Evidence of meeting #66 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was record.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Peter Tinsley  Former Chair, Military Police Complaints Commission, As an Individual
Eric Granger  Lawyer, Criminal Lawyers' Association
Anne London-Weinstein  Lawyer, Criminal Lawyers' Association
Michael R. Gibson  Deputy Judge Advocate General of Military Justice, Office of the Judge Advocate General, Department of National Defence

4:20 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

They deserve no less.

4:20 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Thank you.

4:20 p.m.

Conservative

The Chair Conservative James Bezan

Mr. Opitz, you have the floor for five minutes.

4:20 p.m.

Conservative

Ted Opitz Conservative Etobicoke Centre, ON

Thank you, Mr. Chair.

First of all, I just want to address something: nobody is frogmarched. The characterization is insulting to soldiers and also to those who preside at summary trials and courts martial. Troops are not humiliated. If they're charged for an offence, they're charged for an offence. Nobody's humiliated by going to court, depending on what they've done, and nobody is certainly made to be humiliated at a summary trial. That's a false characterization and one that, on behalf of soldiers, I'm offended by.

I'll address Mr. Granger and Ms. Weinstein. In the summary trial itself, an accused, by the way, does have an option to hire a civilian lawyer. That can be allowed as a possibility in a summary trial. As an assisting officer—and I've been an assisting officer—you familiarize yourself with the charges and all the relevant sections in the QR and Os, and you advise the accused of what his or her options and rights are.

As an assisting officer, if you do find there's some sort of conflict over those presiding, then the fellow presiding—the delegated officer or the CO—could recuse himself in favour of somebody more impartial. There is a lot of common sense built into that system. I just wanted to put that on the record.

We have learned that, of course, as we're talking about summary trials, which are the most commonly used form of service tribunal, that they are a very prompt way of dealing with those minor offences to instill discipline, because it is a society within a military. Conduct that prejudices good order and discipline is something that is foremost in their minds. Because of what soldiers do and are asked to do sometimes, in the most extreme cases, it's required.

Could you please comment on the assessment made by Chief Justice Dickson, and seconded by Chief Justice LeSage, that the summary trial process is likely to survive a court challenge as to its constitutional validity? If you disagree with that, can you specify what particular element of the charter analysis you disagree with?

4:20 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

Thank you for not asking me whether I thought my legal knowledge exceeded those two gentlemen's, because I would say that no, it definitely does not. I know that was a question in a prior hearing within this forum that I was dreading.

I can say that the problem with the summary trials, from my perspective, is the possibility of a criminal conviction and the stigma that is associated with that. I think that when Justice Lamer was directing his comments, and I know that when Justice LeSage was directing his comments, they did indicate that the provision of summary trials would be saved by section 1 as being a necessary part of military life.

The problem occurs when you're faced with the stigmatization of a criminal record and detention, even though it is military detention and we recognize that the purpose of military detention is to promote discipline and is more geared towards rehabilitation than jail is in the civilian context.

The problem would be a section 7 problem, I would say, in that you have the ability to be convicted on a criminal level and face that stigma without having the full procedural protections that would be afforded an accused person at a trial in a civilian context. That is the issue.

4:25 p.m.

Conservative

Ted Opitz Conservative Etobicoke Centre, ON

Okay.

You're familiar with the Queen's Regulations and Orders.

4:25 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

I would not say that. I know what they are, but I would not in any way say I'm familiar with them, no.

4:25 p.m.

Conservative

Ted Opitz Conservative Etobicoke Centre, ON

Yes, but you have an understanding of what they are.

I'll quote from section 108.20 of the Queen's Regulations and Orders.

Subsection 108.20(1) says:(1) At the commencement of a summary trial, the accused, accompanied by the assisting officer, shall be brought before the officer presiding at the trial.

In subsection 108.20(3) it says: (3) Prior to receiving any evidence, the presiding officer shall

a. confirm with the assisting officer that he or she has ensured that the accused was made aware of the matters contained in paragraph 108.14(5) (Assistance to the Accused) prior to making an election under article 108.17 (Election to be Tried by Court Martial);

b. ask whether the accused requires more time to prepare the accused's case and grant any reasonable adjournment requested for that purpose; and

c. ask whether the accused wishes to admit any of the particulars of any charge.

As well, at the end of the summary trial, the presiding officer must inform the offender of his or her right to request a review authority to, and I quote:a. set aside a finding of guilty on the grounds that it is unjust; andb. alter the sentence on the ground that it is unjust or too severe.

Especially if it's detention, it has to be reviewed by the superior officer. That's immediately set aside and detention is reviewed, but the accused can then ask for a review of that sentence that is set aside, and then it is reviewed by the next superior officer. If it's a delegated officer and it's a major, it will go to the CO. If it's a CO hearing, it will go up to the brigade commander.

These would appear to be fairly good provisions for a person undergoing a summary trial. Could you please identify any specific issues you have in relation to these articles I just described?

4:25 p.m.

Conservative

The Chair Conservative James Bezan

Mr. Opitz, your time has expired.

Ms. Weinstein, if you could be very brief, I'd appreciate it.

4:25 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

You're asking a lawyer to be concise. I'll do my best.

4:25 p.m.

Conservative

The Chair Conservative James Bezan

Brevity is key.

4:25 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

I would say that the problem is, yes, there is a right of review by a superior officer. The same problems with perception of fairness would exist, given the chain of command. None of the individuals reviewing what might potentially be a wrongful conviction—and it's a criminal conviction that I'm talking about—have formal legal training. That would be my objection.

4:25 p.m.

Conservative

The Chair Conservative James Bezan

Thank you.

Madame Moore, you have the floor.

4:25 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Thank you, Mr. Chair.

The biggest challenge when it comes to drafting a bill is articulating its intent in a legal text using legal jargon. Since we began studying this bill, I believe a consensus has emerged among the Conservatives, the Liberals and the NDP on the principle that an individual should not have a criminal record if the same offence would not have resulted in a criminal record in civilian court. That principle makes sense. I don't think I'm mistaken in saying that everyone is in agreement on that.

We don't agree, however, on other aspects. Let's discuss clause 75. I do realize that the proposed amendment—I am referring to what was set out in the previous legislation, Bill C-41—would mean that, in most cases, the offender would not acquire a criminal record. But the fact remains that some people could, even in cases where that would not have happened in the civilian system. So there are still a few holes.

How do you think Bill C-15 could be fixed to plug those holes and ensure that no member of the military winds up with a criminal record for an offence that would not have resulted in the same in civilian court? What can we do to rectify that?

4:30 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

I would endorse the recommendations Justice LeSage made in his report.

The complication is not just a criminal record but, as I understand it, the information that is put on CPIC, which can be prejudicial to an individual. I would endorse the recommendations that he made at the time that a person in the Canadian Forces not be subject to a criminal record in instances where they would not be in civilian life, and further, that if a person is going to be subject to the stigma of a criminal record, that they be afforded the full procedural fair trial rights as guaranteed by our charter as would be the case if they were in civilian life, so that they not be placed in a position of inequality and would not be prejudiced by their service to our country.

4:30 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

The majority of people choose summary trials, and I have a question about reservists. A reservist has another job. If a reservist chooses to go the court martial route because they feel it is more suited to their case, they may have to take time off from their civilian job and tell their boss that have to miss work to attend a court martial.

Will reservists suffer any hardship? Is there a way to fix that problem? Reservists may opt for a summary trial, not because it's the best option but because it will mean fewer problems for them in the civilian world.

4:30 p.m.

Lawyer, Criminal Lawyers' Association

Anne London-Weinstein

Yes. As I said, I'm not an expert in this area, but based on the reading that I did prior to my attendance here, my understanding is that the court martial provides many more procedural protections in terms of the rights of the accused; however, an individual is deployed in order to attend a court martial, and it does result in economic hardship.

4:30 p.m.

Conservative

The Chair Conservative James Bezan

You have one minute left.

4:30 p.m.

NDP

Christine Moore NDP Abitibi—Témiscamingue, QC

Thank you.

I may be wrong, so perhaps we could check, but I was under the impression that there was some financial compensation provided to make up for the drawbacks of having to attend a court martial. But a person may be somewhat embarrassed to have to tell their civilian employer that they have to miss work to attend a court martial. That person might choose a summary trial to avoid having to speak to their employer and to opt for a quicker process.

Would you say reservists suffer hardship? Is there a way to rectify that?

4:30 p.m.

Lawyer, Criminal Lawyers' Association

Eric Granger

On that particular issue, sure, there's a short-term prejudice that could arise in terms of issues with employment by going through the court martial process. If I were to look at it from the perspective of a criminal lawyer, if somebody were coming into my office saying, “What should I do here? Which process should I elect?”, I would say that in the short term, in terms of the court martial process, you're going to have potential prejudice in terms of having to take time off work that maybe you will or won't be able to get adequately compensated for.

However, I would certainly be urging a client to take more of a long-term view of the situation, in that a criminal record at the end of the process is a much greater consequence than the potential short-term gains you get by going through a process that may not prejudice you with your employer.

I would say if you can take the short-term pain of employment-related issues, then you want to put yourself in a situation where you have the most procedural protections available to you in terms of being able to avoid that criminal record at the end of the day, because it's really going to have implications in all aspects of your life. Whether it's potentially travel, losing employment and then needing to get another job, potential employment opportunities down the road, or getting involved in a regulated profession such as law, there's simply no end of possible implications that can arise from a criminal record or from information being entered on the CPIC system as a result of involvement in the criminal justice system.

Certainly I would be urging that if you can absorb whatever short-term prejudice there may be in putting yourself through a system like the court martial system, essentially the ends justify the means.

4:35 p.m.

Conservative

The Chair Conservative James Bezan

Thank you.

Time has expired for this segment of our meeting.

4:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

I have a point of order, Mr. Chairman.

Before our witnesses are excused, I would like to put on the record that I've never seen a person with a 28-year career in the Canadian armed forces treated like Mr. Tinsley was treated today by members. Mr. Alexander—

4:35 p.m.

Conservative

The Chair Conservative James Bezan

That's not a point of order, Mr. Harris.

4:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

Normally people are commended and thanked for their service to the country; instead we have him being treated as if it was a bribe.

4:35 p.m.

Conservative

The Chair Conservative James Bezan

That's not a point of order. I'm going to close off debate on that.

We do ask that when members are questioning witnesses, they do so with respect, but it is their time to ask questions, and witnesses are expected to answer all questions put to them.

I want to thank Mr. Tinsley for your service and for being here today, and for your service also on the Military Police Complaints Commission as well, and for the work that you've done over the many years in writing your reports.

I also thank the representatives from the Criminal Lawyers' Association for joining us and helping us with our study today on Bill C-15.

I'm going to ask our witnesses—they are excused—to leave the table in a timely manner so our next witnesses can come forward from JAG.

With that, we're suspended.