National Defence Committee on Feb. 13th, 2013

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

Thank you, Chair, and thank you, Colonel Gibson.

I know you were here for pretty well the entire process. Therefore, there's no necessity to rehash what others have said.

My notes from Colonel Drapeau say that proposed section 18.53 removes any pretense of independence from chain of command. I'm sure you've heard him say that. Mr. Tinsley said that it authorizes VCDS interference, that it's against the charter, and that it's against the Canadian police norms. It's against international law and international norms. I take it that you disagree with those points.

The practice since 1992 has been that there be no interference from the VCDS, CDS, or anybody in the chain of command with police investigations. The justices who reviewed the military justice system said that it should be codified. It's probably a good idea, but the codification that you put in place doesn't say that the VCDS may under no circumstances interfere with an investigation.

If it was working from 1992 to 2011 or 2012, why mess with it?

[Col Michael R. Gibson]

Thank you, Mr. McKay.

First of all, I believe you were referring to the 1998 accountability framework. Is that the document you were referring to?

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

It was March 2, 1998, yes.

[Col Michael R. Gibson]

I'd make a couple of observations. First of all, with regard to what Mr. Drapeau said, it was rhetorically excessive and I think almost entirely without foundation.

Having regard to what Mr. Tinsley said, as I said earlier, I think that unfortunately he has misinterpreted the intent of that provision. It's clear that investigative independence for military police is extraordinarily important. It's important for the credibility of the system and it's important for the functioning of the system. It's important for the sake of justice being done. If you don't have a good police investigation as the foundation, you don't really have much that is solid to work with after that. The thought that somehow it's a retrograde step or intended to be a retrograde step simply doesn't accord with what the policy intent is here.

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

Isn't the burden on you to justify why you need this ability to act in a way that in all other police circumstances would be considered to be interference in a police investigation? I appreciate that we're in a military environment, but you haven't said in the legislation that it's in combat circumstances that we'll be entitled to do this; you could do it anywhere.

[Col Michael R. Gibson]

Well, let me respond to that, Mr. McKay, by first of all saying that the notion or the conclusion that's it's interference—or improper interference, which is a bit more accurate, I think—is an assertion. The accountability framework is a policy document; it's an administrative document. It's just an “admin document”, in essence.

What Parliament is being asked to consider, and this committee in particular, is what should be required statutorily. The key point here is that this isn't somehow a reversal of previous policy. As I said earlier in response to Ms. Gallant's question, it's recognizing the reality that there will be a requirement in certain exceptional circumstances for intervention, which has to be transparent, in order to recognize the unique circumstances. Let me—

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

What has happened since 1998, then?

[Col Michael R. Gibson]

Well, the concern would be, as a lot of people have said, that in operational circumstances there may have been intervention by the chain of command—but we don't know—and it hasn't been regulated. The point is that Parliament will say that if this has to happen, this is how you do it.

There's one really important point I'd like to make in addition, sir. It doesn't specify with exactitude exactly when this power could be invoked, because the point is that one doesn't know. Ultimately you can't legislate integrity or common sense, but as a very brief and apt quotation that I'd like to share with you, Professor Llewelyn Jones Edward, in his publication about the attorney general, said:I am convinced that, no matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character, personal integrity and depth of commitment to the principles of independence and the impartial representation of the public interest, on the part of holders of the office of the Attorney General, which is of supreme importance.

The goal of this is for Parliament to give as much statutory guidance and protection as it can, but the bottom line in reality, sir, is that you have to choose very carefully the people you appoint and that you have to rely on their integrity.

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

But Colonel Drapeau, Mr. Tinsley, and Mr. Stannard—I've forgotten what his rank is—have all said that “If it ain't broke, don't fix it”, and all have worked under the system.

The system since 1998, since the guidelines or MOU or whatever has been in place, has worked. At least, I didn't hear—maybe you did, but I haven't heard—any complaints about interference in police investigations since 1998. If that's true, then why put a statutorily mandated process in place by which the VCDS can insert himself or herself right into an investigation?

[Col Michael R. Gibson]

Well, Mr. Drapeau hasn't worked in the system. Of course, Mr. Tinsley and Mr. Stannard have, but they have a particular perspective, the perspective of MPCC.

I'd invite you to recall that the Vice Chief of the Defence Staff and the Canadian Forces provost marshal, who actually do work with the system and who are in fact the ones who have to make it work, stated in testimony before this committee, in the previous consideration of Bill C-41, that they had no concerns. The provost marshal said, to paraphrase, “If I really had a concern, I wouldn't be here supporting it.” He's the guy who has to make it work, and he stood here and said that he didn't have a concern with it. The Vice Chief of the Defence Staff basically said, “I regard this as a protection for the Canadian Forces provost marshal, as a safeguard for his independence.”

We may have different perspectives, but I can assure you that there is no sinister intent involved here. It's meant to be transparent and in fact a protection for independence.

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

I'm not imputing any sinister intent. I am concerned, however, when senior people who have operated in the system make the effort—and sometimes considerable effort—to come before this committee to say that this is a point of serious contention.

I don't want to be accused of imputing any other motives. This is the kind of interference that no police force in Canada would ever put up with.

[Col Michael R. Gibson]

I suppose we've gone around the bush a few times, sir, but my bottom-line response would be that it's not improper interference.

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

Well, I hope you're right.

[The Chair, Conservative, James Bezan]

Thank you. Time has expired.

We're going on to a five-minute round.

I'm sorry, Mr. Strahl, that I messed up before in the order, but you have the floor now.

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

I'll forgive you, Mr. Chair.

To steal a page from Mr. Norlock's book, when people in my riding hear the term “provost marshal”, I don't think they probably.... Well, a considerable number of them did go through CFB Chilliwack and would have an idea of what we're talking about, but I understand that he is also known as the commander of the Canadian Forces Military Police Group.

I think we have to assign fairly significant weight to his testimony when he says “...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.”

If the commander of the Military Police Group doesn't see an issue here, and also Chief Justice LeSage did not see an issue here, how do we not place greater weight upon their testimony and their expertise than upon that of political appointees?

[Col Michael R. Gibson]

I suppose, Mr. Strahl, I would respond that obviously Justice LeSage and the provost marshal know whereof they speak, and their views should be accorded great weight.

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

I have one more question.

You mentioned that there would be improvements in training for the assisting officers. Have there been corresponding improvements in training for commanding officers who are presiding over summary trials?

[Col Michael R. Gibson]

One of the requirements and regulations now actually requires any officer, before he or she can preside as a presiding officer at a summary trial, to participate in a training course and to be certified by the Judge Advocate General. In other words, they have to pass the course to be able to preside at a summary trial.

One of the documents they use for that is the “Military Justice at the Summary Trial Level” manual, which is available online. I'd certainly invite any members of the committee who are interested to look at it; it's extremely instructive. I think it represents a very credible and professional and thorough attempt to ensure that those who are entrusted with this very significant task are given the training they require and achieve the level of understanding they require when they are conducting this significant duty of presiding at summary trials.

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

Thank you.

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

[The Chair, Conservative, James Bezan]

You have two minutes, Mr. Norlock.

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

Thank you very much. I'm going to try to get this out in a minute.

I don't know whether you were at the last meeting, when former Justice Létourneau basically said, if my memory serves me correctly—I made a few notes, but I have to get this out quickly—that the members of the Canadian military should have the same protection under Bill C-15 as they have under the Criminal Code of Canada, because in his opinion Bill C-15 would not pass a charter test.

It has been my observation, having been in court—not as much as most lawyers, but as a police officer and an assistant to the crown—that the Criminal Code is challenged on a daily basis pursuant to the charter. Could you comment on that argument?

On the argument of “if it ain't broke, don't fix it”, would you not agree that every law we have is constantly being challenged and that every law we have is constantly being attempted to be improved?

May we have your comments?

[Col Michael R. Gibson]

Yes, I heard the comments by Justice Létourneau, and with respect, I disagreed with them. It's not the first time I've disagreed with them publicly and in writing, and that is what it is.

However, the point is well taken that of course we don't live in Disneyland; we live in the real world. This is serious stuff. Just like many provisions in the Criminal Code, it will be tested by defence counsel. That's their job. It will be tested by people whose interests are engaged in the system. I was a defence counsel. I went at it hammer and tongs, in terms of challenging the constitutionality of various things, often with little success.

But you've made a good point. The system, as I said, is a living tree, just like the Criminal Code. It is part of the function of defence counsel to challenge the constitutionality of provisions and of course to assess those challenges.

There is a dialogue between the courts and Parliament, ultimately. I'm not going to stand before you and say there will never ever be a successful constitutional challenge to some of these provisions. Life doesn't work that way. What I can say is that having assessed them to the best of our ability, we are confident that they are legitimate, that they are compliant with the charter, and that they are appropriate for Parliament to consider.

[The Chair, Conservative, James Bezan]

Thank you. Time has expired.

Ms. Moore, you have the floor.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you very much.

I want to come back to your presentation.

You said that, under the version of clause 75 contained in Bill C-41, 95% of cases tried at summary trial would not result in a criminal record. That means, then, that out of 2,000 summary trials, 100 people could still end up with a criminal record or, at least, not benefit from the provisions in clause 75.

Unless I'm mistaken, under the version of clause 75 contained in Bill C-41, when someone commits an offence that does not correspond to a criminal offence in the civilian system, there is no guarantee that the individual will not acquire a criminal record. It makes no such guarantees. All it does is ensure that an individual who would not have acquired a criminal record in civilian court for the same offence is much less likely to acquire one in the military system.

Is that correct?

[Col Michael R. Gibson]

Thank you. I'll respond in English, if you don't mind.

Of course there are no guarantees that somebody won't acquire a record if convicted of an offence that isn't on the exemption list. What the proposal is actually engaging is a policy assessment of where to draw the line.

Under the previous version.... We conducted the statistical analysis under the original version, if I may call it that, of clause 75, and that assessment indicated that on the basis of those provisions, approximately 81% would have been exempted. What we're really talking about, in terms of the difference between the two versions, is an increment from 81% to 94%.

As I explained earlier, the policy basis for that provision is that it looks at both the objective gravity of the offence and the subjective gravity. There are some section 83 offences that are punishable by life imprisonment—the most serious objectively grave offence Parliament can create—that aren't on the list. If you were charged with that offence, convicted, and given a very serious sentence, then yes, you would acquire a record.