National Defence Committee on Feb. 11th, 2013

[The Chair, Conservative, James Bezan]

I call the meeting to order.

Good afternoon, everyone. I welcome you all to meeting number 65 of the Standing Committee on National Defence and our study on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

For our first hour, we're being joined by Michel Drapeau, a professor at the University of Ottawa, and by Clayton Ruby, a lawyer from Toronto.

Mr. Drapeau was born and raised in Quebec and served 34 years in the military. He served as the director of National Defence Headquarters Secretariat as well as secretary to the Armed Forces Council. He graduated from the civil law program in 2009 and the common law program in 2000, and he has clerked at the Federal Court of Appeal under the supervision of Justice Gilles Létourneau, from whom we will hear in the next hour. He was called to the bar in 2002 and is an adjunct professor at the University of Ottawa. We are very pleased to have him with us today.

Monsieur Drapeau, please proceed with your opening comments.

[Colonel, Retired) Michel W. Drapeau (Professor, University of Ottawa, As an Individual]

Thank you, Mr. Chair. Thank you, members, for giving me the honour to appear before you.

Over the past decade I have watched our army transform itself into a world-class organization whose performance in Afghanistan has gained the unrestricted admiration and respect of both our allies and Canadians. This is due, in my estimation, to two interconnected factors: a second-to-none field leadership and the unremitting performance by the rank and file who serve above and beyond the call of duty.

At the end of the day, I hold a firm belief that we owe our soldiers an immeasurable debt of gratitude for bringing glory to the Canadian flag, for bringing unflinching solidarity to our allies, and for impeding a global threat to national security.

In deploying to Afghanistan, our soldiers carried with them our rights and values. In the process, they put their lives at risk so as to give the Afghan people a taste of democracy and the rule of law. Sadly, many did not return.

I believe that Bill C-15 should in many ways be in recognition of, and be the incarnation of, their courage, their commitment, and their sacrifices. Out of gratitude as well as justice to these soldiers, Bill C-15 should be first aimed at protecting their rights, not creating more bureaucracy, military lawyers, and military judges. It should be written from the perspective of soldiers and their commanders, not the military legal staff serving in the safe enclave of National Defence Headquarters.

I have five major concerns with Bill C-15.

First is the summary trial system. Although they are by law part of the criminal process, these trials are heard not by a judge, but by a member of the chain of command. There are close to 2,000 such trials each year. Since summary trials had an average conviction rate last year of 97%, this means that one out of every 30 Canadian Forces members ends up each year with a record of conviction by a quasi-criminal tribunal, yet Bill C-15 totally ignores summary trials.

However, so does Canadian jurisprudence. Why? It's because someone accused before a summary trial has no right to appeal either the verdict or the sentence. This is despite the fact that the verdict and sentence are imposed without any regard to the minimum standards of procedural rights in criminal proceedings, such as the right to counsel, the presence of rules of evidence, and the right to appeal.

In Canada, these rights do not exist in summary trials, not even for a decorated veteran, yet a Canadian charged with a summary conviction offence in civilian court, such as Senator Patrick Brazeau, enjoys all of these rights. So does someone appearing in a small claims court or in a traffic court.

I find it very odd that those who put their lives at risk to protect the rights of Canadians are themselves deprived of some of these charter rights when facing a quasi-criminal process with the possibility of loss of liberty through detention in a military barracks.

If Britain, Australia, New Zealand, and Ireland have seen fit in the recent past to overhaul the summary trial process when it was found to be non-compliant with universally recognized human rights, it raises the question of why Canada is not at the very least considering the same sort of overhaul.

My second concern is grievances. If Bill C-15 is enacted in its current form, the Chief of the Defence Staff will become almost totally disengaged from the grievance system. I believe that the CDS, the most senior officer in the Canadian Forces—not the minister, not the ombudsman—has a moral and legal duty to look after his people and become personally interested in and aware of what is causing disgruntlement and why an individual soldier finds it necessary to use a grievance process to receive a modicum of justice. This is what leadership, at least in the armed forces, is all about.

My third concern is military judges. I am surprised at the amount of beneficial attention being paid in Bill C-15 to military judges. Currently the four military judges handle a total of 65 courts martial per year. In 2011-2012, this required each military judge to spend approximately 4.5 days per month in court. In my estimation, this is by far the lowest caseload of any criminal court of record in Canada. Perhaps the time has come to have the Auditor General conduct a performance audit of this military justice system. Canada and the military simply cannot afford such extravagance.

Be that as it may, one would think that government should be reducing the number of military judges or transferring that function to the Federal Court of Canada. Instead, in Bill C-15, there is a call to appoint a deputy chief military judge and, worse, to form a reserve force military judges panel. The only ones who could possibly benefit from this would not be the military at large, but a very small handful of senior military lawyers who would qualify for such extra appointments in the first place.

My fourth concern is the military police. During the past year I have acted as counsel for Mr. and Mrs. Fynes concerning their allegation against, inter alia, the alleged lack of independence of the military police and in particular the National Investigation Service.

In its investigation, the Military Police Complaints Commission conducted 62 days of hearings, during which disturbing evidence was presented on that very subject. The proposed new subsection 18.5(3) in Bill C-15 would, in my estimation, make the current lack of independence worse by granting authority to the Vice Chief of the Defence Staff to issue instructions or guidelines in respect of a particular investigation.

Keep in mind, please, that already the CDS and the VCDS have the power to call in the NIS to conduct an investigation on any issue that is of concern to them. Quite frankly, under the existing command arrangement it is most unlikely that the NIS would ignore such a request. Also, the CDS does not feel inhibited about commenting publicly on an open NIS investigation, but to now give the VCDS the authority to issue instructions or guidelines in respect of a particular military police investigation will remove any pretense that the military police are independent from the chain of command.

Lest we forget, the CDS, the VCDS—and, for that matter, the Judge Advocate General—are each subject to the code of service discipline. None of them should have the power to direct or influence either the initiation, the suspension, or the conduct of a particular police investigation, let alone to issue instructions or guidelines as to the conduct of a specific examination.

Fifth is the civilianization of the military justice system. There are growing worldwide concerns regarding the compatibility of the military justice system with international human rights standards. In Europe, the European Convention on Human Rights has had an impact on national military law, particularly in the United Kingdom, Germany, and France, to name a few. These countries have concluded that the presence of a civilian judge in military tribunals would reinforce the principle of civilian supremacy over military justice and also the impartiality as well as the independence of such tribunals, since they are no longer part of the military hierarchy.

Would this work in Canada? Absolutely. All one has to do is to look at what happened to Sub-Lieutenant Delisle last Friday in a Halifax sentencing courtroom. In the vernacular, the civilian judge got it right. Moreover, the United Kingdom, Australia, and New Zealand have gone one step further: they have now civilianized the positions of the Judge Advocate General and the Director of Military Prosecutions and moved their offices outside the military headquarters to the corresponding civilian department or ministry. We should do no less.

In closing, Mr. Chair, let me say that it is an honour for me to play a part in your examination of this bill. In my respectful submission, both as a former soldier and as someone who reads military law day in and day out, I urge you to balance the proposition being made to you by the proponent of this bill against the rights of ordinary Canadians serving our Queen and country in uniform.

I appreciate your attention and I am now available to take your questions.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Drapeau.

Our next witness is Mr. Ruby.

Mr. Ruby is a graduate of both the University of Toronto and the University of California Berkeley campus, and he is a partner in the law firm Ruby and Edwardh in Toronto. He was awarded the doctorate of law degree by the Law Society of Upper Canada in 2006.

Mr. Ruby, you have the floor.

[Clayton Ruby, Lawyer, As an Individual]

Thank you, sir.

It is an honour to be here to try to assist your understanding of this legislation. I want to bring two perspectives from my own work to bear on the summary trials issue, which is the one that concerns me in particular.

The first perspective is that of an author and a life-long student of sentencing. The leading textbook in the field is the one that I wrote; it's now in its eighth edition, and God knows how long it will go on. It just seems to be endless. It means I think a lot about what a sentence is. It seems to me that the leading case in the last century on sentencing from the Supreme Court of Canada, R. v. Gardiner, had it right. The judges quoted Sir James Fitzjames Stephen, who was, incidentally, the author of Canada's first Criminal Code. Stephen said:

The sentence is the gist of the proceeding. It is to the trial what the bullet is the powder.

I think that's true. It reflects the fact that this is a matter of fundamental importance. In fact, in one sense, it is the whole point of the exercise: what is a sentence and who do we punish with it? When we use the word “sentence”, it means that we are dealing with deserved punishment imposed for a public wrong at a fair and public hearing that respected all constitutional rights.

In our democracy that last phrase, “respected all constitutional rights”, is quite crucial. It's that respect, reflected in our law and practice, that produces the respect people have for the sentences arrived at in the justice system, or in any justice system. It's different from employment sanctions, RCMP discipline hearings, regulatory offences, and dismissal or other work-related penalties. None convey that same meaning. The meaning implies justice under law. It implies the rule of law, as does our Constitution, and therefore it implies all constitutional rights pursuant to the supreme law of Canada. The supreme law is, of course, the Constitution and the Charter of Rights and Freedoms.

Yes, court martial proceedings also produce a criminal record, as do some summary trials. There's no anomaly in having the same offence produce different results, one a criminal record and one not, which is what I'm arguing for, because the court martial process preserves the full meaning of “sentence” as I have discussed it with you: a public hearing, constitutional rights, and respect for the rule of law. They mean the same thing. However, if the same offence is tried in a process that does not have those qualities, then we shouldn't be thinking of it as a sentence at all.

If you don't get counsel, you don't get disclosure and you don't get the right to an unbiased tribunal that doesn't know the witnesses or that isn't a friend with the witnesses. That is a very different procedure than one we think emanates ultimately in a sentence.

The section 75 proposals in the bill that you are looking at, in my submission, are inadequate. Some 30-odd out of perhaps 2,500 trials in summary matters result in any form of imprisonment. It is unacceptable that any of them should, but what is important as well is that this is a very tiny number. Each one, however, is a violation of the right to liberty under section 7 of the charter that I believe cannot be justified.

No member of the armed forces, whatever the offence, should have any criminal record, and that's the consequence: there's a criminal record attached to these summary trials in some cases where the penalty is higher than $500 or $600 or any liberty is involved.

Justice Pat LeSage, now retired, referred to that as “a grossly disproportionate result”, and it is, because a criminal record, by and large, as I'll come to, does not go away.

The second perspective I bring is that of a constitutional litigator and editor of the Canadian Rights Reporter, a journal that prints all of the worthwhile constitutional cases that appear in our courts.

It has been said that when you enlist in the military, you waive your constitutional rights. This is nonsense. It is legal nonsense, because the charter has its own provisions for exempting certain laws, and each one must be justified on an individual, focused basis. You can't have a blanket exemption for the military about anything as general as that. The look at the legislation and the particular practice is fact-specific, and it can't be based on general concepts like the need for discipline in the armed forces, because that attracts every aspect of armed forces life.

Let me give you an example of how you apply the charter in a focused way. It may be acceptable to say that you're not going to have any counsel in a summary trial, no right to counsel as guaranteed by the charter in all other cases. You restrict it to minor cases so that you have a hope of justifying it. The government can try to do that. That may be okay. I have doubts about it, because as long as some persons can be subject to imprisonment, to confinement to barracks, I doubt that it's satisfactory.

However, assume that it is. You can't, if you've done that, attach all the consequences of a criminal conviction and criminal record to it, because that follows you forever. Pardons, by and large, no longer exist. We've replaced them with new wording. The RCMP makes no resources available to get them, but that's just bureaucratic hatred of pardons. By and large, you're never relieved of this, yet it could be imposed for a very minor offence, such as refusing to report for duty on time on three occasions. That's not a criminal offence the way we think of it. As long as this is drawn so badly, my submission to you is that you have to remove the criminal record consequence.

This charter justification matter is not a small issue. If one of our major institutions doesn't draft its provisions in a way that makes sure the liberty of someone who is serving his country is not inappropriately taken, then it's not his failure to obey orders or whatever it might have been: it's our failure as legislators who drafted it and signed on to it, and as citizens who allowed it to happen.

Thank you, sir.

[The Chair, Conservative, James Bezan]

Thank you very much, Mr. Ruby.

We're going to move on to our first round of questions. It is a seven-minute round.

Mr. Allen, you have the floor.

[Malcolm Allen, NDP, Welland, ON]

Thank you very much, Chair, and thank you to our witnesses for being here.

I'm someone we call in the vernacular a “layperson”, since I'm not a lawyer. I was on a jury once, mind you, as a foreperson, but that's as close to the court system as I would care to be: the jury box.

It's interesting to listen to both of you from the perspective of what we've been talking about to a certain degree—summary trials, and our concerns with them. In debate at second reading in the House there was this issue about there being only a small number, and I believe, Mr. Ruby, you articulated a number around 30.

I'd like both of you to comment further on summary trial.

Colonel Drapeau, thank you very much, obviously, for your service. I couldn't agree with you more, by the way, when you talk about the service we ask for and get from our personnel in the forces. As legislators, we ask them to do certain things, and they simply perform. That is a duty that we owe back to them, it seems to me, in getting this legislation right. Since we are always asking them, this is one opportunity for us as legislators to give something back in return, besides our thanks after the performance of their duty, which they always give. There's never a question of whether they do or don't; they always just do it—to steal from Nike, if you will, which I think is so inadequate.

Let me ask you to go back to the summary conviction aspect, because I'm intrigued by how a summary trial could give someone a conviction with a criminal record when it couldn't happen to a civilian, and how we would impose that on someone simply because they wear a uniform and they happen to be in one wing of the armed forces or another. How is it possible for that to happen and that we wouldn't want to find a way to clear that up?

Can you help me understand how we can actually do that? it seems to me we owe them no less than that.

[Col Michel W. Drapeau]

Thanks for your question.

I need to comment on your opening comments. You said you're a layperson. Please, that's exactly what I'm looking for, to have laypersons interested in it. Why? Your sons and daughters and nephews and nieces are serving in the military—symbolically, but whatever. You have to have an interest in what's happening in the military.

When young men and women sign on the dotted line to volunteer their services and eventually their lives, they don't, as Mr. Ruby said, give away any of their rights. In fact, as a former leader in the armed forces, a commissioned officer, I don't want them to do that. I want them to incarnate what's best in our nation, our youth. I want them to be aware of what their rights and freedoms are so that when I put rifles in their hands and send them on a peacekeeping mission or a mission abroad, they not only know that their rights are respected but they will also act as people who flow from our society and will transpose those rights and freedoms. We don't make them better soldiers by saying, “Park your charter rights at the door, and now do as you're told. I don't care about your rights.”

To me it's very important that they know and understand that the military justice system respects their rights. Why? They're Canadian, first and foremost.

Second, when it comes to the summary trial itself, there's such a simple solution before us that it's not even funny, and Mr. Ruby has alluded to it. All you need to do is decriminalize the summary trial system.

I'm not advocating that the summary trial system be done away with; I'm not. Keep it. If you're deployed on a ship or you're deployed in the field in Afghanistan and you want to have immediate justice and military discipline in play, then maybe, but don't criminalize it. Do not import, as we do now, the Criminal Code into the code of service discipline and then go as far as sending someone to detention, deprivation of liberty, for up to 30 days. You don't have to do that.

It could be a disciplinary process. It leaves no criminal record, and it is decriminalized. This you could do very simply, and that would be the end of the discussion.

If you don't want to do that, then do something like what is done now in the U.K., Australia, and Ireland: create a summary appeal court where there is a right to counsel, there is a transcript, there is rule of evidence, and someone can appeal a decision by the summary trial. This is what the U.K. has done as a result of being told to do so by the European Court of Human Rights, because the system in the U.K., which was identical to ours, was non-compliant with the European Convention on Human Rights.

So we have two examples before us.

[Clayton Ruby]

Some people talk as if a Canadian soldier, when he enlists, loses his rights to the kind of procedural fairness that takes some time and that may be difficult or awkward in the field. That's not the right way to think about it. Wherever a Canadian soldier goes on a mission, he carries the charter with him in the same way that someone carries the flag. The charter is flexible. If there's an enemy engagement going on and you can't have a full trial, you can make exceptions, but you can't make a blanket rule that because you're in the military, all or some summary trials are going to result in criminal records that follow you forever. That's not the way the charter operates.

We'll get better soldiers if we give them the respect of having them know they have the same rights as everybody else, as adapted to the particular exercise they're engaged in, and not some blanket notion that they waived their rights when they enlisted. That's disrespectful.

[The Chair, Conservative, James Bezan]

You have time for one very brief question.

[Malcolm Allen, NDP, Welland, ON]

I thought guests got extra time, Mr. Chair. No?

Your point, Colonel Drapeau, regarding judges was that somehow they're underutilized—that we have military judges who are seeing such few court hours that perhaps we ought to have the AG or someone else take a look at that situation. Did I capture that correctly?

[Col Michel W. Drapeau]

You did. I think the time has come to have a wall-to-wall performance audit. It's not only the judges but the military justice system that is separate and apart from the civil penal system. Is it worth our while? Why is there some difference?

The global trend is to civilianize these tribunals. Why do we have judges who wear the uniform and have a military rank? The chief justice of the military is two ranks under that of the Judge Advocate General. Why? Why does he have a rank to begin with? Do we need four separate judges to handle 65 trials a year? As I said, it's the lowest caseload in Canada. Why don't we civilianize them and put them in a military division as part of the Federal Court? The Federal Court judges are quite able to do that.

I'll give you one example, which happened last Friday in a provincial court in Nova Scotia. They could do it. It's the same law, the same jurisprudence, the same sentencing principles, and you have an available law, a court that is mobile and can travel about and so on.

[The Chair, Conservative, James Bezan]

Thank you. Your time has expired.

Madam Gallant, you have the floor.

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

Mr. Drapeau, you stated in a recent article that you're not opposed to summary trials and you said that again today, but you had concerns regarding their constitutionality.

In fact, you had the opportunity to make this submission to Chief Justice LeSage during the second independent review of Bill C-25 and Bill C-60. In rejecting your point of view, he stated:

...regarding the constitutionality of the summary trial process, I am satisfied, as was former Chief Justice Dickson, that “the summary trial process is likely to survive a court challenge as to its constitutional validity”.

Given that two former chief justices of Canada and the former chief justice of the Ontario Superior Court of Justice have assessed Canada's summary trial process as constitutional and compliant with the Charter of Rights and Freedoms, can you explain why the committee should not follow the opinion of these respected Canadian jurists?

[Col Michel W. Drapeau]

Yes, Mrs. Gallant, with pleasure.

Very respectfully, I have respect for both jurists, and certainly I value their long careers and their opinion, but that's what it is. I happen to have a dissenting opinion on it.

My opinion is based, among others, primarily on the quite abundant jurisprudence from the European Court of Human Rights. They have said that according to the European Convention on Human Rights, to have a trial of a quasi-criminal or criminal nature whereby you can sentence somebody to a loss of liberty when that individual goes before a tribunal that is not chaired by someone who is legally trained, has no right to counsel, has no transcript, and has no right to appeal is not constitutional. It's the only place in Canada where this exists.

If retired Chief Justice LeSage arrives at a different opinion, I will be as respectful of his opinion as I certainly think he would be of mine.

My opinion is that it is not constitutional. I've written about it extensively. I've testified under oath that it is my honest belief it is not. We are shortchanging our soldiers, and there's a quick solution to it.

In other countries, France has gotten rid of military tribunals in peacetime, and I could mention others. It would cost very little. Providing them with tribunals that meet the bare minimum would enhance respect for the rule of law and enhance the respect the military has for the military justice system, but there is a minimum to make a tribunal constitutional.

I stand and rest my case. I believe despite and in spite of Justice Lamer's or Justice LeSage's opinions, these tribunals are not constitutional.

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

Through you, Mr. Chairman, summary trials have been the chosen forum for the vast majority of Canadian Forces members who need to appear before a tribunal. Would you not agree that this shows their faith in the system?

[Col Michel W. Drapeau]

Heck, no. Heck, no. Heck, no. The chain of command that is wearing a rank and controlling their future—their promotion, their posting, their whatever it is—suggests to them, without counsel, that it would be best to go into a summary trial, nod, nudge, and you want me to sign up to this? No way.

The fact that many of them have elected to have a summary trial as opposed to a court martial is perhaps indicative of the fact they've done so not with the presence of independent legal advice or the right to counsel, but in isolation from it. As a result—not always, but potentially—the perception is that it is as a result of pressure from the chain of command, so I don't agree that this is indicative of their choice or of respect for the process.

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

Mr. Chairman, as summary trials prove fair and effective and prompt justice with respect to minor offences, the objective is to deal with those offences expeditiously and fairly within the unit and return the member to service as soon as possible, so that a unit's discipline is quickly restored and the soldier can carry on with his mission. As it is a less formal tribunal, the possible punishments are limited and are designed to maintain military discipline and efficiency, both in Canada and when they're deployed abroad.

With this in mind, don't you agree that summary trials keep the best interests of the member in mind while maintaining discipline, efficiency, and morale?

[Col Michel W. Drapeau]

Mrs. Gallant, if you read my text and you see that a conviction rate in summary trial is 97.68%, if you want me to conclude that it is fair when the 97.68% conviction rate was arrived at without presence of counsel, rules of evidence, transcript, or the right to appeal, then we have a different standard as to what fairness is.

If we are to be fair and just with our soldiers, it does not hurt us and will not hurt military justice to provide them with a full panoply of their rights so they can exercise them, and if someone is proven guilty at the end, he will get a just sentence.

You say “minor offences”. For somebody to be sentenced to 30 days' detention—and it's not a walk in the park—is not the result of minor offences—at least, the sentencing officers did not have that particular view.

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

Mr. Drapeau, you also mentioned military judges in your presentation. You've advocated for civilian judges to replace the current structure whereby military judges preside over courts martial.

Now, despite the fact that Chief Justice Dickson did not make such a recommendation, nor was it adopted in Parliament in 1998, and neither Lamer nor Chief Justice LeSage felt that the current system required such changes, why do you disagree with these former chief justices and why are they wrong?

[Col Michel W. Drapeau]

First of all, I don't think they're wrong. I happen to be dissenting on it. I don't see them being wrong and I certainly don't see myself as being wrong.

There is a good reason, and there are in fact precedents. There is movement. I alluded to it and I'm saying it again. There's worldwide movement across the globe to civilianize military tribunals. The U.K. is a case in point, but it's not the only place. That did not exist when retired Chief Justice Dickson wrote his report then. I cannot speak to whether or not retired Chief Justice LeSage looked into that, but there is a requirement, as I explained, for two overarching but contributing concepts. One is to ensure civilian supremacy and one is to show an independence from the military chain of command, to have a civilian judge in military tribunals.

I'm not advocating to do away with military tribunals; I'm advocating making those judges civilian. There are in fact occasions to do that. It's been done in the U.K., it's been done in Australia, it's been done in New Zealand; do the same.

The situation today is quite different from what it was when Mr. Dickson wrote his opinion a number of years ago, almost two decades ago.

[Clayton Ruby]

Can I just add something?

[The Chair, Conservative, James Bezan]

Our time has expired. We'll just keep moving on.

Mr. McKay, you have the last of the seven-minute round.

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

Thank you, Chair, and thank you both for your very articulate presentations. I was thinking when I was listening to both of you that there is a golden rule of justice: we should expect for our military the same level of justice that we expect for ourselves.

I've never been to a summary trial, but I'm given to understand that a soldier is literally double-marched in, made to stand for the entire process, and has access only to other members of the chain of command. The soldier has no real counsel, and your 97% or 98% conviction rate would seem to indicate that they really put the summary in summary. It is a system designed to gain convictions rather than to do justice to the individual soldier.

My question is whether the rule should be that it should look as civilian as possible—that is, whether it should be a parallel system. Given that the military is unique and that military culture is unique, what is the justification for no rights of appeal, no rights to counsel, and the casual regard for rules of evidence? You, sir, have been in and around this system for a long time, and I find your argument quite compelling.

[Col Michel W. Drapeau]

My short answer is that it works. You have before you someone who has been commanding on two occasions, and I presided over summary trials. From a chain of command perspective, a military perspective, it's the best system there is: there are no arguments, no rules of evidence, and you don't have to be trained for it. It's very efficient—in walks the individual, and out walks somebody who's been sentenced. That's it.

But that was then. We're not at war now. This is not the 1900s, it's the 2000s. We've progressed. We didn't have a charter then; we do now. Our soldiers are more educated, more sophisticated, and they demand to be treated equally with civilians, their brothers, in civilian court.

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

If this legislation goes forward unamended, as it appears to be doing, it strikes me that the government has served up its head for a charter challenge by none other than Clay Ruby, eminent counsel, or some other as soon as a charge goes forward.

Why would you not minimize your chances of a successful charter challenge by addressing these issues, both generally and with respect to section 18?