National Defence Committee on June 16th, 2008

[The Chair, Conservative, Rick Casson]

I call the meeting to order.

Today we are meeting pursuant to the order of reference of Monday, June 16, 2008, on Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another act.

Appearing as witnesses in the first hour are General Kenneth Watkin, judge advocate general; Colonel Patrick Gleeson; and Colonel Michael Gibson.

Sir, I will leave it up to you to proceed, and then there will be a round of questions. I'm sure you're familiar with the process at the committee, and hopefully any questions that our committee members have of you, you'll be able to respond to.

[Brigadier-General Kenneth W. Watkin, Judge Advocate General, Department of National Defence]

Thank you, Mr. Chairman and members of the committee. Good afternoon. Bonjour.

I would like to start by thanking you for the opportunity to appear before the committee today. As judge advocate general, I have the statutory responsibility for the superintendence of the administration of military justice. This appearance provides me the opportunity to explain the contents and intended operation of Bill C-60.

As judge advocate general, I am not only concerned with the efficiency and effectiveness of the military justice system; my obligation is also to ensure its fairness. That responsibility extends to addressing the effect that individual cases have on the system of military justice as a whole. As the late Chief Justice Antonio Lamer stated in his 2003 review of the military justice system, “Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence”. This bill is designed to strengthen that military justice framework.

Mr. Chairman, the distinctive nature of the military justice system has been acknowledged by the Supreme Court of Canada and the existence of a system of military tribunals with jurisdiction over cases governed by military law is constitutionally recognized in the Canadian Charter of Rights and Freedoms.

The National Defence Act establishes the Code of Service Discipline which provides for a two-tiered system of military tribunals: summary trials and courts martial. Summary trials are presided over by officers in the chain of command and are limited in terms of the types of offences that can be tried, and the punishments that can be awarded. Summary trials are as their title suggests: "summary" in nature. Lawyers are normally not present and the trials involve less serious disciplinary incidents. These incidents most often relate to training, drill and deportment, but can also include assault, minor drug and other offences related to unit level discipline.

While the vast majority of service offences are dealt with by summary trial, it is clear that some offences must be dealt with by the more formal court martial system. Serious military offences can be sent directly to court martial, which you would recognize as similar to a civilian criminal trial.

There are presently four types of courts martial; however, Bill C-60 would simplify the structure and reduce the types of courts martial to two. Military judges preside at courts martial. A court martial may be composed of a military judge sitting alone or a military judge sitting with a panel of members similar to a civilian jury trial. At such trials, there is an independent prosecutor, and the accused is defended by either a military or civilian defence lawyer.

The court martial serves another essential function in our system of justice. For most service offences, the accused must be offered an election to be tried by court martial. This crucial safeguard for the accused's rights permits a service member to choose a trial presided over by a military judge and to be represented by fully qualified lawyers. At the same time, if a commander commences a summary trial and subsequently determines the matter should be sent to court martial, he or she can do so. The option of proceeding to court martial therefore provides an essential mechanism to ensure fairness to the accused, and it protects the broader interests of the military in Canadian society.

Court martial decisions can be appealed to the Court Martial Appeal Court, consisting of civilian judges from the Federal Court and superior courts of criminal jurisdiction. Court Martial Appeal Court decisions can be appealed to the Supreme Court of Canada.

An essential attribute of the military justice system is fairness. Again quoting the late Chief Justice Lamer, we should strive “to offer a better system than merely that which cannot be constitutionally denied”.

In order to ensure that members of the Canadian Forces continue to be dealt with fairly, it is necessary to make adjustments to the system from time to time in response to judgments from appeal courts.

Mr. Chairman, on April 24th, 2008, the Court Martial Appeal Court found in the case of R. v. Trépanier that the exclusive power of the Director of Military Prosecutions to choose the type of court martial violates an accused person's constitutional rights under the Charter. The Court also struck down the section of the National Defence Act which authorized the Court Martial Administrator to convene courts martial. The convening of a court martial is an essential step in bringing a matter to trial. Most significantly the Court held that these provisions of the National Defence Act are of no force and effect. The Court was not willing to suspend the effect of its decision.

This Bill has thus been developed and introduced on a priority basis to address the urgency of the situation which has been created by the striking down of these sections of the National Defence Act.

While efforts have been made to continue with courts martial that were already convened, there have not been any new courts convened in the past seven weeks. Left unaddressed, an inability to conduct trials by courts martial will adversely affect the administration of military justice and, with it, the maintenance of discipline, efficiency, and morale upon which the operational effectiveness of the Canadian Forces depends.

In addition, important societal interests are at risk because accused persons will not benefit from the right to trial within a reasonable time, a right to which they are constitutionally entitled. As a result, serious offences may go unpunished in which victims and society would not see justice done.

Leave to appeal the decision in Trépanier is being sought from the Court Martial Appeal Court, along with a stay of execution of the decision. The courts provide the forum through which to address important constitutional issues. However, it should be appreciated that an appeal is unlikely to provide the timely and certain answer to the challenges created by the Trépanier decision. A legislative solution will provide this required certainty in a timely manner.

Mr. Chairman, I would like to directly address an issue that may be of concern to members of the Committee. That is why is Parliament being asked to pass Bill C-60 on an urgent basis, while leave to appeal to the Supreme Court of Canada is being sought concurrently. It is important to appreciate that while the proposed legislation and the appeal flow from the judgment they are two separate and distinct matters. If Leave to Appeal is granted the Supreme Court of Canada will deal with the constitutional legal issues raised by the Trépanier decision.

The Bill on the other hand is about making the military justice system work now and into the future. It ensures that both the effects of that decision and associated broader policy issues are addressed. Put simply, Bill C-60 will bring clarity, certainty and stability to the court martial convening process.

I would like to outline briefly for you the contents and effect of the bill.

The bill simplifies the court martial structure, establishes a comprehensive framework for the selection of the type of court martial to try an accused, and enhances the efficiency and reliability of decision-making. Specifically it will, as has been noted, reduce the number of types of courts martial from four to two, expand the jurisdiction of the standing court martial to include all persons subject to the Code of Service Discipline, increase the powers of punishment of a standing court martial from imprisonment for two years less a day to imprisonment for life, and limit the powers of punishment of a court martial that tries a civilian to imprisonment, a fine, or both.

In terms of the type of court martial to try an accused person, it will set out the serious offences that must be tried by General Court Martial; prescribe when relatively minor offences must be tried by Standing Court Martial; and, in all other cases, permit the accused person to choose between trial by military judge alone or a "panel" court.

Respecting Court Martial decision-making, it will provide military judges with the authority to deal with pre-trial matters at an earlier stage in the process, and enhance the reliability of verdicts by requiring a unanimous vote by panel members for findings such as guilty or not guilty at a General Court Martial.

Mr. Chairman, the proposed amendments are intended to respond clearly and decisively to the concerns expressed by the Court Martial Appeal Court. Bill C-60 responds directly to the issues identified in the Trépanier decision, but it is not limited to the narrower questions that arise from the facts of that case.

For example, the Trépanier decision focused on a military offence under section 130 of the National Defence Act, which incorporates civilian criminal offences. The ability to deal with section 130 service offences, such as trafficking in drugs, is essential to the maintenance of discipline. However, a military law does not distinguish between those incorporated offences and other specifically enumerated offences such as disobedience of a lawful command, which can attract a punishment of life imprisonment. As a result, this bill does not limit itself to the incorporated offences, but rather provides the same expanded rights to all accused persons, whether they are charged with an incorporated offence or one specifically enumerated in the National Defence Act.

In keeping with the objective of providing clarity in the system, the bill also provides an opportunity to clarify certain provisions of the National Defence Act following the judgment of the Court Martial Appeal Court in R. v. Grant. Unlike the Trépanier decision, the court in Grant did not find a breach of the charter, but ordered a matter that was statutorily required to be tried by court martial due to the passage of time be retried by a summary trial. The court noted it was providing a remedy tailored to the specific facts and circumstances of that case.

As superintendent of the military justice system, I must not only look at the outcomes of specific cases, but also address their effect on the larger system of military justice. For example, the direction in Grant that a new trial be conducted by summary trial instead of at court martial has created considerable uncertainty in respect to the accused person's election rights and the ability of a commander to refer a matter to court martial prior to or during the summary trial. The importance of these mechanisms in ensuring fairness to an accused and protecting the broader interests of military and Canadian society were noted earlier in my remarks.

Bill C-60 will clearly indicate that the power of the Court Martial Appeal Court is to order a new trial by court martial. The duty to act expeditiously under the Code of Service Discipline arises upon the laying of the charge, and the one-year limitation period is a jurisdictional provision reinforcing the summary nature of those proceedings.

Mr. Chairman, the court martial tier of the military justice system constitutes an essential tool with which to accomplish the fundamental purpose of the system. It is my assessment as the judge advocate general that amending the National Defence Act on a priority basis is required to bring the needed clarity, certainty, and stability to this situation. This bill will enhance the fairness of the military justice system from the perspective of accused persons and the Canadian public by reinstating a statutory provision authorizing the convening of courts martial. It will ensure that justice can continue to be done for accused persons as well as for victims.

Mr. Chairman, in order to allow sufficient time to address any specific concerns you have, I will now conclude my introductory remarks. Two members of my staff, Colonel Pat Gleeson and Lieutenant-Colonel Michael Gibson, are present with me here today to assist you in the review of Bill C-60.

Thank you. I would be pleased to answer any questions that you may have.

I would be happy to respond to any questions you might have.

[The Chair, Conservative, Rick Casson]

Thank you very much, General.

We'll start the seven-minute round with Mr. Wilfert.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you, Mr. Chairman.

Thank you, General, and your colleagues, for being here today.

As you know, we also have Bill C-45, which was introduced in the House in October 2007. In the decision that was made in the Trépanier case, the court noted at the time that this issue--which has been around for a while, and certainly came up again in the Nystrom case on fairness in section 165.14--could have been addressed at that time.

Are you able to respond to the issue of why we wouldn't have simply dealt with it at that time, given that there's now some urgency to the passing of this legislation?

[BGen Kenneth W. Watkin]

I'd be happy to do that, and thank you for the opportunity to clarify that issue.

I'm taking reference in the decision to four and a half years to refer to the 2003 Chief Justice Lamer independent review that was statutorily required from Bill C-25 in 1999.

First, I think it is important to outline that the military justice system has been under extensive review in the past decade. In the post-Somalia period, we had the Somalia inquiry and its recommendations. We had two reports by Chief Justice Dickson. These resulted in a number of recommendations, the vast majority of which were accepted by the government. Bill C-25 was passed and came into force in 1999.

Interestingly enough, one of the recommendations from the second Dickson report was on setting out the role of the new convening of courts and the role of the DMP. It suggested that the DMP advise...at that time the report said the chief military judge, but as the legislation was drafted, it became the court martial administrator of the type of trial. Of course, this is one of the sections that was struck down.

In 2003 we had the review by the late Chief Justice Lamer. To put that review in context--obviously an extensive review--his comments were, as I noted in my opening remarks, that “Canada has developed a very sound and fair military justice system in which Canadians can have trust and confidence”. He noted there were a few areas that could be improved, and termed them as “a few changes”.

There was nothing in his report that indicated those recommendations were constitutional in nature--in other words, advances on the system of justice and recommendations. There was an extensive review of the recommendations in the Lamer report. There were 57 recommendations that dealt with the court martial and discipline system per se, and 52 of them were accepted in whole or in part. Two of the recommendations that were not accepted were recommendations 23 and 25, which are caught in the present Bill C-60.

The reason they weren't accepted was that there was a belief that the system of having four types of courts was working well. It provided flexibility that better met the needs of discipline of the different types of courts and powers of punishment--numbers of panel members, for example. A disciplinary court martial has three panel members, where a general court martial has five.

The Nystrom decision in 2005 of the Court Martial Appeal Court was a non-binding decision. It did not settle the issue of its review of some of the challenges that were presented by offering accused the type of court. Specifically, the court indicated it wasn't addressing the constitutionality, but it did express deep concern over this issue and the provision, and it set out its preference in its decision for this type of process, similar to what was in the Lamer report. However, at that time there was a previous unanimous binding decision of the Court Martial Appeal Court. It upheld in the mid-1990s that the chain of command--in other words, someone who wasn't as independent as the director of military prosecutions--could choose the type of court, and this did not violate the charter. So we had a non-binding decision in the Nystrom case, and an earlier binding case.

In addition to that, shortly after that case was yet another case where the Court Martial Appeal Court indicated that there were good reasons administratively why there might be a problem having a general court martial with five members in a remote location. When this was argued at the trial level--when Trépanier came forward and the judge at the trial level accepted the binding case from the 1990s, not the non-binding decision in Nystrom--that got appealed to the Court Martial Appeal Court, and we have the decision.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Through you, Mr. Chairman, to the general, the government is proposing these legislative amendments. They are also seeking leave to appeal to the Supreme Court of Canada. We support, obviously, the intent of the legislation. We're going to be proposing a mandatory parliamentary review at the end of, say, two years—and again, you can comment on this. This has been done in other cases. In fact, depending on the state of the appeal to be heard by them, it would be mandatory for either the House or Senate, or both, to review the legislation rather than having a sunset clause, because we think it is important that, if it hasn't been heard, we at least give Parliament the opportunity to exercise its right in terms of review.

Could you comment on that?

[BGen Kenneth W. Watkin]

The military justice system does exist under a system of review. In Bill C-25, obviously there was a requirement for a review every five years, and that resulted in the recommendations by Chief Justice Lamer. I also review annually the military justice system and report to the minister, and the minister then files that report in Parliament. So in terms of there being a system of review—

[Bryon Wilfert, Liberal, Richmond Hill, ON]

It's not anything new.

[BGen Kenneth W. Watkin]

—that's not unique or problematic overall, depending upon how—

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Our concern obviously is that if there were a sunset clause and the legislation were to expire, we'd be back at square one. So that's why we wanted to do the review.

And if in fact the government gets leave to appeal, would the status of this legislation or these reforms be affected in any way? I guess it wouldn't be. The government would still move forward with its appeal. The legislation would be on the books. And then I guess it would depend on what the courts say.

[BGen Kenneth W. Watkin]

Well, of course I can't comment on the appeal and what the courts might ultimately say.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Yes.

[BGen Kenneth W. Watkin]

The amendments are not intended to be a temporary measure, I guess is the way to put it.

And of course, what we're confronted with is that the Court Martial Appeal Court in Trépanier clearly said that the constitutional provisions were of no force and effect.

From a policy perspective, clearly it was not the preferred choice in 2003 in terms of the options that were available. However, we have before us the 2003 Lamer report. We have the clear indication from the Trépanier decision itself—first from Nystrom and now from Trépanier—in terms of a preference there.

We've also had more contemporary experience with panel courts, and I think this is one of the things to set out and to clarify for the record. The Trépanier decision indicates that there haven't been any panel courts, and it was relying on the information from the Lamer report. But indeed there have been. In 2006 and 2007, 9% of all our courts martial were panel courts. And last year, 20% of all our courts martial were, in effect, jury-type trials.

I have attempted to determine a similar statistic from the civilian justice system. The closest I can get is that it is somewhere around 2%, but the statistics are hard to determine. I think I'm on safe ground to say that it's significantly less than 20% of the proceedings.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you for that.

[The Chair, Conservative, Rick Casson]

Thank you, sir.

Mr. Bachand.

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

Thank you, Mr. Chairman.

I want to welcome the entire Canadian Forces legal team. I want to tell the colonel and general that the threat I made earlier, to speak only in the presence of my lawyer, wasn't serious.

I have to repeat that in English. The threat that I wouldn't—

[Some hon. members]

Oh, oh!

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

General, earlier you explained at length the difference between your appeal to the Supreme Court and the bill before us today. The latter concerns an urgent matter. That moreover was quickly demonstrated to us. We agree that there are various degrees of urgency and that the Trépanier decision requires more specific applications of the National Defence Act. I also agree that you have provided more clarity, certainty and stability.

As regards the Supreme Court, I didn't understand why a bill was being tabled and why these steps were being taken with the Supreme Court. You said that the Trépanier decision raised constitutional issues.

What constitutional issues has the Trépanier decision raised?

[BGen Kenneth W. Watkin]

The issues were raised primarily to the question of full answer and defence by an accused person. The military justice system is constitutionally recognized in paragraph 11(f) of the charter. That provision sets out the right to a jury trial in the civilian justice system, set to where the penalty would attract five years of imprisonment or more. There's an exemption in that for offences under military law being tried before military tribunals.

When the Court Martial Appeal Court looked at the question of the difference between military panel courts--if I can use that term--and civilian jury trials, it said the right to full answer and defence depended upon section 7 of the charter and specifically paragraph 11(d), “full answer and defence”. The court determined that giving the accused person the ability to choose their mode of trial went to their ability to properly defend themselves.

So the focus relied on this broader argument of a right to a jury trial under a military system rather than as set out in the exemption in paragraph 11(f). That's the heart of the decision. In the analysis, it paralleled the right to choose trial in the civilian justice system to indicate that an accused under certain circumstances could choose a jury trial or a trial by judge alone.

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

Can a Supreme Court decision result in a partial rescinding of the bill under study? Could the Supreme Court go so far as to decide that a given clause of Bill C-60 does not apply? In other words, can the decisions we make today be amended by the Supreme Court?

[BGen Kenneth W. Watkin]

I'm answering a hypothetical; that's one of the problems. On a matter that's put before the Supreme Court, they can look at the existing legislation as well as the previous legislation. But that's for the court, and people argue it before the court in terms of how that—

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

However, you are the complainant. If you withdraw your appeal from the Supreme Court, we would have assurances that the bill would remain intact. But when you go before that court, it may extend its thinking to other bills or activities. I'm not yet convinced that you've done a good thing in appealing your case to the Supreme Court.

I don't want to make this a lawyer's debate because I'm not a lawyer and sometimes I find it hard to understand. I'm going to move on to something else and ask you another question.

You seemed very much in favour of my colleague Mr. Wilfert's proposal regarding a mandatory review. That's a surprise to me because I thought all opposition members were in favour of the sunset clause. A sunset clause has much more impact. If the review isn't conducted as described in the sunset clause, the bill becomes inoperative and null and void. I don't think a mandatory review requires people to amend the bill. We can conduct a mandatory review, but what will we do if that doesn't work?

I'm still thinking of the example of the Veterans Charter that was adopted in haste. A few months afterward, we realized that we had enormous problems. I support the sunset clause. In your opinion, is such a clause incompatible with a mandatory review? There may be a mandatory review, but we can then add a sunset clause as an additional guarantee. Does that make sense legally?

[BGen Kenneth W. Watkin]

On my concern, as superintendent of the military justice system, over the sunset clause, the exact intention of this bill is to allow the system to function with clarity, certainty, and stability. The problem proposed by a sunset clause is that it could put us back in the same situation again where the ability to proceed with courts is not able to happen for any number of reasons, in terms of the automatic expiration of the law at a certain time. My concern is that I'll be back here one or two years from now with the same concern, trying to make the system work.

In terms of being able to schedule courts, ensure for the accused that there's no trial delay so their rights are met, and ensure that victims see justice done, this legislation is seeking to add rights for accused members. It has a positive focus, and that's the concern it provides for me.

[The Chair, Conservative, Rick Casson]

Monsieur Bachand, you can have one small one.

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

What do you suggest we do if we legislators are mistaken today? If we are mistaken as a result of the speed with which we've passed the bill, what recourse will we have in order to try to correct our mistakes? It won't be better if we make a mistake then discover some unmanageable aspects in a few months. What will we do then?