Thank you, Mr. Chair.
I would like to thank the honourable members of this committee for this opportunity to appear before you today to speak to Bill C-15.
As Deputy Judge Advocate General for military justice, I, together with my team, have a played a significant role in the preparation of this legislation. I am very glad to have the opportunity to appear today to assist the members of the committee in their consideration of the bill, for two reasons.
The first is that we are lawyers and members of the Canadian Forces. The system we assist in constructing and that we endorse is one that applies to ourselves. We live it every day.
My 32 years of service in the Canadian Armed Forces have taken me to over 60 countries around the world. Between us, Lieutenant Colonel Strickey, Lieutenant Colonel Dufour, and I have multiple operational deployments, including to Bosnia, Afghanistan, Congo, and Sudan. We thus understand first-hand how the military justice system must possess certain functional attributes, including portability, in order to fulfill its purpose. We are fully committed to both the effectiveness and the charter compliance of the military justice system.
The Canadian military justice system has two fundamental purposes: to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency, and morale, and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It thus serves the ends of both discipline and justice. These purposes are stated in the statutory articulation of purposes, principles, and objectives of sentencing in the military justice system set out at clause 62 of Bill C-15.
Simply put, an effective military justice system, guided by the correct principles, is a prerequisite for the effective functioning of the armed forces of a modem democratic state governed by the rule of law. It is also key to ensuring the compliance of states and their armed forces with the normative requirements of international human rights law and of international humanitarian law.
The second reason is that having listened carefully to the testimony of the witnesses who have appeared before you, there is a concern that there may be some misapprehensions about some of the provisions of this bill. I would like to briefly address two of them now.
The first relates to clause 75, concerning the creation of records within the meaning of the Criminal Records Act arising from conviction for minor service offences.
The origin of clause 75 was our concern that although it is necessary to maintain stringent discipline in the Canadian Forces and that this may require trying persons for what could be seen as relatively minor offences, it was not necessary for the maintenance of discipline to have the collateral effect of creating a record within the meaning of the Criminal Records Act to achieve this purpose.
This could have an adverse impact on service members seeking other employment following their release from the Canadian armed forces and, as you've heard in some detail, other consequences as well. In order to relieve what could be seen as the potential for an unintended and unnecessary harshness, we adapted the scheme that Parliament has already put in place in the Contraventions Act.
The effect of clause 75 would be, employing certain thresholds relating to both the objective and subjective gravity of the enumerated offences, to preclude the creation of a record for conviction of the enumerated offences, under the threshold of the specified punishments, and thus obviate the requirement for Canadian armed forces members to have to later apply for a record suspension.
The minister has undertaken that an amendment will be introduced matching the provisions of the one adopted by this committee during its consideration of Bill C-41.
In order to assess the impact of this proposed version in terms of dealing with convictions at summary trial, we conducted a detailed statistical analysis using statistics from the JAG annual report for 2009-10 as a representative sample. This assessment indicates that if the provisions of the amended version of clause 75 are applied for that year, 94% of the offences tried at summary trial would not have resulted in the creation of a record.
Taken together with the introduction in Bill C-15 of absolute discharges as a sentencing option, we would thus predict that approximately 95% of cases tried at summary trial would not result in the creation of a record under the proposed provisions. The remaining cases would be largely made up of the eight Criminal Code offences triable by summary trial. This version of clause 75 should thus be highly effective in achieving the desired policy intent.
The second issue relates to summary trials.
The purpose of summary trials is to provide prompt but fair justice in respect of minor service offences. Summary trials are also intended to contribute to the maintenance of military efficiency and discipline, in Canada and abroad, in times of peace or armed conflict.
Summary trials are vitally important to the operational effectiveness of the Canadian Forces. They are the workhorse of the military justice system, consistently trying about 96% to 97% of cases. They exemplify the attributes of promptness, portability, and flexibility.
It must be pointed out that some of the most eminent constitutional jurists of the charter era in Canada, former Supreme Court of Canada Chief Justices Brian Dickson and Antonio Lamer, and former Chief Justice of the Ontario Superior Court Patrick LeSage, have conducted independent reviews of the military justice system and have supported the importance and constitutionality of the summary trial system.
The portrayal of summary trials that has recently been advanced by some is, at best, a very partial depiction of the full picture that must be taken into account in making a responsible and accurate assessment of the fairness and constitutionality of the summary trial system.
I would be glad to amplify later on other factors that should be taken into account. It does bear repeating at this point, however, that no Canadian court has in fact ruled that summary trials are unfair or unconstitutional.
A major reason that there are not a large number of amendments concerning summary trials proposed in Bill C-15 is that Chief Justice Lamer, having reviewed them, did not identify a significant number of problems and did not recommend any changes.
Legislative reform of the military justice system involves a process of continuous improvement over time, just as is the case with the civilian Criminal Code. Bill C-15 provides important updates as well as a statutorily mandated regular independent review to help ensure that this is accomplished.
Bill C-15 will not be the last word on military justice. To borrow a phrase famous in legal circles, the military justice system is a living tree. Further legislation will be necessary in the future to respond to the recommendations of the LeSage report and to other issues, but this overdue Lamer response bill needs to be passed in order to get on with addressing the next series of improvements.
To coin a metaphor, Mr. Chair, it is necessary to move the Lamer response train out of the station so that we can bring the LeSage response train in, load that one up, and deal with the next set of improvements.
Thank you, Mr. Chairman. l would be pleased to assist the members of the committee by answering your questions.