National Defence Committee on Feb. 7th, 2011

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone. Welcome to meeting No. 46 of the Standing Committee on National Defence. Pursuant to the order of reference of Monday, December 6, 2010, we are going to hear testimony from witnesses regarding Bill C-41.

We have witnesses with us. I want to thank the Honourable Peter MacKay for being with the committee.

I know, Peter, that Brigadier-General Bernard Blaise Cathcart is with you.

Thanks for being with us.

We'll start right now. You have 10 minutes, Minister. Thank you very much.

[Peter MacKay, Conservative, Minister of National Defence]

Thank you very much, Mr. Chair.

As you said, I am joined by Brigadier-General Blaise Cathcart, justice advocate general of the Canadian Forces.

Mr. Chair and colleagues, thank you for giving us the opportunity to present Bill C-41.

I'm very pleased to be with you at the committee as you begin your examination of Bill C-41. This legislation is specifically aimed at strengthening the Canadian military justice system.

Let me begin by stating how much I appreciate the support that has already been expressed by members of the committee, by members of the opposition in particular, for Bill C-41, and the indication that has come from the committee regarding the willingness to consider this bill in a timely manner.

I say that because, as many of you will know, there is quite a history with this bill. It is coming back now for the third time, and this is a bill of some urgency and priority, I would suggest to you. The government's legislation is in response to the Lamer report. This is the third time, as I mentioned, the legislation has been introduced in response to that report. It was first introduced as Bill C-7, in April 2006. It subsequently died on the order paper. It was back as Bill C-45, a successor bill introduced in March 2008, which also died as a result of an election call. As members are now aware, this bill was introduced in June of 2010.

The Lamer report was tabled in Parliament in the year 2003 and followed an independent review of portions of the National Defence Act to be amended by Bill C-25. Chief Justice Lamer made numerous recommendations that were aimed at improving not only the military justice system but also the Canadian Forces grievance process as well as the military police complaints process.

He said, and I quote, “Canada has...a very sound and fair military justice framework in which Canadians can have trust and confidence”, and I believe this to be absolutely true. But of course that is not to say, as with any justice system, that it cannot be improved. The old adage about our justice system being a living tree equally applies to the military justice system. I see my friend from Beauséjour nodding in agreement. I'm sure that's an expression he heard at law school as well.

That's what the government is seeking to achieve with this legislation, Mr. Chair.

The bill reflects recent recommendations made by the Senate Committee on Legal and Constitutional Affairs after their study of Bill C-60. Bill C-60 was required to respond to the judgment of the Court Martial Appeal Court in the case the Crown versus Trépanier.

As you consider Bill C-41, I also believe it is important to keep in mind that the military justice system is a separate system of justice designed to promote the operational effectiveness of the Canadian Forces. This separate and distinct aspect was upheld by the Supreme Court of Canada in R. v. Généreux.

The military justice system contributes to the maintenance of discipline, efficiency and morale within our military. It reinforces the command structure of our military in support of both day-to-day and operational activities. Given the key role our military plays in protecting Canadians and advancing Canadian interests and values, ensuring that the National Defence Act keep pace with developments in the law and Canadian society is important.

Bill C-41 is a key step that is part of a process of continuous improvements—the classic living tree. And the bill has a number of key provisions that I'll touch on.

It will enhance the independence of military judges by providing them with security of tenure until the age of retirement. That is, of course, consistent with all members of the Canadian Forces. This is consistent with the tenure of judges in the Canadian civil justice system as well, Mr. Chair.

Bill C-41 also includes a statutory articulation of the principles of sentencing in the military justice system, which provides guidance in the sentencing process. This guidance parallels that provided in the Criminal Code, while taking into consideration the specifics of the military justice system.

One of the concerns expressed by some honourable members during the debate at second reading was that the sentencing of the military justice system might be unduly harsh in comparison to the civil system. It should be noted that Bill C-41 will provide statutory protection against undue harsh sentences being imposed by service tribunals. The bill in fact proposes that the principle of restraint will be followed in the sentencing system of the military justice system. This means that a determination should always be made as to what is the minimum sentence required to maintain discipline, efficiency, and morale within the military, and it requires that the sentence be imposed by the service tribunal.

This bill will also enhance the flexibility of sentencing by providing a greater ability to tailor a sentence to the particular circumstances of the offender and of the offence—also consistent with our civilian system—and by allowing for additional sentencing options, in effect modernizing the act in the form of absolute discharges, intermittent sentences, and restitution orders, all of which are now incorporated into the Criminal Code.

Bill C-41 also provides for the introduction of victim impact statements. This will permit individual victims of offences to more readily express themselves in the sentencing process at courts martial.

Together with enhanced provisions for restitution, Bill C-41 will therefore help ensure that victims of offences are not disadvantaged by having a particular case tried in the military justice system rather than in the civilian one.

I understand that during the debate at second reading there were also concerns raised regarding the fairness of the military justice system, particularly in relation to the summary trial system. In that regard, I would like to remind my colleagues that two of Canada's most eminent jurists, the late Chief Justice Brian Dickson and Antonio Lamer examined this system in significant detail. As you're aware, the Lamer report touches specifically on this. While making recommendations for refinement, both of these eminent jurists endorsed it, and they noted that the summary trial system strikes the necessary balance between meeting the unique disciplinary needs of the Canadian Forces and the needs to respect the rights of individual members of our military.

It should be noted, Mr. Chair, that Bill C-41 also includes provisions to improve the efficiency of the grievance and military police complaints process. For instance, it addresses the Canadian Forces grievance process with a view to making it more effective, transparent, and fair. The suggested amendments would require that grievances be treated as quickly as circumstances permit. They would also allow for a greater delegation of authority to the Chief of the Defence Staff in the treatment of grievances.

Finally, the bill will also establish the position of the Canadian Forces Provost Marshall in the National Defence Act, and specify the functions and responsibilities of the position , as well as make improvements to the fairness and efficiency of the military police complaints process.

In conclusion, Mr. Chair, just let me emphasize that a sound military justice system is absolutely key to our military, as it is in our society. It's key for the readiness, for the effectiveness, and it's key for the morale of the Canadian Forces themselves.

Our men and women in uniform, as you know, put their lives on the line in the service of our country. They need to know they can rely on a justice system that supports, protects, and enables them as they undertake the crucial tasks that we set forward. Canadians similarly need to know that their country's military system will treat those who serve fairly and in a way that corresponds to Canadian norms and values.

The proposed amendments ensure that the military justice system keeps pace with evolving legal standards in the Canadian criminal justice system and they reinforce the continued compliance of the military justice system with the Canadian Charter of Rights and Freedoms, while always preserving the system's capacity to meet essential military requirements.

Thank you very much, Mr. Chair and colleagues. I look forward to your questions.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you, Hon. Peter MacKay.

Now, I will give the floor to Mr. LeBlanc. I believe you are sharing your time with Mr. Wilfert.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

That's right. Thank you, Mr. Chair.

Thank you for your comments. Mr. Minister, I would like to start by congratulating you on your French proficiency. I know that the chair will be pleased that you could do it without needing the protection of Bill 101. Surely, you will admit that you have expressed yourself very well here, and I offer my sincere congratulations.

[Peter MacKay, Conservative, Central Nova, NS]

Thank you. You are right, Mr. LeBlanc.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Minister, we agree. I certainly agree with a great deal of what you've said. I think the history of this bill compels it towards a serious but expeditious, or not unduly lengthy, study if we can agree on a number of principles and see them translated into the clauses.

I have two specific questions, Minister, through the chair.

The first is about the issue of summary trials. I think you've made the point well with respect to the two former chief justices of Canada having reviewed this. My concern is not necessarily with the procedural protections in a summary trial. It's about the consequences in terms of a criminal record.

Perhaps you could just assure us. I think it is the case, but I'd like to hear it from you, on the record, that if, for example, a summary trial were held for an offence that may not be in the Criminal Code of Canada, such as, for example, disobedience.... Maybe when you were prosecuting cases in the provincial court in Stellarton you would have liked to prosecute somebody for disobedience, but it doesn't exist in the civil criminal justice system. I wouldn't want to see somebody go through a summary trial, be found guilty of an offence for which there's no equivalent in the Criminal Code, and somehow end up with the equivalent of a criminal record or some ongoing thing that would perhaps follow that person into civilian life once he or she finished with the forces.

I'll just give you the second question, Minister, because it's also fairly straightforward.

It's about the evidence a court martial would use in determining the appropriate sentence. I agree with you on the sentencing principles. I think you're absolutely right about modernizing them and bringing them into line with Criminal Code sentencing principles. But I wanted to make sure that I didn't misunderstand the necessary evidentiary requirement for certain facts to be considered. At one point, I think it's in section 203.5, it talks about the court martial having to “be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence”. Then later on it talks about “beyond a reasonable doubt” as the obvious criminal standard. I just want to make sure that those standards aren't conflicting. I want to understand how they might work together.

[Peter MacKay, Conservative, Central Nova, NS]

Thank you very much, Monsieur LeBlanc.

Thank you for your question and your comments.

To answer your questions in sequence, you're right in terms of the intention that the summary offences that would be set out in a code of disciplinary matters for the military would not have application when it comes to a criminal record, if you will, outside of a military record. There are many codes of discipline that a Canadian soldier could potentially face that would never be found in a Criminal Code--for example, leaving their post, or being late, or having a uniform that was perhaps not seen to be in compliance. All of those things, while perhaps seen as mundane or perhaps not in need of discipline--although some parents, I'm sure, would take issue with my saying that--are in fact very important when it comes to the proper maintenance of discipline and order within the military. There is a litany of other examples I could give.

But clearly, being in violation of some of those summary offences under military law would in no way, shape, or form find its way into a person's criminal record, which could be later disclosed. There is an effort clearly in the legislation to delineate that which would be seen as a strictly military disciplinary-type summary offence as opposed to what might make its way into the more traditional system and result in a summary offence.

Coming from that point to your next question, with respect to how the evidentiary requirements would apply, the intention here again is to mirror the criminal justice system where appropriate, the standard of justice being proved beyond a reasonable doubt in these hearings depending on how the offender, if you will, elects to be tried. The evidentiary requirements are very much in keeping with the civilian system; that is to say there must be proof beyond a reasonable doubt, the evidentiary burden is borne by the crown--by the accuser, in traditional parlance--and similarly, the standard that must be met in order for it to get before a criminal tribunal is that balance of probabilities, and the other phrase, which I'm sure you're familiar with, is it in the public interest that these charges proceed? That standard also finds its way into consideration. Is there a public interest in pursuit?

Under the military standard it may be different, but it is given the same level of consideration in terms of pursuit of certain charges, whether they be summary or hybrid offences or whether they be more serious offences. It is not meant to be out of step, except where there are those specific military offences that wouldn't be found in the Canadian Criminal Code.

I believe that answers your question.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Yes. Thank you very much.

[The Chair, Conservative, Maxime Bernier]

Mr. Wilfert, you have 30 seconds.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you, Mr. Chair. Thanks for all that time.

Minister, Judge Advocate General, I assume you've read the letter submitted to this committee by the Military Police Complaints Commission—

[Peter MacKay, Conservative, Central Nova, NS]

Correct.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

—outlining their objections to the immediate implementation of clauses 101 and 117. I'm assuming...but I'll ask the question of whether or not you'd have any problem in delaying the implementation of these clauses to allow the commission to raise its current concerns with the military justice system in a timely manner--through you, Mr. Chairman.

[Peter MacKay, Conservative, Central Nova, NS]

None whatsoever, Mr. Chair. In fact, the member will know that for all intents and purposes we stayed clear of changes that would affect the Military Police Complaints Commission. Given the seizure that they have of certain issues, we did not want to have this legislation impact or in any way impugn that ongoing process. That's why they were excluded from this particular bill.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you for having that on the record.

[The Chair, Conservative, Maxime Bernier]

We'll go to the next round.

Mr. Bachand, it is your turn.

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

Thank you, Mr. Chair.

I would like to welcome the minister and the JAG.

I have done a lot of reading on the discussion before us. We have a lot of questions to ask the minister and the JAG. I do not want to go into too many details with the minister, because I think that it is more important to touch on the general issues instead. One fact remains: more and more people believe that there is a large gap between military law and civilian law.

The Bloc Québécois truly understands that it is important that a code of discipline allow the military to have its own judges, its own lawyers, and so on. But an increasing number of people are saying that it would be wise to bring military law and civil law a little closer together. In that respect, in England, the European Court of Human Rights just put English military law in its place, saying that there was too much distance between military law and civil law. In our discussions and in what we have read, a number of examples show this great difference.

Does the minister feel that we should try to bring military law and civil law closer together? Does he think that military law is still compatible with the Canadian Charter of Rights and Freedoms and with the values of Canadians and Quebeckers, who approach this matter from a distance and don't understand why military law and civil law are different. There is a purpose to justice, but it isn't applied in the same way.

Could the minister please answer these two questions?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Bachand.

You're right. We always need to keep the justice system up to date, not only for civil law, but for military law, as well. That is exactly the reasoning behind this bill. It's an opportunity to look at the application of the charter, for example, and make certain pragmatic changes to improve our justice system.

The use of victim impact statements was being brought to bear at a time when I was still practising law as a crown prosecutor in Nova Scotia, and I remember the profound impact this had on family members and victims themselves. This is a very profound example of where the military justice system can be improved by the application of that change, and there are other examples that, in very practical ways, I think, will improve the military justice system and put it more in line, as you suggested, with the civil system, to bring it into the new era and to ensure that some of these important modernizations that have already occurred in our criminal justice system will be equally applicable for those in the military and for those affected by military service.

Having said that we need to make these specific changes--the majority of which, I believe, are incorporated here, if memory serves me--we have accepted 94% of the recommendations of the Lamer report, or 83 of the 88 recommendations that were laid out in some detail, in whole or in part. But we still come back to the fundamental necessity of having a separate justice system for our military personnel, and those reasons that were set out by Justice Lamer as well as Justice Dickson speak to the operational effectiveness of the military.

They speak to the necessity for protecting a culture that is still very important when it comes to the discipline of our men and women in uniform--discipline, efficiency, morale, and respect for the rule of law within the military. Men like Laurie Hawn, who have served in uniform, will tell you that knowing those rules and regulations are set out in very clear terms is extremely important to the efficiency and the effectiveness of our men and women.

It also meets those disciplinary needs that are outside the current Criminal Code, outside the current disciplinary system, if you will, that applies for civilians like you and me. Military personnel live by a different standard, that is, they are expected, in many cases--to be very frank and blunt--to put their lives on the line and to do so in circumstances that have very high stakes for our country and for them personally, for their families, for their comrades in arms. This added responsibility of risk requires a certain cohesiveness. It requires a specific application of military justice.

All of this is incorporated in the reasons that were set out by Justice Lamer in the Généreux case, and it also speaks of the armed forces need for a system that can try offences both in the ordinary law and within their disciplinary code. It has that flexibility as well, as you're aware, where it can have application in the civil system.

I hope I have addressed your question. I know it was a two- or three-part question, but the short answer is yes, it's compatible with what we're seeing happening in the evolution of our civil system, but it's necessary, I would suggest now, for this legislation to proceed so that we can bring some of those modernizations into the military system as well.

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

Others need to be included in it, such as full answer and defence. For a summary trial, a person does not have the right to choose his or her counsel. An assisting officer is appointed by the commanding officer and is not bound by confidentiality. The commanding officer ensures that all the witnesses are present. When a person stands accused, he or she is not permitted to bring their own witnesses. It is the commanding officer who does all that.

The changes that need to be made are not so significant, but they should be made so that civil law and military law are more consistent with each other.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

I will now give the floor to Mr. Harris.

Mr. Harris, you have the floor.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Thank you, Minister, for joining us today.

I have to agree with you that there are some very positive aspects to this new bill, particularly ensuring that there's independence of the judiciary and the military, as there is in civilian life, the new sentencing opportunities to provide the same sorts of conditional and intermittent sentences that apply, and a whole series of welcome changes.

The thing that bothers me--and you did refer to it, and I'm sure you probably read or were told about the comments I made in my speech in the House--is the summary trial process. Notwithstanding the absence of serious comment by Justices Lamer and Dickson about these matters, it is pretty clear that in terms of the process, at least, the summary trials don't meet the test of the Charter of Rights and Freedoms in that there is a lack of rules of evidence, there is a lack of an independent tribunal--the commanding officer knows the accused and probably knows all of the witnesses--there's no transcript, and there's no real appeal, though there's a review process.

I frankly don't have a serious objection to that in the context of a military discipline. I think we accept the notion that in the military you have to maintain morale and discipline to have a cohesive fighting force for all the right reasons.

The problem I have when it comes to the fact of a criminal record...now some changes have been made here. The changes seem to be dependent upon the sentence. I know, and we all know, what the consequences of a criminal record can be to any individual, whether in civilian life or in trying to cross the border--and that is getting more and more problematic as time goes on. I think that's something I would want to avoid while you do have a procedure that doesn't meet the full test.

We've invited witnesses, or consideration of this legislation by people outside of this committee, with legal backgrounds and experience in defending people in court, bar associations and so on, and civil liberty associations to come to the committee and talk about this issue.

I guess I'm going to ask you this. Are you prepared to maintain an open mind with respect to that issue, notwithstanding, as I said, that Justice Dickson didn't raise it as a major issue? Are you prepared to consider what evidence we may hear and what recommendations we may make as a committee to perhaps insulate, if you will, our men and women in uniform from the consequences that shouldn't be there if their rights aren't fully respected under the Charter of Rights and Freedoms?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Harris.

Mr. Chair, through you, the short answer is, yes, of course. The primary purpose of this legislation is to ensure fairness, first and foremost, and to not disproportionately have sentences affect military in a way that would be disproportionate to our criminal justice system.

Having said that, there is, as you've noted and others have acknowledged, a distinct code of discipline here that takes us outside of the norm in which normal criminal justice would have application because of this necessity, and expectation from soldiers. I'm given some comfort in this legislation wherein we have included language that speaks of ensuring that breaches of military discipline be dealt with in a speedy manner, and also that we've included language aimed at ensuring that the sentences that apply are not unduly harsh, that they do not have a disproportionate effect.

Mr. Harris, you made reference to the necessity for soldiers to travel, and I know that is of particular concern. If there is anything on their criminal record that would prevent them from deploying, this would have a severe impact on their career. So striking that balance is what we seek to do.

I am encouraged, as was noted, that we will hear from other members of bar associations, those within the military...and I know that the Judge Advocate General can speak to this as well in greater detail, as to how we walk that fine line when we are trying to have these sentencing principles apply, when we're trying to strike that important and necessary code of discipline and standards that are expected of the military above and beyond what would apply in our civilian system.

You know, the purpose and the principles of sentencing also have an aspect of general and specific deterrence, of which I know that you, having practised criminal law, are also aware. That accounts for some of the necessity with regard to transparency around these trials and disciplinary hearings. It also, of course, is based in the long-held traditions of the chain of command.

I am concerned about a previous reference that was made by my friend Mr. Bachand to a choice of counsel. Depending on the charge and the seriousness of the charge, I would suggest that there is still room for choice of counsel. In fact, some involved in the more serious charges choose to seek counsel outside of the military system. That has been the case in a number of recent matters that have been before the courts and before military tribunals.

I am open to the recommendations of this committee, of course, and I am open to further amendments, should you choose to bring them forward, as they pertain to this and other provisions of Bill C-41.

[Jack Harris, NDP, St. John's East, NL]

I think I have room for one more short question.

You indicated that almost all of the recommendations of Lamer have been accepted. I think that's probably true, that they've been accepted in principle, but of course many of them have not been implemented. One of them is that the Chief of the Defence Staff be given the necessary financial authority to settle financial claims and grievances.

The grievances have been a particularly thorny issue in the military. The grievance procedure itself has been a source of great grievance for a lot of people, both the legal people trying to assist people and people trying to resolve grievances.

That hasn't been implemented. It's pretty important that somebody be able to say, “Okay, look, we'll settle this, we'll resolve this, we'll fix it”, and yet that authority hasn't been given.

Is there some reason why these things are being delayed? I know it does take time to do things, but these recommendations have been out since 2003.

[The Chair, Conservative, Maxime Bernier]

Short answer, Minister.

[Peter MacKay, Conservative, Central Nova, NS]

Yes.

Well, as you note, we've moved on 94% of the recommendations in part or in whole. Some of what you speak of is directly rooted in the legislation itself that we have now for the third time brought forward. As is the nature of minority parliaments, this legislation doesn't always make it to fruition.

Others of the recommendations can be implemented by the chain of command. We are looking at all those recommendations with a mind to improving our system, particularly around grievances. We've taken a bit of a hands-off approach with respect to the Military Police Complaints Commission and the grievance board, for reasons that you're aware of, on pain of being judged somehow to have interfered in ongoing matters or investigations.

But it's hoped that upon the conclusion of some of those matters, we'll be able to move hastily to implement some of these important improvements.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

I will give the floor to Mr. Braid.