National Defence Committee on Feb. 16th, 2011

[Michael Spratt]

I haven't done a line-by-line comparison, but in the Criminal Code only under very extraordinary circumstances do matters proceed when an accused can be subject to deprivation of liberty in the absence of the accused.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Obviously, you don't have time to do it now, but I would refer you back to section 475 of the Criminal Code, and I think you'll find it's word for word the same thing.

On summary trials still, do you agree with the views of two of Canada's most eminent jurists, the Right Honourable Brian Dickson and the Right Honourable Antonio Lamer, both, obviously, former chief justices of the Supreme Court, who have reviewed and endorsed the summary trial system?

Just to finish that question, or add a wrinkle to it, do you believe that these kinds of eminent jurists would have analyzed charter issues before endorsing the summary trial system?

[Michael Spratt]

Obviously, I would expect that those jurists wouldn't have just been presented with one perspective. As I have said continuously from the beginning of our presentation and throughout, this committee, Justice Lamer, and others who have examined the bills would have been presented with a wide variety of perspectives that would have informed their analysis.

As we're aware, there are many provisions that infringe the charter. For example, random stopping and RIDE programs to check for impaired driving infringe the charter, save by section 1. There may be very many cases in which the sections that I'm commenting on, the summary trial sections, from my perspective would infringe the charter, but much like the situation with regard to the RIDE programs, perhaps this committee and those who have drafted the legislation have heard other evidence that would put that into context.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You're absolutely right. Justices Lamer and Dickson did have access to much more information and, as you admitted yourself, probably had a better understanding of criminal justice.

[Michael Spratt]

Who said that?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Could you comment on the weight they gave in their analysis to such safeguards as the right to elect between summary trial and court martial, the right to receive legal advice on the making of the election, the role of the assisting officer, and the right to request a review of the findings? Can you comment on the weight that they put on those?

[Michael Spratt]

I can't comment directly on the weight that they put on those. Of course I'm not in a position to do that. I'm here in a position to give evidence on the CLA's perspective in terms of criminal law in general. I'm hear to present that information.

The election is important, and the right to receive legal advice is important. I'll simply leave it at that.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Constance, you talked about--I'm sorry, Ms. Baran-Gerez, I shouldn't be so personal.

You talked about the CO and lack of legal qualifications. COs do get training now, which they didn't used to, and there is JAG support too. I think you mentioned in relation to some of the cases that you referred to that there is JAG support to a commanding officer to assist him with the legal items that he may not be totally familiar with.

[Constance Baran-Gerez]

Certainly there's a manual. Assisting officers are given a manual, and I've read the manual. There is a legal officer who's available, but a suggestion to make the summary trial process more fair to the member might be that all non-serious charges also be referred to legal counsel for advice. Right now there's no obligation on a CO to consult with their legal adviser in respect to non-serious matters.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Just to be clear, it's more than a manual. Commanding officers get training.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

Ms. Folco, go ahead, please.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Mr. Chairman.

Clause 4 of the bill, which concerns the Chief of the Defence Staff, reads as follows:

(2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

(5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.

In my view, these provisions may conflict with the principle of the independence of the police and the judiciary, which prevails in the Constitution. Consider the worst-case scenario. That's what I want to address.

[Constance Baran-Gerez]

From the Criminal Lawyers' Association perspective, the necessity is for the judicial officer to be independent and impartial, not necessarily for the police to be independent and impartial. The ultimate arbiter of whether or not an investigation has been fair and complete is the presiding officer or judge hearing the matter.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

In other words, you don't feel that this might be a dangerous precedent, a dangerous power, or that it might turn out to be so. I am not saying it is explicitly dangerous. When I mentioned the worst-case scenario, I was imagining that there could be a case in which such powers could go very far and could change the course of the trial, with dire consequences for the person standing trial.

You have no opinion on that?

[Constance Baran-Gerez]

Perhaps I'm not looking at the right section. The appointment of a provost marshal is, as I understand it, the equivalent of the appointment of a police chief.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you.

Earlier the Honourable Laurie Hawn asked you a question about the decision by Justices Lamer and Dickson. I'd like to continue in the same vein. You said that some clauses didn't meet current Charter standards but that those two judges definitely had access to much more information than you.

Do you have any suggestions to make to improve the summary trial process? Should we try to find a compromise between the judges' decision and the provisions of the Charter?

[Michael Spratt]

I think it is indeed possible to find that midway point. In a context such as the military, it is important to have expedient, flexible measures that also serve to maintain discipline and cohesion. The midway point will have to be found. I would rest on our earlier comment that this midway point can be achieved through stronger access to counsel, stronger appeal mechanisms, and amendments that serve to foster these elements.

For the appeal mechanisms, it is important that there be an evidentiary record. It is also important to require impartiality, as this bill does. This bill also allows for a diminishing of the consequences on conviction through removing certain offences from appearing on one's criminal record. If the punishment isn't severe and the procedural safeguards and access to justice are increased, then I think a flexibility can be achieved, and there will be more tolerance of procedures that may in different contexts infringe the charter in a more egregious way.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you, Ms. Folco. Mr. Braid, go ahead, please.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you, Mr. Chair.

Thank you very much to our representatives for being here this afternoon.

Ms. Baran-Gerez, perhaps I could start with a question for you, please, with respect to clause 62, which you touched on in your opening statement.

In the bill, as you mentioned, there is an articulation of the purposes and the objectives and the principles for sentencing. Could you explain why you think it's important and beneficial to have that included in the bill?

[Constance Baran-Gerez]

Well, it mirrors the Criminal Code, so it sets out a list of statutorily mandated concerns that a CO would consider in imposing sentence. It leaves less to the individual whim of the individual CO. It provides guidance to the CO, much as it provides guidance to judges.

In particular, though, clause 62 recognizes the unique operational situation, the unique nature of the organization, in proposed paragraphs 203.1(1)(a) and (b):

(a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

(b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

So it does well to merge both the civilian concerns about sentencing as well as the unique requirements of the Canadian Forces.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Very good. Thank you.

A little further on in the bill, some added flexibility is included with respect to sentencing options, specifically with respect to the options of an absolute discharge, an intermittent sentence, or restitution.

Do you agree that these are positive changes?

[Constance Baran-Gerez]

Absolutely.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Could you elaborate on the benefits and on the importance of these sentencing options in the bill?

[Constance Baran-Gerez]

The more flexibility a sentencing body has in sentencing an individual, the more individual the sentencing will be. This is not only in terms of what was done; it's also in terms of the individual's own prior record—whether they have a conduct sheet, whether it's been their first offence or their tenth, and so on.

Flexibility in sentencing assists not only the military but also the individual member.