National Defence Committee on Feb. 28th, 2011

[The Chair, Conservative, Maxime Bernier]

Welcome, everyone, to the 50th meeting of the Standing Committee on National Defence. Today, we have two items on our agenda, the business of the committee, and our ongoing study of Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

Do you want to go ahead right now with the witnesses and have ten minutes at the end to speak on committee business, or do you want to deal with committee business right now?

Mr. Harris.

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

There was some discussion between some of the members of the committee over the weekend. Concern was raised that we have four very interesting witnesses today with briefs to present on complicated issues. We hoped that we could have more time with some of the witnesses. There doesn't seem to be much agreement on that issue.

Given that our votes this evening are at 6:30, would there be agreement to extend the meeting beyond 5:30 to make more time available for the witnesses, and deal with committee business after 5:30?

[The Chair, Conservative, Maxime Bernier]

So there's a proposal from Mr. Harris to work today until 6:30.

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

The votes are at 6:30.

[The Chair, Conservative, Maxime Bernier]

Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chairman.

I have other meetings already scheduled, so I would not be able to extend my time.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Payne.

Mrs. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I have other meetings as well.

[The Chair, Conservative, Maxime Bernier]

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I think we can deal with the motion and the issue of amendments and where they're required in ten minutes.

[The Chair, Conservative, Maxime Bernier]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I'd like to start with the witnesses right away and then do the committee business at 5:15.

[The Chair, Conservative, Maxime Bernier]

Fine. Mr. Bachand.

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

I would also prefer to hear from the other witnesses before we consider the motions. These are very important and well-informed witnesses. Even if a few members are absent, I don't imagine that any votes taken today would have serious consequences.

I suggest we give the witnesses an additional 30 minutes at the very least, if not 45 minutes, and that we move on to motions 15 minutes before the bells ring. That would give us an extra 45 minutes, or thereabouts, with the witnesses. I think it's important to hear what they have to say. Personally, this habit of not giving each witness at least 30 minutes on average is inconsiderate of us. This is an attempt to bulldoze the process by trying to speed up testimony unnecessarily.

Mr. Chair, I want you to know that I take Bill C-41 seriously. I do not want it to be adopted hastily. I have motions and amendments that I would like to table and I do not want to be rushed into hearing from witnesses or proceeding to the clause by clause study. I agree that we should spend more time with the witnesses today.

[The Chair, Conservative, Maxime Bernier]

So then, should we proceed immediately to hear from the witnesses?

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

Yes.

[The Chair, Conservative, Maxime Bernier]

Mister Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I think we need all members present for the discussion on the motions and the issue of amendments, which is going to come up during that period as well. I think we're wasting time here. Let's get on with the witnesses and curtail that at 5:15 or 5:20, as discussed. This is the schedule that was set and agreed to. I suggest we get on with it.

[The Chair, Conservative, Maxime Bernier]

Mr. Drapeau will have the floor for seven minutes. Then Mr. Holloway will have seven minutes. Then the members will ask you questions.

Thank you very much. You have the floor.

[Colonel, Retired) Michel W. Drapeau (Professor, Faculty of Law, University of Ottawa]

Mr. Chair, let me open by thanking members of the committee for permitting me to appear before you this afternoon to present a commentary on Bill C-41.

Let me say at the outset that Bill C-41 contains a number of very useful changes. I recommend your support of these legislative measures. However, I also have a number of serious concerns about Bill C-41, most of which are addressed in my 12-page submission. I believe all members have received a copy of it.

Turning first to concerns, I personally find it very troubling that here we are, in 2011, and the government has still not implemented all of the recommendations that the late Mr. Justice Lamer made in September 2003. What's more, the government has ignored, without any explanation or justification, the central recommendation made by Justice Lamer--namely, the creation of a permanent military court.

What I find even more troubling is that DND appears to be in breach of its statutory obligation to conduct a second five-year review of Bill C-25. The first review was in 2003, and the second review should have taken place in 2008. We are now three years past that date, and to my knowledge there's been no independent review along the lines of what Justice Lamer recommended.

Let me address, in rapid succession, four concerns I have with Bill C-41..

Firstly, and of great concern, Bill C-41 is silent on summary trials. For a force of approximately 65,000 regulars, they have almost 2,000 summary trials every year. That's one trial for every 34 soldiers every year--a significant number. To put it into perspective, we have a total of 65 court martials a year. Despite the overwhelming number of charges heard at the summary trial level, and despite the fact that the summary trial proceedings are in need of repair, Bill C-41 ignores summary trial. It's almost as if it did not exist.

I strongly believe that the summary trial issue must be addressed by this committee. There is currently nothing more important for Parliament to focus on than fixing a system that affects the legal rights of a significant number of Canadian citizens every year. Why? Because unless and until you, the legislators, address this issue, it is almost impossible for the court to address any challenge, since no appeal of a summary trial verdict or sentence is permitted. As well, it is almost impossible for any other form of legal challenge to take place, since there are no trial transcripts and no right to counsel at summary trial.

From where I stand, I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of those charter rights when facing a summary trial. If Britain, Australia, New Zealand, and Ireland have seen fit to change the summary trial system, it begs the question: why is Canada lagging behind?

The second issue is grievances. The grievance system as it currently operates is inefficient and unfair, because it fails to address the legitimate grievances of soldiers within a reasonable period, let alone within the statutory delays. Given that there are 700 grievances filed every year--one for every 95 soldiers--this has a large impact upon the rank and file.

Bill C-41 addresses the grievance process, but it does so largely for cosmetic reasons. In my view, if the committee were to approve the recommendation made by the department in Bill C-41, the grievance system would become worse. Why? There are two reasons.

First, one major flaw in Bill C-41 is that it will allow the Chief of the Defence Staff to become almost totally disengaged from the grievance system. From where I stand, fundamentally a commander cannot lead his staff, lead his troops, lead his soldiers if he is not personally interested in and aware of what ails his troops.

Another flaw is that the current grievance structure does not grant the Chief of the Defence Staff authority to approve any monetary remedy--not a red cent. Despite a suggestion by the Lamer report in 2003 to the contrary, it appears that DND is happy with the status quo. Considering that the CDS is in charge of protecting the lives of Canada's sons and daughters, and that the annual budget of National Defence is roughly $17 billion a year, I find it odd that the CDS has no authority to grant pecuniary remedies.

Before I leave the subject of grievances, as much as we need a Canadian Forces grievance board as an oversight committee, I believe that such a committee must be external and independent. More importantly, it must be seen as being external and independent. To be seen as being external and independent requires that the members of the grievance board be drawn from civil society, which is certainly not the case at present.

Third, through no fault of its own the Military Police Complaints Commission is as weak and toothless as an oversight committee can be and still be referred to as such. This is because care has not been taken to provide them with the required legislative provision empowering them to act as an oversight body.

I am surprised at the amount of attention being paid in Bill C-41 to military judges, compared to the absence of any mention of summary trial, or the banal changes to the Canadian Forces Grievance Board. As discussed in my paper, with a population of 65,000 regulars the Canadian Forces has a total of four judges handling a total of 65 court martials per year.

Court martial judges have been compared in the past to provincially appointed judges; however, when we compare them to provincially appointed court judges, court martial judges have a disproportionately low caseload. For such a very low number of trials--65--I would be hard pressed to substantiate such a number of judges, let alone increasing it by forming a panel of reserve judges. That's particularly so when we consider that at National Defence at the moment there are four defence lawyers overall. So you have four judges and four defence lawyers to look after the trial system.

In conclusion, in order for me to play a part in your examination of this bill there is much to think about and much that deserves careful study and contemplation before Bill C-41 can be voted into law.

I appreciate your attention, and I'm now available for questions.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Mr. Drapeau. I will now turn the floor over for seven minutes to Mr. Holloway from the University of Western Ontario.

[Dr. Ian Holloway, Professor and Dean, Faculty of Law, University of Western Ontario]

Thank you very much, Mr. Bernier. I am delighted and very proud to be here. It's rather unfortunate that Mr. LeBlanc couldn't be here, as he is my member of Parliament.

I am, as the chairman said, the dean of law at the University of Western Ontario. I've been the dean there since 2000. Before becoming dean, I spent 21 years in the Canadian Forces. I was a chief petty officer. In other words, I was the subject of the system of military justice, and to that extent perhaps I offer a view that one doesn't often hear: the perspective of someone who has legal training but also was an enlisted person in the Canadian Forces.

As we all know, context is all-important when it comes to the interpretation of legal regimes. We hear over and over again that our Constitution is a living tree. That's a notion bequeathed to us by Lord Sankey and the Judicial Committee of the Privy Council 80 years ago now, and it has remained a core principle of understanding our Constitution and our legal system generally.

The adoption of the Canadian Charter of Rights and Freedoms was one of our crowning achievements as a country, but I think it's fair to say that we know much more about the pressures placed on an armed force through modern military operations than we knew in 1981. In 1981-82 we had not been in a hot—as they say in the service—situation since Korea. The fact is that since 1991-92 we've been perpetually in hot situations through the Gulf War, the Balkans, and most recently Central Asia. It seems to me that all of us who have an interest in and care about the system of military justice share a duty to try to breathe life into and try to fertilize the living tree that is the system of military justice, in the context of what we know now about the strains placed on a military organization by modern operations.

It is trite—and I know you've heard this before—that the purpose of a system of military justice is to preserve efficiency, and because that's trite, it makes it easy to overlook what's really embedded in that. Really what we are looking at is a system that will allow a commander to blow a whistle and to cause a bunch of young Canadian men and women willingly to go over the top, even though they know that most of them will be gone in a short period. That's the context of the system of military justice. Thankfully, it's not put to that litmus test very often, but that is still the litmus test to which we have to put it: how well would this suit our armed forces in the time of extreme peril?

Another thing that lawyers often talk about is the notion of purposive interpretation, that we should give our laws an interpretation that would best meet the purpose for their existence. I think it's important for us to remember that a system of military justice exists for very different reasons from a system of civil justice. The regular justice system, the one that all of us who are private citizens live under, exists to preserve our freedom, to keep the government out of our lives as much as possible—what the late philosopher Isaiah Berlin described as negative liberty. That's mostly what the Charter of Rights and Freedoms is ensured to do, to ensure that I've got as much freedom as I can have to say and do what I want.

The purpose of the system of military justice is very different. It exists not to preserve freedom, but to preserve unit cohesion, to ensure—to repeat myself—that young men and women will willingly place themselves in situations of extreme peril because someone told them to and for no other reason. In other words, the system of military justice doesn't exist to reflect Canadian values; it exists to give us an instrument with which we can project Canadian values. That's what we're doing in Central Asia; that's what we did in the Balkans; that's what we did in the first Gulf War; that's what we did in Korea. We need an instrument as a country with which we can project Canadian values.

As someone who was subject to this system for 21 years, for more than an adult lifetime, I can say that the real key from the perspective of the men and women in the trenches, so to speak, is a sense of fairness. It's not whether it's the same as what civilians have. It's whether people think they're getting a fair shake, whether they think that their commanding officers will listen to them when they have a story to tell, whether they think that their commanding officers will give a contextual interpretation to whatever happened. That is why the vast majority of people who can choose between a summary trial and a court martial choose a summary trial. For the most part, they have confidence in the fairness of the system.

As someone who teaches administrative law, I would say the real core of the system of military justice is the doctrine of natural justice. If people think they're going to have a fair shake, that they're going to have the opportunity to tell their side of the story, that's really what's important.

I'll finish by saying that the Canadian system of military justice is probably the most studied system of military justice in the world, certainly in the western world. We had the Somalia inquiry; Chief Justice Dixon did a study; Chief Justice Lamer did a study; we have this meeting today. The truth is that our system of military justice, though not perfect, is pretty darn good. We do not have instances of mutiny, insubordination, or violent insurrection by people in the service. Our service people, in the main, have confidence in the system of military justice.

I think that Mr. Drapeau and I agree on some things, but we have a different view on others. This is the third attempt that Parliament has had at trying to introduce some amendments. I urge you to pass this legislation so that we can move on to other legislation.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

Thank you, Mr. Holloway.

I will give the floor to Mr. Dryden.

[Ken Dryden, Liberal, York Centre, ON]

Thank you.

Mr. Holloway, you offered a context and a way of thinking. I'm not sure how you would apply that context to the bill in front of us. At the same time, in fairly fundamental ways, I'm not sure that what I heard from Mr. Drapeau relates to the same thing. One of your statements was that the system is there not to reflect but to project Canadian values.

I don't think that's what you said, Mr. Drapeau. Maybe we'll start there. But after that, I'd like to go back to Mr. Holloway and see if we can apply some context to what's in front of us.

[Col Michel W. Drapeau]

If I understand the comment made by Professor Holloway, it would suggest that members of the military have fewer rights, and that those are subordinated to the instrumentation of this right to project values. I have difficulty with that concept. I don't see anywhere in Canadian law that a member of the military pushes aside some of his rights.

I think we can and should establish both. I agree that when abroad, in the transmission and the projection of power, we are in some ways translating Canadian values and rights in the pursuit of a given objective. But that does not necessarily push aside or subordinate rights that Canadian soldiers have.