National Defence Committee on Feb. 28th, 2011

[Laurie Hawn, Conservative, Edmonton Centre, AB]

No, absolutely not. But I could and I wouldn't be charged with an offence.

[Col Michel W. Drapeau]

Well, you wouldn't be an MP any more. You wouldn't be sitting here any more, either.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

That's fine, but I'm not charged with an offence.

[Col Michel W. Drapeau]

Many public servants cannot criticize. If they want to, they have to wait till they retire.

So having an obligation because you agree to perform certain functions or be in the employ of somebody doesn't abridge your rights. You consciously agree that if you join the forces, you're going to be putting on a uniform, you're going to be subject to transfer, and you're going to have to observe certain restrictions on what you can and cannot do.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Precisely the point. So a person who joins the military gives up some of the rights that an average Canadian has, day in, day out, and I have no problem with that. I served for 31 years as well. That is the foundation of military service.

[Col Michel W. Drapeau]

And I know that, and I salute your service. But at the same time, I do not and cannot make the bridge that because a military officer or a non-commissioned officer on arrival, in swearing allegiance or loyalty to the Queen, at the same time has detached himself from some of the charter rights he has.

I don't agree with that. He just has put on additional obligations that he will meet and orders and directives and so on that are unique to the military, not unlike a peace officer serving in the RCMP. He has certain obligations he cannot escape.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Do you think the Canadian Forces should be allowed to unionize?

[Col Michel W. Drapeau]

Allowed? Probably yes, but through a legal process. I see no reason why they should not. It applies elsewhere. I'm not advocating it, far from it, but I think one of the ways to ensure that does not happen is to make sure that the Canadian Forces members are given as many rights as we can and that those rights are reconciled with their obligations.

If we do that.... As I said, there are 2,000 summary trials a year in the Canadian Forces. One out of 34. If they gained a perception they are not treated fairly--I'm not suggesting they are--this gives an opening to a desire to unionize or make some association of some sort. I think the military, like any good employer, ought to be one step ahead, and try to make sure that we provide as many rights and as much justice as the system can endure, in keeping with the obligation first and foremost to the crown and to the service.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Within the limits of what the Canadian Forces demands of people, and that's to obey without question, regardless of what people think are their individual rights. We're talking around the same thing, but I think I would go with Dr. Holloway's interpretation of the duty of the military member.

[Col Michel W. Drapeau]

By all means.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Hawn.

Go ahead, Mr. Wilfert.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you, Mr. Chairman.

Thank you, gentlemen, for coming.

This is the third attempt at this piece of legislation, and obviously we're trying to balance the rights of individuals within a military context.

Mr. Drapeau, you made some very compelling arguments. The question I would have is in your view what immediate changes would you suggest to Bill C-41 versus those that may come in future legislation, which I hope wouldn't be in the far distant future? In other words, after the third time, I think we need to get this legislation through, but if there are useful amendments that you think would be helpful, specifically in addressing the current summary trial process, could you provide those?

[Col Michel W. Drapeau]

Mr. Wilfert, I'll get right to the point. The answer is yes, and I can be very brief. Decriminalize the summary trial system. End of discussion. Remove today the custodial power of the commanding officer to send somebody to detention. If that needs to be done, then that person ought to be tried by court martial where all the rights are provided. So you remove that in the same way as Ireland has done it, as Australia has done it; you decriminalize it. There's no record.

By doing so, you solve almost instantly the problems of legal representation. I wouldn't be here arguing that you need legal counsel at the trial, that there are rules of procedure that are not applied, that there is a conflict with the commanding officer presiding over the trial. It would be like what you see in the RCMP, in the public service, in the workplace. The individual would not have that stigma attached to him just because he didn't shave that morning or he showed up late. Whether he gets a fine or a suspension of leave or he has to stay on the ship when alongside, I can live with that, and that would apply in Canada and abroad. And if there really is a requirement to prosecute someone because of the severity of the offence, then a court martial, and a court martial can be held any place in the world.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Colonel Drapeau has put forth three specific suggestions or recommendations. Can you explain to me, Colonel, why you think those recommendations would be resisted? Because apparently you believe they would be.

[Col Michel W. Drapeau]

I don't know if they would be resisted. If they were to be resisted, my first argument would be this: what is it that our brothers in Ireland, in Britain, in Australia, in New Zealand--

[Bryon Wilfert, Liberal, Richmond Hill, ON]

They're already there.

[Col Michel W. Drapeau]

They're already there. Why is it that we don't have a permanent military court? To use Mr. Hawn's point earlier, this is one of the key recommendations of Lamer, and we haven't done it. Why aren't we doing it?

I practice military law and I teach military law. I'm fully in favour of it; I want to make military law better, not less than what it is at the moment. But to make it better, it may mean that we may have to change our mindset. And that's one aspect of it. I don't see why we would resist, particularly when the rest of the world, at least the common law world, has changed and is ahead of us. As I said, we're lagging behind.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Drapeau, you and I of course have talked many times. You know that I have great respect for you. I want to get your specific suggestions, because I think they'd be helpful.

With regard to clause 4, proposed subsection 18.5(3) gives the Vice-Chief of the Defence Staff authority to issue instructions or guidelines in writing to the provost marshal in respect of a particular investigation. Why would the Vice-Chief of the Defence Staff want to issue instructions or guidelines in what's supposed to be an independent investigation?

Either gentleman could comment on that, Mr. Chair.

[Col Michel W. Drapeau]

This provision is fairly recent, post-Somalia. And all of Somalia was about the military justice system, including the military police. When we made the military police more independent, we added it. In fact, from an organizational standpoint, we put it under the Vice-Chief of the Defence Staff for administrative and control purposes, and that's it. But the VCDS provides it with budgetary support, administrative support, professional advice, and that sort of thing, except in the conduct of a military investigation.

There may be some rare occasion when, as the second-ranking officer in the forces, he may have to if not intervene then at least provide some advice. I think a salutary escape is that if he were to do so—and I don't know of any instances since 1999, since the provision has been in--he would have to show it in writing.

I have no difficulty with it, frankly, because of its openness and because members of the military and the military justice system or individuals would have access to it and would be aware of why this is being done. It would be unusual, exceptional, but open.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Mr. Wilfert and Mr. Drapeau. I will now turn the floor over to Mr. Braid.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you very much, Mr. Chair.

Thank you very much to both of our witnesses for being here and for their presentations this afternoon.

Mr. Drapeau, I just wanted to start with a question for you, if I could. You currently teach military law at the University of Ottawa. Is that correct?

[Col Michel W. Drapeau]

That's right.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

You mentioned that you've practised military law as well. Could you just elaborate on that? Where or when have you practised?

[Col Michel W. Drapeau]

I served for 34 years in the Canadian Forces, retiring in 1993 as secretary at the Armed Forces Council and secretary at National Defence. After that I went to law school to obtain a law degree in civil law and a law degree in common law. I articled at the Federal Court of Appeal. I opened up my own practice in 2002. About 50% of my practice is dealing with military law, with clientele drawn from across Canada and drawn across a wide spectrum.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you.

During your service, did you practise military law?