National Defence Committee on June 16th, 2008

[Marc Toupin]

It would read as follows:

27.1(1) Within two years after the day on which this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by a committee of the House of Commons designated for that purpose. (2) Within one year after the review is undertaken, or within any longer period that the House of Commons may authorize, the committee referred to in subsection (1) shall submit a report on the review to Parliament, including a statement of any changes that the committee recommends to the House of Commons.

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

That's it.

[The Chair, Conservative, Rick Casson]

Is there any further debate?

(Subamendment negatived)

(Amendment agreed to)

(On clause 28--Continuation of proceedings)

[The Chair, Conservative, Rick Casson]

Mr. Bachand.

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

Mr. Drapeau's arguments have marked me. I have some reservations about the fact that the trials that have started before the date on which the clause comes into force can continue as though nothing had happened.

I would have liked to know whether we have a legal advisor here, in addition to the legislative advisor. There are some here, it's true. I would ask them for their opinion on clause 28.

You were in the room when Mr. Drapeau raised the issue. I'd like to know your opinion on clause 28. Mr. Drapeau suggested deleting it, but, before saying I want to delete it, I'd like to have your opinion.

[The Chair, Conservative, Rick Casson]

I think we need that, because Mr. Drapeau was very pointed in the fact that he didn't have the rationale; he didn't understand the thought that went into it or the reasoning behind it. So would one of you like to clarify why clause 28 is what it is?

Mr. Gleeson.

[Colonel Patrick K. Gleeson, Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence]

Mr. Chairman, I'd be happy to speak to clause 28, and obviously my colleague will jump in if he thinks there's anything we should add.

Clause 28 deals with trials that have commenced. According to the notes to our regulations, courts martial are commenced when the accused pleads guilty or pleads to the offence. Essentially, he's placed in jeopardy at that point in time.

That's the commencement that's being referred to here. So this is to ensure that if this comes into force, trials that have actually started, that are ongoing, can continue to their conclusion. That's essentially what this is doing. It's not dealing with courts that have been convened but not yet commenced. It's not dealing with cases that are in the system that have not yet even been convened. It's dealing only with that small body of cases that may actually be ongoing at the time this comes into force.

We're repealing two types of courts martial here. For example, the disciplinary court martial is being repealed. This would ensure that a disciplinary court marital, if it were actually ongoing when this came into force, could finish without having to stop and restart. Restarting a court where somebody is in jeopardy raises a number of different legal issues with respect to whether you could retry the individual. So it's trying to provide, in the JAG's terms, the certainty that the overall bill is trying to provide. This clause is trying to provide some certainty with respect to courts that are ongoing.

From a process perspective, in the court martial process an accused is asked, before he pleads, whether he has any objection to the court that's trying him. The Trépanier decision has resulted in some accused saying, “I don't want to be tried by this court.” That's what has generated the four or five cases that the JAG referred to that have been sent back to be restarted.

In this circumstance, if the court has commenced, the individual has already, in all likelihood, indicated to the judge that he's happy to be tried by the court that has been convened to try him, and this will let the court finish its work. That's all it does.

[Lieutenant-Colonel Michael R. Gibson, Director, Strategic Legal Analysis, Department of National Defence]

There's just one additional point that I think is important for the members of the committee to understand.

Of course, even if all that had transpired, if an accused person were convicted and they were subsequently dissatisfied that they'd been treated fairly, it is still open to them to make an appeal to the Court Martial Appeal Court. They are not left without remedy in a situation where they're in some sort of legal vacuum. I'd just like to reiterate that point.

[The Chair, Conservative, Rick Casson]

Mr. Comartin.

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

I'm still with Mr. Drapeau, in spite of the explanation. The reality is that you're going to have maybe very few cases, as few as four, but the numbers are going to grow as this bill moves forward—assuming it gets through the Senate quickly, but if not, it's going to be even more so.

What you're really doing is denying that group of people, a short list, or perhaps a somewhat longer list once they find out about Trépanier and say, “Yes, I want to exercise my rights; I didn't think I had them before,” because the case law was on both sides of the point. In fact, the leading case law before Trépanier would have been that they didn't have this right. Trépanier has now given that to them. On top of that, now the legislature of the land, in the form of Bill C-60, is going to give that to everybody else but deny it to them. It is not logical. It's not consistent with the way law should be drafted.

Secondly, I'm very concerned about the message the Supreme Court may take from this legislation with clause 28 staying in. I don't know if you can appreciate this, but here's what we have.

We have the Trépanier decision, which says this is the model you should be following in terms of the election in the way trials should be conducted and the right of the accused to make those elections. We are now coming in as the legislature and saying, “Yes, we recognize that and we agree with the Federal Court of Appeal.” But if you're sitting there as a Supreme Court justice, you're then looking at clause 28 and saying, “Okay, you've done all that, you've recognized the Court of Appeal decision, you've carried out your responsibilities to put that into play in Bill C-60, but you're denying it to this small group of people.”

I don't want to be the lawyer acting in front of the Supreme Court to try to rationalize that on our behalf, as the legislature of this country.

[The Chair, Conservative, Rick Casson]

A number of people want to comment. Should I let them all do that, and then you can respond? Are you prepared to wait, or would you like to respond to that specifically?

[Col Patrick K. Gleeson]

I'm at your disposal.

[The Chair, Conservative, Rick Casson]

Let's go down the list. It's Mr. Bachand, Mr. Murphy, and then Mr. Hawn.

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

I wanted to raise the argument that Mr. Comartin just raised, that the accused at the time was under another sytem. I'll admit to you quite frankly that, if I were defending an accused under the old system and was told that the accused was to be prosecuted under the old system, not the new, as defence attorney, I would object to that and would definitely institute proceedings to correct the situation.

Another thing can poison the matter, in my opinion. Under the old system, there were four courts martial. There could be accuseds prosecuted before one court martial that, under Bill C-60, no longer exists. If I were a defence counsel, I would definitely say that Bill C-60 has just cancelled two courts martial because they thought there were too many and want to judge my client under an old court martial that no longer exists under the new Bill C-60. That's another argument for deleting clause 28. Everyone has to be governed by the same act. Otherwise, I think you'll have problems. You wanted to solve a problem, but you may be causing a bigger one, in my opinion. So, thus far, I'm in favour of deleting clause 28.

[The Chair, Conservative, Rick Casson]

Mr. Murphy.

[Shawn Murphy, Liberal, Charlottetown, PE]

I just have a question. I apologize for not being here for all of the testimony.

Colonel Gleeson, you said that in the small number of cases where trial by court martial is under way, the accused has already chosen their trier of fact. So I guess you were trying to get us to think that's okay. But of course, I think Trépanier says that the discretion or choice was all that of the prosecutor, for lack of a better word; so he wouldn't have argued against it, knowing at the time that the prosecutor had that authority. That doesn't persuade me that what clause 28 is doing is right, frankly.

Maybe you didn't have enough time to explain it, or maybe I'm too new at this, or whatever, but can you get me out of the woods on this one?

[The Chair, Conservative, Rick Casson]

Go ahead, before we move on.

[Col Patrick K. Gleeson]

Yes, I'd be happy to clarify that.

Just to be clear, Trépanier was decided on April 24. The individuals accused at courts martial are represented by counsel, and they certainly are aware, through their counsel, of their rights and what Trépanier has meant for their rights since April 24.

What we're talking about here or what was struck down in Trépanier is the prosecutor's right to choose the type of court. That has been struck down. When that occurred, there were a number of courts that had been already convened, so the prosecutor had already determined what type of court would try the accused. Those courts had been convened and started in some cases.

In those cases where the courts have started, the accused are aware of their rights and are given the opportunity to object to being tried by the type of court chosen by the prosecutor. In those cases where they have objected, the courts have stopped; the accused haven't been tried. In those cases where they haven't objected—in other words, they have either expressly or implicitly waived their constitutional rights, just like you can do when you appear before the police for an interview, and have decided they're happy with the type of court convened—then the court has continued. So the accused has said, “I'm happy to be tried by this court; let's get it over with. I want this to be done.” Those courts have continued and have gone to conclusion.

So with respect to this clause—which is here to ensure that we don't put ourselves in a position where there's uncertainty or lack of clarity—when the bill comes into force, there may well be cases ongoing where the accused has essentially said they're happy with the type of court trying them. That court can then go on to completion, rather than having to stop and create more uncertainty as to whether or not it can even be recommenced. If it doesn't recommence, obviously the accused may not be held accountable or have the opportunity to put forward his position with respect to the charges. The court may never be able to reconvene again. If it does reconvene, if it legally can reconvene—and I think that would be questionable—you're delaying the completion of a trial for an accused who wants to get it over with, if you don't let the trial run its course.

So those are the things that happen if you don't let it continue. If you do let it continue, the accused, as I say, has had the opportunity, through counsel, to object to the court. To date, the judges who are hearing these objections are stopping the courts; they're not proceeding.

[Shawn Murphy, Liberal, Charlottetown, PE]

If I may follow up on that, clause 28 says that it must be continued.

[Col Patrick K. Gleeson]

It must be continued if it has started. When you get to the word “commenced”, you've already had the individual given the opportunity to make his objection. The objection occurs before they plea to the charge.

[Shawn Murphy, Liberal, Charlottetown, PE]

I thought you just said in your answer that any time during this trial they can object, and judges are letting them out of it.

[Col Patrick K. Gleeson]

No, I didn't say that.

[Shawn Murphy, Liberal, Charlottetown, PE]

Okay, only at the time before—

[Col Patrick K. Gleeson]

At the commencement of the proceeding, they are given the opportunity to object. If they objected partway through the proceeding, I really don't know what the judge would do. He may well stop the proceeding if they objected. Again, that's a judicial decision.

[Shawn Murphy, Liberal, Charlottetown, PE]

If I could briefly summarize your position on what subclause 28(1) means, if a trial has commenced, it must continue.