National Defence Committee on Feb. 13th, 2013

[The Chair, Conservative, James Bezan]

Order. I think that is debate.

I'll leave it up to you, Mr. Tinsley, how you wish to answer that question put by Mr. Alexander.

[Peter Tinsley]

I'm not sure it was a serious question on his part, but I'll try and treat it as a serious question.

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

Mr. Chair, I have a point of order.

It was a serious question. The lives of 62 Canadians is a serious matter.

[The Chair, Conservative, James Bezan]

Mr. Tinsley, if you could respond....

[Peter Tinsley]

I think Mr. Alexander is talking about apples and oranges.

The fact is that very publicly an allegation was raised that involved a number of military personnel, including several military police personnel, about the mistreatment of those prisoners. As I said several times during my role as the MPCC chair, that placed a dark cloud over members of the Canadian Forces. My function was to investigate and objectively determine whether there was fault or whether that dark cloud should be totally removed, and in the Attaran complaint, that's what we've done.

[The Chair, Conservative, James Bezan]

Mr. McKay, you have the last of the seven minutes.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Chair, and thank you to all of you. I'll try to refrain from playing junior lawyer here.

Mr. Tinsley, I actually thought your testimony was quite clear. Essentially there was an MOU in March of 1998 which, to bring it right down to the guts of it, prohibited the VCDS or anybody else interfering in a police investigation. That was the understanding in 1998 right until now. Is that correct?

[Peter Tinsley]

That's my understanding. It was an initiative from within the CF, having understood the comments, the advice, and the guidance provided by both the Somalia commission and Justice—

[John McKay, Liberal, Scarborough—Guildwood, ON]

So we kind of learned. We learned that the chain of command shouldn't be interfering in a police investigation. Had we done absolutely nothing, if proposed subsection 18.5(3) didn't exist, we wouldn't be having a conversation. That memorandum of understanding would still exist, and we wouldn't have any statutory reference to interference by the chain of command. Am I correct on that?

[Peter Tinsley]

Yes. I think we can probably lay some blame at Justice Lamer's feet. He made a recommendation—I believe it was number 56—

[John McKay, Liberal, Scarborough—Guildwood, ON]

To be put in statute—

[Peter Tinsley]

In the code, in statute—

[John McKay, Liberal, Scarborough—Guildwood, ON]

But the government didn't get it. They said they'd put it in statute, but then they put the wrong thing in statute.

[Peter Tinsley]

I think it's somewhat short-sighted to read the recommendation and take it literally without reading the preceding paragraphs that justify it.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Exactly.

The government lays great store in the idea that they're combat situations and the MPs can't go out and do a proper investigation and therefore we need this ability, but just reading the section, I see there's no reference to a combat situation or anything close to it. It could be happening in Trenton, for goodness' sake.

[Peter Tinsley]

I agree. It's part of my point. It's totally unlimited, and even when you transport it into the combat context, as I said to you, I don't think it's necessary. Police officers are not fools, whether it's combat circumstances or it's a situation in Canada where there's a burned-up body in building that's been demolished by fire. I think that in most cases, the police will wait until the fire marshal says it's safe to go into that building.

[John McKay, Liberal, Scarborough—Guildwood, ON]

That's a good point.

May I turn to Mr. Granger and Ms. Weinstein on this concern about summary trials?

You make very valid points and you reinforce previous witnesses who have been supremely articulate on this point.

Certainly I did not understand. I've never actually participated in or observed a military summary trial. From what I understand, the conviction rate is about 98%. They certainly put the “summary” in summary trial. It appears that this whole thing is set up so that you're guilty until proven innocent. You are literally, if not frogmarched, then double-marched into a situation facing either service offences or possibly also criminal offences such as, say, possession of marijuana, for which you could actually get a Criminal Code conviction.

It strikes me as fundamentally unfair to not have access to counsel, to not have any appeal ability, to in effect be humiliated in front of your peers, to have your commanding officer there, to have the prosecutor be both the trier of fact and the prosecutor, and to have virtually no access to pardon procedures and no ability to appeal.

Does this whole process strike you as fundamentally unfair?

[Anne London-Weinstein]

There are aspects of the procedure that respect the charter in that the presumption of innocence does prevail until the evidence dispels the presumption of innocence beyond a reasonable doubt. That is the criminal law standard.

The problem, particularly for us, is that the process itself deprives a person of the right to counsel when there is a possibility of a criminal conviction, which can follow a person beyond their career in the military into their regular life afterwards, and we don't want to punish people for being part of the military. We don't want to afford them less constitutional protection than John Smith who lives in Kanata would have under the circumstances.

[John McKay, Liberal, Scarborough—Guildwood, ON]

If you joined the military, you shouldn't have to give up your rights as a Canadian citizen.

[Anne London-Weinstein]

No, but we recognize that it has to be a flexible approach, because military justice is different from civilian justice.

[John McKay, Liberal, Scarborough—Guildwood, ON]

There's no hiving off military offences from criminal ones.

[Anne London-Weinstein]

There should not be.

It should also be noted that in a trial, an accused person has to stand throughout with their assisting officer, and they're not even able to take notes. There's no record of this proceeding, so if a review is requested by a supervising officer, there is no record of what actually transpired. In terms of constitutional principles, having an inadequate record when there's a possibility of a criminal conviction is problematic.

[John McKay, Liberal, Scarborough—Guildwood, ON]

We were given this book by Justice Létourneau on Monday.

He says in it that:

Although there is no empirical research to substantiate it, it is not unreasonable to think, on the one hand, that it is easier to obtain a unanimous verdict from only five, as opposed to twelve, people and, on the other hand, that such unanimity ought to be more readily achievable from five people trained in the same mindset and having the same institutional baggage than from twelve people.... In addition, there is the institutional pressure at work, as well as that exerted by the chain of command....

Both of you operate across the street, I assume. If you walked into a situation such as that in your court, would you think that justice was going to be done?

[Anne London-Weinstein]

Justice must not only be done, it must appear to be done, and in order to have procedural fairness, you must have an impartial tribunal that also appears impartial, particularly to an accused person.

[John McKay, Liberal, Scarborough—Guildwood, ON]

It strikes me that our men and women in uniform should expect no less. They should not receive treatment in a criminal justice situation that is inferior to treatment anyone at this table would receive.