National Defence Committee on Feb. 7th, 2011

[Bryon Wilfert, Liberal, Richmond Hill, ON]

No, you finish.

[The Chair, Conservative, Maxime Bernier]

Mr. Bachand, you have the floor for seven minutes, and then it will be Mr. Wilfert's turn. Thank you.

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

Mr. Chair, I am pleased to be considered the spokesperson for Her Majesty's loyal opposition.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

"Loyal", yes, that's the word, proud Acadian that you are!

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

Good afternoon, Mr. Cathcart. I have a number of questions to ask you, but I can't ask all of them, given the time I am allowed. However, some of them are particularly important to me.

The minister made a distinction earlier about summary trials, in that the person who is on trial, the accused, does not have the right to consult a lawyer. Apparently, it's the commanding officer who assigns an assisting officer. He also summons the witnesses. He is not bound by the duty of confidentiality, to the rule of evidence. There is no official transcription; only the sentence and punishment are recorded. I will start with that.

Is what I just said true? Or are there subtle differences to be made?

[BGen Bernard Blaise Cathcart, Judge Advocate General, Canadian Forces, Department of National Defence]

Obviously, Mr. Chair, there are a lot of nuances in the act.

As you know, Mr. Bachand, from previous iterations on the summary trial process, I really urge the committee, and in fact all members of the public, to understand that there is a fundamental difference in the approach to justice from a military's perspective, and obviously not in consideration of things like rights and charter applications, where we're as vigilant as the civilian system. But in our own system, the fundamental purpose, the objective, is always to maintain discipline, both in times of peace and in times of war, so that soldiers, airmen, sailors always have that obedience to command. Within that structure we have the two systems, as you well know: summary trial and court martial system. The summary trial, by far, historically, even today is the most used of the systems, and I think that reflects many positive things.

Number one, it's a system that the chain of command and the troops, in fact, are most comfortable with. They understand it conceptually. They understand the reason for it and the consequences that flow out of that process, and because of that it has to be a system that is obviously fair, but efficient and operationally relevant. If we decide just to turn it into, as some jurisdictions do, for their own philosophical reasons, essentially another type of full-blown trial with all the same rights of having a judge, a prosecutor, a defending counsel, all those things, then I think at the end of the day you're not going to achieve that right balance between having a system that results in the troops understanding what discipline is about, but at the same time not hindering their rights or the fairness.

The minister has talked about the right to counsel. In fact, they are permitted to have counsel. It's a request; it's not automatic. And indeed if the counsel shows up, I've had experiences myself where if the counsel wishes to make complex legal arguments, without hesitation, I'm sure, a commanding officer, a presiding officer, at summary trial will push it up to a court martial, which is the proper forum for having legal arguments based on charter rights, etc.

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

Is it true that all witnesses in a summary trial, including the witnesses for the defence, are summoned by the assisting officer?

[BGen Bernard Blaise Cathcart]

Not exactly. The process is controlled by the commanding officer, the tribunal chair.

As you would expect in all the disciplinary matters, the commanding officer has to be in charge. Essentially, it's a process whereby the unit, often represented by folks like the company sergeant-major or the coxswain aboard a ship, will present the evidence, if you will, from the unit's perspective. But on the contrary, the accused has a right to request witnesses, unless it causes hardship. If you're in Afghanistan and you want to have a witness flown all the way over for your boots not being shined properly, there may be some discretion.

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

Okay. The accused requests, but it's not automatically awarded to the accused.

[BGen Bernard Blaise Cathcart]

Again, because the presiding officer in the unit has to maintain control, there are elements of discretion, but the experienced will see.... If you've had the occasion to attend a summary trial, you'll see in most cases the accused's requests are accommodated.

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

Is it true that there are no rules of evidence? Testimonies are often given, and a person isn't required to have evidence.

[BGen Bernard Blaise Cathcart]

No, not exactly. Ultimately, it's always a matter of evidence.

If the evidence comes from a witness, that's one source. If it comes from documents, that's another source. It's not always a question of testimony having to come through a witness. You can have reports, examples of written orders, that sort of thing, not that dissimilar from a court martial.

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

Is it also true that there are no appeals? In other words, if a verdict denies a soldier his or her freedom, for example, or a short prison sentence is imposed, that soldier can't appeal the commanding officer's decision?

[BGen Bernard Blaise Cathcart]

Not exactly. In legal terms, it's a matter of nuance. In the summary trial process, it's a matter of the type of review done by the chain of command.

So it's not an appeal, as we would expect from a court martial to an appeal court, as in the military court martial appeal court, but there are opportunities to have the sentence reviewed by a separate individual within the chain of command, who would also have access to separate legal advice from my office.

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

I saw that the act sets out additional options for determining the sentence. I saw a number of them, but I didn't see "conditional discharge and probation" in the number of additional options.

Can you tell me if it's in the bill that is before us today?

[BGen Bernard Blaise Cathcart]

No, probation is not directly an issue in the act. But…

we are considering it. It's a very complicated matter, particularly in issues where the accused may also be released simultaneously from the Canadian Forces. How to deal with the issue of probation once a person is transferred into the civilian system is very complex because of the different jurisdictions, both provincial and territorial. It is something that is under consideration, but, again, it's very nuanced but it's very complex, and we have not ruled it out.

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

I asked the minister a question about military judges who can file grievances. Do you share my opinion that it is an infringement on a judge's judicial restraint if a judge can take that kind of action?

[BGen Bernard Blaise Cathcart]

As for qualifications, military judges can't file grievances on just anything at all.

For example, any matters that directly relate to the judge's ability to dispense with justice and matters of independence would not be the subject of a grievance. However, again, to reinforce that, the military judges are still members of the military. They may, indeed, have matters that aren't relevant directly to their office or their ability to dispose of justice. They may wish to grieve. This gives them an option.

So in no way, shape, or form is it designed, either in reality or in perception, to place a burden on judges to say that the Chief of the Defence Staff can control their independence by the way he deals with their grievances. The grievances are designed on those occasions where they may have a legitimate issue that doesn't affect their independence, but would have no other recourse, frankly, because they are still members

…of the Canadian Forces.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Brigadier-General.

Now I will give the floor to Mr. Wilfert and Mr. LeBlanc.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you.

First of all, through you, Mr. Chairman, I want to commend the work of the Judge Advocate General's office and the work you do. It's nice to see you back after our initial meeting.

Just one quick question, through you, Mr. Chairman. Under clause 59—I'm thinking more in places of theatre—will non-Canadians have a right to produce a victim impact statement, and what obligation is there for a court martial to inquire if a victim has been advised that he or she may prepare a victim impact statement in cases where there may be multiple victims?

[BGen Bernard Blaise Cathcart]

I'm going to ask my colleague, Colonel Gleeson, to address that detailed question.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you.

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

I haven't flipped to it, Mr. Chair, but I understand clause 59 deals with mental disorder provisions and not necessarily victim impact statements. But with respect to the issue of victim impact statements, yes, any victim would be in a position to present a statement to a court martial under the process that will be developed for the VIS. The legislation will provide the framework by which victim impact statements will be available to courts martial and in fact impose an obligation on judges to receive them. There will be a regulatory framework behind it that fleshes out the details of it, and it will define victims, etc. But certainly nationality would not be a basis on which to deny a victim the opportunity to put forward a statement in that scheme.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Okay. Thank you, Colonel.

[The Chair, Conservative, Maxime Bernier]

We'll turn to Monsieur LeBlanc.