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.
Bloc
Claude Bachand Bloc Saint-Jean, QC
A request would have to be filed with the JAG to have your studies tabled. Do you conduct studies every year or is this done more on an ad hoc basis?
As an Individual
Studies are conducted to assess needs. One study was done on the office of the director of military prosecutions and another on the office of the director of defence counsel services.
Bloc
Claude Bachand Bloc Saint-Jean, QC
One study focused on the director of military prosecutions. What was the other study on?
Bloc
Claude Bachand Bloc Saint-Jean, QC
Then, if we intend to file a request with the JAG, we should ask to see the study on the director of prosecutions as well as the study on the director of defence counsel services.
As an Individual
Yes, but you should specify that you want to see the study on the director of military prosecutions.
Bloc
Bloc
Claude Bachand Bloc Saint-Jean, QC
I assume that you object, as a civilian lawyer, to the approach advocated by Mr. Holloway. Am I correct?
Vice-President, British Columbia Civil Liberties Association
I don't agree with the fundamental assessment he has made that the potential for incarceration at summary trials is necessary to keep unit discipline, even on the battlefield. There might be some exigent circumstances where it is of assistance to have the threat of incarceration, but certainly in a non-deployment context it's difficult to sustain that argument.
Conservative
NDP
Jack Harris NDP St. John's East, NL
Thank you, Mr. Chair.
I thank both of you for appearing today with two very different presentations.
Perhaps, Colonel Dugas, I can start with you. Am I right in detecting a sense from you that perhaps the defence side of the JAG and the prosecution side are not exactly treated equally? Is the rank of the chief prosecutorial officer versus that of the defence higher? You seemed to be concerned that you didn't have the right amount of resources to do your job. Did you get a sense that the defence was treated less seriously than the prosecution in the operation?
As an Individual
Again, I'm not saying anything negative about the former JAGs, because they did try to support the organization when we really needed something.
NDP
Jack Harris NDP St. John's East, NL
When I say JAG I don't mean the individual, I mean the institution.
As an Individual
That's what came out of the report we had. Because the director of defence counsel services had a different rank from what the prosecution had, there was the perception that they were not treated equally. There's also the fact that over the years the prosecution had a deputy and now has two deputies, while the establishment, at least to my knowledge, has not changed with the defence counsel services.
At the same time, I was always told by the organization that if we needed to retain counsel they would find whatever funds needed to support the defence in that action. There's also the problem that you don't have that many lawyers on the city streets who are able to take care of our soldiers. Military law is military law, and there are regulations nobody has ever read or heard of before. That was another thing that was imposed on our organization to support at the same time. So even if you were not handling the case, you were basically handling the support of the other lawyers to get through the case and the regulations.
NDP
Jack Harris NDP St. John's East, NL
I take it you're aware of the report Mr. Gratl referred to--the JAG survey of the trial process, where only 49% of persons reported that they had the right to speak to military defence counsel. I suppose it would reflect on the amount of business you actually got as defence counsel if no one knew they had the right to consult with you.
Does that disturb you as a lawyer?
As an Individual
If you read the reports throughout the years, there were comments saying we found out that members who had requested our services for the longest time never got to us. Sometimes there were even papers in the court martial files that got to us at late dates saying “We're ready to proceed, and by the way, you did ask for defence counsel services to be represented”.
I mentioned the regulations, and there is a part in the regulations that says it's supposed to be sent to us. But some people are not as aware of the regulations as they should be. I'm not complaining about those poor guys who sometimes don't know the regulations exist. On other occasions we received phone calls right on the spot, and we were made aware of that.
NDP
Jack Harris NDP St. John's East, NL
I guess that fits in with some of the themes of this afternoon, things like consequences such as criminal records. Do you have any comments on the issue of summary trials? I know you didn't address that in your remarks.
As an Individual
Yes, I did, actually. There's nothing to report. I was away on vacation.
There is an issue even with the actual proposal you're making there. If it is a summary trial, there should not be consequences, because we know that some of the offences are treated the same way. Section 129 includes almost everything. It goes from almost nothing to very serious offences for which higher fines will be requested.
At the end of the day, there are some issues. For example, if someone can choose to go to summary trial, he will not get any criminal record. If he believes he should get a better trial and for his defence he elects court martial and is found guilty, then he will end up with a criminal record. I believe it's unfair. It's the same offence that would have mandated.... It's justice, and as my colleague mentioned, it's fundamental. Even in those cases where the accused is given a choice, it should be treated the same way as an offence that goes straight to summary trial. Otherwise, it doesn't make sense to me. Why would you or I be prosecuted in one way and end up in worse jeopardy than we would otherwise?
NDP
Jack Harris NDP St. John's East, NL
Thank you. That's a good point.
Mr. Gratl, perhaps you could address that as well. One of your comments was that there's nowhere in the act that says you get a criminal offence. I would suggest to you clause 75 of Bill C-41, which proposes that
A person who is convicted of any of the following offences...has not been convicted of a criminal offence...for the purposes of the Criminal Records Act.
The implication is that if you are convicted of other offences, they are criminal offences for the purposes of the Criminal Records Act, so I think we can assume that they are. I assume you would agree with me.
Would you comment on what Colonel Dugas has just said about the distinction that for the same offence, if you go to summary trial, in your proposal there would be no criminal record, but if you go to a court martial and are convicted, perhaps you'd end up with an offence?
Vice-President, British Columbia Civil Liberties Association
I think there's a distinction to be made between the interests served by promoting unit discipline and the interests served by protecting against offences at the level of the community of Canada at large in the way criminal law is intended to protect. In our view, summary trials are appropriate to the first aspect, and criminal law procedures and processes and consequences are appropriate to the second function. It should be up to the charging officer at first instance to decide which path to take. Then, if a summary trial is chosen by the charging officer, there might be a residual election for some offences for the summary trial processes. It ought to be up to the charging officer to decide whether it's a matter of sufficient importance to elevate the process to a criminal law type of process.
Conservative
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Thank you, Mr. Chair.
Thank you to our witnesses for being here.
Mr. Gratl, don't you agree that Chief Justice Dickson and Chief Justice Lamer would have known if there were section 1 charter concerns in their review of the summary trial system?
