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?