National Defence Committee on Feb. 11th, 2013

[Gilles Létourneau]

You must bear in mind that Chief Justice Dickson's and Chief Justice Lamer's opinions go back quite a number of years. Since then, the law has evolved tremendously in the Supreme Court of Canada itself, where they have strengthened the independence of the courts and the need for fairness in prosecutions. We cannot be ruled indefinitely by past assessments of the law as it stood in those days; we have to look at the law as it stands now. As I said—and I know I'm repeating myself—the charter has evolved tremendously in terms of expansion, scope, and protection afforded to the accused.

I was a very close friend of Chief Justice Lamer, but I'm not sure he would hold the same view today if he were to look at the law as it has evolved as a result of his contribution and subsequent contributions after he was gone.

[Malcolm Allen, NDP, Welland, ON]

I appreciate that.

Mr. Stannard, on the issue of an independent police, I think we take that as an absolute necessity, at least on the civilian side. I've never served in the forces, but on the civilian side, when one gets charged and there's a certain body of evidence coming forward that's been generated by a police department—and I'm drawing now on your decades of experience, sir, working for the police department on the civilian side as well as all the way to the chief of police, and now your sense of oversight in the MPCC—is it your view that the independence of that police force has to be sacrosanct and not only has to be viewed from the perspective of seeming to be independent but must also actually be independent if those who are being tried are to perceive themselves to be judged in a “fair justice” sense of the word?

[Glenn Stannard]

Certainly there's an old adage that justice must not only appear to be done but must actually be done, and in terms of policing, the whole aspect of maintaining the independence of policing investigations is paramount. We're not talking here about the management of the police service or the numbers of police officers or how they're deployed or a variety of other aspects, but the day-to-day operation and the investigations.

Whether police investigations are conducted by street officers—or in this case, NIS officers—or police detectives, that information is gathered, and if charges are laid and the charges go forward, the information is then in the control of the crown attorney or the assistant crown or whoever is handling that case. They are responsible at that point for carrying it forward, so it's paramount that police have to remain independent.

Does that mean you don't have conversations with your superior, in this case the VCDS, or in my previous life maybe the mayor or even the board member or another board member? You keep them informed as to what's happening so they are aware of the public aspects of things, but you're not receiving directions from them as to how you're going to do your investigation. That's absolutely out of the question; they are not to get involved in it. Not only that: they are not to get down into the organization. That is the responsibility of the chief of police.

In this case, the CFPM is ultimately responsible for the investigations conducted by their members, both domestically and internationally, which is a whole other story. The issue of investigations is his or her responsibility.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Norlock, you have the floor.

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

Thank you very much, Mr. Chair, and through you to the witnesses, thank you for appearing today.

My questions will be for Justice Létourneau.

I know that you have been intimately involved with the military justice system for many years now and that you have made many public comments with regard to the potential for reform.

There is a preamble to my questions, which are two.

The bill currently before this committee proposes several changes to improve this review and reform cycle; specifically, Bill C-15 proposes to fulfill the Lamer report recommendation to entrench independent review provisions in the National Defence Act.

Bill C-15 also proposes to move beyond the limitations of Bill C-25 review mechanisms by permitting a greater focus and in-depth review; by allowing a given review to focus on specific thematic issues, such as military justice grievances, the Canadian Forces provost marshal, and the Military Police Complaints Commission; and by changing the review period to seven years between reviews as opposed to the current five years. This will increase the likelihood that any review would be conducted only after a sufficient period of time has elapsed to provide an adequate track record upon which to base subsequent assessments of the operation of provisions.

My questions are these: first, do you think that this iterative approach is a prudent way to approach military justice reform? Second, do you think it is a good idea to implement the recommendations of the Lamer report on strengthening and entrenching the independent review of the military justice system in the National Defence Act?

[Gilles Létourneau]

Thank you.

I'm willing to acknowledge that there are substantial reforms proposed in this bill, which I accept. To show you how it's sometimes hard to understand why they stop at that, for example, if you take the civilian court, the judge who gets an offender in front of him can decide to suspend a sentence for two years and allow a monitoring of his behaviour. If at the end of the two years he's been of good behaviour, he can grant an absolute discharge or conditional discharge, which means he has no criminal record.

We don't get that here in the military. They can suspend the execution of the sentence, but the sentence is passed. What I'm talking about here is the suspension of the passing of the sentence to monitor.

Unless I've missed something because I was still sitting on the court, I see that there is an absolute discharge mechanism in Bill C-15, but there's nothing about conditional discharge. Conditional discharge ends up with the same result, except that you have the sword of Damocles hanging over the head of the guy: if he's of good behaviour, then everything is wiped out, but if he fails, then he gets a sentence.

Why do we stop at that? I don't know. If you look at the bill as a whole, there are a number of provisions like that.

I'll give you another example. There's a provision dealing with the power to arrest. If you go back to the bill, you'll see that the police have the power to arrest, but a duty not to arrest if it's a less serious offence and you know the identity of the person and there's no likelihood that the offence will carry on, and so on. This is borrowed from the Criminal Code, no doubt about it, except that they have not borrowed the code entirely.

If you go back to sections 495 and 496 in the code, you will see that this duty not to arrest applies to less serious offences and to hybrid offences. What's a hybrid offence? A hybrid offence, like sexual assault, is an offence that can be prosecuted summarily—we have summary trials in civilian courts—or as an indictable offence. If the person is arrested for sexual assault, because it is a hybrid offence there is a duty not to arrest unless the conditions of the code are fulfilled. What we are importing here is a duty on the military police officer that is less stringent than what we have on the civilian police. I'm not sure this is constitutional, and I'll tell you why.

In the Gauthier case in 1998, the Court Martial Appeal Court was facing an abuse of police power to arrest. The unanimous Court Martial Appeal Court ruled that the guarantees found in the Criminal Code were imported by the charter into the National Defence Act and found that the arrest was unlawful because there was a duty not to arrest.

In the Du-Lude case about six or seven years later, the Federal Court of Appeal gave $10,000 to a soldier who had been unlawfully arrested when there was a duty not to arrest, as a result of the Court Martial Appeal Court decision in the Gauthier case, on the basis of a violation of his constitutional rights.

However, here we have a provision that gives less than the Gauthier and the Du-Lude cases have been giving to a solider.

I'm sorry if I took too much time.

[The Chair, Conservative, James Bezan]

That's all right. I know sometimes it takes a little longer to explain things. Thank you.

Mr. McKay, you have the floor for five minutes.

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

Thank you, Chair.

Thank you to you both for your presentations.

I take it as a working proposition that a soldier is a Canadian first, with all the rights and entitlements of a Canadian. We should expect nothing less in terms of their rights before the law.

The government members seem to be hanging their hats a lot on the report of Mr. Justice Lamer. You have made observations that it is something of a dated report, and that quite possibly Mr. Justice Lamer, in looking at specific sections of this act, might offer a different opinion.

I want to direct my first question to Mr. Stannard. You said that the Lamer report contained no specific recommendations. Could you elaborate on that? Is that with respect to proposed subsection 18.5(3), which seems to be thrust of your comments?

[Glenn Stannard]

Justice Lamer recommended that the National Defence Act be amended to define the role of the Canadian Forces provost marshal and set out the legislative framework governing the relationship between the Canadian Forces provost marshal and the military police, including the National Investigation Service. As I said in my opening remarks, his only concern with the 1998 accountability framework was that its non-legislative status provided insufficient protection of the CFPM's policing.

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

Do I understand your testimony to mean that essentially the government has flipped Justice Lamer's views, in that in 1998 the status was that no one, including the VCDS, would be able to direct an investigation, and yet in proposed section 18.3 an investigation can be directed? Am I understanding—

[Glenn Stannard]

That's correct, yes. The 1998 accountability framework was very specific. It's a one-page document, and it lays it out as I stated in my remarks. It is not a complicated document.

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

So instead of—

[Glenn Stannard]

It does not allow that person to give direction.

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

You're saying that if that document were to be incorporated into this Bill C-15, we wouldn't be worried about section 18.

[Glenn Stannard]

If it were to be incorporated as it has worked for the past 15 to 20 years, or since 1998, this section wouldn't even exist; it wouldn't be there. They've made a change.

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

Then when government members rely, as they seem to do heavily, on Justice Lamer's report, in fact they're relying on a fiction or a misinterpretation of what the justice said.

[Glenn Stannard]

Well, you can use the word “fiction”, but what I'll say is that the document, as it's set, if put into the legislation today, would not allow the VCDS to do what is being proposed, as it is being interpreted.

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

I'll direct my second point to Mr. Justice Létourneau. I hope I can get a copy of your book, as I have a peculiar interest that way.

You cite a series of cases in 1992, 1998, and 2007 in which the military has gone up against the civilian justice system, and in each case the civilian justice system has either directly or by obiter suggested changes to the military justice system, but over the last 20 years, except for possibly Leblanc, there has been virtually no change. It's as though the military justice system lives in a parallel universe, free from current charter interpretations.

Am I being unfair in saying that?

[Gilles Létourneau]

The only legislative changes in terms, for example, of the constitutionality of the courts came as a result of the judicial decisions. Although, as mentioned earlier, we announced that we had serious doubts about the constitutionality of these provisions, nothing was done. Even when they appeared, they fought; they said it was constitutional, yet if you go back to the decisions, they were unanimous decisions of appeal judges saying that it was unconstitutional.

There was some tinkering here and there on some issues, but the fundamental issues relating to the system have never really been addressed.

There is this independent review, but what do we do here? I was at the Law Reform Commission, so I know how law reform works. We hire someone who has no staff and no knowledge of military law, and he goes to the military and asks, “What do you want me to do?” What do you think happens? What happens is what is happening, as we can see.

If I could just add something, let me say that when I came to the Law Reform Commission, I had exposure to the military justice system, and I wanted to reform the system at the time. However, you will recall that the Progressive Conservative government was in power, and there was an agreement with the provinces to revamp the Criminal Code. All the staff and the budget at the Law Reform Commission were assigned to this reform of the Criminal Code, so we put the issue on the back burner, and then eventually I left and the commission was closed, and so on and on. There has never been a fundamental reform.

I keep on losing time trying to find things in the act. It's all over the place. It's really hard to follow. For example, there is one provision that says that only one sentence “shall” be passed. This creates difficulties when a case comes up on appeal. I was trying to find it; it took me half an hour to find it. I know it exists, but where is it?

It's all mixed up; it's all over the place.

[The Chair, Conservative, James Bezan]

Thank you.

Time has expired.

Mr. Strahl, you have the floor.

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

Thank you, Mr. Chair.

My question will be for Mr. Stannard.

Certainly from the questions that have come out here and from your testimony, we would agree that civilian interference in a police investigation would not, obviously, be tolerated, but I think you'd agree with me that military police are a unique police force in that they not only have a policing role but a soldiering role as well. The Vice Chief of the Defence Staff addressed the concerns with the particular clause we've been discussing in a March 2, 2011, committee discussion. He said, and I quote:

In that regard, the imperatives of conducting an investigation, the expectations of Canadians, and perhaps even the responsibilities of a provost marshal may come into conflict with some of the other priorities the Government of Canada has established for its fighting force. One example would be conducting a forensic investigation in a battle scene. It goes without saying that we wouldn't send a whole bunch of military police into a live fire zone and put them at risk, but there may be a desire to send a bunch of military police into an area that will soon become a live fire zone, and there may be a requirement to balance some of that off. I cannot really foresee very many circumstances in which I would make use of this provision.

Clearly this is meant to be an exceptional power and one which, given the example provided by the VCDS, would seem to be necessary.

Do you not agree that this power can be justified, given the safeguards that are built in and given the transparency that the publication of directions received from the military chain of command to the provost marshal can be released? Why would there be a problem with that, given these safeguards and the transparency?

[Glenn Stannard]

I'm not going to disagree with the fact that there are going to be special circumstances, especially in theatre, whether it be sending a military police, an NIS officer, to deal with a KIA the field and do the forensics. There's no question that there will be circumstances. Quite frankly, the VCDS isn't going to have to give direction to the military police or the NIS. They're experts in their field, and they should know when it's safe to go and when it's not.

But the whole issue relative.... You say that this is “exceptional”; that's not how it's written here. It's a very general statement that says, “The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.” It doesn't say an “exceptional investigation”. It doesn't say anything about “in combat”, and it doesn't say anything about “in theatre”. Who's going to do the interpreting? Is this going to be the interpretation of the VCDS? It might be one interpretation today by one VCDS, a different one tomorrow, and a different interpretation of the instruction coming back from the CFPM.

I don't know if the CFPM is going to appear at this hearing, but as a former chief of police, I would not want a broad statement that my boss could tell me what to do on a “particular” investigation. It doesn't make sense.

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

The CFPM did appear at the same meeting on March 2, 2011, and he said,

I think if I were just to take the legislation as written, without the safeguards that are present, I would have a lot more concern, but due to the transparency clauses that exist—the interference complaint process under part IV of the NDA—those types of safeguards certainly make it more robust. It allows me to make sure that there is an avenue of approach, should there be a conflict.

He didn't seem to have the same concerns that you do. Why do you think that is? Why does the person this is supposedly going to affect the most, through the interference that theoretically could be applied to his position, not share the same concern you have?

[Glenn Stannard]

When we go across the country and talk to military police officers, it's an interesting discussion we have about interference complaints. One of them is that we don't get very many. Some people are of the opinion that maybe we don't get very many because the chain of command in the military police is not unlike the quasi-judicial system that policing has. It's a little bit stronger, but in policing it is much the same.

With all due respect to the CFPM, I can see the provision is there, but that still isn't going to stop a VCDS from giving instructions on a particular investigation. That is problematic. It is giving up an independence that has been in place for 15 to 20 years, or even beyond that.

Yes, this provision is there, and proposed section 18.5 says he can only issue instructions and guidelines that have been made available to the public. It doesn't mean he can stop the VCDS from giving instructions; it just says that they're going to be made public, not that they're going to be stopped. Then he would have to follow those instructions. He doesn't even have to release them to the public, according to proposed subsection 18.5(5), if he doesn't think it's in the best interests of the administration of justice.

There is a lot danger in the way this is worded. Changes need to be made. Either repeal it or make changes that will give a provision for that exceptional circumstance that can't be misinterpreted as a “particular” investigation. Don't disagree with the exceptional circumstance. There's always a special thing that can be there.

The way it's written, the CFPM does not have the independence you would think that a police organization should have.

[The Chair, Conservative, James Bezan]

Thank you.

Unfortunately, our time for this part of our meeting has expired.

I want to thank both of our witnesses for appearing this afternoon and for providing input.

At 5:20 we're supposed to move into committee business. We have to suspend and have the room cleared so that we can discuss our future committee business.

I thank you again for your input.

Anyone not tied to a member of Parliament should vacate the room as quickly as possible so that we can continue with our meeting in camera.

With that, we're suspended.

[Proceedings continue in camera]