National Defence Committee on Nov. 27th, 2018

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

Is it there?

[LCol Geneviève Lortie]

There's another definition per se, but the word.... The standard of proof is in the provisions, but there's no definition of the word itself.

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

You're using burden of proof to prove the balance of.... I would say that without a proper definition of what that means, I think we have to stick to what we know, and burden of proof is what we know.

[The Chair, Liberal, Stephen Fuhr]

Is there anything else?

(Amendment negatived)

We move to amendment CPC-5.

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

Mr. Chair, I move that Bill C-77, in clause 25, be amended by adding after line 29 on page 22 the following:

163.21 (1) A summary hearing may not be conducted unless the superior commander, commanding officer or delegated officer has taken the necessary measures to ensure that a recording or a transcript of the summary hearing is made and that any document or information relating to the hearing and ail exhibits filed with it are preserved. (2) The superior commander, commanding officer or delegated officer shall give reasons for his or her finding."

What we have here is even though these summary hearings are supposed to be administrative in nature and hopefully not penal, we do know that currently certain service infractions show up as criminal records down the road for our service members.

If we're not going to provide proceedings of those hearings or the rulings, how does that individual, when they release from the Canadian Armed Forces, who then goes out and applies for a job.... All of us get criminal record background checks now. That record is going to show that the individual had a criminal record while serving in the Canadian Armed Forces. In civilian life, offences like drunkenness would most likely not be a Criminal Code violation and insubordination would not be a Criminal Code violation, but they would show up on the criminal record.

To expunge that criminal record, they would need to have evidence of what the rulings were and if we're not taking any proceedings at the summary hearings or providing written findings by the COs they would have a big problem down the road as they transition to civilian life.

Without the opportunity to appeal—maybe it doesn't matter—but if we provide an appeal process, those findings are required to provide information to the higher delegated officer or a court martial.

[The Chair, Liberal, Stephen Fuhr]

Colonel Strickey.

[Col Stephen Strickey]

Sir, just to delineate, as you know, the current system as outlined in the National Defence Act, outlines service offences. You're quite correct that certain service offences at summary trial could entail a criminal record.

The very nature of the proposed legislation before this committee is to create that non-penal, non-criminal system whereby there would be a bright line between the summary infractions, which section 2 says will be set forth in regulations. We talked about that. We go through this process in which on a balance of probabilities is non-criminal, non-penal, and therefore would not result in a criminal record because it would be administrative in nature. You're quite correct that the current system has summary service offences. You know our system very well.

The system that's proposed in this legislation would have an entirely different suite of summary infractions that were not offences, that would, yes, have a different standard of proof, as I mentioned before, but would not entail a criminal record. That's just to clarify.

[The Chair, Liberal, Stephen Fuhr]

MP Spengemann.

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

I have a supplementary question for Colonel Strickey.

I don't imagine those service offences that show up as a criminal record or record of conduct would become Criminal Code offences. What is the attached reasons requirement for those offences as it currently is framed, or as it will be framed under Bill C-77, with respect to potential avenues of appeal? Presumably it's more elaborate than what would be the case for disciplinary offences of a minor nature.

[Col Stephen Strickey]

That's an excellent question.

Currently, there's no requirement in the regulation for the presiding officer at summary trial to give reasons for the decision. That decision is encapsulated in a record of disciplinary proceedings, whether the member is found guilty or not guilty. Certainly, as I talked about the last time I was before this committee, there are a number of mechanisms that a member who's found guilty can pursue: a review under Queen's Regulations and Orders 108.45 and another mechanism under Queen's Regulations and Orders 116.02 that a commanding officer can initiate a review.

The penultimate review, if you will, would be for the Federal Court to review that decision. Those are the steps in the current system.

[The Chair, Liberal, Stephen Fuhr]

MP Gallant.

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

First of all, we're removing the burden of proof. There's no definition for the balance of proof—

[A voice]

The balance of probability.

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

Yes, the balance of probability. Penalties have yet to be determined. Now the ability to appeal a summary conviction is being removed in essence because there's no record of it. I think that, should we have a record of it, at least that person would have a foundation upon which to appeal.

[The Chair, Liberal, Stephen Fuhr]

MP Bezan.

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

I'd like to go back to Colonel Strickey with his answer just now to Mr. Spengemann.

You talk, Colonel, about the current QRs and Os. There is an appeal process for those in summary trials. There's always the opportunity for a commanding officer or the ability of an officer to take it up to the next level.

What about the members, the serving members? Do they have an opportunity to say they disagree?

[Col Stephen Strickey]

Yes, sir. The review process is set out in QR and O article 108.45, where there's a number of steps that a member can take to have the next level, if you will, review the decision when that member feels he was aggrieved by that decision. Decisions are made by the chain of command. Ultimately, as I said, if that member is aggrieved and wishes to have that decision judicially reviewed by the Federal Court, well, it's certainly open to that member to do so.

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

Then it becomes even more important that we have a record of what the summary hearing said and what the decision was by the delegated officer.

[Col Stephen Strickey]

I will say that there have not been many cases that were judicially reviewed in the summary trial system, to my knowledge—again I'm going off memory. But a recent case, Petty Officer Thurrott, was heard before the Federal Court, as you probably know, sir. Generally speaking, although the case didn't fall on the constitutionality of the summary trial system, the court suggested strongly that there were no charter issues in terms of Petty Officer Thurrott's concerns.

Generally speaking, just in terms of the structure of the current summary trial process, that's how it would work. I did mention as well QR and O article 116.02, which is a commanding officer review. If for some reason it's brought to the attention of the chain of command that there were some issues with the process, then that is a mechanism in which the chain of command can initiate a review to the next level to address any concerns.

[The Chair, Liberal, Stephen Fuhr]

MP Spengemann, do you want to weigh in on this again?

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

Yes, please, Mr. Chair.

I have two things. First of all, just to correct the conclusion by Ms. Gallant that there is no definition of the burden of proof of balance of probabilities, that burden is extremely well defined in literally tens of thousands of cases of civilian jurisprudence. It's the same—

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

Burden of proof, yes.

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

Balance of probabilities is traditionally extremely well defined. Every civilian case is settled on that standard or decided on that standard. It's the same standard in the military justice system that we're proposing here as it is in the civilian world. Every judge and every lawyer knows what it means to decide a case on a balance of probabilities.

Just to give the Liberal position on CPC-5, we're proceeding from the assumption that we do need an administrative summary hearing system that is expeditious and that gives the employer the ability to make decisions in the context of the need for service discipline.

It would be extraordinarily onerous to require that all records and transcripts be kept under that system and that there be justifications for summary trial decisions. To the extent that those are required, we submit they should be defined in regulation but not in the text of the bill.

[The Chair, Liberal, Stephen Fuhr]

MP Gallant.

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

If the burden of.... I thought we were told by our witnesses that the burden of probability definition was unavailable to us.