National Defence Committee on Feb. 16th, 2011

[Constance Baran-Gerez]

I don't disagree. The question and the real difficulty is the definition of a criminal record. From the National Defence Act, the Criminal Records Act, the Identification of Criminals Act, and the Criminal Code of Canada, there's no understanding as to if or how the findings of guilt from a summary trial find their way onto what's known as CPIC. There's one amendment that we're pleased to support, found in clause 75, which now makes the five non-serious offences statutorily not criminal offences, which goes a long way. The member does not have to seek a pardon and that is, as far as we can determine, the import of that amendment.

It has to be read as well with the National Defence Act as it stands now. Section 196.26 is the list of designated offences for which fingerprints and photographs shall be taken. It may be of concern to the member that a conviction for something such as improper driving of vehicles may find its way onto a criminal record.

I find some comfort in section 196.29 of the National Defence Act, which says that fingerprints, photographs, and other measurements that are taken under section 196.27 shall be destroyed if that person is tried by summary trial, so it's only for those offences in which the matter proceeds to court martial, where, if there is a conviction, that becomes a criminal record for which the member has to then seek a pardon.

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

We've heard about another issue. There is a committee responsible for reviewing the compensation of military judges. However, the expenses of those judges are paid for by taxpayers, contrary, I believe, to what prevails in civilian society. In a similar context in Quebec, for example, Superior Court judges are paid a certain amount. It's not up to taxpayers to bear those costs. Are you aware of this issue? I'd like it if taxpayers no longer had to bear the cost of the Military Judges Compensation Committee.

[Michael Spratt]

With regard to the question of taxpayers paying for committees that examine military judges, one might also view it as money that can be well spent if it ensures that properly trained and--as this bill makes them--more independent people are appointed to that role. I don't think you can put a price on judicial independence and judicial competence. I suppose that's a political question that needs to be weighed. Is the taxpayer willing to bear that weight? However, it's our position that if that expense leads to a fairer trial, then it's well worth the money.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand. Thank you, Mr. Spratt.

I'll now give the floor to Mr. Harris.

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

Thank you, Chair, and I thank the witnesses for joining us today.

I'm glad to have a fresh set of eyes look at this legislation, and the fact that you haven't been military lawyers may be of assistance--to me, at least. One of my concerns is to try to ensure that people who serve in our military are not treated less fairly under a system of justice than those in civilian life, because those in the military are not going to be in the military forever. Even the Parliamentary Secretary to the Minister of Defence, who sits with us, was in the military for a while. He's not now, and many military people leave after a short number of years. Some have a full career there.

I'm very interested in the criminal record, for one. I see the relationship between that, perhaps, and the summary process we have. I'm not sure if you're familiar with the notion that military justice is different because it requires discipline and speed and morale and maintaining the cohesiveness of a fighting force. Some of the elements of a “fair trial” under our charter I don't think you can eliminate. You might have a transcript, but you're not going to stop the commanding officer from being the commanding officer, and you're not going to make them all have law degrees, etc.

One suggestion has been made that in the area of the criminal record you can withstand a system that's less fair in terms of procedural fairness if the consequences to a military person are not as consequential, shall we say. The military can try you for possession of marijuana or offences that would perhaps give you a difficult time in civilian life. In modern times, with CPIC and crossing borders--and God knows what other countries may think of convictions--the criminal record is still there.

By the way, 90% of all offences in the military are tried under the same procedure that you've criticized. Do you see any merit in having some circumstance whereby any summary trial could not lead to a conviction within the meaning of the Criminal Records Act? Clause 75 has a reference to minor punishments, and they're defined, and regulations could change. I'm not even sure what they are right now. Is there any merit in having a blanket prohibition of a criminal records offence if you're using a procedure that might serve the purpose of the military in maintaining discipline and order but does not serve the rights of an accused person for their future?

[Michael Spratt]

I would agree with you on that point. When you're balancing the nature and gravity of the charter breach and the potential consequences, those are all factors that go into the balance, so that's a system that's less fair or that wouldn't withstand scrutiny in the criminal context. It may pass muster if there's less of an impact after the end of that system.

Certainly I would agree with you, sir, that criminal records are becoming more and more relied upon. It's not just crossing the border, but it's vulnerable background checks if you want to work with children, be a teacher, be a nurse, be a doctor, enter a profession. It seems to be taking on a larger and larger role in our society. It would be a shame if someone who's served their country and incurred some minor infraction is penalized for that service with a criminal record that may limit them in the future.

I certainly think limiting the information that would make its way onto CPIC and expanding the scope of clause 75 and those amendments would provide greater latitude for this act to operate in the expeditious and flexible way that it needs to for the military.

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

I'll just give you part of a quote from R. v. Généreux.

In 1992, Chief Justice Lamer said:

To maintain the Armed Forces in a state of readiness, the military must be in the position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. That Code of Service Discipline incorporates the Criminal Code offences that we talked about. Do you think it would be possible to insulate the activities of the military tribunals in the summary conviction trials from the Criminal Records Act? Do you think that's legally possible?

[Michael Spratt]

It's legislatively possible, certainly.

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

So if you decide to do it through legislation, you think that could be effective.

[Michael Spratt]

Yes, but I think the legislation.... In a criminal context we already have difficulty defining what a criminal record is. Is it just Criminal Code offences? Is it broader than that? Does a criminal record encompass discharges, absolute or conditional? There's a raging debate about that, so any legislation directed at that would have to be explicit and leave no doubt in the authorities' minds what would make its way onto CPIC.

However, I certainly agree with you that if that was contemplated, then perhaps there might be more flexibility to proceed in the expeditious way that is sometimes required.

[Constance Baran-Gerez]

I'm sorry to interrupt, but section 196.29 of the National Defence Act is the starting point.

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

One of the punishments possible under the discipline code is confining to barracks, or confining to ship in the case of naval personnel in the Canadian Forces Maritime Command, as I think they call it. Everyone else calls it the navy. Do you consider those punishments a deprivation of liberty? It's not necessarily in the same category as being locked in a cell.

[Constance Baran-Gerez]

My husband, who is ex-military--a retired major--tells me that when soldiers sign up, they sign up for just that thing. Whether or not someone is deprived to their room for punishment or deprived to their room because their course officer has deprived them of their liberty, they are not leaving base for two weeks and they have extra duties. Soldiers, when they sign on, expect that kind of deprivation. That is very different from being sent to Edmonton under the current punishment available. That is a real deprivation.

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

What's in Edmonton?

[Constance Baran-Gerez]

The military prison.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Mr. Harris.

Mr. Hawn, go ahead, please.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you. Thank you very much, Mr. Chair.

I'm from Edmonton. I have been there, but on the right side of the bars.

Can you outline your specific interest in this case? You have no experience in the military justice system at all. What's your interest in this?

[Michael Spratt]

Our interest is to ensure that, for the legislation currently on the books, any amendments to that legislation meets the high charter standards that are expected and the procedural fairness that is expected in our legislation.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Can you give me your perception of the concepts of operational effectiveness, good order, and discipline, and how those interact?

[Michael Spratt]

As I said in my opening remarks, certainly things are very different in the military. I won't pretend to know what it's like in the military. I've never been in it, nor do I practice extensively in that area.

I'm fully aware, as I expect this committee is going to hear or has heard from other members who can comment, of the necessity of expeditious resolution to the sorts of problems that this act deals with. I'll simply leave it at that.

I'm just here to offer you my perspective on how the charter might affect these amendments in this bill and speak about it in a criminal context. As you're aware, section 1 of the charter is designed to save any legislation that may infringe or overstep charter bounds. That's something the committee can consider when they have the evidence that would apply to section 1.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

[Constance Baran-Gerez]

The analogy that I draw, to answer your question in respect of summary trials, is disciplinary court for federal inmates serving time in penitentiary.

Inmates in federal penitentiary are a different category: there is a need for speedy, expeditious discipline, and there are fewer protections for the person who's facing charges. However, even in penitentiary, people convicted of serious criminal offences who are facing the kind of trial that a summary trial is have the right to counsel. There is the right to have duty counsel present, it is a court of record, and there is an automatic right of appeal to the federal court, so in certain circumstances inmates are getting more rights than soldiers.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

In regard to clause 54, you talked about problems with the absconding of the accused, and so on. Clause 54 will refer you to that; it's talking about absconding accused. Have you looked at Justice Lamer's recommendation? Would you not acknowledge that it is, word for word, Justice Lamer's recommendation?

[Michael Spratt]

Yes, it is.

I think the legislature should be commended for implementing those. Justice Lamer obviously had much more information then we have. We're simply here to say that from our perspective, in the criminal courts it's something that wouldn't happen and wouldn't be acceptable. Obviously, there are different considerations in the military, and Justice Lamer had that information, as this committee, I expect, will have that information and take that into account when analyzing the amendments.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Is the wording of clause 54 not exactly the same as section 475 of the Criminal Code?