National Defence Committee on Feb. 16th, 2011

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone, and welcome to the 49th meeting of the Standing Committee on National Defence. Pursuant to the order of reference of Monday, December 6, 2010, today we are studying Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts. I would like to welcome our witnesses, Michael Spratt and Constance Baran-Gerez, from the Criminal Lawyers' Association of Ontario.

Thank you for being with us.

Before giving you the floor, I will give the floor right now to Monsieur Bachand.

Mr. Bachand, you may now speak to one of your motions.

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

Thank you, Mr. Chairman.

I've consulted my colleagues on this motion, which concerns the stoning of young men and women in Afghanistan. Yesterday I was pleased to see that my colleagues on the follow-up committee on Afghanistan supported it.

Today I am therefore tabling the motion before the committee so that we can put it to a vote. Originally, members of the Committee on the Status of Women saw absolutely unbearable scenes of stoning on YouTube.

I approached the various critics around this table and no one objected to this motion. I'm asking my colleagues to join with me in defending these young men and women who are the victims of this absolutely barbaric practice of stoning in Afghanistan.

[The Chair, Conservative, Maxime Bernier]

Could you read your motion for the record?

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

Yes, certainly. It reads as follows:

That the Committee condemn the stoning of young women and men in Afghanistan and call on the government to take the necessary action to put an end to these stonings as soon as possible and that it be reported to the House at the earliest opportunity.

[The Chair, Conservative, Maxime Bernier]

Thank you. Do we have unanimous consent? Do committee members approve the motion? Yes? Very well.

(The motion is carried unanimously)

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

I'll now give the floor to the Criminal Lawyer's Association of Ontario.

Mr. Spratt, you have the floor for 10 minutes.

[Michael Spratt, Director, Criminal Lawyers' Association]

Thank you very much, Mr. Chair.

Perhaps I'll start by introducing myself and my colleague. My name's Michael Spratt. I'm a criminal lawyer and a director with the Criminal Lawyers' Association. To my right is Constance Baran-Gerez. She is also a criminal lawyer, a member of the Criminal Lawyers' Association, and certified by the Law Society of Upper Canada as a specialist in the practice of criminal law.

As I said, we're here representing the Criminal Lawyers' Association, or the CLA. The CLA is a non-profit organization of over 1,000 members from Ontario and across Canada. Our mandate is to educate, promote, and represent our membership on issues relating to criminal and constitutional law. The CLA is routinely consulted by parliamentary committees, such as this honourable committee, to share our views on new legislation, and we're pleased to be here doing that today.

The CLA is in favour of legislation that strengthens recognition of charter values and procedural fairness. As I said, we're here to present our perspective on this bill today. What we're going to be presenting is the perspective of criminal lawyers. I haven't been in the military and I don't do much military work. I expect the committee will hear from members with that perspective.

To put our comments into perspective, there may be different considerations in criminal courts than in the military context, but I can start off by saying that I'm pleased to say that in general the CLA is very pleased by the language and the new clauses in this bill. They seem to strengthen procedural fairness and adopt many of the recommendations in the Lamer report. I'm going to leave it to Constance to tell the committee all the good things that you're doing, and at the end of Constance telling you everything that we like about the bill, I'll end on the very pleasant note of telling you a few things that perhaps from our perspective could be strengthened in the bill.

Having said that, I'll turn the floor over to Constance, and she'll use the majority of the time to tell you what we think is positive here.

[Constance Baran-Gerez, Criminal Lawyers' Association of Ontario]

On behalf of the Criminal Lawyers' Association, Mr. Spratt and I are pleased to urge support for the amendments to this legislation in the bill. There are a number of amendments that promote an expeditious and fair response to service offences, all the while respecting the Canadian Charter of Rights and Freedoms, and I'd like to draw the committee's attention to certain of those.

Clause 41, in particular, dealing with the independence of military judiciary, as evidenced by the security of tenure until retirement or removal for cause, is seen as a positive step.

Clauses 35 and 36, on the introduction of a six-month limitation period for the laying of a charge to be tried by summary trial, is an improvement over the existing legislation, which did not have a six-month limitation period. That new amendment mirrors subsection 786(2) of the Criminal Code of Canada, and is one that we support.

The CLA is supportive of clauses 27 and 28, which, for the first time, limit the powers of arrest in matters deemed not to be serious offences. We also support clause 32 of the bill, an important clarification of the conditions necessary to warrant pretrial detention.

The CLA supports the addition of members of the military police as persons who are prohibited from serving as a member of a panel of a general court martial as found in clause 48, as justice must not only be done, but be seen to be done.

There is the introduction of a mechanism for resolving disputed facts that are relevant to the determination of a fair sentence. That mirrors the procedure found in criminal courts since the decision in 1982 by the Supreme Court of Canada in R. v. Gardiner that aggravating facts have to be proven beyond a reasonable doubt. That’s found in the bill.

The introduction of a statement of purposes and principles of sentencing is something new to the National Defence Act. Clause 62 and following reflects, in the CLA's estimation, not only the unique purposes of promoting operational effectiveness of the CF, but also the values found in sections 718, 718.01, and 718.2 of the Criminal Code of Canada.

Finally, those amendments to which the CLA can lend its support include clauses 24, 64, and 65, which deal with additional penalties providing a more flexible range of punishments, including absolute discharges, intermittent sentences, the suspension of the passing of a sentence of custody, and restitution orders.

Those are the areas in the bill that the CLA can support. Mr. Spratt can now deal with some matters of concern.

[Michael Spratt]

The primary area of concern that the CLA has with the bill, and with the National Defence Act in particular, is the lack of consideration this bill gives to summary trials as they exist in the military.

Quite frankly, the summary trial regime, if it were in the criminal courts.... I'm fully cognizant of the fact that we're dealing with a very different system and a very different implementation of those rules, but from the criminal perspective, summary trials don't meet charter standards.

The commanding officer who presides over a summary trial is not a trained lawyer.

We have evidentiary concerns about the use of hearsay in admissible evidence.

One always has to remember that the penalties imposed for summary trials can be in the minor end, but can include a period of up to 30 days in custody and a deprivation of liberty.

The disclosure standards that exist in the current summary trial regime fall short of Stinchcombe and those that we see in the criminal court, leading to questions about full answer and defence.

Also, the right to counsel does not meet current charter standards.

The focus of summary trials on an expeditious hearing may be advantageous--and I'm sure the committee will hear evidence from the military perspective about why that may be--in the military, but it has to be recognized that it comes at the expense of procedural fairness.

It should be said that the reduction of the limitation period to six months is a step in the right direction as it comes to summary trials, and this bill could do a better job of embracing those sorts of positive steps.

In general, the appeal rights and the problems with records being kept--transcripts and a proper evidentiary record--are also problematic in regard to procedural fairness.

Clause 54 of this bill, dealing with trials in the absence of the accused, also presents a problem from the criminal perspective, and in our criminal courts would not meet the standards as set out by the charter. This is especially true when there's a period of custody or there can be a deprivation of liberty.

When I was thinking about it last night, I was thinking that for a traffic ticket when you have a fine, you have a right to be present. Those trials can proceed without an accused, but of course a $65 traffic ticket is much different from the deprivation of liberty. When we're dealing with potential consequences such as that, there should be a better record kept, and the charter would suggest that there should be a right of an accused to be present for the entirety of that hearing.

Those represent the major concerns. Some of them are maybe beyond the scope of this bill, but they are important considerations.

Overall, I think, when we look at this bill, we see that the majority of the Lamer recommendations are being implemented, which is a very positive step, and this is a step in the right direction. Perhaps, from our perspective, the step could be slightly greater.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Spratt.

I would like to remind members that we will have to go and vote and that we will therefore have to adjourn at 5:15 p.m., not at the time stated on the agenda, which is 5:30 p.m.

That said, I give the floor to Mr. LeBlanc.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Merci, monsieur le président, and thank you very much to both of you for coming this afternoon and for your comments.

Mr. Spratt, you did it well. You talked about the things you like, and then you left some rather compelling and I think informative concerns to the end. You finished with a number of questions that would cause us to reflect.

The purpose of modernizing, after many years, the justice provisions around the National Defence Act has as one of its objectives, as I think everybody agrees, bringing it more into line with modern charter decisions, with Supreme Court precedents, and with the work of the late Chief Justice Lamer. We all, I think, share the view that this is the objective, and you've identified a number of areas where perhaps we've fallen a bit short of where we might want to go.

This is dangerous, because I don't want to speak for the people who run the military justice system. I think they do a very good job with the instruments and the context that they're given, which is often a difficult context, such as an operational context in Afghanistan.

You said at the beginning that you recognize military justice has some different aspects from a typical criminal justice context in a civilian proceeding. That doesn't mean the rights of an accused person should be less respected. I wouldn't suggest that at all, and you certainly didn't, but how do you balance out what I think military commanders or those in an operation overseas, for example, would say is the necessity to maintain the cohesion of a unit, discipline, in a particular theatre, and requires this expeditious summary process for the less serious offences? How do you balance that with the right to make a full answer in defence and the right to counsel, all of which are very basic elementary principles of a criminal justice system in a civilian context?

In your view, can some amendments be made that would bring this legislation up to a higher standard, to which we might aspire, without compromising the clear need of the military to have that flexibility? Frankly, you've identified some troubling elements. If we want to try to amend this bill--and the minister and others were certainly open to thoughtful amendments that preserve the integrity of the bill--do you have any suggestions of how we could do that? I don't think it's realistic to import into the summary context the full protection that you have in a criminal proceeding for an indictable offence in a civilian context. That's not realistic. At the same time, it doesn't mean we should compromise procedural fairness and actual justice rights, let alone the charter rights, of somebody facing a serious sanction.

[Michael Spratt]

I would have two suggestions to put to the committee on that point.

The first is recognizing that the application of the National Defence Act can have a very wide scope. It can apply in various operational theatres but also on home soil during training. There might be room to treat those two different locales differently. For example, in an operational theatre it might be more justifiable to have more expeditious resolution to those summary complaints, whereas when one has the luxury of facilities at home and of being on Canadian soil, maybe different standards could be imposed. Certainly that's something that might be considered under section 1 when we're looking at whether there are charter violations and if they are indeed saved by section 1. That's something that can perhaps be recognized.

If there are going to be laxer standards--that may be loose language--in terms of the procedural fairness, one good way, in my opinion, to guard against that would be to strengthen the rights of appeal, to make sure there's a proper record, to make sure that if, because of that procedural unfairness, there is a breach of charter standards and an injustice done, that there's at least a record and a mechanism that, when time allows, would allow that mistake to be corrected.

[Constance Baran-Gerez]

To that I would add removing the availability of custody with a deprivation of liberty as a penalty for summary trials. That would go a long way to ensuring a more fair approach to the process.

I understand that if I were considering imposing a restriction of liberty that the option, the election, is often given to the member, but if that punishment were taken away as an option as a punishment for a summary trial, then perhaps it might withstand charter scrutiny.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

So you as an accused person facing a summary trial would have, as certainty of law, the knowledge that if you elect to have that summary procedure--perhaps I'll use the civil analogy--you're not facing potential closed custody incarceration as a sentence, as a punishment.

Those are very good suggestions.

In terms of right to counsel, if you had to rank your concerns.... I think that the idea of the evidentiary record and strengthening appeal rights is a good one. I like the idea of limiting, perhaps, the sentencing element. You raised the right to custody, the right to disclosure.

[Michael Spratt]

It may be self-interest, but I'm of the opinion that having counsel present is one of the most important things one can do to strengthen access to justice and procedural fairness to make sure that any injustices are caught at the front end. I note that there are some provisions--for instance, the trial in absentia provisions--that allow the accused to have an advocate present. That can be strengthened. Especially when you're dealing with members of the military, you could perhaps legislate that counsel can be provided and paid for, because there's the economic reality members have to deal with as well. Having strong representation from counsel and guaranteed representation from counsel, perhaps if custody is on the table as a potential option, would go a long way to alleviating some of our concerns.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

The criminal defence bar in Kandahar may not offer much reassurance either.

[Michael Spratt]

Legal aid rates would need to be pretty high.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. LeBlanc. Thank you, Mr. Spratt. I'll now give the floor to Mr. Bachand.

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

Thank you, Mr. Chairman.

Welcome to our guests.

First, I would like to know what you know about military law. Is this the first time you've appeared before a committee to give your organization's opinion on military law? I wouldn't say that military law is complex, but everyone agrees that it is somewhat separate from civilian justice.

[Michael Spratt]

Yes, this is the first time I've appeared before this committee.

The membership of the CLA is quite varied. We do have members who practice in this area, so we have consulted some outside sources. This is why I said at the beginning of our presentation that we are not here representing ourselves as experts in this area. We are here to give you the perspective of counsel who deal with charter issues on a day-to-day basis in the criminal context and to perhaps offer you a perspective on how to import those into this context.

Undoubtedly you'll hear from people who are much more familiar with it than we are. They might present compelling arguments on how section 1 would operate and how that might save in the operational implementation of this, but it is our view, as an organization, that the charter is a very important document and that its values should really permeate all our legislation.

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

Constance, is this the first time for you as well?

[Constance Baran-Gerez]

It is. However, before I came to speak with you, I consulted with a serving member of the Canadian Forces who works in the JAG office with Defence Council Services. I also consulted with two retired majors, both of whom had acted as adjutants for their units. In that capacity, they both assisted their commanding officers in dealing with summary trials. Each of them had acted as assisting officer in at least six or seven summary trials, so they were familiar with it both from an operational standpoint in consulting with their COs and from being on the ground as assisting officers.

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

We currently hear it said that there is too big a gap between civil and military justice. Do you agree?

[Constance Baran-Gerez]

With regard only of the summary trial process--not the court martial process, which appears to have factored in such things as being a court of record, having a route of appeal and right to counsel, providing counsel for the members if they wish it, and having a lawyer as the presiding officer--it's the Criminal Lawyers' Association's position that it does not meet charter standards. However, we understand that there are other concerns, it being a unique organization.

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

Military members who are convicted at a summary trial may wind up with a criminal record. That happens relatively frequently. You didn't mention that situation, which is criticized by some. Are you familiar with this issue? I find it somewhat excessive for a person who has disobeyed or refused to obey a superior's orders to wind up with a criminal record. I think that punishment is disproportionate to the alleged offence.