National Defence Committee on Feb. 13th, 2013

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

That answers my question.

I would now like to turn to the training given to officers who preside over summary trials.

I know they are required to undergo training before they can preside over a summary trial. But I would like to know how far that training goes and what level of understanding they have around the fact that the sentence imposed could result in a criminal record for the accused.

[Col Michael R. Gibson]

It is part of the obligation of any presiding officer or any judge to understand the consequences of the sentence they're handing out, so that point is addressed during training.

I should point out two additional things that are very important for the committee to understand.

Presiding officers at summary trial can avail themselves—in fact, if they have any doubt, should avail themselves—of legal advice with regard to any question or concern they have. It's their decision, since they're the decision-maker, but they can receive legal advice about it.

The second thing is actually one of the important elements of clause 62, which deals with the improvements that Bill C-15 intends to make in sentencing. It specifies, in fact, that the person who is going to impose the sentence—whether a presiding officer at summary trial, a military judge at a court martial, or indeed even an appellate judge of the Court Martial Appeal Court or the Supreme Court of Canada—has to consider any indirect consequences of the sentence.

That would include, in fact, a statutory obligation under Bill C-15 that the person understand that if they were to give a particular sentence that fell outside the exemptions provided in clause 75, presuming that passes, there would be the consequence that the person would acquire a record within the meaning of the Criminal Records Act.

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

Could you send us the training documentation given to those who preside over summary trials? That would give us more detailed information on the various training objectives they are required to meet.

You probably don't have those documents with you, but I would greatly appreciate it if you could provide them to the committee.

[Col Michael R. Gibson]

I'd say two things. It's actually available online if one goes to the Office of the JAG website. It's entirely transparent. It's there online.

Also, I have a copy. Unfortunately, this is an English copy, but of course we have French too, and I'd be glad to provide the committee with this document if that would be of assistance to you.

[The Chair, Conservative, James Bezan]

Thank you, Colonel.

The time has expired. I appreciate that offer. If it is available online, we'll circulate the link so that everybody can see it online, rather than knock down another tree and produce more paper for committee.

With that, we're going to go on.

Mr. Alexander, you have the floor.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thank you, Chair.

Thank you, Colonel Gibson, and thanks to your team, for your testimony today and for your support for the committee's work throughout.

In looking back at today's earlier testimony and testimony we've had from those who see problems with the amendments to Bill C-15, it becomes clear that many of them just don't want a separate military justice system. They either question its constitutionality or would like to see the system civilianized.

It strikes me, as one observer, that they haven't fully accepted the principle on which our military justice system is based, which is that there are two objectives that need to be balanced and protected, one of which is pursuit of justice, and the other operational effectiveness in the field: discipline, morale, cohesion. That second objective doesn't exist for arbitrary reasons; it exists because our armed forces do things in the field that actually are at the foundation of our civil liberties and have been for decades and indeed centuries. This balancing act is something that we have built up over a long time, and it is fundamental.

To be fair, Mr. Ruby and the Criminal Lawyers' Association did admit that they had limited experience in the military justice system, so perhaps we simply need to take their testimony with a grain of salt.

However, I drew a contrast with the approach that Mr. Tinsley was taking, because he had claimed that when he launched his investigation back in 2007, with which we're all very familiar, it was to ensure continued public confidence in the military and the military police. In my view, those hearings and that very lengthy investigation did not serve to increase public confidence. It didn't find wrongdoing, it created doubt, and it didn't help discipline, whereas all the evidence we've had, I think from credible witnesses, shows that our military justice system by and large is functioning well, although in need of modernization and in need of continuous review.

Could you tell us how those reviews will work after the amendments take place? Because this is ultimately one of the greatest safeguards of the integrity of the system, of giving us an assurance that it will keep pace with the times and developments on the civilian side, what is proposed? How will this benefit military law and members of the Canadian armed forces with regard to reviews?

[Col Michael R. Gibson]

Thank you, Mr. Alexander.

The relevant provision of the bill—if I can very quickly turn to it—is clause 101, which will put into the National Defence Act the statutory requirement for an independent review. Now, as you're aware, two statutorily mandated independent reviews have occurred to date: the first by Antonio Lamer, the second by Patrick LeSage.

Bill C-25, passed by Parliament in 1998, contained in section 96 a statutory requirement to conduct periodic independent reviews, but that obligation doesn't actually exist in the National Defence Act at present; it's in Bill C-25, which was passed by Parliament as Statutes of Canada, 1998, chapter 35.

One of the primary recommendations of Justice Lamer that will be accomplished by clause 101 is to put into the National Defence Act a statutory obligation to conduct a periodic independent review of certain specified provisions of the act. The benefit of that will be, first of all, to have an independent review, because it's extremely useful and extremely important to have a forum for identifying issues and to have a mandated vehicle that you know is going to occur to identify needed improvements. Having such a mechanism for legislative reforms is one of the great engines of policy improvement.

In that sense, of course, having that ability available to the Canadian Forces, to the military justice system, and ultimately to Parliament would provide a great benefit, both to Parliament—by ensuring it is able to fulfill its function of ensuring that the law is kept up to date—and to the members of the Canadian Forces, because they are the ones who benefit most directly from having a military justice system that is current and compliant with charter norms and with the evolution of the law.

One last effect of the proposed provision is that it would extend the period of the review cycle. One of the problems that has occurred to date, especially given the protracted time it's taken to actually have Parliament pass this Lamer-response bill, is that you need to have provisions in place so that you can generate a track record of practice if you're going to have a meaningful review. As Justice LeSage noted, you need to have a sufficient length of time to generate that track record of practice to have a useful and meaningful review.

Clause 101 of the bill is intended to accomplish those things, in terms of actually putting that obligation into the act and specifying with precision what needs to be reviewed.

I have just one last point on that point. Perhaps given the slightly contentious nature of proposed subsection 18.5(3), those particular provisions are specified in that review provision so that Parliament would actually have the benefit of an independent review of the operation of that provision when it comes time for the next cycle of legislative reform.

[The Chair, Conservative, James Bezan]

Thank you.

Time has expired and bells will start going off in a matter of seconds here. It is 5:30. I know that the clock is running a bit slow, but based on the actual time, it is 5:30 now, so there's no use starting another round of questions.

I want to remind members before we adjourn that I've asked members to be considerate by submitting their amendments to the bill this week. We've had only two come in so far. To be respectful to our colleagues as well as to our table staff, our clerk, our legislative clerk who will be assisting us, and our analysts, it would be very helpful if we could have the amendments submitted by week's end so that we can start putting together the packages and circulating them so people have a chance to look at them before we move to clause-by-clause study.

I want to thank Colonel Gibson, Lieutenant-Colonel Dufour, and Lieutenant-Colonel Strickey for joining us today and for providing their input and expertise.

With that, I'll entertain a motion to adjourn.

[Corneliu Chisu, Pickering--Scarborough East, Liberal]

So moved.

[The Chair, Conservative, James Bezan]

We're out of here.

The meeting is adjourned.