National Defence Committee on Nov. 20th, 2018

[Col Stephen Strickey]

Because the system is envisioned to be non-criminal and non-penal, there would be no—

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

It is penal when you have restriction to barracks. It is penal when you reduce pay. It is penal when you reduce rank.

[Col Stephen Strickey]

In terms of the minor punishments that were put forward by some of my legal colleagues in a previous meeting, confinement to barracks is not set out in Bill C-77. Any minor punishments will be set forth in regulation.

In terms of the current sanctions put forth in Bill C-77, again, those are taken into account...of a non-penal, non-criminal system. That's what is envisioned in the bill.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

As you know, we've had a lot of suggestions, amendments and recommendations. I haven't counted them up from the Quebec bar association, there were so many of them. There were 15 from former justice Jean-Guy Perron.

Has there been an opportunity for the JAG to take a look at this and those particular recommendations? Do you see anything of value in having another set of eyes look at the bill with suggestions on how we move forward?

[Col Stephen Strickey]

Thank you, sir, for that question.

As I alluded to earlier, we have recently received the versions of both the Barreau du Québec and the submissions by retired Lieutenant-Colonel Perron. As always, we welcome any suggestions to make the military justice system better and we are looking at those.

Could I return just for a moment to answer one of your previous questions on sanctions. I apologize; I was fiddling through my binder. The proposed section 162.7 of the bill calls for the following sanctions, as you may be aware, sir, the highest of which is reduction in rank, then severe reprimand, reprimand, deprivation of pay up to 18 days, and minor sanctions.

The issue of confinement to barracks that was talked about before this committee would indeed be a minor sanction, as it is now in the current National Defence Act, the current Queen's Regulations and Orders. But, I would state that minor sanctions, whatever they may be, will be put forth in regulations, so the confinement to barracks as an issue is not here.

I just wanted to clarify that for the committee.

[The Chair, Liberal, Stephen Fuhr]

That's it. We're at five minutes.

Next is MP Gerretsen.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Thank you.

Retired Lieutenant-Colonel Perron's name came up. When he was here, he mentioned that if minor sanctions be identical or quite similar to minor punishments that exist today, then some of the punishments that can be assigned include punishments of confinement to barracks and extra drill work, which would raise concerns. He further mentioned that commanding officers can confine a person to barracks for up to 21 days.

I wanted to hear from you, being the department experts on this. What are the limits on what can be imposed as punishment under minor sanctions in Bill C-77?

[Col Stephen Strickey]

Thank you for that question.

I have not personally reviewed retired Lieutenant-Colonel Perron's submission yet. That being said, the minor sanctions will be promulgated in the QRs and Os, so clearly, when we work on that, my legal experts from the office of the judge advocate general—the judge advocate general's legal experts—we will look at all of those issues in terms of what is the proper scope vis-à-vis minor sanctions taking into account the system.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

What are the limits on them of what can be imposed?

[Col Stephen Strickey]

I think when we speak of limits, then we're suggesting legal limits and when we're suggesting legal limits, I can't really say with any clarity—and I apologize for that—from a legal perspective what the bright line is vis-à-vis charter or non-charter and things like that.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Do you see the opportunity for criticism in not being able to identify what those lines are? If the lines are drawn early, it's easier to be able to identify exactly what a threshold is and what isn't. Do you not see the benefit to establishing that?

[Col Stephen Strickey]

I clearly see that, sir, and thank you for the question.

I think it would just be improper at this stage, before this committee, to delineate what Steve Strickey thinks is a proper line or not. What I can say as the deputy judge advocate general for military justice is that should this bill be given royal assent, there will be much work done by—

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

—to establish that line.

[Col Stephen Strickey]

Absolutely, sir.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Okay. That's what I was getting at.

Will minor sanctions be identical or similar to minor punishments?

[Col Stephen Strickey]

Thank you, sir. That's a great question.

As set out in your clause-by-clause analysis, under 162.7, the minor punishments, and if you forgive me for just citing this line, minor sanctions would be expected to resemble the minor punishments found in article 104.13 of the QRs and Os and may include confinement to barracks, extra work and drill, stoppage of leave and/or caution.

Just to clarify, based on our discussion, sir, clearly work has to be done on an entire host of QRs and Os that are linked to this bill, and should this bill be given royal assent, then clearly, my division will be given the order from the judge advocate general to develop the regulations in conjunction with the Department of Justice.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

I have one final question. This has come up in a number of different discussions today, so it might be redundant. I'll ask it as pointedly as I wanted to.

Will there be any mechanisms to oversee fairness and proportionality in terms of the punishments?

[Col Stephen Strickey]

Thank you for that question.

There is a review mechanism for the summary hearing system. In this current summary trial system, there are two mechanisms for review under 108.45 and 116.02 of the QRs and Os. I'm going by memory.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

You're a great table of contents, too. You're rhyming these off so well.

[Col Stephen Strickey]

The review will be largely similar to what we have in the current system. I cited those two reviews before. The QRs and Os 108.45 review is an offender—if I can use that word non-legally—initiating a review. The 116.02 review is a CO-initiated review. Those two reviews could certainly be part of that process in regulation.

Just to clarify, the final answer is that it will be set out in regulation. I'll just go back to what I stated before.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

The issue of the fairness and proportionality will be set out there?

[Col Stephen Strickey]

That's correct, sir.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

I just want to take the opportunity to thank you. I've been following this as it has made its way through the House and now to committee and I'm very much looking forward to where it goes from here. I think that the work that you contributed to this point is very good and to be commended.

[Col Stephen Strickey]

Thank you, sir.

[The Chair, Liberal, Stephen Fuhr]

We're going to have time for one more question. I've talked to Mr. Gerretsen and he's going to give that time to Mr. Spengemann.

You have three minutes, Sven.