Evidence of meeting #32 for National Defence in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was accused.
A recording is available from Parliament.
Col Patrick K. Gleeson
Yes, subject to subclauses 28(2), 28(3), and 28(4), which is the unanimity provision.
So it's a panel court. All those protections that come from unanimity get incorporated into the trial.
As I said, it's merely trying to provide some certainty in those situations.
Conservative
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Just to follow on with that, what I was hearing before—and I think this is correct—was that, in effect, the accused has been given the rights that will fall to people under Bill C-60, just by the process that you have mentioned. The other thing, which we haven't talked about, is that the new requirement for unanimous panel findings will apply in any case. They're getting the extra protection of that.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Essentially they've already been given the rights of Bill C-60 just by the transition process that you mentioned.
Col Patrick K. Gleeson
By virtue of the process that has always been there, there has been an opportunity to object. Now one of the reasons for objecting is, “I didn't get to choose my type of court, and I don't want this court.” That's something that happens now in the process.
Liberal
Anthony Rota Liberal Nipissing—Timiskaming, ON
Just to clarify that last comment, are you saying they have the option under clause 28, or they do not have it?
Liberal
Anthony Rota Liberal Nipissing—Timiskaming, ON
No, the existing one, the ones that have commenced. That's what this deals with.
In the ones that have commenced, they don't have the option at this point.
Col Patrick K. Gleeson
They would have already exercised that option. As I said, regarding any court that has commenced since the Trépanier decision was rendered, the accused, before they pled to the charge, has had the opportunity to object on the basis of the Trépanier decision when the question is asked, “Do you object to being tried by this court?” That's what has occurred since Trépanier, and that will continue until the Trépanier issue is regulated.
Obviously if the legislation comes into force there will be no legal basis to make that objection any longer. They will still be asked the question, but they won't have an objection on the basis of the Trépanier decision. But until such time as that occurs, anybody who has been tried on the basis of a choice that has been made by the director of military prosecutions will have the ability to make that objection when that question is asked. That exists now, and it will exist for all individuals who are in that situation.
Conservative
Conservative
Steven Blaney Conservative Lévis—Bellechasse, QC
Mr. Chairman, the last few exchanges have enabled me to get a better understanding of the scope of clause 28. I would almost say that it ultimately protects the accused. We see that the military system has adjusted since the Trépanier decision and that the accused has been afforded the opportunity to accept or reject the court proposed to him. The wording makes it possible to preserve that, but, once that has started, as they say, you have to stick to it. I think this is very good in its present form.
Conservative
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
I'm finding it difficult to understand how each of the accused could be given these options, including information about Bill C-60, when Bill C-60 has only just been drafted and the decision on Trépanier came down on April 24. It seems to me there is a time gap there. I am very concerned about some accused going through the track on a system that has already been deemed by the appeal court to be faulty, and the appeal court is asking for changes to be made.
As I hear the discussion going on, I feel more and more strongly that we should eliminate this clause.
Col Patrick K. Gleeson
If I may, Mr. Chairman, the Court Martial Appeal Court itself, as Mr. Drapeau pointed out, was of the view that the system could and should continue to function despite its decision. What's preventing it from continuing to function is the notion that we cannot convene new courts, but courts that are already convened--courts that were convened at the point when the Trépanier decision was rendered--have, as the JAG pointed out, continued. They've been going forward. They've been going forward with a great deal of uncertainty around them because of the ability for the accused, pursuant to this procedural step in the court martial procedure, to object to the type of court. When they object, judges are handling the objections in different ways, but in each and every case in which an objection has been made, for different reasons and on different legal bases, the court has been terminated or stopped or stayed.
That's why the accused are getting to do this. It's only the accused who are actually in proceedings that were convened prior to Trépanier who have since commenced using that term, as it means here--who have been put into a position in which they're going to plead to the charge--who are being extended these choices as part of this standard chapter 112 procedure.
If I can be clearer on that, I'm--
Conservative
The Chair Conservative Rick Casson
If anybody who's been accused has said they don't want to be tried under that court, if they have objected, then that trial has not proceeded, pending passing or changing of the legislation.
Col Patrick K. Gleeson
That's for anyone who is brought before a judge and who objects to being tried before that court. I can't predict what judges will do in the future, but in each and every case to date they have terminated or stayed the proceedings.
LCol Michael R. Gibson
If I may add one point, Mr. Chair, I think it's important for the members of the committee to understand that the Court Martial Appeal Court did not say anything was wrong with the types of courts themselves. If the person is there and they're happy to be tried by, for example, a disciplinary court martial, there's nothing wrong with a disciplinary court martial in the view of the Court Martial Appeal Court, and that's what this transitional provision is capturing. If the accused is there and he's content to be there, there's nothing wrong with that type of court, even though it would be abolished ultimately by Bill C-60. That particular court should be allowed to proceed to its conclusion.
Conservative
The Chair Conservative Rick Casson
Just before I go to Mr. Wilfert, do you mean that without clause 28, we would be putting this small group of individuals at a disadvantage?
