National Defence Committee on Jan. 30th, 2013

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you, Mr. Chair.

I'll get right to it, Mr. Minister.

Bill C-15 would place a requirement in the National Defence Act to conduct future independent reviews of the military justice system, the military police complaints process, and the grievance process. Can you tell us how that would benefit members of the CF and the future evolution of military law?

Could you also explain why the review period has been changed from five to seven years?

[Peter MacKay, Conservative, Central Nova, NS]

Sure.

The Lamer report does make recommendations with respect to the review period for the military justice system and the Canadian Forces grievance process that can be specifically required and entrenched within the act, within the bill. Bill C-15, to answer your question directly, would accomplish that. As well, it would improve the current system and mechanism for review by moving the review process and provisions into the defence act so that it becomes codified, specifying the scope of the review, the thematic basis—that is, the military justice system, the grievance, the Canadian Forces military policy complaints schedule. All of this would increase the utility of reviews by changing the review cycle from five to seven years. To do this, I would suggest, accords a sufficient period of time to provide the adequate track record upon which to base subsequent assessments of the operations of provisions.

We find ourselves today in this place where there was a review called for in earlier iterations of this bill, and because of the fact that this particular legislation has been unable to move forward for a number of reasons, the time has essentially passed.

Putting this bill in place and then allowing seven years to pass will allow us to sufficiently study the impacts of these amendments and then respond appropriately at the next review period. We've had two reviews. We've incorporated reviews into this legislation, and we'll do the same in future legislation.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

You mentioned the length of time that has passed since Chief Justice Lamer delivered his report in 2003. The first bill was in 2006. Do you feel that Chief Justice Lamer's recommendations still hold up, and if so—it's been languishing for seven years now—what's the urgency now to get this moved through Parliament?

[Peter MacKay, Conservative, Central Nova, NS]

I mentioned this in my opening remarks. Things such as amendments that will protect victims and enhance victims' participation in the military justice system I deem to be very important. All of these measures are aimed at modernizing, and in some cases mirroring, changes that have occurred or will occur in the criminal justice system. We don't always want to ensure parity, because there is a necessity, as I spoke to earlier, for a separate and distinct military justice system, but we do want to ensure fairness. We want to ensure that members of the military, their families, the participants, are feeling that genuine efforts are being made to modernize and keep up with changes and evolution in the law.

I also note that there have been case law impacts, Trépanier and others that Mr. Harris referenced. In fact, the majority of the Lamer recommendations either have been or will be incorporated by virtue of the passage of this legislation.

So yes, those recommendations were timely back in 2003. I would suggest that some of them are now urgent in terms of their application in this bill.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I would like to share the rest of my time with Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

Minister, I ask questions that I assume my constituents would ask you, and I think they'd ask you what is the importance and rationale of keeping the military justice system separate from its civilian counterpart. What is the purpose of a military justice system, and who is subject to that system?

[Peter MacKay, Conservative, Central Nova, NS]

That's a very relevant question.

The main distinguishing feature, as you know, is that the military justice system is designed to promote the operational effectiveness of Canadian Forces, their members, by contributing to things such as the maintenance of discipline; the efficiency; the morale, which is very important to the Canadian Forces; and to contribute to respect for the law and the maintenance of a just and peaceful, safe society, both inside and outside the forces.

Canadian Forces members don't live in isolation. They live in communities across the country, but they also operate outside the country on deployed missions. It's important to have a military justice system separate from that of the civilian one because military personal are very often required to risk injury or death in the performance of their duties. They do so both inside and outside Canada. This system puts at a premium the necessity for discipline, for cohesion of military units, for individual members who may from time to time put themselves at risk. So the operational reality has specific implications, individual implications. I know there are members of this committee who have served in the forces who I think could speak to that passionately.

You, Mr. Norlock, have served as a police officer. You recognize that while on duty you are held in many cases to a higher standard than what would be expected of a civilian. This separate military justice system takes into consideration that higher standard and the requirement to maintain discipline and morale.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

At second reading, there was a debate concerning some comments about summary trials. Can you speak to the issue and the importance of summary trials? In particular, can you speak to their fairness and constitutionality, and what protections there are currently for the rights of the accused person?

[Peter MacKay, Conservative, Central Nova, NS]

Yes, I will. Thank you.

First of all, I'd suggest that they are fair and they are constitutional. We have a two-tier military justice tribunal structure. That includes summary trials, which are most often to do with disciplinary matters, matters that would be described in civilian terms as of a relatively minor effect, but that can have catastrophic effects in the field and can have far-reaching implications, and then we have the more formal court martial system.

The summary trial is by far the most commonly used as a form of service tribunal in the military justice system. It plays a vital role for the maintenance of discipline and operational effectiveness, which I spoke to a moment ago.

The summary trial system also provides a prompt and fair justice system and is used only in respect of minor service offences, so again, things that members here who have served could speak to, such as a member's appearance, for example, or a dereliction of duty, or insubordination. Those are the types of classic summary trial types of offences. The objective is clearly to deal with those minor service offences as quickly and effectively as possible to not infringe upon the member's ability to carry out their duty.

The military unit itself requires a member to return to duty as quickly as possible, so it's something that should happen quickly. In this way, the unit benefits from having its discipline restored quickly. It also has implications for what I would describe—again, in civilian terms—as general and specific deterrence; that is, the observation of others in the unit to see what happens when a particular offence is committed. Resolving it quickly and dealing with it as far as consequences go—if any—is meant to do so in a way such that members can carry out their mission.

To answer the latter part of your question, some of Canada's most eminent jurists—the late Justice Brian Dickson, Antonio Lamer, and, more recently, Justice LeSage—each have examined our military justice system, and in significant detail, I would suggest. Each has come back with recommendations—some for refinement—but all have stated that the system is in fact constitutional and is efficient and necessary to maintain as separate from our current criminal justice system.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

You mentioned that they came back with some suggestions. In particular, you used the word “refinement”. Have those suggestions and refinements been included in this bill?

[Peter MacKay, Conservative, Central Nova, NS]

Yes, in fact they have, sir. There are too many to list, but I referenced earlier the fact that in Mr. Justice Lamer's case, he made 88 recommendations, and 81 have been accepted.

Many were in fact incorporated prior to this bill through various other changes to regulations, and some through legislation that was passed by an all-party agreement. There are now another 36 that can be found in this bill. Almost half of the recommendations from Mr. Justice Lamer are contained in the legislation that is the subject of this hearing.

[The Chair, Conservative, James Bezan]

Thank you very much.

Your time has expired.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

[The Chair, Conservative, James Bezan]

Mr. McKay, you have the last 10 minutes.

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

Thank you, Chair.

Thank you, Minister.

You will know, Minister, that the contentious part of this bill is contained in proposed sections 18.5 through 18.6. It sets up a scheme whereby the “Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation”. Then the provost marshal is expected to publicize those, unless the provost marshal decides that he or she will not publicize them in the interests of the administration of justice.

You would know as well as anyone that this is a contentious point of constitutional law and charter law. In fact, when the last iteration of this bill was before us in January 2011, the Military Police Complaints Commission drew it to our attention and urged us to remove the clauses of the bill that would permit the vice chief to issue instructions in respect of a specific military police investigation and described them as “highly problematic” and, in the opinion of MPCC, directly contrary to the accountability framework of March 1998 by the VCDS and the provost marshal. This came about as a result of the Somali inquiry, which was not a happy period for either government or military, and which found that interference in police investigations by commanding officers had been a pervasive problem.

The question, Minister, is that, as I understood your response to Mr. Harris, you do not have in your possession—and I am presuming you have not sought—an opinion as to the charter-worthiness of this particular section. Am I correct about that?

[Peter MacKay, Conservative, Central Nova, NS]

Mr. McKay, you would have heard me say as well a moment ago that we've had two former chief justices examine a broad variety of issues as they pertain to the military justice system—

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

Do you mean on this specific section?

[Peter MacKay, Conservative, Central Nova, NS]

I suspect they would have looked at the entire National Defence Act in their review.

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

Did they opine on this particular section, do you know?

[Peter MacKay, Conservative, Central Nova, NS]

I believe Mr. Justice LeSage would have specifically looked at this section and commented.

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

Is that report in the public domain?

[Peter MacKay, Conservative, Central Nova, NS]

The LeSage report certainly is.

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

Is there any particular reason you didn't ask the justice department for its opinion? This will be, almost without exception, a contentious point. I suppose the point is why not head this off at the pass?

[Peter MacKay, Conservative, Central Nova, NS]

There is no particular reason I did not ask the Department of Justice to look at this section.

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

There are concerns about this particular section, and these concerns always come up in the context of some really ugly facts, Somalia being a really ugly set of facts. You probably went to the same law schools I went to, and you learned that bad facts make bad law. Hence the issue is, if you will, a bit of prudence on the part of the presentation.

I would have taken some comfort from—as I assume Mr. Harris would in the same manner—the existence of a specific opinion on this specific section as to whether it is or is not constitutional, because there is a concern that in the future you may actually put either the CDS or the vice CDS or the provost marshal in a very difficult or awkward position. Investigative independence is a core concept of our judicial system.