Good afternoon. My name is Jean-Guy Perron, and I am a retired lieutenant-colonel.
I enlisted in 1978 and graduated from the Collège militaire royal de Saint-Jean. From 1983 to 1990, at the start of my career, I was an infantry officer with the Royal 22nd Regiment and the 1st Battalion of the Canadian Airborne Regiment.
I studied law at the University of Ottawa. From 1995 to 2006, I was a military lawyer with the Office of the Judge Advocate General. I commanded the Canadian Forces National Counter-Intelligence Unit from 2004 to 2006, I was appointed as a military judge by the Governor in Council in 2006, and I was released from the Canadian Forces in 2014.
I was deployed to Bosnia, Rwanda and Uganda and travelled to Afghanistan on several occasions, in particular, to preside at the court martial of Captain Semrau.
I wish to focus my comments on summary hearings and the related provisions of Bill C-77. I will start with a comparison of Bill C-71 with Bill C-77.
Bill C-71 uses the term ”disciplinary infraction” instead of “service infraction”. Both are created by regulations and are not an offence under the NDA or the Criminal Records Act. Under Bill C-71, a disciplinary infraction can only be tried by a summary trial. Under Bill C-77, a service infraction may only be dealt with by a summary hearing. The sanctions found in Bill C-71 are identical to those found in Bill C-77.
As for the principles and objectives of sentencing found in Bill C-71, they too are practically identical to those in Bill C-77. A summary trial under Bill C-71 is a service tribunal that deals with disciplinary infractions and not service offences. It offers the accused practically all of the protections of criminal law. A summary hearing under Bill C-77 is, in effect, identical to the summary trial in Bill C-71, except for one critical element. Everything will be defined in regulations. A hearing under Bill C-77 is not described. If one follows what we now have in chapter 108 of the QR and O, which describes the procedure for a summary trial, one should expect that the future chapter 108 of the QR and O would be quite similar for a summary hearing. If that is the case, a finding in a summary hearing is made on a balance of probabilities, instead of beyond a reasonable doubt, as what is in Bill C-71 and presently for a summary trial.
The objectives and principles of sentencing in Bill C-77 are practically identical to the purposes and principles of sentencing presently used by service tribunals and the purposes and principles of sentencing found in the Criminal Code. However, Bill C-77 mentions minor sanctions that may be imposed at summary hearings but does not define them. Would minor sanctions be identical or quite similar to the minor punishments that exist today? It would be most probably so.
The punishments of confinement to barracks and extra work in drill would raise concerns. Commanding officers can confine a person to barracks for up to 21 days. The rules relating to confinement to barracks could constrain the liberty of movement and action of a defaulter. A defaulter cannot go beyond the geographic limits prescribed by the commanding officer in standing orders. This deprivation of liberty can be very strict and would be similar to a conditional sentence of imprisonment: house arrest.
A person subject to confinement to barracks could be ordered to stay within unit lines during the complete period of the punishment. This means a person with a spouse or a family could be forced to live apart from them for the punishment period. A person undergoing a sentence of house arrest still lives with his or her spouse and family. This is a significant difference. Strict confinement to ship or barracks conditions could be very restrictive on the person's liberty and could equate to detention.
Under Bill C-77, the accused is liable to be sentenced to have more severe punishment based on a lower threshold of conviction. A summary hearing under Bill C-77 offers less protections to the accused than what was present in Bill C-71 and what is actually present in the summary trial process.
I'll now turn to the role of the commanding officer. “The commanding officer is at the heart of the entire system of discipline”, so stated Justice Dickson in his 1997 report. Currently, the National Defence Act and the QR and O reflect this key role. A review of the JAG annual reports from fiscal years 2008-09 to 2017-18, 10 years, provides very useful information to help one understand the current military justice system. Data indicates that COs presided over 16% of summary trials, delegated officers over 80% and superior commanders over 4%. This distribution is probably similar today, but the JAG ceased providing these statistics after 2010. This is unfortunate, because it does offer a clear picture of how discipline is enforced within units. It does appear that the great majority of summary trials are presided over by the officer closest to the accused and who possesses the least severe powers of punishment.
Bill C-77, just as Bill C-71 did, radically transforms this concept. Bill C-77 gives more powers of punishment to the superior commander than it does to the CO. This brings into question whether the CO is still the most important actor in disciplinary matters within his or her unit.
Next, on the need to change the military justice system, why does the chain of command need new service infractions and a new disciplinary system to ensure the proper administration of discipline within a unit? Over the 10-year period, approximately 70% of the summary trials occurred without the accused being offered the election of a court martial. Over that same 10-year period, the five minor offences and disobedience of a lawful command represented 94% of the charges tried by summary trial.
The punishments, in order of those awarded the most often, are a fine, 59%; confinement to barracks, 24%; extra work and drills, 6%; a reprimand, 4%; and detention, approximately 2%. Based on these statistics, why is there a need to create new disciplinary infractions and a new disciplinary process to assist the CO in enforcing discipline within his or her unit?
With regard to decriminalizing disciplinary infractions, a person found guilty of any of the service offences listed at section 249.27 of the National Defence Act and sentenced to a punishment of imprisonment, dismissal from Her Majesty's service, detention, reduction in rank, forfeiture of seniority, or a fine exceeding one month of basic pay will have a criminal record. The service offences found at section 249.27 include the five minor offences—insubordinate behaviour, quarrels and disturbances, absence without leave, drunkenness, and conduct prejudicial to good order and discipline.
Section 83 of the National Defence Act, disobedience of a lawful command, is not included in section 249.27. A person found guilty of a purely military offence—for example, disobedience of a lawful command, insubordinate behaviour, absence without leave, drunkenness, or conduct prejudicial to good order and discipline—may have a criminal record.
The consequences of having a criminal record are significant. Applying for employment or attempting to cross the Canadian border are but two of the everyday consequences that can have an important impact on a veteran's life. Do we truly wish to burden a veteran with a criminal record, when he or she has committed a service offence, which may have no equivalent in our criminal justice system or in Canadian society? The answer to this question is not found in section 249.27 or the creation of service infractions.
One should examine the nature of the service offence to determine whether the offender should suffer the consequences of a criminal record. One should examine not only the punishment or the service tribunal that tried the offence.
A thorough and comprehensive review of the Canadian military justice system is definitely required. Any discussion on the subject of discipline and military justice must start with a basic understanding of the uniqueness of the Canadian Armed Forces and its specific role in Canadian society. Canada maintains a military force whose primary purpose is to ultimately use deadly force to execute the government's directives.
This armed force must be well led, well trained and disciplined. Military justice is but one facet of discipline. It is actually the means of last resort, when all other aspects of discipline have failed. The military justice system is not synonymous with military discipline.
Any major reform to the military justice system must be discussed in a public forum. A parliamentary committee could listen to Canadians, academics, lawyers and members of the Canadian Armed Forces. It would have the independence and necessary resources for the thorough review and creation of a modern system of military justice that will effectively balance the needs of discipline with the rights protected by the Canadian Charter of Rights and Freedoms.
Thank you.