Okay. Thank you.
Evidence of meeting #23 for National Defence in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Evidence of meeting #23 for National Defence in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Conservative
Scott Anderson Conservative Vernon—Lake Country—Monashee, BC
I'd just like to point out that the intent of this bill originally was to move these cases into the civilian system. We've already established that there's going to be choice available, so what this would do is create a two-tiered system between the military and civilian systems, making everybody choose the military system, I would suspect, because there's coverage. Is that not correct?
Col Geneviève Lortie
There's a certain coverage. It's another provision of the NDA.
The one we're looking at right now is the mandate for the director of defence counsel services—what they can provide, subject to regulation, regarding the right to representation under the code of service discipline.
That's what the act allows. It's to determine, by regulation of the Governor in Council, what that representation can be. That's where you find those answers, and that's where accused persons under the code of service discipline are represented at court martial. That's covered. That's the representation.
I'm talking about section 249.17 of the National Defence Act. That's where the right of representation is covered, and it only covers things that are under the code of service discipline. It's the same thing for the mandate of the director of defence counsel services.
There are two aspects: representation and what services can be provided by the DDCS directly.
Liberal
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
Lieutenant-Colonel MacMillan wants to add something.
LCol Matt MacMillan
With regard to the bill as amended, the accused is not the person who will be making the choice. The accused will have no determination of where the matter is prosecuted. That would, again, rest with the prosecution. They have a number of factors they will determine in terms of how they will proceed.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
We heard from Dr. Karen Breeck. She said:
...accused members receive free legal counsel within the military system, but not if charged in the civilian system. This inequity risks unequal access to justice for the accused through forced self-representation or significant personal debt.
The Arbour report says:
The CAF may want to examine whether it wishes to provide financial assistance for all its members facing charges outside the military system, not just those who will now be tried in civilian courts for sexual offences.
We discussed here that members of the Canadian Armed Forces will not be entitled to legal aid. They are not going to meet the threshold. It's a different level in each jurisdiction, depending on which province they are tried in.
We also heard from Afton David in her recommendations:
Six, remember that both victims and accused are entitled to fundamental rights and safeguards. I recommend ensuring that access to justice is maintained for accused members by providing defence counsel for service members charged in civilian courts.
These are recommendations we heard.
Even Rory Fowler proposed the “creation of a legal aid regime for Canadian Forces (CF) personnel, and the funding thereof, in light of the deprivation of representation by Defence Counsel Services that would arise from these amendments” in Bill C-11 by going to the civilian system.
It's about making sure there's equal justice for the accused and the victims, whether they're in military court or civilian court.
Liberal
Tim Watchorn Liberal Les Pays-d'en-Haut, QC
This is a question for the witnesses.
Just to be clear, this would create a system where someone gets legal aid in the civilian system for a sexual offence in the Criminal Code but would not get legal aid in the civilian system for a criminal offence that is not sexual by nature. It's two different treatments of military personnel.
Col Geneviève Lortie
That's what we understand from the text of the motion, and it would only be at the time when the charge is laid. We're talking about when the person is charged. It would not cover the investigation, and it would not cover someone who is arrested, detained or read their rights. That would not be covered.
It's really at a certain point. Everything that would be before that is not covered by this motion and the wording.
Liberal
The Chair Liberal Charles Sousa
Is there further debate?
Seeing none, shall CPC-20 carry?
(Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])
All right, that brings us to CPC-21.
Mr. Bezan, do you wish to move it?
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
I shall move to repeal section 249.2 of the National Defence Act.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
I can read in what it says. It says:
249.2(1) The Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General.
We heard from the director of defence counsel services, Colonel Ahmed, who said:
Relying on the goodwill of the JAG to respect the director's independence—or on the fortitude of the director to resist influence from the JAG, the minister or the chain of command—is not a meaningful safeguard.
This concern is compounded by the fact that the bill leaves unchanged subsection 249.2(1) of the National Defence Act, which currently states that the director “acts under the general supervision” of the JAG, and subsection 249.2(2), which states that the JAG “may issue general instructions or guidelines” to defence counsel services.
These provisions grant the JAG broad authority over the director. The proposed legislation does not meaningfully limit the potential for interference in the director's mandate. Without structural statutory independence, the perception and potentially the reality of independence remain at risk. On this point, I submit that consideration should be given to repealing section 249.2 of the National Defence Act.
Michel Drapeau, on the removal of authority from the JAG, said:
It sends an important message to the military justice system and to military leaders. They must understand that they don't have full control over the administration of justice in cases involving military members both in Canada and abroad.
Liberal
The Chair Liberal Charles Sousa
Is there any further debate? Are there any questions on CPC-21?
Ms. Romanado.
Liberal
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
I just want to get clarity on this. If this amendment passes, will it create accountability and independence issues?
Col Geneviève Lortie
It would certainly let a void into who DDCS would answer to. That raises many questions about reporting and oversight.
In the military, everyone answers to someone else. It wouldn't be replaced by anything else, so what's going to happen for the director of defence counsel services? I don't have that answer. It would certainly raise significant organizational and establishment implications, considering that every legal officer providing legal services to the Canadian Armed Forces is posted to the office of the judge advocate general under the command of the judge advocate general.
We understand that Justice Fish, in recommendation 12, recommended looking at some questions about independence and the structure, and how to report to the director of military prosecutions and the director of defence counsel services. This working group is at the point of looking at an independent authority. Within the next year, we're going to look at these types of questions, but right now, with this amendment, there would certainly be a void where the DDCS would sit.
I would also like to bring to your attention that the first amendment that Bill C-11 proposes in clause 2 would ensure that the judge advocate general, in the exercise of their duty as superintendent of the administration of military justice, respects the independence of military justice actors, and the director of defence counsel services is one who is listed in the provision that was in clause 2 of this bill.
Liberal
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
If there's ambiguity in the reporting or there's a gap in saying, “Who does this person to report to?”, what would that do to the confidence in that role? If there's no clear indicator of who this position reports to, could that not lead to a lack of confidence?
Col Geneviève Lortie
It could certainly lead to a lot of questions about their accountability and independence, depending on who they would report to, because they cannot be alone anywhere. They need a budget, which will come from someone, but there are probably a lot of other people they could not be under. They certainly couldn't be under the Minister of National Defence or the chief of the defence staff, so where would that person report? I don't have that answer, unfortunately.