Evidence of meeting #119 for National Defence in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Liberal
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thanks very much, Mr. Chair.
I'll be supporting Mr. Bezan's amendment. While I understand the purpose of the bill is to expedite things, when you expedite things to the point that you take away the rights of those serving in the military, I think you've expedited a bit too far.
Mr. Bezan's amendment says that those who feel that they are sufficiently at risk because of a more expedited procedure should have the opportunity to request using the court martial procedure. This is not saying that every case will go through that more complex and lengthy procedure. It's saying that those who legitimately feel their rights are at risk, the punishment is too severe, or the consequences will be too severe can request to have theirs handled through the court martial system.
I believe it defends the fundamental rights of those who are serving within the military. It will not provide any kind of large-scale, administrative or other costs to the military to allow people to have that choice to defend their rights through court martial rather than a summary conviction.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
I'll just add to that, Mr. Chair.
We already have a system in place that respects the rights of the member of the armed forces, while balancing off that we need to maintain good order, discipline and morale within the forces.
I fear that by going too far overboard on some of these summary hearings, which could potentially be penal in nature.... It's one thing to try someone through summary hearing because they didn't polish their boots, or their hair is too long or whatever, but when we start making decisions that really impact that member and are penal in nature, they have to have the right to bring it forward, if we're going to respect their charter rights.
No one deserves to have their charter rights respected more than those who serve in uniform. I would think that we wouldn't want to throw away those rights in expediency of administration of military justice. Until we actually see what's going to be underneath the regulations versus what's defined in the act, I think we have to err on the side of charter rights of individuals rather than the expedience of carrying out disciplinary action within the Canadian Armed Forces.
The other thing, as I was thinking through this, is what if you have one CO who is really hammering down hard? There isn't the opportunity for the member to say they'd rather go through court martial because they think they'll have a fairer trial than going before the CO who's going to be overly harsh in the way they're going to discipline.
There isn't that appeal process provided here, and I think this is a way we can probably give the member the chance to elect which way they wish to be tried.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Mr. Chair, I hear the comments from both Mr. Bezan and Mr. Garrison.
It's important to ensure that charter rights aren't being infringed. On the other hand, the answer doesn't lie in how a particular service member feels about the penalty. I think the answer lies very correctly, as described in the very first line of the amendment, in the scope of regulations.
I'm wondering if officials could answer this. What's the extent to which a good regulatory definition of a penal offence is and what an administrative offence is...? How much of a safeguard is that, with respect to ensuring that charter rights aren't actually being violated, not on the perception of the person subject to them, but by a national standard that everybody can agree to?
Colonel Stephen Strickey Deputy Judge Advocate General, Military Justice, Department of National Defence
Thank you for that question.
Certainly as you stated, sir, the hallmark of the summary hearing system is to create a non-penal, non-criminal administrative tribunal, and that the regulations would set forth the summary infractions, which is set forth in new section 2.
Mr. Bezan is quite correct that it is not in the act. The regulations will set it forth, as they currently do, in volume II of the QRs and Os in relation to summary trials.
In terms of things as stated by Mr. Spengemann—standard of proof, beyond a reasonable doubt, whether it's the right to be tried by an elect court martial or an appeal process—the very nature of this process is administrative with a bright line between the non-penal, non-criminal and the court martial, which would entail service offences and then all of those requisite rights according to the charter.
When one starts with a premise that's certainly within the regulations.... We will develop those regulations with a view that the government's intent in the bill is to develop a non-penal, administrative tribunal.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Mr. Chair, with regard to Mr. Spengemann's remarks, it's not the member's perception of the penalty; it's the perception of the process that preserves morale within the Canadian Forces. To be treated fairly and to be perceived to be treated fairly are what is at question, I think, in this amendment. The reason the possible penalty comes up is that fairness becomes, I think, exponentially more important as the penalties increase. If we're going to maintain good morale, then this amendment, which allows people to choose a process that they feel is more complete and more fair, if they feel they are at great risk, is one we should put into the bill.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
In reply to Mr. Spengemann's question, Colonel Strickey made reference to the standard of proof. It's my understanding that the standard of proof is being changed to a probability. Given that we're changing the standard of proof, or burden of proof, to something that is intangible, I wonder whether the argument made holds true, and if Mr. Bezan's amendment is therefore very much in order.
Liberal
The Chair Liberal Stephen Fuhr
It's not a function of whether it's in order or not. It's in order. We're discussing the standards of this—
Conservative
Liberal
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
In looking at the briefing document which we received from Mr. Perron, he says, “imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing a wrong done to society at large rather than to the maintenance and internal discipline within [a] limited sphere of activity.” That's on page 2, paragraph 46. He goes on to talk about the Supreme Court ruling in Guindon, which said, “With respect to the process, the heart of the analysis is concerned with the extent to which it bears the traditional hallmarks of a criminal proceeding.”
If it is a criminal proceeding that results in the potential for a criminal record as well as penal fines, even the confinement to barracks, as the Supreme Court has already stated, in a conditional sentence, is a form of imprisonment. Anything that would be seen as house arrest would then be considered imprisonment.
I think we need to err on the side of caution here and make sure that this is in line with previous Supreme Court rulings and that charter rights aren't being violated. That's not to take away from the administrative side of trying to deal with things in a more expeditious fashion, but we don't want to undermine the rights of our soldiers, sailors and air crew.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Again, the fact that we are removing the burden of proof, shifting beyond a reasonable doubt to a balance of probabilities makes Mr. Bezan's amendment that much more important. The burden of proof is not as substantial whereas beyond the balance of probabilities is much less clear. There's a much greater uncertainty in the case of summary convictions.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Mr. Chair, I think there's some confusion here that probably extends into the subsequent amendments.
The bill aspires to create parity between the civilian world and the military world.
Colonel Strickey, could you roughly sketch what the parallel would be on the civilian side? When we interact with administrative law, even tort law or any other kind of law in the civilian world, we're not subject to a burden of proof that is beyond a reasonable doubt. We're subject to a burden of proof that is on balance of probabilities anywhere else, other than in the criminal justice system.
That's the logic this bill is putting forward: to define, by regulation, a set of offences that are non-criminal in nature in order to deal with them expeditiously.
If you could make another comment on that, it might be helpful for colleagues on the other side.
Col Stephen Strickey
Certainly as was discussed, by its very nature, a non-penal, non-criminal administrative tribunal would have a different standard of proof than would a criminal tribunal such as a summary trial or a court martial. The Supreme Court is clear that there are two standards of proof in terms of tribunals: the criminal standard, beyond a reasonable doubt, and the civil standard, on the balance of probabilities.
As was stated generally, the hallmark of this bill is to create a non-penal, non-criminal disciplinary tribunal.
I'll make a couple of points for clarity, in terms of the discussion on the confinement to barracks. I did read Lieutenant-Colonel (Retired) Perron's submission as well as the Barreau du Québec submission. I believe I stated when I was here previously that the minor sanctions are not put forth in the bill. Those minor sanctions will be put forth in regulations. If you are suggesting that confinement to barracks will be a feature of the new system, that is to be determined in regulations. Certainly, from a regulatory development perspective, the office of the JAG and the department clearly welcome all of these submissions in terms of different ideas and of moving forward with the regulatory package, and we'll certainly take those into consideration.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Will you be taking members of this committee's concerns into consideration as you draft those regulations?
Col Stephen Strickey
Sir, I can say, as the deputy JAG, military justice, that we take all considerations very, very seriously when we develop the regulations. As you know, sir, from your experience, Queen's Regulations and Orders, Volume II contains a vast array of very, very detailed regulations, including notes that set out the current summary trial system. Not having gotten into, of course, the details of creating that system from a regulatory standpoint, certainly one would say, from an analogous perspective, that we would work to the same degree in the summary hearing system.
Liberal
The Chair Liberal Stephen Fuhr
Is there any further discussion on CPC-2?
(Amendment negatived)
(Clause 24 agreed to on division)
(On clause 25)
There are a couple of CPC amendments.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
I'll move the first one, amendment CPC-3, that Bill C-77, in clause 25, be amended by replacing lines 13 to 16 on page 21 with the following:
(a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;
This is a direct link to Lieutenant-Colonel (Retired) Perron's brief, which talks about jurisdiction on page 13. Right now, the way it reads, it talks about “commanding officer or delegated officer”. It does not mention non-commissioned members, because non-commissioned members are not one rank below a superior commander, commanding officer or delegated officer. Of course, they are below the lowest-ranking officer, but sometimes they are present and have to act in the absence of an officer. Non-commissioned members and non-commissioned officers should be mentioned in the legislation in the event that they have to carry out a summary hearing.