Mr. Holloway.
Evidence of meeting #50 for National Defence in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-41.
A recording is available from Parliament.
Evidence of meeting #50 for National Defence in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-41.
A recording is available from Parliament.
3:50 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
I have a different view. I think that when we join the service we willingly surrender some of our rights. As a civilian, I can decide whether I want to quit a job. I can decide what time I want to get up in the morning. I can decide whether I want to shine my shoes or not. I can call the Prime Minister a jerk if I want to, in public, and there's nothing anyone can do to me. But when I decide to join the service, I give up all of those rights. People tell me when to get up. They tell me what clothes I'm going to wear and what condition the clothes have to be in. I'm not permitted to voice my political opinions publicly. All this comes with joining a military organization.
3:50 p.m.
Liberal
Ken Dryden Liberal York Centre, ON
How are we to resolve this? It's a fundamental dispute. I'm not sure how one applies these concepts to an act. I think you said that essentially the standard is the standard that applies when you're on the battlefield. That's the standard that applies in general to a military life. Is that what you're saying? Are you saying that it's not contextual, that the rights and understandings come from that very event and apply to the vast majority who will never be in that situation?
3:50 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
Let me say two things, Mr. Dryden. First, there is this core principle in the service: the principle of universality. The theory is that everyone could be called upon to serve in positions of extreme peril. It's not open to say, “Well, I didn't sign up for that part of the armed forces, I only chose the Ottawa part of the armed forces.”
As to the first part of your question, I'm not sure I would say the standard should be applied, but I would say that the system we design—we're talking about a system here—has to be able to accommodate the demands of situations of extreme peril. You can't be designing a new system of military justice on the battlefield; by definition, that's arbitrary and potentially capricious.
3:50 p.m.
Col Michel W. Drapeau
Monsieur Dryden, to answer both your intervention and the professor's response to it, with respect to where you start and where you go, first and foremost I would say you go to the sons and daughters of Canada who are not only recruited but who volunteer for military service.
I am anything but certain that they, and their mothers and fathers, understand that when they join the forces they leave at the door the rights they got at birth. We're not recruiting mercenaries; we're recruiting our sons and daughters to serve under the flag.
To say I would be upset would be an understatement, if the advertisement for enrolling Canadians would have a subtext that says “If you serve in the military, then we will apply a different type of law. Your right to fair trial, your right to whatever it is, will be applied arbitrarily by the Canadian Forces as an instrument of the state.”
I would object to that with every ounce of my mind.
3:55 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
There's a simple test. We can ask ourselves whether service people have the same rights as civilians. Can service people organize into trade unions? Can service people exercise the untrammelled freedom of expression that I can as a civilian? The answer to both of those questions is no. Obviously, as a matter of fact, service people have a different set of rights.
As to the suggestion that by joining the service you're voluntarily saying you're giving up your right to a fair trial, I don't think that's a fair way to characterize what I'm saying. I think the question is what we mean by a fair trial. If an employer seeks to dismiss an employee who belongs to a trade union, they have a different sort of trial from someone who doesn't belong to a trade union and is dismissed. Can we say that one is fairer? They're different because of the context.
3:55 p.m.
Col Michel W. Drapeau
Pity the day when a Canadian Forces soldier who has just completed his training and is ready to go to war, to put his life at risk, has fewer rights than somebody who happens to land at Trudeau Airport, in Montreal, and because he is on Canadian soil has the full benefit of charter protection. Pity the day when this happens.
A Canadian soldier, when he is stripped down to his underwear, is a Canadian soldier. He's a citizen first and foremost. The charter makes no distinction that when you join the military then section whatever doesn't apply to you. It applies to the fullest extent.
I want my soldier to be protected by the charter. I want him to be the best model of a Canadian citizen and the value system embedded in him so he can act as a soldier and defend our value system abroad.
3:55 p.m.
Conservative
3:55 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
Thank you, Mr. Chair.
The discussion appears to be well under way. We have with us two former members of the military who hold very different views. We will try and draw on both sides of the argument to come up with the best possible bill.
I'll start with you, Mr. Holloway. I admire those who have the courage to say that once a person joins the Canadian Forces, he no longer has the same rights as others. I agree with you in part, because most NATO member countries see a major difference between civilian and military justice. I can appreciate that there is a difference, but just how far does it extend? I disagree with you on this point. As I see it, there are two major issues here. There are summary proceedings, for which there are no transcripts, where decisions are not based on evidence, but rather on hearsay. Sometimes, a soldier faces a commander against whom he has filed a grievance. Having worked for 20 years in labour relations, I do not think that makes a lot of sense.
I also note that you are the dean of the Faculty of Law and a professor at the University of Western Ontario. Do you not think there would be a revolution in Canada if we were to apply all military rules to civilian society?
3:55 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
Of course there would be a revolution, because the purpose of our system of civil justice is to preserve freedom. That's why the armed forces exist--so you and I can do what we want, say what we want, organize trade unions if we want, and so on. Those rights don't exist in the service. So there's a different purpose for the existence of the justice system. To me that's axiomatic. If people don't see it that way, I'm happy to argue further, but that's just a starting principle.
As to the question of how wide the gap should be, I guess that's up to you as members of Parliament to decide.
3:55 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
No, I don't feel it's too wide now. The system isn't perfect. In fact, Colonel Drapeau and I agree on many of his points. But I also don't think the system is fundamentally broken. The service people enjoy a wide range of rights, but contextualized; they're different from the rights that civilians enjoy. People are joining the service. They're having happy and successful careers. They're retiring and becoming--as they were in the service--good Canadian citizens.
On the point about summary trials you referred to, surely it's telling that of the people who have the choice of electing a full court martial with lawyers and transcripts and all the sorts of things that seem dear to me as a common lawyer, only 5% of them do that; 95% of people who have a right of election will choose a summary trial. That surely is significant.
3:55 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
Do you believe that in many instances, military justice violates the Charter of Rights and Freedoms? As an expert in civil law, would you agree with that statement? Is that true?
3:55 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
I don't think it violates the charter. Ultimately, of course, nine people farther down Wellington Street are the ones who will make that decision. But I do know that Chief Justice Dickson, an eminent jurist and the person who gave life to much of the Charter of Rights and Freedoms, expressed the view that it didn't violate the charter. Chief Justice Lamer, Chief Justice Dickson's successor, is someone else who can hardly be characterized as sort of a right-wing jurist. He also expressed the view that the system of military justice was consonant with charter values. Who am I to second-guess two such distinguished Canadians?
4 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
Yes, and I'm not trying to express my views if they're contrary, but I don't think they are. I was an enlisted person, and I never once felt that my rights were being trampled upon because I had the choice of going before the captain or a court martial.
4 p.m.
Col Michel W. Drapeau
I wouldn't make too much on the issue of having a right to trial. First, until very recently, until the Trépanier decision in 2006, that right in fact was exercised by the crown, not by the soldiers themselves.
Secondly, it's not because someone decides between two forces that are really not very pleasant--a court martial or summary trial--that he opts to and enjoys the exercise. It's like pleading guilty to a traffic ticket. You may do it just because you want to get it over with. The fact that 95% will elect to have a summary trial doesn't give legitimacy or authenticity to the process itself. I don't think it does.
One of the comments that I need to make to some of the discussion that took place between Mr. Bachand and the professor, what I almost understand to be on the table here, is that it's almost as if we have a Charter of Rights for civilians and a Charter of Rights for military. No, we don't. Any derogation in the application of Canadian law between the civilian tribunals and the military tribunals ought to be put together. A court martial is in fact subject to review, and some of them are before the Court Martial Appeal Court. Those civilian judges who sit at the Court Martial Appeal Court do precisely that in order to make sure that all of the Canadian law and all of its changes are applied as perfectly and fairly to military members as they would be to a civilian.
So there is no different system of laws, and derogations, where they are applicable, are to be restrained. In fact, Bill C-41 does exactly that. As a result of discussion before this committee and in the Senate before, when we said that up to now, because of a fairly restricted, outdated military system, we have a specific system of punishment in the military--dishonourable discharge, reprimand--but we don't have things like conditional sentences, Bill C-41 provides for that, and I agree with that. Why does it do that? It does that because of recommendation, and recommendation has been accepted by the defence department that those flexibility issues available to a civilian trial sentencing judge are now to be made available in a court martial, and I think we should applaud that.
The aim is to reduce the difference between the two, and that's the way we should be going.
4:05 p.m.
Conservative
The Chair Conservative Maxime Bernier
Thank you, Mr. Drapeau.
I will now turn the floor over to Mr. Harris.
4:05 p.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
Thank you, gentlemen, for appearing and for your interesting presentations.
Dean Holloway, I have to say we've been struggling here as a committee with this notion of the difference between a summary trial and the lack of procedural fairness, and that's the first time I've heard it justified the way that you have here. I will agree with you that what's important here is fairness and the doctrine of natural justice, which you refer to. As someone who has also practised law for many years--administrative law and criminal law--I would say the essence of natural justice is procedural fairness--not to be judged by someone who is biased, the right to know the case against you and to make full answer and defence, etc. We have problems with disclosure, we have problems with the judges knowing the witnesses, etc. So I don't think you can really say that procedural fairness operates in that way.
What I do want to ask is this. As a way of dealing with this, I've thought about the different options. Given the fact that we do have a procedure, and accepting that morale and efficiency are important considerations in this, is there not a way of ameliorating some of the downside--if you have less fairness or less procedural protection, having the consequences be a little different as well? Mr. Justice Lamer also said that soldiers are not second-class citizens.
So if you have a civilian who is charged with a particular offence, goes to court, has all the protections, etc., ends up being convicted, and has a criminal record as a result of that--that's under all of the protections that you have--isn't there a way of saying, in the military courts...? If you have a summary trial that meets the test of efficiency and does all of that, can we not ameliorate the sentencing side and say you're not going to get a criminal record for something you go through a summary trial on?
There's a stab at it here, in clause 75, removing some of the offences, but there's an awful lot left--for example, making a false statement in respect of leave. You said your mother was sick and she really wasn't that sick, so you get a criminal offence for that. Or there's making a false accusation or suppressing a fact, signing an inaccurate certificate, section 108--the Bev Oda offence. These things are all listed there as things that a summary conviction trial in the military can do. Take improper driving or use of vehicles, for example. Why should they end up with a criminal record that they carry with them the rest of their lives, with the consequences that flow from that? And there are more and more consequences, as time goes on, with cross-border traffic, etc. Can we not do that? Can we say yes, there's a different level of procedural fairness, for pragmatic reasons, but let's take away the sting and treat them more fairly by doing that?
4:05 p.m.
Professor and Dean, Faculty of Law, University of Western Ontario
I agree, Mr. Harris.
Let me say this, though. The conviction rate in summary trials is actually lower than it is in civilian proceedings. Rather than there being a sort of railroad where we're going to, as they used to joke, “march the guilty bastard in”, I don't think the evidence actually bears that out. There is a higher acquittal rate in summary military trials than there is in civilian proceedings.
Leaving that aside, I agree with you in principle, but the challenge will be resolving this. As a service person, if I.... And some of the things the system deals with are charges like drunk and disorderly, when two people get into a fight in a bar, which is assault. Under the current system, I have a right to elect for a summary proceeding. If I were convicted through that, presumably most people would say there should be a criminal record, because if I thumped someone on civilian street, I'd get a criminal record for assault causing bodily harm. I agree with the premise. The challenge will be finding the right sort of language to allow us to determine which sorts of offences we think should attract a criminal record versus those we might call pure service offences--to take a silly example, having filthy shoes or something like that. That would be the drafting challenge. The principle I agree with.