National Defence Committee on Feb. 11th, 2013

[Clayton Ruby]

I think you're right in general: if you take away the criminal record aspect from where it doesn't belong, your chances of a judge's striking it down are greatly diminished. There's been reference to the military justice system being constitutional; it is constitutional, in my view, in the sense that having a separate and different justice system for the military is constitutional. That's all that anyone is saying.

No one has ever examined these provisions one at a time for constitutional compliance. It's right to say that it's expeditious. It works well for the guys in charge, but it really is beyond any rational thought to call this fair. The judge may not be impartial; he could be friends with the witnesses. No transcript is kept, and there is no right of appeal or to full disclosure of the case against you. You're made to stand like a child in front of the tribunal for its entirety. This is demeaning and unfair. We should not hesitate to acknowledge that and change it.

[Col Michel W. Drapeau]

The reason it has to be challenged is that one doesn't have the right to appeal. There is no transcript. Even if today somebody had the means, mental and financial, to challenge this, it would be very difficult. We have gone through 2,000 trials a year without a challenge in court. You cannot challenge, since you have no right of appeal.

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

So even if I were to be convicted and I retained Mr. Ruby, I'd be dead in the water?

[Clayton Ruby]

That's not necessarily true, but there's no clear way to challenge it. I think you could apply for declaratory relief if you were the subject of this kind of trial, but you're going to have to pay for it and have the courage to stay in the military afterwards, which is not going to be an easy thing.

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

No. It's not going to be a happy time retaining Clay Ruby to sue the system.

[Clayton Ruby]

The last time I did it was when the armed forces discriminated against gays and lesbians. I was counsel in the case in which the judgment was signed to say that it must stop because it's a constitutional breach.

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

The irony is that what precipitated this bill and an associated bill, Bill C-16, is that the Supreme Court said, “Your system of the chain of command supervising judges is not constitutional, so we're going to throw out what is otherwise a legitimate case against Leblanc by virtue of the fact that the system is not parallel with a civilian system.”

Am I done?

[The Chair, Conservative, James Bezan]

You have one minute.

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

We talked about the military system of judges and prosecutions, etc., and a lot of the conversation has been around the CDS's or VCDS's ability to give direction to the police investigation of any incident.

As a similar question, it seems to me that if the police investigation ultimately leads to charges or whatever, the defence counsel is first and foremost going to ask for the emails setting out the directions of that investigation. I'd be interested in your observations with respect to the accessibility and the potential use by defence counsel of those emails or directions.

[Clayton Ruby]

I'd have asked for it, but I don't know the military system enough to deal with it.

[Col Michel W. Drapeau]

And I don't do defence work, so I cannot really say. We have an internal police, the military police, who wear a military rank. They are subject to orders and subject to the code of service discipline; it's difficult enough for them to be seen and perceived as independent, and now we have the head of the military police, a provost marshal, receiving instructions in an investigation from the Vice Chief of the Defence Staff, who's one step away from the Chief of the Defence Staff. Do you want to pretend that it is independent when they are investigating...who knows? They could be investigating the CDS, who's also subject to the code of service discipline.

To me it makes no sense. I wouldn't even know where to begin to argue that this in fact is compatible with the notion of independence. It's not.

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

Thank you.

[The Chair, Conservative, James Bezan]

We're now moving to a five-minute round. Again, I remind everyone to keep their questions and replies very brief.

Mr. Opitz, you have the floor.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair.

Thank you both for appearing here today.

Mr. Ruby, I think you were on the immigration committee not long ago. Great.

Mr. Ruby, clause 75 of Bill C-15 in the amended version that will be proposed will result in approximately 94% of the offences tried by summary trial not resulting in the creation of a record within the meaning of the Criminal Records Act. Would you not agree that it's a positive development within that?

[Clayton Ruby]

It's only a positive development if you don't attach a criminal record to any of it, because then it becomes arbitrary. It becomes unreasonable. You ask, “Why is this guy getting a criminal record for failing to show up on time, and that guy not?”

If you're going to make a law that's an improvement, it cannot be arbitrary. The Constitution protects against that.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

With respect to that, sir, if you are late, you're not going to carry a criminal record for that—because I just got out not that long ago—but there are eight Criminal Code offences that can be tried by summary trial. One example is assault. Wouldn't you believe that should carry a criminal record?

[Clayton Ruby]

No. I think if you want to have a criminal record with the consequences that follow a person forever in life now, with not ever a pardon in the ordinary layperson's sense—which this government has made worse, not better—and you want that consequence, you have to give protections for the procedure. Otherwise, you haven't complied with the Constitution, in my view, and it must be for everyone, not just some at the discretion of some charging officer.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

As for that, would you acknowledge that a separate military justice system is provided for in the Charter or Rights and Freedoms?

[Clayton Ruby]

Yes. I did concede that. I think that's what those judges were talking about when they said this is all constitutionally compliant. You can have a separate justice system, but each part of it needs to be examined to see if it complies with the charter on a one-by-one incident basis. A blanket exemption doesn't exist. That's not the way our Constitution works.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Were you aware, sir, that no sentence by the way of imprisonment can be given without the accused being given an option to select a court martial? That's in section 108.17 of the Queen's Regulations and Orders, I think.

[Clayton Ruby]

Sure, but there have been studies of exit interviews with people who had experience with summary trials. They were referred to before this committee when you were here the last time. What they show is that with regard to those rights—being told of the option, for example, to choose military advice or to seek civilian legal advice—the people who are subject to these trials either have no memory of it or are very bad soldiers because they can't remember these crucial things, or else the system didn't offer it in practice. I would guess it's a mixture of both.

It's inadequate. It's not acceptable.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

On what grounds specifically are you arguing that the military justice system is unconstitutional? Is there any case law to support this, sir?

[Clayton Ruby]

No, because no one, as we've discussed, ever gets to challenge it. I narrow it, as the Constitution requires, to one aspect at a time. Giving criminal records, in my respectful submission, to some of the people who go through a summary trial proceeding is unconstitutional. I'm not in much doubt about that.

Justice LeSage, who understands the Constitution and accepts the generality of the constitutionality of criminal justice being different for the military, called it consequences that are totally disproportionate to the violation. That, for any lawyer, is language that says “can't pass the constitutional test”, because that is the constitutional test: you have to show that it is justifiable.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

But Chief Justice Dickson, seconded by Chief Justice LeSage, did say that the summary trial process is likely to survive a court challenge as to its constitutional validity.

I hear you disagreeing with that, but can you specify what element of their particular analysis you disagree with specifically, sir?

[Clayton Ruby]

Sure.

As long as imprisonment is a possibility—and I don't go to other serious concerns as well—you must provide more fairness, so you get rid of that possible punishment or you provide the same standards that you and I are subject to in ordinary Canadian trials.

Again, if you're in the middle of a war theatre, exceptions can be made; you could draft legislation that would do that. Generally speaking, you can't impose, for example, a denial of liberty without more procedural fairness than you have in this stuff, because you will have people wrongfully convicted left, right, and centre. Second, even if I'm wrong in that, you can't saddle somebody who doesn't have that kind of protection with a lifelong criminal record.