National Defence Committee on Nov. 15th, 2011

[Col Michael R. Gibson]

Within the Canadian Forces there is a mechanism known as a CANFORGEN, or Canadian Forces general message, which is distributed very broadly in the forces by a variety of means. A CANFORGEN is published when the time in the cycle comes along to refresh the list of potential applicants. The list is valid for three years.

For example, earlier this year there was a CANFORGEN, and people who were interested were invited to submit their names to the Commissioner for Federal Judicial Affairs for consideration and fill out an application form, which is very closely analogous to that for applying for appointment as a civilian judge.

[The Chair, Conservative, James Bezan]

Thank you. Your time has expired.

Mr. McKay, you have the floor.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Chair.

Like the NDP, the Liberal Party will support this bill and encourage its passage at all stages as quickly as possible.

My questions are a bit broader in scope than the bill itself. They have to do with, if you will, the origin of the bill, which is the LeBlanc case. Essentially, the LeBlanc case is a conflict between the chain of command and the Charter of Rights and Freedoms. If LeBlanc had not happened, in this case something similar would have happened, because any defence counsel is going to try to pick up the discrepancies between the two systems.

In the United Kingdom, they have gone about civilizing or demilitarizing the process so as to minimize the conflict between the chain of command and the requirements of justice in the military. As I understand it, the Judge Advocate General is stripped of his legal advisory and prosecutorial functions. The JAG position was civilized and moved to the Ministry of Justice, the prosecution function was civilized and moved to the Ministry of the Attorney General, and a number of other complementary changes were made.

The greater the differentiation between the military system of justice and the non-military system of justice—the more it looks different—the more you set up situations in which you have LeBlancs or “sons of LeBlanc”, or things of that nature. The question I have for you as an experienced military officer who has been on the inside for a long time is, what is the rationale for not taking this opportunity to make the military system look as much as possible like a civilian system in compliance with the Charter of Rights and Freedoms?

[Col Michael R. Gibson]

Thank you for the question.

There are three things I'd like to say in response to that. I think they're very important for members of the committee to understand.

First of all, your analogy to developments in the United Kingdom clearly borrows from recent articles written by Mr. Michel Drapeau. Some of those things are actually inaccurate. It's not the case that the prosecution function in the United Kingdom has been moved to the Ministry of the Attorney General. The prosecution function in the United Kingdom is performed by the Director of Service Prosecutions. That position was created by the Armed Forces Act 2006 and very much resides within the Ministry of Defence.

The person who is appointed to that position may be either a civilian barrister or a military officer—currently it's a civilian—and the prosecutors are military. The incumbent of that position has advertised the relationship of general supervision with the Attorney General, but the Director of Service Prosecutions—the service prosecuting authority—is still very much in the Ministry of Defence. They get their personnel from there and they get their budget from there.

There are also several other inaccuracies in Mr. Drapeau's depiction, about which I won't go into detail now, since it is not directly pertinent to your question. Also, one has to be very careful about looking at other states and saying that they're doing such-and-such: first of all, to make sure that one has the facts correct; and secondly, not to make too loose an analogy.

We do a lot of research in comparative law. For example, I've just returned from Australia, from having discussions with my colleagues there about their system. I can certainly tell you that they wish they had our problems. Our military justice system is the envy of most states in the world.

To directly respond to your question about the reason it's structured the way it is, we have had some discussions before and have done an assessment on as objective a basis as we can of what are the functional attributes required or desirable for a military court system. As I mentioned, one of the primary attributes that is required is that the judges have a profound understanding of the necessity for and the requirements of the maintenance of discipline. Different states have chosen different mechanisms to accomplish that, but in our assessment, that goal is actually best accomplished by military officers with the requisite military experience.

I want to point out that other significant states, for example, the United States, clearly agree with that, because in the United States military judges are military officers.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I don't argue with the point that there's a supervisory requirement for the maintenance of discipline, and therefore you have to feed into the chain of command. But in many instances an assault is an assault, whether it's inside the military or outside the military. You can go through the whole list of Criminal Code offences and they're all the same.

Putting Mr. Drapeau's accuracies or inaccuracies aside, he makes the generalized point that the European Union in particular--27 nations, I believe--are moving toward a much more civilianized approach to military justice. That in effect reduces the conflict between the chain of command--which has a particular agenda, shall we say--and the proper prosecution of a Criminal Code offence, which may or may not have a coincidental agenda.

I'll go back to the core question here. On the issue of discipline, why do we need officers to be judges?

[Col Michael R. Gibson]

I beg two points in response. For exactly the reason I just described, on a functional basis the attributes that are required of the court are best fulfilled by people with that military experience. Justice Ritchie agreed with that in the MacKay case, and specifically said that with all respect to people with a contrary view, that function was best performed by officers with military experience.

I think the bottom line is that there are differences between the civilian justice system and the military justice system, and those differences exist for a reason. The real question should not be why it isn't the same as the civilian system; the real issue is whether it is constitutionally compliant and effective for the purposes it needs to fulfill. Those two purposes are: to enhance the operational effectiveness of the Canadian Forces through the promotion and maintenance of discipline, cohesion, and morale; and to do justice.

You'll see that in Bill C-15, clause 62, our statutory articulation of sentencing, we've tried to set out the fundamental purposes of the system to exactly delineate in statute--

[John McKay, Liberal, Scarborough—Guildwood, ON]

I think that's a good idea.

Has there been a study done on the discrepancies or differences between the sentencing of military personnel and civilian personnel with similar fact situations?

[Col Michael R. Gibson]

We are very much aware of the differences in sentencing regimes between what currently exists under the civilian Criminal Code and the code of service discipline in part III of the National Defence Act. As you will be aware, Chief Justice Lamer made a recommendation that we should try to enhance the flexibility of sentencing options. In fact, Bill C-15 tries to accomplish that by proposing to introduce a number of new sentencing options, such as intermittent sentences and absolute discharges.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair.

Service members are still subject to civilian laws and regulations. In what context are they subject to them?

[Col Michael R. Gibson]

A member of the forces, like any other person in Canada, is subject to the general laws in Canada. Walking down the street in Ottawa, I am fully subject to the provisions of the Criminal Code, just like any other citizen. Of course, in order to fulfill these purposes for the maintenance of discipline, the Supreme Court of Canada recognized in Généreux a separate system with a separate code of service discipline.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

What's the overall impact of this bill on fairness to Canadian Forces members?

[Col Michael R. Gibson]

It's clearly meant to enhance fairness, and I'd like to reiterate that point. Back in 2003, Chief Justice Lamer recommended that a shift be made to a situation of security of tenure until retirement. The government accepted that policy and tried three times--in Bill C-7, Bill C-45, and Bill C-41--to implement in legislation security of tenure for military judges until retirement. The only real distinction between those bills and this, in the wake of the LeBlanc decision, is that the court has indicated a preference to have an age specified in the act, rather than rely on regulations. That's why this bill was structured.

To respond to the point you asked, sir, this bill is very much intended to enhance independence of military judges, and that is a key element of perceptions of fairness in the system.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

While waiting for this to be passed, is there a backlog of cases?

[Col Michael R. Gibson]

There isn't a backlog of cases, but the penny would drop, if one could put it that way, on the second of December if this bill had not achieved royal assent by then.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Chair, I'd like to share some of my time with Mrs. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I would like to follow up on the question about the selection process for judges. You described that the candidates for judge come from a pool of lawyers. I'd like to go one step further and ask whether or not the same process is followed when you're selecting a prosecuting lawyer.

[Col Michael R. Gibson]

Under the National Defence Act, since Bill C-25 in 1998, the Director of Military Prosecutions is responsible for preferring charges at courts martial, so he or she is the statutory prosecutor for the Canadian Forces.

The system is very much structured on a Director of Public Prosecutions model, that is to say to provide the functional independence required for prosecutorial independence. The DMP occupying that position provided by statute is responsible for selecting, with the concurrence of the JAG obviously, the appropriate personnel that he or she considers are best suited to perform that prosecution function. Like a DPP in a civilian system, they seek to recruit people they think are best suited to provide that function.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

So a CANFORGEN doesn't go out?

[Col Michael R. Gibson]

No. These are prosecutors as opposed to judges, so there wouldn't be a CANFORGEN in that sense.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Okay. And is a contract made between the prosecutor, where the longevity...or is it strictly an appointment for a term of being a prosecutor?

[Col Michael R. Gibson]

The independence essentially flows from the head of the institution. For example, the Judge Advocate General has statutory responsibilities and statutory protection of his or her independence in the act. Similarly, the act provides for the appointment by the minister of a Director of Military Prosecutions for a specified term of four years. He or she would have that security of tenure for that time.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

What happens if during that four years the prosecutor violates a term of the rules of conduct?

[Col Michael R. Gibson]

There is a provision for an inquiry committee to be constructed, in essence similar to an inquiry committee for a judge, to examine the circumstances and make a recommendation to the appointment authority, in this case the minister for the DMP, as to whether or not he or she should continue in office. That provides the protection from any arbitrary interference by the chain of command.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.