations of the Lamer report on strengthening and entrenching the independent review of the military justice system in the National Defence Act?

[Gilles Létourneau, Retired Judge of the Federal Court of Appeal and the Court Martial Appeal Court of Canada, As an Individual]

Thank you, Mr. Chair and members of the committee. I am proud and honoured to share my knowledge in Canadian military justice with this committee in the context of Bill C-15.

Let me open, Mr. Chair, by noting that I have already provided the clerk of the committee with five copies of a bilingual book, which I recently authored, on Canadian military justice. It is entitled Introduction to Military Justice: An Overview of the Military Penal Justice System and Its Evolution in Canada. I will make reference to the contents of this book as a complement to my remarks today.

I have followed, with much interest, the discussions that have taken place within this committee on Bill C-15. While I acknowledge some of the improvements the bill contains and proposals that have been made for changes to the bill, I have to deplore the lack of a wall-to-wall review of the National Defence Act, which, in my considered opinion, leads to a short-sighted, if not distorted, view of the Canadian penal military justice system.

Hence, my first point is that there is a need for a fundamental wall-to-wall review of the National Defence Act, a review that has to be conducted outside the control of the Department of National Defence so that Parliament can be provided with a legislative proposal that addresses not only the wishes of the military leadership but also, first and foremost, the expectations of our civil society, who demand that our soldiers who serve in uniform be afforded rights equal to those provided in the civilian penal system in Canada and other militaries abroad. This is currently not the case.

In the short period of time I have, I can only give you an overview of some of these problems. In fact, both from a constitutional and a practical perspective, I would like to draw your attention to the shortcomings of this piecemeal approach taken so far by the military to the reform of the military justice system. I shall provide a few examples that will help you understand what I mean by its structural shortcomings and that will highlight the resistance of the Canadian military to real substantive changes that would actually strengthen the military justice system in Canada.

Let me begin with the prolonged struggle to bring about the constitutionality of the courts martial, as an example. In 1990, the Court Martial Appeal Court of Canada—I'll refer to it as the CMAC—found the standing court martial unconstitutional. In 1992, while it recognized the constitutionality of separate military tribunals, the Supreme Court of Canada, in the Généreux case, ruled that the general court martial also was unconstitutional. Since nothing whatsoever was done to amend the National Defence Act to remedy this, it should come as no surprise when six years later, in 1998, in the Lauzon case, a unanimous Court Martial Appeal Court concluded that the standing court martial was unconstitutional.

After the Lauzon case, the case law with respect to the independence of courts in general continued to evolve. Military judges' security of tenure became, along with administrative independence and financial security, a component of judicial independence. However, it seems this jurisprudential evolution never reached the Canadian military, because nothing was done to review the status of the courts martial on the issue of security of tenure, so in 2007, in a unanimous and powerful obiter dictum in Dunphy, the Court Martial Appeal Court made a certain number of observations on the issue of renewable terms for military judges. This reconsideration took place in the case of Leblanc, a decision handed down on June 2, 2011. This led to the passage of Bill C-16 last year.

In retrospect, it is interesting to observe that despite the ruling of the Supreme Court of Canada with respect to the independence of provincial judges, in spite of the excellent obiter dictum of Justice Hugessen of the CMAC in Dunphy, and despite decisions handed down by courts martial holding renewable terms for military judges to be unconstitutional, the military prosecutor strenuously objected to the making of a declaration of unconstitutionality requested by the appellant in the Leblanc case. Instead, speaking for the crown, he argued that the security of tenure of military judges, if desirable, was not constitutionally required.

Meanwhile, not to be forgotten is that military judges enjoyed unparalleled powers and dealt with crimes of a most serious nature. Consider this: they were, for instance, the only judges in Canada who, operating under renewable terms, could until 1998 sentence an offender to death.

They were also the only judges not having security of tenure who were called upon to try the most serious offences in our criminal law or to preside at general courts martial.

Also, they have tried offences including murder and manslaughter committed outside Canada. Examples include the Deneault case in 1994, for murder committed in Germany; the Brown case in 1995, for manslaughter and torture in Somalia; and recently the Semrau case, for second-degree murder and attempted murder in Afghanistan.

To sum up, as a result of legislative inaction and military resistance to changes required by the charter, it took nearly 20 years of legal challenges in a civilian appellate court to achieve—although not completely, as we shall see—the judicial independence of the courts martial and their incumbents.

Let me give you another example. Contrary to the Criminal Code, the National Defence Act gave the right to choose the mode of trial to the prosecution rather than to the accused. In 2008, in the case of Trépanier, the CMAC found the provision unconstitutional. Again, notwithstanding a Supreme Court of Canada decision to the effect that the choice of the mode of trial is a tactical advantage that belongs to the accused as part of his right to full answer and defence under the charter and the CMAC's serious concern expressed about the constitutionality of the provision in the Nystrom case in 2005, some three years before Trépanier, the military prosecution again showed no willingness to confer to a soldier facing criminal proceedings this advantage granted to him by the charter. It bitterly fought the Trépanier case, and the court had to intervene to ensure that a military accused's rights were equal to those under the civilian penal system.

With this background information, allow me to bring to your attention concerns l have about some of the provisions of Bill C-15 in respect of either their constitutionality or the unwarranted unequal treatment they afford to a member of the armed forces charged with a service offence based on the Criminal Code.

Let me start with the summary trial. I won't repeat here what has been said by the two previous speakers. I endorse their submissions and their fears. I think the system is unconstitutional, and it is still in place only because there's no means of contesting it other than a declaratory relief in the Federal Court, at the expense of the soldier, with two layers of subsequent appeals.

It has been mentioned that the British have changed the system. I won't repeat the fact that there's a right to counsel and so on, but as a general rule, imprisonment or service detention cannot be imposed when the offender is not legally represented in the court of appeal in a summary trial or in a court martial. There can be no imprisonment or detention unless he's represented by counsel.

Mr. Drapeau has alluded to the fact that changes have taken place in Ireland, Australia, New Zealand, France, Belgium, Austria, the Czech Republic, Germany, Lithuania, and the Netherlands, and despite the fact that the requirements of independence, impartiality, fairness, and justice are the same in Canada as they are in England—and if anything, they are more compelling here, because in Canada they are entrenched in the Constitution—our soldiers in uniform are still denied fair treatment at a summary trial. I'll be pleased to answer questions on that.

I can see how under Bill C-15 the provost marshal is appointed by the Chief of the Defence Staff and removed from office by the CDS. However, for example, if you look sections 56 and 58 of the Quebec Police Act, you will see that the director general of the Quebec Police Force is appointed not by the Minister of Public Security, who is responsible for the police, but by the government. The director is removed by the government only pursuant to a recommendation of the Minister of Public Security after an inquiry.

This process provides not only an actual and better guarantee of independence to the incumbent but also increases in the general public and in the individuals subjected to the police powers a perception of real independence, as well as their confidence in the administration of justice.

According to section 6—

[Glenn Stannard, Chair, Military Police Complaints Commission]

Good afternoon, Mr. Chair and members of the committee.

I'd like to thank you for inviting us today to testify relative to this study of Bill C-15.

I'm accompanied today by my general counsel and director of operations, Ms. Julianne Dunbar, who has been with the commission virtually since the beginning of the commission.

I'm not going to bore you with issues relative to the mandate. Many of you will know it, or it's written in our brief. I'll simply say that the Military Police Complaints Commission's mandate is to review and investigate complaints concerning military police conduct and complaints of interference in military police investigations.

Today we're here on one issue, and it's the proposed authority of the VCDS to direct military police investigations, in particular the proposed new subsection 18.5(3) in clause 4. The provision would create a new NDA subsection that would expressly authorize the Vice Chief of the Defence staff to direct the Canadian Forces provost marshal, the head of the Canadian Forces Military Police, in the conduct of specific military police investigations.

The commission takes no issue with the general supervisory role of the VCDS vis-à-vis the CFPM as set out in proposed subsection 18.5(1), nor with the authority of the VCDS to issue general instructions to the CFPM in respect to the discharge of his responsibilities as provided in proposed subsection 18.5(2). These provisions merely codify the existing relationship as set out in the 1998 accountability framework between the VCDS and the CFPM.

The proposed subsection 18.5(3) is an important departure from the status quo, and it runs counter to the present-day accountability framework. On March 2, 1998, the accountability framework gave the authority to the VCDS.

To quote a bit of it:

The VCDS may give orders and general direction to the CFPM to ensure professional and effective delivery of policing services.

It specifically stipulated:

The VCDS shall not direct the CFPM with respect to specific military police operational issues of an investigative nature.

It goes on to say:

The VCDS will have no direct involvement in individual ongoing investigations but will receive information from the CFPM to allow necessary management decision making.

Further,

The CFPM has a duty to advise the VCDS on emerging and pressing issues where management decisions are required.

What is prompting the reversal now?

The accountability framework was reviewed and endorsed by the Military Police Services Review Group in 1998. It was developed the same year that Parliament made amendments to the NDA in Bill C-25, following the troubling incidents during the CF deployment to Somalia in the early 1990s. Also, part IV of the NDA was established, which created a complaints regime for the filing of interference complaints.

You've heard in previous testimony that the independence and integrity of military policing has been further supported through changes to the military police command structure effective April 1, 2011, with all military police members, other than those deployed on military operations, under the command of the CFPM.

The proposed authority for the VCDS in proposed subsection 18.5(3) is thus out of step with the efforts over the past 15 to 20 years to recognize and support the independence of military police within the Canadian Forces, particularly when conducting law enforcement investigations.

In its 1999 decision in R. v. Campbell, the Supreme Court affirmed that when engaged in the investigation of offences, police officers are answerable only to the law and do not act on behalf of the broader government.

You have as part of our brief an independent opinion commissioned by the military police commission from Professor Kent Roach of the University of Toronto Faculty of Law. He concluded that the proposed new clause “violates core concepts of police independence” and that the proposed authorization of interference in particular military police investigations could well run afoul of the Constitution, specifically the unwritten constitutional principle of the rule of law.

As commission chair and as a past serving member in policing for 38 years, with 14 years as chief and deputy chief of an organization, I well appreciate there are differences between military and civilian policing. However, the authority proposed to be conferred in the new subsection is specifically and exclusively aimed at the heart of military policing duties, i.e., the investigation of offences.

The dual role of MPs in the CF as police officers and as soldiers does not, in the commission's view, diminish the applicability of the legal principle of police independence to the military police when conducting law enforcement investigations. If it were otherwise, one must question why Parliament created the interference complaint mechanism in the 1998 NDA amendments that established the commission.

The 2003 report of the first independent five-year review of the 1998 amendments to the NDA, conducted by former Chief Justice Lamer, is said to provide the basis for many of the proposed amendments to Bill C-15, yet it should be noted that this report contained no recommendations for conferring such power on the VCDS. To the contrary, Justice Lamer's only concern with the 1998 VCDS and CFPM accountability framework was that its non-legislative status provided insufficient protection of the CFPM's policing independence.

As far as the commission is aware, there have been no problems with the accountability framework that justify its revocation at this time, and proposed subsection 18.5(3) runs counter to various efforts over the years to shore up public confidence in the independence of military policing.

If we equate this to civilian policing—and I know there are differences, and maybe during questions some of that may be discussed—the VCDS could be said to be analogous to a police services board. Both are involved in general policy matters, budget, and administrative issues.

There are examples across this country in provincial legislation that prohibit members of the board from interfering with policing investigations. This is not new. I've dealt with this during the last 14 years. Board members, mayors, government officials, and I cannot imagine any of you as government officials wanting to direct the policing investigations in your communities.

There are many precedents. It's provincial, federal with the RCMP, and internationally there is one in New Zealand, but let's just stay in Canada.

The Ontario legislation, as an example, provides all the steps for all the issues that can be dealt with by the board—in this case, the VCDS. The one thing that they can't do is give orders and directions on policing investigations or on day-to-day operations of the police organization.

Knowing that the independence of the police is paramount for them to do their job free of interference, what is the rationale to now include subsection 18.5(3) and apply it to the VCDS? What is the interest in having this provision and then still say that the CFPM is independent?

The commission is recommending at this time that proposed section 18.5, as it is written, be deleted, as it would be a step backwards, in our respectful submission.

Finally—and I'm only going to touch on it briefly because it's in the brief—there's an issue at page 5, as outlined. There is an additional item to correct the French version of the act. As you know, Bill C-15 includes many corrections in the French version of the act to better align it with the English version; however, one correction is overlooked, and I'll refer you to paragraph 250.42(c), which just needs to be.... We see it as a housekeeping item.

Those are my submissions. I look forward to any questions that anyone may have.

[The Chair, Conservative, James Bezan]

Let's bring this meeting back to order.

We're going to continue with our study on Bill C-15.

Joining us for the second hour is Mr. Glenn Stannard, who is the chair of the Military Police Complaints Commission.

Appearing as an individual is recently retired Justice Gilles Létourneau.

I want to welcome both of you to our study.

Mr. Stannard has a long and distinguished career with the Windsor Police Service, serving for 37 years, nine of those as chief. He was appointed to the commission in 2007 and became the chairperson in 2009.

Mr. Stannard, could you bring us your opening comments first?

[The Chair, Conservative, James Bezan]

Thank you. Time has expired, and our hour with these witnesses is up.

I want to thank both Monsieur Drapeau and Mr. Ruby for joining us and for providing their expertise and input into our study on Bill C-15.

I'm going to ask you to leave the table and for our other witnesses to come forward.

We will suspend.

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

Does Bill C-15 contain provisions to the effect that mental health will be taken into account? Were provisions on mental health added?

[Colonel, Retired) Michel W. Drapeau (Professor, University of Ottawa, As an Individual]

Thank you, Mr. Chair. Thank you, members, for giving me the honour to appear before you.

Over the past decade I have watched our army transform itself into a world-class organization whose performance in Afghanistan has gained the unrestricted admiration and respect of both our allies and Canadians. This is due, in my estimation, to two interconnected factors: a second-to-none field leadership and the unremitting performance by the rank and file who serve above and beyond the call of duty.

At the end of the day, I hold a firm belief that we owe our soldiers an immeasurable debt of gratitude for bringing glory to the Canadian flag, for bringing unflinching solidarity to our allies, and for impeding a global threat to national security.

In deploying to Afghanistan, our soldiers carried with them our rights and values. In the process, they put their lives at risk so as to give the Afghan people a taste of democracy and the rule of law. Sadly, many did not return.

I believe that Bill C-15 should in many ways be in recognition of, and be the incarnation of, their courage, their commitment, and their sacrifices. Out of gratitude as well as justice to these soldiers, Bill C-15 should be first aimed at protecting their rights, not creating more bureaucracy, military lawyers, and military judges. It should be written from the perspective of soldiers and their commanders, not the military legal staff serving in the safe enclave of National Defence Headquarters.

I have five major concerns with Bill C-15.

First is the summary trial system. Although they are by law part of the criminal process, these trials are heard not by a judge, but by a member of the chain of command. There are close to 2,000 such trials each year. Since summary trials had an average conviction rate last year of 97%, this means that one out of every 30 Canadian Forces members ends up each year with a record of conviction by a quasi-criminal tribunal, yet Bill C-15 totally ignores summary trials.

However, so does Canadian jurisprudence. Why? It's because someone accused before a summary trial has no right to appeal either the verdict or the sentence. This is despite the fact that the verdict and sentence are imposed without any regard to the minimum standards of procedural rights in criminal proceedings, such as the right to counsel, the presence of rules of evidence, and the right to appeal.

In Canada, these rights do not exist in summary trials, not even for a decorated veteran, yet a Canadian charged with a summary conviction offence in civilian court, such as Senator Patrick Brazeau, enjoys all of these rights. So does someone appearing in a small claims court or in a traffic court.

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 these charter rights when facing a quasi-criminal process with the possibility of loss of liberty through detention in a military barracks.

If Britain, Australia, New Zealand, and Ireland have seen fit in the recent past to overhaul the summary trial process when it was found to be non-compliant with universally recognized human rights, it raises the question of why Canada is not at the very least considering the same sort of overhaul.

My second concern is grievances. If Bill C-15 is enacted in its current form, the Chief of the Defence Staff will become almost totally disengaged from the grievance system. I believe that the CDS, the most senior officer in the Canadian Forces—not the minister, not the ombudsman—has a moral and legal duty to look after his people and become personally interested in and aware of what is causing disgruntlement and why an individual soldier finds it necessary to use a grievance process to receive a modicum of justice. This is what leadership, at least in the armed forces, is all about.

My third concern is military judges. I am surprised at the amount of beneficial attention being paid in Bill C-15 to military judges. Currently the four military judges handle a total of 65 courts martial per year. In 2011-2012, this required each military judge to spend approximately 4.5 days per month in court. In my estimation, this is by far the lowest caseload of any criminal court of record in Canada. Perhaps the time has come to have the Auditor General conduct a performance audit of this military justice system. Canada and the military simply cannot afford such extravagance.

Be that as it may, one would think that government should be reducing the number of military judges or transferring that function to the Federal Court of Canada. Instead, in Bill C-15, there is a call to appoint a deputy chief military judge and, worse, to form a reserve force military judges panel. The only ones who could possibly benefit from this would not be the military at large, but a very small handful of senior military lawyers who would qualify for such extra appointments in the first place.

My fourth concern is the military police. During the past year I have acted as counsel for Mr. and Mrs. Fynes concerning their allegation against, inter alia, the alleged lack of independence of the military police and in particular the National Investigation Service.

In its investigation, the Military Police Complaints Commission conducted 62 days of hearings, during which disturbing evidence was presented on that very subject. The proposed new subsection 18.5(3) in Bill C-15 would, in my estimation, make the current lack of independence worse by granting authority to the Vice Chief of the Defence Staff to issue instructions or guidelines in respect of a particular investigation.

Keep in mind, please, that already the CDS and the VCDS have the power to call in the NIS to conduct an investigation on any issue that is of concern to them. Quite frankly, under the existing command arrangement it is most unlikely that the NIS would ignore such a request. Also, the CDS does not feel inhibited about commenting publicly on an open NIS investigation, but to now give the VCDS the authority to issue instructions or guidelines in respect of a particular military police investigation will remove any pretense that the military police are independent from the chain of command.

Lest we forget, the CDS, the VCDS—and, for that matter, the Judge Advocate General—are each subject to the code of service discipline. None of them should have the power to direct or influence either the initiation, the suspension, or the conduct of a particular police investigation, let alone to issue instructions or guidelines as to the conduct of a specific examination.

Fifth is the civilianization of the military justice system. There are growing worldwide concerns regarding the compatibility of the military justice system with international human rights standards. In Europe, the European Convention on Human Rights has had an impact on national military law, particularly in the United Kingdom, Germany, and France, to name a few. These countries have concluded that the presence of a civilian judge in military tribunals would reinforce the principle of civilian supremacy over military justice and also the impartiality as well as the independence of such tribunals, since they are no longer part of the military hierarchy.

Would this work in Canada? Absolutely. All one has to do is to look at what happened to Sub-Lieutenant Delisle last Friday in a Halifax sentencing courtroom. In the vernacular, the civilian judge got it right. Moreover, the United Kingdom, Australia, and New Zealand have gone one step further: they have now civilianized the positions of the Judge Advocate General and the Director of Military Prosecutions and moved their offices outside the military headquarters to the corresponding civilian department or ministry. We should do no less.

In closing, Mr. Chair, let me say that it is an honour for me to play a part in your examination of this bill. In my respectful submission, both as a former soldier and as someone who reads military law day in and day out, I urge you to balance the proposition being made to you by the proponent of this bill against the rights of ordinary Canadians serving our Queen and country in uniform.

I appreciate your attention and I am now available to take your questions.

[The Chair, Conservative, James Bezan]

I call the meeting to order.

Good afternoon, everyone. I welcome you all to meeting number 65 of the Standing Committee on National Defence and our study on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

For our first hour, we're being joined by Michel Drapeau, a professor at the University of Ottawa, and by Clayton Ruby, a lawyer from Toronto.

Mr. Drapeau was born and raised in Quebec and served 34 years in the military. He served as the director of National Defence Headquarters Secretariat as well as secretary to the Armed Forces Council. He graduated from the civil law program in 2009 and the common law program in 2000, and he has clerked at the Federal Court of Appeal under the supervision of Justice Gilles Létourneau, from whom we will hear in the next hour. He was called to the bar in 2002 and is an adjunct professor at the University of Ottawa. We are very pleased to have him with us today.

Monsieur Drapeau, please proceed with your opening comments.

[The Chair, Conservative, James Bezan]

Thank you very much.

I want to thank all three of our witnesses for appearing today, for helping us with our study of Bill C-15 , and for providing recommendations and advice. We appreciate that counsel.

I also want to thank all three of you for your military service and your service to our country. Thank you for the personal sacrifices you have to make in serving in the Canadian armed forces.

With that, I want to entertain a motion to suspend the meeting, and when I drop the gavel, I'm going to ask everyone who's not with a member of Parliament to vacate the room.

Is there a motion to suspend?

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

Thank you, Chair.

Very briefly I'd just like to say how impressed I am—and I think some of my colleagues are—by the general level of confidence that you all show in the military justice system and the prospects for improving it through Bill C-15 and subsequent improvements. I would like to reassure you that the government maintains its commitment to amend clause 75 relating to criminal records, which would have the effect of excluding approximately 95% of convictions from summary trials if you take a recent sample from trials resulting in a criminal record.

Given that we intend to make that improvement as well and given that the LeSage recommendations are still under review, do you—I guess I'm putting this to Dean Holloway and Mr. Dugas—agree that the changes in Bill C-15 will constitute a substantive improvement to the summary trial system?

[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.

[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.

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

Thank you.

Mr. Holloway, I would like to pick up on the matter of summary trials and clause 75 of Bill C-15.

According to the Queen's Regulations and Orders for the Canadian Forces, or QR&Os, prior to passing sentence, the presiding officer of a summary proceeding shall take into account many factors, including the number, gravity and prevalence of the offences committed, as well as the family problems and financial situation of the accused. What that means, then, is that, when two individuals of the same rank commit the same offence, there is no way to ensure that both receive the same sentence, owing to the numerous factors the presiding officer must take into account. I don't object to the requirement to take those factors into account.

Pursuant to clause 75 of Bill C-15, and even in its previous incarnation, Bill C-41, the determination as to whether the accused will be subject to a criminal record is based on the sentence imposed on the accused. I would like to hear your take on that.

Furthermore, looking at the amendments contained in Bill C-41, among the sections of the National Defence Act that were added, some were not added to the amending legislation. For instance, section 98 of the act concerns those who aggravate disease or infirmity. That was not included in the amendments under Bill C-41.

I have met people who were accused and subjected to a summary trial under section 98, because they had sprained an ankle during a particularly challenging leader's course and had asked for a bandage in order to be able to walk on the ankle for three days, as they did not want to have to start the very difficult course over again. It's common for people to do that kind of thing, depending on the mission. Since that section was not included in the amendments under Bill C-41, the accused could have been subject to a criminal record.

In light of the fact that numerous factors must be taken into account, I would like to know whether clause 75 of the bill could not use more effective wording, to prevent people from having criminal records as a result of a conviction or summary trial, a proceeding that would not have happened in the civilian justice system for the same offence or act. I realize, of course, that we're talking about legal language for a bill and that kind of thing isn't done on the fly. I would appreciate it if you could provide some suggestions in writing afterwards.

I'd like to hear your take on what I just said.

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

Thank you, Mr. Chairman.

Dean Holloway, can you please comment on the sentencing provisions in Bill C-15? In your view, is this a positive development for the military justice system?