National Defence Committee on Feb. 28th, 2011

[Jean-Marie Dugas]

I'm not certain if I understood in here that the CDS would issue instructions on specifically what relates to court martial. When I read that, in my sense it was more to the administrative side of the house, where the judges would not be involved.

When it refers to some issues where the judges could redress some other issues, I understood that it was only administrative issues. As may have been mentioned, obviously that could be an interference from the administration. If the judge is for example unsatisfied with the settlement of his redress of grievance--could he normally be a human being and use it afterwards--I guess your answer is as good as mine. But obviously the fact that they have to go to the administration is a difficulty that we have. You will see that some of what we had on previous court martial appeal courts.... The fact that the judges had to go through the same route to be renewed was also a problem for us.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

You'd mentioned in the 2008-09 annual report that you were concerned that the number of cases dealt with greatly exceeds the number of court martials. You've expressed this issue several times of the number of disciplinary files in relation to the number of court martials and the drain upon the DCS's resources. Do you have any specific suggestions that you would make to this committee on that issue and how they might be addressed in this bill?

[Jean-Marie Dugas]

I'd say there were two separate reviews made both for the prosecution and the defence where they identified some issues. It might have also been at the time when the system was new and it was a lack of experience on both sides. Sometimes people will come into positions where they really didn't have the disciplinary experience. So we take a bit more time and the problem.... That is a lot more complicated than just trying to change a section of the act.

We have to understand that the charge is sometimes laid at the unit level. It could also be laid by the military police. In both instances, depending on where it goes, then it's going to go to the base where the soldier is actually posted and then it's going to go up.

So in some instances, and that's where I don't know if it's in the regulations or in the act, we will get a phone call on the 1-800 line from the member right away. So we do have a file on that member and it goes from there. In other instances we will basically just receive for the first time the fact that the guy had requested our services and now we're facing the court martial and we only have a few weeks to get ready to proceed.

It's somewhere in the system, more the regulations than the National Defence Act that there's a problem, and that should be fixed in the QR&Os.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

So it should be fixed in the...?

[Jean-Marie Dugas]

In the Queen's Regulations and Orders, rather than the National Defence Act. I believe it relates to procedures that should be followed by every entity that lays charges or is made aware of the charge, rather than under the NDA. I don't believe the problem was because of the NDA and the way it's spelled out.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you.

There was an interesting point brought up by one of our colleagues in the past about whether or not some of these individuals should have combat experience when dealing with cases of that nature on these five-member panels. Do you have any comment on that, as to whether someone who is trying an individual who is in theatre and there is an issue that happens, that at least one of the members should have combat experience in order to deal with this individual?

[Jean-Marie Dugas]

We're talking about the panel on the court martial?

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Yes.

[Jean-Marie Dugas]

I believe it goes without saying that you need to have some knowledge, but as we do with civilian juries.... For example, if there are medical issues, you'll make sure that there will be no medical doctor on the panel, just because they have to be informed and all the evidence has to be brought up by the witnesses. So it's the burden of the prosecution to make sure that all the information is given to the panel members so they can render a decision.

There is also one of the dispositions where they're considering that before you can be selected to be a member of the panel you should have been in the forces for at least three years. So does that mean that someone who has less than three years should not be charged with that offence because he's not able to understand what he did? I sort of disagree. But people in the forces learn pretty quickly what they have to do.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Yes, okay. It was an interesting perspective. I just thought I'd get your comment on it, because I had a minute left.

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Wilfert and Mr. Dugas.

Go ahead, Mr. Bachand.

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

Thank you, Mr. Chair.

Welcome to both of our witnesses.

Mr. Dugas, how many years did you serve as director of Defence Counsel Services?

[Jean-Marie Dugas]

I held the position for seven years.

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

From what year to what year? Did you hold the position recently?

[Jean-Marie Dugas]

In fact, I wrapped up a court martial case in August. I used up leave that I had accumulated until December 8, which was my official retirement date.

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

So then, you were appointed to the position in 2004, or thereabouts.

[Jean-Marie Dugas]

In 2003, as a matter of fact.

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

Let me tell you where I'm going with this, because I'm not trying to set a trap for you. Quite the contrary in fact.

Through the course of our discussions, we've learned that there are four defence counsel, compared to 12 counsel for the prosecution. It appears that you identified this imbalance in two of the studies you conducted at the time. Did you conduct a study on this imbalance?

[Jean-Marie Dugas]

Yes, but to be honest, there is a difference here. The director of Defence Counsel Services has the power to hire counsel as needed, which in fact our office did on several occasions. For nearly four years, if not up until the fifth year, we tried to get across the idea that there was no maximum number involved when it came to hiring a lawyer on a general contract. But yet, Treasury Board regulations imposed a limit on expenditures for that purpose. It took us five years to get a legal opinion.

If you look at the JAG's annual report, you will see that a section is devoted to the Director of Defence Counsel Services. We made our needs known. A more recent study on resource allocation concluded that the rank of director of defence counsel services should be equivalent to that of director of military prosecutions and that more counsel should be assigned to the DDCS's office.

There is also another difference in terms of perception. I'm not saying that there should be more counsel, but that seems to be the direction in which DDCS is heading. Also, prosecution counsel are deployed from time to time on different missions. I object in principle to defence counsel being deployed, but occasionally, when some of them specifically ask to be deployed, then we make arrangements for that. When members are deployed, we need to increase our staff levels. However, a general imbalance does exist nevertheless.

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

Is it true that prosecution counsel are usually busier than defence counsel, given deployments and the extensive research required to prepare their case? That is one of the arguments that I have heard.

[Jean-Marie Dugas]

Let me share with you my personal experience. Since 1998, both offices have operated independently, but prior to that time, counsel worked for the prosecution as well as for the defence.

There are certain differences today. However, to say that the prosecution has a tougher job, I would answer that they have more work to do because they must compile solid evidence. Occasionally, they must ask law enforcement officials for additional evidence, but both sides work with the same documents. Defence counsel spend as much time reading documents submitted as do counsel for the prosecution. Asking for new investigations to be carried out may involve a little more work, but it's all the same as far as we are concerned. Fewer delays are encountered, however. There is also the fact that witnesses must be tracked down. In many cases, medical evidence must be found, which means meeting with doctors and so forth.

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

Were your studies made public at the time? Were they made public or were they reserved for internal use only?

[Jean-Marie Dugas]

They were for internal use. I really cannot say if they were made public or not.

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

Would you have any objections to tabling these studies to the committee?

[Jean-Marie Dugas]

I don't have them with me, but if the JAG wants to table them—