National Defence Committee on June 16th, 2008

[The Chair, Conservative, Rick Casson]

Thank you, Mr. Hawn.

We have just a few minutes left. We'll start on the second round and get in only one or two.

Mr. Tonks, you have five minutes.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you very much, Mr. Chairman.

Thank you, Brigadier-General.

When you use the terms “pretrial” and “summary trial”, are they the same?

[BGen Kenneth W. Watkin]

A summary trial is a type of trial. In our two-tier system of justice we have courts martial and we have summary trials. You can think of summary trials as occurring at a unit level in front of the commanding officer, for example. The court martial, of course, is like a criminal court.

When I say “pretrial”, it's a question of time. It's the events that happened before the court martial was convened, for instance, as opposed to post-trial, when there might be an appeal.

[Alan Tonks, Liberal, York South—Weston, ON]

You'll have to pardon me. I don't sit on this committee, I'm not aware of the background, and I'm certainly not a lawyer.

Does this bill change the summary trial in terms of one who is alleged to have created a crime, or whatever, under the orders? Does it take away any of that person's rights with respect to what constitutes summary trial criteria?

[BGen Kenneth W. Watkin]

No, the summary trial stays intact. This bill is focused on the court martial system and, when a court is being convened, on the ability of an accused to then be able to choose the type of trial in the various circumstances set out in the bill.

[Alan Tonks, Liberal, York South—Weston, ON]

I was intrigued by the question from my colleague Mr. Hawn with respect to the principles of natural justice that are entrenched in our Criminal Code and our Civil Code. Do the same principles apply at summary trials?

You said there are no lawyers at summary trials. Granted, they deal with less serious issues and so on, but was there ever any consideration given that Bill C-60 attempts to bring into sync those legal principles? I suppose that wasn't implicated out of the Trépanier decision, but has it ever concerned the department from a justice perspective?

[BGen Kenneth W. Watkin]

The focus in Bill C-60 is a result of the urgency of the situation. That's why it's so narrowly focused in terms of the way ahead.

On the broader issue of representation, I did my master's thesis in 1989 on the constitutionality of the summary trial system. There was a review in 1994. It was subject of review by Chief Justice Dickson post-Somalia. He had two reports; the first report looked at some length at the summary trial system.

The goal is to be summary. There's no prohibition on lawyers being present; however, it rarely happens. As to the question of getting legal counsel, we have a fully funded legal aid system in the military, so an accused who is being dealt with at court martial will have defence counsel provided. That can be military counsel or there's also provision to provide civilian defence counsel so that their rights are protected.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you.

[The Chair, Conservative, Rick Casson]

Thank you very much.

We've just got a couple minutes left. We'll go over to the government and Ms. Gallant.

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

I have a brief question. If Bill C-60 does not pass, what will happen to the cases awaiting court martial? Will the charter provisions for the right to a timely trial be triggered?

[BGen Kenneth W. Watkin]

I'm sorry, will the charter provisions...?

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

Will the charter provisions to the right to a timely trial be triggered? What will happen to the people awaiting their courts martial?

[BGen Kenneth W. Watkin]

That is the concern we have right now. Time is running. The issue was raised in the judgment itself that perhaps there's another way to do this; the problem is that specifically the judgment said the ability to convene a court without those provisions has no force and effect.

I've explained the challenges this is presenting in the operation of even the courts that are convened. It's that in the system, even when the courts have gone forward because they were previously convened, they are running into these procedural issues in terms of trying to get them to go forward. We're left with the clock ticking, in effect.

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

So the people will go free?

[BGen Kenneth W. Watkin]

Well, under our system, just as under the civilian justice system, the prosecutor will decide in terms of individual cases what the situation is in terms of the passage of time. The advantage of Bill C-60 and moving expeditiously is that it will limit that as being an issue. From our perspective, acting with urgency will put us back on a playing field where accused are getting their opportunity to have their cases heard and larger society and victim interests are ensuring that persons who have breached the Code of Service Discipline are having--

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

Okay, so as I understand this, if Bill C-60 does not pass, the accused who are awaiting courts martial risk going free without being subject to the law.

Thank you.

[The Chair, Conservative, Rick Casson]

Thanks, Cheryl.

There's one minute to wrap up.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chairman.

I don't agree with what you say about Bill C-60. Ultimately, you're short-circuiting the case that is before the Supreme Court by trying to pass a bill before the decision is made. That seems clear to me.

[BGen Kenneth W. Watkin]

Of course, sir, the Supreme Court is dealing with constitutional legal issues. The focus, necessarily, before the courts is on the legal issues.

What this legislation is doing is dealing with the effects of the decision, that is, with issues concerning the preference to have a system that would allow the Canadian Forces members charged with certain service offences that are dealt with by court martial to have the opportunity to choose the type of trial; and for more serious offences, to have it go to a panel trial, and then have a process to allow the individual to choose again.

So one is dealing with the question of the functioning of the system, accepting that the focus has been on providing this additional right—and not all rights have to be charter constrained, as I mentioned in my comments regarding Chief Justice Lamer. We shouldn't just be driven by what's in the charter; we should be driven by doing the right thing. That's the purpose of the legislation.

[The Chair, Conservative, Rick Casson]

Thank you. That brings us to the close of our first hour.

Thank you very much, sir, for being here and offering that testimony to us.

We will suspend for one minute while we change panels. Thank you.

[The Chair, Conservative, Rick Casson]

Okay, we're going to start with our second panel this evening. Appearing as individuals, we have Mr. Drapeau and Ms. Guzina.

Do you both have statements, or only one of you?

Okay, Mr. Drapeau, the floor is yours. After you're finished with your statement, there'll be a round of questions from the committee.

[Colonel, Retired) Michel Drapeau (As an Individual]

Thank you, Mr. Casson.

Let me open by thanking the members of this committee for permitting me to appear before you this afternoon to present my analysis of Bill C-60.

Also allow me to introduce Zorica Guzina, who, like me, is interested in Canadian military law, both in her everyday practice and in her teaching at the University of Ottawa.

Given the very short notice to conduct this analysis and the short amount of time for my appearance this afternoon, I thought it would be best for me to present the results of my review in a booklet, which you have before you.

On page 1 of the booklet is a summary table outlining the existing structure and organization of courts martial. There are four types of courts martial. I give you a description of their powers and of the rights of the accused, among other things.

On page 2, I provide a very brief decision by the Court Martial Appeal Court in Trépanier v. Her Majesty the Queen, rendered April 24 of this year, which gave life to Bill C-60.

I draw your attention to the fact that, in its decision, the Court Martial Appeal Court also referred to the recommendations made by the late Chief Justice Antonio Lamer upon his review of the National Defence Act in 2003. The purpose of those recommendations, which were pressing at the time, was to simplify the structure of the courts martial in order to create a permanent military court. The recommendations echo, at least in part, the amendments proposed in Bill C-60.

On page 3, I present a table on the essential aspects of Bill C-60.

In response to the recent decision by the CMAC declaring unconstitutional a provision by which the director of military prosecutions, not the accused, could choose the type of trial—either a panel and a military judge, or a military judge alone—Bill C-60 repeals that provision. At the same time, Bill C-60 simplifies the current system from four courts martial—a general court martial, a disciplinary court martial, a standing court martial, and a special court martial—down to two. This is something that late Chief Justice Lamer recommended in his 2003 report following his review of the then National Defence Act.

Bill C-60 then makes a fairly good number of other minor amendments, many of which are already included in Bill C-45, which I presume will receive, in the fullness of time, a more substantial discussion because this has yet to take place.

As for my general assessment, I do not have any major issues with Bill C-60. Above and beyond providing an accused with the right to elect the type of trial, it also simplifies the structure of the court martial, as first recommended by the late Chief Justice Lamer, and that is a good thing. The other minor amendments are also aimed at improving the military justice system, and on the whole, they are very apropos .

My concern—and it's reflected in the documents you have before you—is twofold, and some of it was addressed, at least in part, during the earlier part of the meeting when General Watkin was testifying.

The first one has to do with the tabling of this bill coincident with an application for leave to appeal before the Supreme Court of Canada in Trépanier. One of the documents that I'm giving you from the Supreme Court says that in fact an application to stay the execution of the Trépanier decision has been put before the court, and also an application for leave. Neither of these two has been heard so far.

My second concern deals with a transitional provision in clause 28 of the bill. It specifies that courts martial commenced but not completed by the time Bill C-60 comes into effect will be conducted under the old law. I heard some of the explanation for that, but it leaves me with a certain degree of doubt as to what the real impact will be of the operation of this particular clause. What do you mean? You may have the answer to it, but I don't.

Having said that, those are my opening comments, and I'd be pleased to take your questions.

[The Chair, Conservative, Rick Casson]

Thank you, sir.

Mr. Wilfert, do you want to get started--or Mr. Rota, or whoever? It's a seven-minute round.

Go ahead.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Very good, Chair.

Thank you very much for the table. It's very helpful and it's nice to see it in graphic form, and your explanation was very helpful.

On clause 28, you mentioned that's one of the areas that concern you, that if a trial is already in process, it has to continue under the old system. Is that not the way the system works already?

[Michel Drapeau]

It does, but we have the intersection of two factors here.

First of all, the Department of Justice has gone to the Supreme Court and asked for appeal. We don't know what the Supreme Court will do in either one of the two cases.

Based on this recommendation, we could see, in fact, this act enacted in no time at all.

As to how many of these trials are there and what process the trials are at, I don't know. What we do know from the Trépanier decision is that, at most, if we look back over the past four or five years, there have been a total of 200 trials. We're not talking about a whole lot of trials, but 200 trials; on average, 60 trials a year.

As to how many of those are in suspense as we speak, those trials that have commenced and that we'll be carrying out, I don't know even what type of trial they are under. Is it a general court martial, a special court martial? I don't have that kind of detail. But to say that it will continue under the old law when the Court Martial Appeal Court has said—unless it's reversed—the old law is unconstitutional, at least that very provision, you would in fact give cause to continue something that is not only unfair but unconstitutional at this stage.

That's my reading of it.