National Defence Committee on Feb. 13th, 2013

[The Chair, Conservative, James Bezan]

I call the meeting to order.

Good afternoon, everyone. From an entertaining question period, we're glad to have everyone here for meeting number 66, as we continue with our study on the order of reference from December 12 on Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

Joining us for the first hour today is Mr. Peter Tinsley, who is the former chair of the Military Police Complaints Commission, and from the Canadian Criminal Lawyers' Association, we have Eric Granger and Anne Weinstein.

Our first presenter is Mr. Tinsley. We appreciate his coming in on short notice, since there was an inability to get some witnesses here for today. As most of you know, he has a long, distinguished career in the Canadian armed forces, serving not only overseas but also as a military police officer. He was in the Office of the JAG, and more recently served as the chair of the Military Police Complaints Commission.

Mr. Tinsley, perhaps you can bring us your opening comments, and if you can keep them under 10 minutes, we'd appreciate that.

[Peter Tinsley, Former Chair, Military Police Complaints Commission, As an Individual]

Mr. Chair, thank you very much. Members of the committee, good afternoon.

Thank you very much for this opportunity to speak to you today, albeit it was a little late. I've scrambled to put notes together, which the clerk has, and which I'm not going to get through in the 10 minutes. The clerk has kindly indicated that he will have them translated and distributed so that you might at some point see all of my thoughts, and I appreciate that.

I'm very appreciative of participating in this process concerning a very important matter regarding the military justice system. As the chair has indicated, I come at this not just based on being the former chair of the Military Police Complaints Commission but having a career-long history in military justice, first as a military police officer, then as a military lawyer, and subsequently, both nationally and internationally, in matters of police management and governance.

I'm going to focus the few minutes I have with respect to one small provision of Bill C-15, namely subclause 18.5(3). I will proceed on the assumption that the contents of that proposed subclause are well known to the members of the committee. It is specifically with respect to the new-found statutory authority for the Vice Chief of the Defence Staff to direct the Canadian Forces provost marshal in respect of specific military police investigations.

Proposed subsection 18.5(3), as I've indicated, is very small, but in my view it is very large in terms of its negative impact on both the independence of the police, both real and perceived, and the oversight mechanisms, specifically the oversight mechanism in the military police commission oriented toward the prohibition of interference with police investigations.

It's my respectful submission that if realized, this small provision could be a retrogressive step and serve as the single most significant contribution to Bill C-15's short title of strengthening the military justice system.

The strengthening of the military justice system, of which the military police are a critical component, has been an evolutionary process since the Somalia commission of inquiry report in 1997 and the subsequent passing of Bill C-25 in 1998. Prior to that, Canada's military justice system, as embodied in the National Defence Act, had remained largely stagnant and largely unchanged for half a century, from the mid-1950s, when the first National Defence Act was passed, until 1998.

In fact, in 1992 there was a collective sigh of relief when the military justice system survived its first significant challenge under the Canadian Charter of Rights and Freedoms when the Supreme Court of Canada found the centrepiece of the system, trial by court martial, to be charter-compliant as a result of regulatory changes that were made, such as tribunal independence.

What could not be foreseen was that just over the horizon events occurring in Somalia in 1992 and 1993 would result in the Canadian Forces, including the military justice system, being subjected to public scrutiny, the likes of which had never been experienced before. Notwithstanding that the conduct of the Canadian Forces members in Somalia was investigated by the military police and charges were laid, including those of murder and torture, and notwithstanding that trials by court martial took place and that appeals were made to the Court Martial Appeal Court as well as to the Supreme Court of Canada without judicial criticism of the process, the court of public opinion was not so satisfied.

I appreciate that the committee has already heard extensively about this evolutionary process, but in that so much reliance seems to be placed on the very worthy opinions of former chief justices of Canada in respect of issues of constitutionality, I want to invite your attention very briefly to their specific and equally worthy advice in respect of matters of police independence and oversight.

First, the Somalia commission examined in detail the institutional response to the events in Somalia, including that of the military police. In so doing, it was particularly critical of the positioning of the military police within the military hierarchy and the influence of commanding officers as well as the chain of command over police operations, which vitiated any notion of independence and gave rise to the potential for the perception of improper influence being exercised. Accordingly, one significant recommendation was that the head of the military police be responsible to the Chief of the Defence Staff for all purposes except for the investigation of major disciplinary or criminal conduct.

Bill C-25 was also significantly informed by the 1997 report of a special advisory group, called the SAG on military justice and military police investigation services, chaired by the late Right Honourable Brian Dickson.

Concerning the military police, the SAG report dealt with many of the same themes as those probed by the Somalia commission, including the competing or conflicting imperatives of command and control for the military police role in support of military operations and those for the purely police investigative function.

In order to meet the requirements of both roles, the Dickson SAG report recommended a bifurcation of the process, with military commanders retaining command and control over military police personnel employed in operational support or intelligence roles, while all others would be under the direct command and control of the head of the military police. In the latter regard, the report stressed at length the importance of the independence of policing to ensure the integrity of the justice system.

An additional significant feature of the SAG report was that in the vein of ensuring confidence and respect for the military justice system, it recommended the establishment of an independent office for complaint review and oversight of the military police consistent with the established norms for the civilian police.

The subsequent Dickson report, the report of the military police services review group, received in 1998, found that the accountability framework signed by the VCDS and the provost marshal in 1998 conformed with the recommendations of the SAG report in respect of the independence of the policing function. A key feature of the accountability framework was that the VCDS would have no direct involvement in ongoing investigations and would not direct the CFPM with respect to operational decisions of an investigative nature.

As you're well aware, the first statutorily mandated review of the NDA was completed by the late Right Honourable Antonio Lamer in 2003. Of particular note, regarding the highly connected matters of military police independence and oversight, were two significant observations made in the report.

One was in respect of the role of the provost marshal, where Justice Lamer observed that it

...is largely governed by the Accountability Framework that was developed in 1998 to ensure both the independence of the Provost Marshal as well as a professional and effective military police service...

“This legislative omission”, he then observed, was in an accountability framework, like a memorandum of understanding, but was not within a statutory framework as existed for those such as military judges, the JAG, the director of military prosecutions, etc.

He went on to say that

Support has been given to the military police through the creation of the MPCC, a quasi-judicial civilian oversight body and operating independently of the Department...and the Canadian Forces. The MPCC was established to make the handling of complaints involving the military police more transparent and accessible

—and most specifically—

to discourage interference with military police investigations....

My submission is that Bill C-15 does comply with Lamer's recommendation to fill the legislative void concerning the responsibilities of the CFPM by proposing they be codified in the NDA. However, in so doing, and notwithstanding the consistent recommendations of the Somalia commission, the Dickson report, and Lamer in respect of the necessary independence of the military police from the chain of command in respect of police operational decisions and investigations—as well, it is in stark contrast to the accountability framework—it includes a provision that specifically authorizes the VCDS to

issue instructions or guidelines in writing in respect of a particular investigation.

Justice systems must continuously evolve to meet the ongoing changing circumstances, standards, and expectations of the societies that they are intended to serve. The military justice system has experienced a long overdue and rapid period of evolution over the last two decades, including recognition that the military police are a Canadian police service—in fact, the seventh-largest in Canada—with a public expectation that they will enforce Canadian law at home and abroad at the highest standards.

Bill C-15 is part of that continuing process. What is under discussion here is whether a significant part of that evolutionary process and the consistent recommendations in terms of the key issues of police independence and the associated matter of effective oversight of military policing will be inexplicably disregarded and the clock, in fact, turned back.

My very brief summary submission is that if Bill C-15 is passed into law in its present form, inclusive of the new subsection 18.5(3) authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada at late as 1999 as underpinning the rule of law, as well as run counter to the norms of police-government relations, certainly in Canada, and I can tell you internationally in developed countries, which recognize the importance of police independence and prohibit police service boards or similar executive bodies from giving directions regarding specific police operations.

It would also effectively contradict, even repudiate, the notion of improper interference by the chain of command as established in the oversight jurisdiction of the Military Police Complaints Commission and thereby effectively eliminate oversight by statutory authorization of such interference by the VCDS, a person not subject to the jurisdiction of the complaints commission.

I'm here to answer your questions as you may have them, but I leave off by asking you one: why?

[The Chair, Conservative, James Bezan]

Thank you, Mr. Tinsley.

Our next presenter is Eric Granger, who holds a law degree from McMaster University and the University of Ottawa Law School, where he graduated as the silver medallist in 2004. He practises here in Ottawa with Greenspon, Brown and Associates, where he focuses on criminal defence as well as on defending the civil liberties of his clients in both criminal law and civil litigation contexts.

He's joined by Anne London-Weinstein, who is also a criminal defence lawyer in Ottawa. She is at Weinstein Law and is also a professor at University of Ottawa Law School, teaching evidence, criminal law, and trial advocacy.

Mr. Granger, if you want to bring your opening comments....

[Eric Granger, Lawyer, Criminal Lawyers' Association]

Thank you, Mr. Chair, and I would like to thank the committee for the opportunity for us to appear before you today on this important piece of legislation on behalf of the Criminal Lawyers' Association.

The Criminal Lawyers' Association is an association of criminal law professionals. We're here as part of our mandate, which includes running representations on issues relating to criminal and constitutional law and civil liberties more generally.

We want to be up front about the fact that neither Ms. Weinstein nor I am a practitioner in the military justice system. We're not military law experts. Some members of our association do practise in the area; we do not, but we're here on behalf of our association more generally on issues relating to provisions of Bill C-15 in which there are parallels between the civilian criminal justice system and the military justice system. We're offering our insights into the possible charter and civil liberties implications of those particular provisions of the bill.

I'm going to start by offering a few brief comments on a few of the provisions of this legislation that the CLA is supportive of and that in our view are steps that strengthen the procedural fairness of the act and implement charter values within the act. Following that, Ms. Weinstein is going to add some brief comments on one particular area of the legislation where, in our view, the legislation doesn't go far enough. This is essentially the interaction between the summary trial process and the lack of procedural protections that particular process offers, balanced against the consequences that can arise from that process. This effectively can be consequences identical to what you would see in the civilian justice system, in particular the imposition of a criminal record.

I will start briefly with some of the provisions of this legislation that the CLA is very supportive of.

The first are clauses 24 and 62, which are the two clauses particularly dealing with modernizing the sentencing provisions of the act. Certainly we're quite supportive of those, as they add additional procedural protections into the sentencing regime, in particular the introduction of a number of statements of principles of sentencing that are to be followed in the military justice system. This brings it more in line with the principles we have under the Criminal Code for the civilian system, and we'll likely be able to borrow from some of the case law that's developed in common law and civilian justice to help animate those principles as they're introduced within the military justice system.

As well, there is the notion that what we call aggravating facts, which are more serious facts that are particular to a case and can be used against somebody on sentencing, need to proved beyond a reasonable doubt. That requirement is an important procedural safeguard, because obviously the more serious the facts, the more serious the appropriate sentence. We're in favour of that particular introduction into the sentencing regime.

As well there is the introduction of additional sentencing options, including the absolute discharge, which means there won't be a criminal record imposed in some of the offences that are dealt with at the low end of the spectrum. We think that's an important sentencing option so that, as is the case in the civilian system, the punishment can be more precisely tailored to the circumstances of the offence and the realities of the offender.

The introduction of intermittent sentencing as an option is also important. Certainly the unavailability of an intermittent sentence was an issue that had been highlighted by Chief Justice Lamer, particularly with respect to sentencing of those who were in the reserve forces or of civilians under the act when there could be serious concerns that a jail sentence could be imposed. A jail sentence would have to be served consecutively, and it could cause serious prejudice in terms of possible loss of employment for individuals who were being sentenced in that manner.

I note, however, that in what is being proposed there is a limit of 14 days placed on intermittent sentences. Under the Criminal Code in the civilian system, the limit is 90 days; any sentence of 90 days or less is up to the discretion of the judge in the civilian system to impose intermittently. We would certainly encourage a longer period of sentence be eligible for an intermittent sentence.

In particular, under the summary trial regime a sentence of up to 30 days in prison can be imposed, which is supposedly for a less serious matter. It would be beneficial if that sentence was an option for a judge as a sentence to be served intermittently.

Those were the areas I was going to focus on in terms of the areas we support. Certainly there are many others in our brief.

I'll turn it over to Ms. Weinstein to address the particular area of concern.

[Anne London-Weinstein, Lawyer, Criminal Lawyers' Association]

Thank you, committee members, for having us here today. It is my first time appearing here, and it is a distinct pleasure.

I have provided notes as well. Unfortunately they were prepared at the last minute. They will be translated and made available to you at a later time.

My concern this afternoon is ensuring that members of our Canadian Forces, who, it is recognized, make great personal sacrifices on behalf of all Canadians, are not afforded lesser constitutional protections than other Canadian citizens.

It's recognized, of course, that the purpose of military law is to ensure discipline is maintained in order to ensure the defence of our country remains strong. We know from the Somalian report that habits of obedience are critical when soldiers are deployed to areas of the world where law has broken down.

However, as General Westmoreland once said in another context:

A military trial should not have a dual function as an instrument of discipline and as an instrument of justice. It should be an instrument of justice and in fulfilling this function, it will promote discipline.

Former Justice Lamer confirmed for us in his report that while a separate form of justice is necessary in a military context because of its unique purpose in our society, every effort should be made to ensure that constitutional values are protected and members of our Canadian Forces are not deprived of the protection that the rest of us enjoy.

We know, for example, that judicial independence as articulated by paragraph 11(d) of our charter is a constitutional principle that has been upheld by our Supreme Court and that was decided in the case of Regina v. Généreux. It was to this end that Chief Justice Lamer recommended the creation of a permanent military court as a means of reinforcing the ideal of an independent tribunal of military judges, which he said would be consistent with charter values.

It is understood that summary trials are meant to deal with matters that are of the least significance—minor offences and that type of thing—but the primary concern of the Criminal Lawyers' Association in particular is that an individual who is undergoing a summary trial procedure can be subject to the stigma and the long-lasting effect of a criminal record that may follow that individual outside of their life in the service, affecting their mobility, their ability to travel, and their employment, when the procedural safeguards that a person accused in the civil system would normally enjoy are not in place.

Some of those concerns are that a person who is in a summary trial and who could receive a criminal conviction at the end of it does not have the right to counsel; they have an assisting officer, who does not have formal legal training. The trial is presided over by a commanding officer, and the assisting officer is the subordinate of the commanding officer. That, in my respectful submission, could create a possible appearance of the apprehension of potential unfairness towards an accused person in those circumstances.

Despite the need for summary trials as a mode of ensuring discipline, the imposition of a criminal record when the commanding officer acts as the trier of fact—the prosecutor—and has been briefed prior to actually hearing the facts in the trial himself or herself by a sergeant major gives rise to the possibility that the trier may not be perceived as being free of the potential for bias because of the circumstances of his or her position. The commanding officer also has a competing interest in promoting the efficiency of the unit, in addition to making sure the trial is a fair one. In my respectful submission, these are competing ideals that may give rise to the appearance of potential tainting.

While it's perhaps arguable that this practice is saved by section 1 of the charter for offences that do not attract a criminal conviction, it is my respectful submission that where a criminal conviction can flow, this is not constitutionally sustainable.

In just some of the brief research I did prior to attending here today—and as Mr. Granger said, I'm not a military law expert—I did note that in a JAG annual report from 2008 to 2009, there were strong feelings expressed by members of the Canadian Forces in a survey that the outcome of summary trials is predetermined and the chain of command maintains influence over the process.

If that is the case, if that is how Canadian Forces members are feeling, and there is a potential for a criminal conviction and the stigma associated with that at the end of the trial, that is not acceptable constitutionally, in my respectful view.

It is of concern as well that the training course to be a presiding officer at a summary trial is just two days in length. By any measure, this is rudimentary training, but it is of particular concern if that individual can then impose a criminal conviction that may end up being a wrongful conviction in law.

Justice must not only be done, but it also must be seen to be done. It's recognized that the Queen's Regulations and Orders recognize that a summary trial procedure is meant to promote prompt but fair justice in respect of minor service offences.

Our recommendation would be that if these trial procedures are not in place, then criminal convictions should not ensue no stigma should associated with a finding of guilt as long as the normal procedural safeguards are not in place.

In making these comments, I'm echoing the submissions that Justice LeSage made in recommendation 15 of his report.

Subject to any questions you have, those are my submissions. Thank you.

[The Chair, Conservative, James Bezan]

Thank you very much. I appreciate those opening comments.

Mr. Harris, you have the first questions. This round is seven minutes.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

I want to thank you all for coming today. I realize sometimes we have people coming on short notice.

Mr. Tinsley, your opening remarks reminded me of a speech-maker who said, “I have a long speech; I didn't have enough time to write a short one. If I had more time, I would have given a shorter one.”

You did a very good job, I must say, in outlining a strong argument against what you call turning back the clock, based on the submissions we've had from Chief Justice Lamer and Chief Justice Dickson and what was put into an agreement, a practice, that was given high regard by Mr. Justice Lamer when he talked about it.

This has been dismissed as just a policy, but it seems to me to be much stronger than that, particularly since Mr. Justice Lamer said it should be put in legislation.

Can you suggest circumstances under which this should be allowed to be interfered with? It's not as if this couldn't happen. When I was in Afghanistan a couple of years ago, while our defence committee was actually there, the commanding officer of all of our forces in Afghanistan was actually removed, sent home, and charged for conduct prejudicial to good order and discipline. Presumably that involved the military police and an investigation, which in theory under this legislation could have been halted, or stopped, or directed some other way. Do you find that possibility disturbing?

[Peter Tinsley]

Mr. Harris, I hope my comments make it clear that I find it not only disturbing but somewhat frightening that we would take that step back. The independence of the police, to me, is the same in the civilian context, where the Supreme Court, in the Campbell decision, found it was an underpinning of the rule of law.

We've come a long way in the military police context. At one point the function of the police in the military context was often largely a matter of force of personality.

I'm going to share with you one anecdote. When, as a lieutenant, I was first made the officer in charge of the military police unit at CFB Kingston, within my first couple of days I was taken aside by a senior officer in the administration and informed that the local base custom was that if an officer was stopped, having been drinking and driving, he was to be driven home. He was not to be run for impaired driving. That was for officers, not non-commissioned officers.

I couldn't live with that. Thankfully, I had a base commander who was brand new to this base, and when I went to see him in what could have been a career-stopping move, I asked whether this was his custom. I said it wasn't mine and I couldn't work with it. It was not career-stopping, because he agreed with me.

On the Somalia cases themselves, when the death of a 16-year-old boy occurred in Somalia, there were only two military policemen in that Canadian Forces contingent, the sergeant and a very young corporal. The sergeant was out on R and R. The corporal didn't know what to do. The commanding officer started a summary investigation of a death by torture. The sergeant came back. He was older and more experienced and had a very forceful personality. He put his hand up and said, “Something's wrong here. This is a criminal offence. This is a police matter.” He had what's referred to often in the military as “the brass” to communicate directly back to NDHQ, to military police headquarters. Then what sealed the deal was that when one of the perpetrators attempted suicide the following day, there was a kerfuffle in terms of administering medical aid, and there just happened to be a contingent of visiting press on scene. The cat was out of the bag.

[Jack Harris, NDP, St. John's East, NL]

In fact, then, both of these instances that we're talking about—the one in Afghanistan and the one in Somalia—were combat circumstances, yet the importance of the independence of the police was still relevant despite the fact that we were in combat, in the field, etc.

[Peter Tinsley]

Yes. As I said, I don't see a distinction. If there isn't that independence, there is a risk that the police are going to be used for improper purposes.

We can look at Canadian examples, such as the public's criticism of the Ontario government's actions in directing the Ontario Provincial Police in 1995 in dealing with the Ipperwash situation. There were improper purposes and some attributed political motives, etc. Unless there is an insulation of the police to ensure that they are working independently, there is a very real risk that sort of thing will occur.

I'm currently working in countries in transition, as you'll see from my resume—in Brazil, in Uganda, and, I might mention, in the former Yugoslavia. In the war crimes cases that I prosecuted, a surprising number of them involved military police units because, with a misguided logic, the military police units of the Serbian army were often used to run the camps. They were, in fact, concentration camps. It was done, as I say, in a perverted view that this was law enforcement, so we used the police, and the police were directed to do it.

I did see in one of the hearing transcripts a suggestion that the VCDS might need this power in order to stop military policemen, as I understood it, from killing themselves by going to crime scenes to investigate in operational circumstances that did not permit that kind of investigation. Through the years, I've noticed that there are some common personality traits among police officers and military police personnel, but believe me, suicide has never been one of them.

[Jack Harris, NDP, St. John's East, NL]

Thank you, sir.

I have 30 seconds left.

Mr. Granger and Ms. Weinstein, thank you for your presentation. Have you read the transcript of Monday, or did you hear Mr. Ruby testify to a similar effect on Monday regarding the constitutionality of the summary trials?

I take it from what you said that you agree with his position, which fairly strongly stated, that these are unconstitutional and ought not to attract a criminal sentence. Mr. Justice LeSage said that there should only be criminal records in exceptional circumstances.

Do you agree with those statements?

[Anne London-Weinstein]

I did not hear Mr. Ruby's testimony, but I do agree that a criminal conviction that flows in the absence of constitutional protection and procedures is something that should be avoided.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Alexander, you have the floor.

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

Thank you.

Mr. Tinsley, you mentioned that Canadians are entitled to have a military police system that enforces Canadian law. Do our military police by and large enforce Canadian law?

[Peter Tinsley]

If they don't, Mr. Alexander, they're not doing their job.

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

But in your experience, have they had success in enforcing Canadian law?

[Peter Tinsley]

Yes. I believe by and large they have. There are certainly some exceptions, but yes.

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

Thank you.

If, on an operation in Bosnia, Afghanistan, or some other country involved in combat, our military police were undertaking an investigation in an area that operational commanders knew to suddenly be under threat by suicide bombers or roadside bombs, would the operational commander not have the duty to inform the military police of that fact?

[Peter Tinsley]

I think he would have a duty.

Let's look at it at a practical level. In an operational circumstance like this, the military police would not have the capacity to move out unaided by operational troops. If the operational commander says it's too dangerous and they're not providing support, at that point, under the current legislation, the military police members involved could perhaps raise an accusation or an allegation of interference, but presumably not. As I said, and I didn't mean it to be trite or tongue-in-cheek, I have never known military police or a police officer generally to be suicidal.

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

But they might very well not have knowledge of an operational circumstance that operational commanders did know about.

[Peter Tinsley]

Realistically and in a practical sense, in an operational formation like that, there would be a sharing of information.

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

Might the sharing of information, though, without the legal warrant provided for in 18.5(3), possibly be construed as interference in a police investigation?

[Peter Tinsley]

As I said, it could, but it would be resolved then by an independent investigation.

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

How would it be resolved without legal grounds?

[Peter Tinsley]

Was the operational commander in fact accurate in the information, or did he have some improper motive? That's what the present accountability framework is intended to—