National Defence Committee on Feb. 28th, 2011

[Jason Gratl]

I'm a great admirer of both Chief Justice Dickson and Chief Justice Lamer, as they then were, but I don't agree with everything they ever said. If they made these comments, they would have made them a while ago. I appreciate that Justice Lamer's 2003 report was made in the context of an entirely different act, in which he felt the summary process could be improved significantly.

It turns out that many of the problems that Justice Lamer identified in 2003 have not in fact been rectified, as we can see from the JAG reports. The annual JAG reports consistently within their surveys demonstrate that these problems are outstanding. They come in the form of comments. Sixty-six percent of people tried under the summary trial process reported that the process was unfair, and 16% of respondents believed that their guilt was predetermined by the process. Those are bad outcomes. I'm sure Mr. Justice Dickson and Mr. Justice Lamer would agree with those propositions.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I suggest that somebody going through a trial in civilian court who is found guilty will many times assume that their guilt was predetermined. That's probably a normal human emotion.

You quoted the 2007 JAG report. Are those figures you just quoted from that same report?

[Jason Gratl]

They're all from the 2007 JAG annual survey.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Have you reviewed later reports, such as 2008-2009, which show a high degree of compliance related to regulatory requirements?

[Jason Gratl]

I couldn't find them online. I'm sorry.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Could you go back and look? They are available.

As well, I believe that surveys will show--perhaps you haven't found those either--that former accused members have a positive response about fair treatment when they get to the summary trial system. Maybe you haven't seen those either.

[Jason Gratl]

I don't know which surveys you're referencing.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

The 2008 and 2009 ones.

[Jason Gratl]

Pardon me?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

More recent surveys than the 2007 JAG survey.

[Jason Gratl]

What specific figure are you referring to?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I don't have all the figures in front of me here, but I know that those 2008 and 2009 reports, which are available, do paint a slightly different picture from 2007, which would be what you would hope to find as the system matures and improves. That would be, one would hope, a normal course of events.

[Jason Gratl]

At the level of generality at which you're speaking, it's difficult to agree or disagree with you, but I can say that the problems and the dissatisfaction with the summary trial process remain at a sufficiently grave level that the B.C. Civil Liberties Association believes something ought to be done about it.

In terms of whether removing the provision allowing for detention really matters, I understand that in 2009 only 36 individuals had detention imposed upon them after the summary trial. It's not as though detention is often imposed, and it might just be that the looming threat of potential incarceration or detention from superior officers somewhere down the road is perceived to be necessary, but there's really no empirical study available regarding that issue.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You mentioned section 1. You also mentioned section 7 of the charter, security of person, and that people have a right to invoke section 7 for the security of the person, unless I misunderstood you. Is that what you are implying?

[Jason Gratl]

Yes, that's correct.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

So would a member of the Canadian Forces who is on a deployment somewhere in a hostile environment be allowed to invoke section 7 of the Charter of Rights and Freedoms to say he's not going outside the wire that day?

[Jason Gratl]

The way the Constitution is structured allows for the types of scenarios of which you're speaking, in the form of justification. So yes, a soldier could invoke section 7, but their commanding officer's order that they go under the wire would be justified pursuant to the principles of fundamental justice, and even if not, they'd be justified pursuant to section 1, concerns about national security.

So it's not as though section 7--right to life, liberty, and security of the person--disappears entirely. It's only that the deprivation is later justified. So I think that accounts for that scenario and it accounts for many of the other scenarios you raised previously.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

So in that scenario, if a soldier simply refused to go, what action would be justified on the part of the military justice system?

[Jason Gratl]

I think he could be arrested, he could be subject to the court martial system. Or in the scenario that the B.C. Civil Liberties Association envisages, the charging officer could make the election of whether it was simply a unit discipline matter or should be elevated to the level of a criminal judicial process.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

So is it not then fair to say that somebody in uniform does not have, ultimately, without sanction, the right to refuse a lawful order, even though he may feel it violates his section 7 rights under the charter?

[Jason Gratl]

I'm not sure. I wonder if you could rephrase the question.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

It goes to the discussion we had earlier. Does somebody who joins the military have all the same rights, to the same level, as a civilian?

[Jason Gratl]

No, but we're talking about what happens if a person doesn't do as he's supposed to do, whether he commits a very serious crime or a small disciplinary infraction. The question is which process should be used to determine their guilt. What we're saying is if you want to impose imprisonment, you should have a good process; and if you don't need to impose imprisonment, you can just have a reprimand, then a less elaborate, less complicated process might be appropriate.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

[The Chair, Conservative, Maxime Bernier]

It is now 5:15 p.m. We will suspend the proceedings for three minutes and then reconvene to discuss the motions on the table.

Mr. Dugas, Mr. Gratl, thank you for joining us today.