National Defence Committee on June 16th, 2008

[BGen Kenneth W. Watkin]

Certainly the bill is set out to provide the required stability to make the system work. Any legislation that's passed would be subject to challenge at court martial. It happens every day in our courts martial. Our defence counsel will raise objections if they see them, put them before the court, and of course that's how we ended up here with Trépanier. It is all part of the process.

[The Chair, Conservative, Rick Casson]

Thank you, sir.

We'll go over to the NDP for seven minutes.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Thank you very much.

I have two questions to ask, and my colleague Mr. Comartin has questions as well. I hope we can fit that into our seven minutes.

General Watkin, in the Trépanier decision the Court Martial Appeal Court said that they didn't see the need for a legislative remedy. I'll quote paragraph 117:

...there is also an available interim practical solution which can easily be implemented for all charges. Under section 130 of the NDA, the accused can be offered an election as to his or her trier of facts. There will be no legal impediment to that course of conduct since section 165.14 which gives the right to the prosecution is [of] no force and effect with respect to these offences.

In an earlier technical briefing, my staff was told that this part of the judgment was contradictory and that there was no way to convene the court martial at this time without amending the National Defence Act. Could you could respond to that part of the judgment--the part that I read out--and to why the interim solution that was proposed by the court is deemed to be unsatisfactory?

[BGen Kenneth W. Watkin]

What I deal with is obviously effects of decisions. In particular, it's clear that the judgment said that the provision that allows the convening of courts was of no force and effect, so it struck down that section. The problem it has created is that there's no other section or legislative authority in the NDA that would allow that to happen.

I did mention in my opening remarks that the system has convened courts that were already convened and have gone forward. I'll give you an example of some of the challenges this has created.

In one case, the issue of choosing trial was raised by the accused, and after hearing the case, the military judge just continued on without giving a choice to the accused.

In another case, the military judge ruled at a disciplinary court martial that he had to give the right to choose the type of trial, and then terminated the proceedings. That was at a disciplinary court martial, one of our panel courts. Then when the accused chose an SCM, he terminated the proceedings and sent it back.

In another case, what the military judge chose to do as his decision was to issue a conditional stay, and he referred the case back.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Are you looking for certainty?

[BGen Kenneth W. Watkin]

I'm looking for certainty. My concern with all this is that there's no clear legal authority for DMP, the director of military prosecutions, to offer the choice. My concern is that what we're setting up has a lack of consistency, a lack of clarity. Our courts are struggling with this issue, and eventually you're inviting appeals. That's my concern.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Thank you very much.

There is another thing I would like you to do. We were told originally that we would only be dealing at this amendment stage with the Trépanier decision, and now we're dealing with Grant. Could you briefly give a more extensive explanation of why you've decided to throw in the Grant decision as well?

[BGen Kenneth W. Watkin]

The Grant decision was an adverse decision. Leave to appeal to the Supreme Court was sought in that decision, but not granted by the Supreme Court. It wasn't a constitutional issue, however, so it wasn't a matter of the striking down of sections. And in that case, the court noted that it was providing a remedy specifically tailored to that case. My challenge, as the superintendent of the military justice system, is that I have to look at the broader application of a decision such as Grant in terms of the whole legislative scheme.

So as I mentioned in my opening remarks, one of the hallmarks of our two-tier system of justice is that an accused at a summary trial can ask to have the full protections of legal counsel and an independent judge who hears the case or a panel. Or, if during a summary trial the trying officer starts to hear the case and hears the evidence, the trying officer may decide that it is a matter that really should go to court martial, that it needs to have the full hearing. Ordering it back to summary trial doesn't take into account the larger questions that might arise once the summary trial starts.

So the focus of the amendments, as has always happened—and this is the first case I'm aware of where the order was to summary trial—is that the Court Martial Appeal Court will in fact order a new court martial. And it's clear under military law that there is no right to a summary trial. So the fall-back would be that you would get the full trial with all the rights and privileges that you have to put forward.

And the other amendments are clarifying different parts of the law. For instance, one refers to “after a charge” has been laid, but in fact you can't have a charge unless it is laid. It's at that level of clarity.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Thank you very much.

My colleague, Mr. Comartin.

[The Chair, Conservative, Rick Casson]

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thanks, Mr. Chair.

I just want to go back to something Mr. Bachand raised. Did you get leave to the Supreme Court for Trépanier?

[BGen Kenneth W. Watkin]

No, not yet.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Has it been applied for?

[BGen Kenneth W. Watkin]

It's been applied for.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

So assuming it's granted and goes ahead, is it correct there's no way that Bill C-60 is going to apply to the Trépanier case? This is not retroactive; we cannot use Bill C-60 to try to upgrade Trépanier.

[BGen Kenneth W. Watkin]

They might order a new trial, for instance. That might be the outcome.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But even then, Bill C-60 will have come into effect—

[BGen Kenneth W. Watkin]

Yes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

—after facts that arose or led to the charges in Trépanier. Can you make it retroactive to the statute as proposed? Bill C-60, as it is right now, is not retroactive.

[BGen Kenneth W. Watkin]

Yes, we'd have to look at that to see if they'd be tried under the laws at the time. But I'd have to go back, to be honest with you, and look at that in terms of the outcome.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

If the appeal is successful, the Supreme Court would have to make a finding that, in effect, Bill C-60 is not necessary.

[BGen Kenneth W. Watkin]

No, not necessarily. Well, not at all. I don't believe it would have to do that at all. It would look at it and determine the—

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But it would have to make a determination, General, that the charter does not apply to the extent that the individual accused has the right of election.

[BGen Kenneth W. Watkin]

They would look to see whether there was a constitutional issue at all, first of all. And so the answer may be in fact that it is a non-issue. So the trial would continue under the previous provisions.

But there are transitional provisions in the legislation that deal with existing trials. And the reason I'm hesitating a little bit is that some of those transitional provisions would allow for things like majority verdict and some of those other protections. So that's the—

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Okay, so the Supreme Court could say to the legislature, you have in effect time to correct this; you've done it, so we're going to allow it to apply. So that's possible.

I'm just answering my own question, Mr. Chair.