National Defence Committee on Nov. 27th, 2018

[The Chair, Liberal, Stephen Fuhr]

MP Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, Liberal members will support the amendment.

[The Chair, Liberal, Stephen Fuhr]

Is there any further discussion on CPC-3?

Did you want to speak to that, Colonel Strickey?

[Col Stephen Strickey]

Yes, sir; sorry.

Just with regard to that point, there's a slight technical amendment, if that amendment should pass, that my colleague Lieutenant-Colonel Lortie would like to speak to with respect to the French version.

[The Chair, Liberal, Stephen Fuhr]

All right.

[Lieutenant-Colonel Geneviève Lortie, Director of Law, Military Justice, Policy, Department of National Defence]

The amendment reads as follows:

manquement d'ordre militaire est un officier dont le grade est d'au moins un grade inférieur au sien ou il est un militaire du rang;

In French, the word “il” isn't required.

If it is because you absolutely want a pronoun there, that's not required in French, but the beginning of the sentence starts with “la personne”, so it would be “elle”. However, from a French drafting perspective, the word "il" is not required.

[The Chair, Liberal, Stephen Fuhr]

Are you okay with it, James?

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

Yes, I'll agree with it. It is a technical matter with the French version. I'll leave it to the legislative clerk to make sure it works.

(Subamendment agreed to)

(Amendment as amended agreed to)

[The Chair, Liberal, Stephen Fuhr]

Now we have amendment CPC-4.

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

I move that Bill C-77, in clause 25, be amended (a) by replacing lines 1 and 2 on page 22 with the following:

163.1 (1) A superior commander who is satisfied beyond a reasonable doubt, at a summary hearing, that a per-

(b) by replacing lines 6 and 7 on page 22 with the following:

(2) A commanding officer who is satisfied beyond a reasonable doubt, at a summary hearing, that a person has

(c) by replacing lines 11 and 12 on page 22 with the following:

(3) A delegated officer who is satisfied beyond a reasonable doubt, at a summary hearing, that a person has commit-

I'll speak to that again. We heard from the Quebec bar association, as well as from Lieutenant-Colonel (Retired) Perron, that because this bill reduces.... This, actually, is a big difference to our original Bill C-71, as well, because we talked about “beyond a reasonable doubt” and now we're talking about this “balance of probabilities”, which doesn't have any jurisdiction under the charter or the Supreme Court rulings in the past. I still think that even though we're trying to make this administratively more simple, it's the right of the accused that they be proven beyond a reasonable doubt of any service infractions.

Section 2.3 of the Quebec bar association brief talks about the subject of Lieutenant-Colonel (Retired) Perron's recommendation number 3 on page 12 of his brief, which says:

Under C-77, the accused is liable to be sentenced to a more severe punishment (“fine”) based on a lower threshold of conviction. The summary hearing under C-77 offers less protections to the accused than what was present in C-71 and what is actually present in the summary trial process.

We prefer that we go back to the terminology “beyond a reasonable doubt”, which is accepted in a court of law.

[The Chair, Liberal, Stephen Fuhr]

MP Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, in part, this conversation intersects with what was previously discussed. This is conceived as a system of administrative justice, if you will, and therefore has a—

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

It's justice and it's beyond—

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

The entire conversation is about justice, but it's not criminal justice. It's administrative justice.

Mr. Chair, in the civilian world, if we were to draw the parallel, once again, of trying to achieve parity with respect to labour relations, if there are some employer discipline issues and union disciplinary issues, these are adjudicated on a standard of the balance of probabilities. The bill attempts to create parity between the two systems and succeeds in doing so. If we reintroduce the criminal justice standard of “beyond a reasonable doubt”, it would create an asymmetry not only in terms of the burden of proof, but also the resulting logistics and requirements that are associated with it.

[The Chair, Liberal, Stephen Fuhr]

MP Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I'm a bit divided on this one. Had we accepted Mr. Bezan's earlier amendment that would allow members to elect trial by court martial, then I wouldn't think it was necessary to replace the standard of balance of probabilities with reasonable doubt, but having not accepted that amendment and not given them that choice, I will be supporting this amendment.

[The Chair, Liberal, Stephen Fuhr]

Mr. Bezan.

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

I would just remind everyone of what the Supreme Court has also said in the case of somebody who is confined to barracks as a minor punishment:

Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours. They are not deprived of their private life to the same extent. Nor are they subject to a regimented schedule or an institutional diet.

If they're confined to barracks, they have restriction of movement. If they are confined to barracks, sometimes COs can confine them to a ship or barracks for up to 21 days. If that is still the minor punishment that's allowed under the current rule, then you're talking about a penal sentence. A penal sentence requires that people be proven beyond a reasonable doubt to be in the wrong.

Again, I think we have to be as fair as possible on this. This is the way we can actually bring in some balance by adding in burden of proof respecting rulings around the military justice system, what minor sanctions are and what we're trying to do in administrative duties, but at the same time, there needs to be some consistency in how we are determining these things from a matter of burden of proof. If we're not going to give them the elective of being tried by a court martial, we definitely need to make sure that the burden of proof is proved beyond a reasonable doubt.

[The Chair, Liberal, Stephen Fuhr]

I have MP Spengemann and then MP Gallant.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, I accept Mr. Bezan's argument, but my submission is that the right answer, the right mechanism, is good regulatory definition of what confinement to barracks entails. If that is deemed to be an outcome akin to criminal sentencing, then a higher burden of proof would be appropriate. If it is an administrative sanction, then the balance of probabilities burden would be required or applied.

Really, it's a question again of having the right regulatory definitions consistent, transparent and accessible to all members of the Canadian Forces.

[The Chair, Liberal, Stephen Fuhr]

MP Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Spengemann equated the punishments or summary trials as equitable to the punishments that unions dole out with labour infractions, or labour infractions by employers, for that matter.

Confinement to barracks amounts to house arrest. I don't see how you can equate the two. On that basis, I reject Mr. Spengemann's argument. We should go forth with this amendment.

[The Chair, Liberal, Stephen Fuhr]

Mr. Bezan.

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

Well, as we continue to talk about this, the one thing we don't want to have is a situation where some of these things become subject to charter challenges. I'm looking through the definitions in Bill C-77. I don't even see a definition in here—maybe you can—for what's that term again...the balance of...?

[The Chair, Liberal, Stephen Fuhr]

Probabilities.