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.