That's an excellent question, Ms. Gallant. Thank you.
First of all, generally speaking, we do consider that it is fair, or we wouldn't endorse it. We're not in the business of running an unconstitutional justice system. It's not why we're here. We're lawyers for members of the Canadian Forces, and we have placed great weight in the independent assessment of the three very august external reviewers who have looked at the system and concluded that on balance, it is fair and constitutional.
How did they come to that conclusion? That's the part, having listened very carefully to what's going on before the committee, that has been largely absent. Of course they engaged in a section 1 charter analysis. I have to say that, unfortunately, if one is going to conduct a measured, balanced, and sophisticated assessment of this issue, you have to engage in a section 1 analysis. Having done that, they concluded that although there were certainly concerns about limitations on some charter rights, that on balance those limitations are justified by section 1, having regard to the pressing and substantial nature of the concerns that then animate the system.
There are a couple of really important things to note. Nobody is subject to what's called a true penal consequence, following the definition given by the Supreme Court of Canada in the Wigglesworth case of 1988. Nobody's subject to a true penal consequence, detention, reduction of rank, or significant fine unless they have first been offered the election between the summary trial and court martial and they've elected to be tried by summary trial.
The effect of that election is a waiver of certain constitutional rights. The Supreme Court of Canada has said that one can waive constitutional rights, in the Korponay case of 1982. Chief Justice LeSage in his review specifically alluded to that. To be effective, that waiver has to be fully informed and has to have the benefit of advice. In fact, there is a right under the QR and O article 108.18, and also a duty on the director of defence counsel services under article 101.20 to provide legal advice to the accused and his or her assisting officer in respect of that election.
One of the really key elements in ensuring that the election is properly informed is to have a competent and active assisting officer. This was one of the recommendations in the LeSage review for which we were particularly grateful: that he recognized and recommended that we have to up our game in terms of the quality and performance of assisting officers to perform that vital function.
To answer the question about what improvements are contemplated in response to the LeSage recommendation, which in fact we recommended to him, there has to be an improvement in training for assisting officers in order to ensure that they perform that very essential part of their function—that is, ensuring that the rights of the accused are protected before summary trial.
There is much more I could say, but the bottom line is that yes, we do assess that the summary trial system is currently constitutional, but of course we're continuing to look at that. We're grateful to receive recommendations, and there are things that can be done.