Jonathan Genest-Jourdain

[Strengthening Military Justice in the Defence of Canada Act, December 7th, 2012]

Mr. Speaker, I thank my hon. colleague for the question.

I did not go over every offence that was suggested. At the time, I simply looked at the general documents. However, there are things like drunkenness that could lead to charges and a summary trial in the military justice system.

What I still have serious doubts about is the fact that these offences could ultimately lead to a criminal record. I did not address this issue and I would rather not go into it, because there are so many ins and outs and I have not been able to identify them all.

In any case, I have never seen that in my practice. It would be rather unfortunate and rather strange to see these offences and charges on someone's record, when doing a search with their name and date of birth, for instance. Personally, I have never seen that, and it would be somewhat questionable, especially considering how expensive it is to apply for a pardon, not to mention how long it takes, with the RCMP taking fingerprints and so on. I have taken on a few such cases, so I know what a difficult process it is.

How can people get rid of this liability, once they have been convicted?

I submit this respectfully.

[Strengthening Military Justice in the Defence of Canada Act, December 7th, 2012]

Mr. Speaker, I thank my hon. colleague for the question.

I would simply remind him of my final point regarding the right to legal counsel and the tremendous amount of flexibility that is granted to the decision maker, the arbitrator in summary trials. I have my doubts about this; some unanswered questions remain.

There is a tremendous amount of flexibility, and that alone is enough to justify revisiting and reviewing the procedures that apply to the summary process in the military justice system.

[Strengthening Military Justice in the Defence of Canada Act, December 7th, 2012]

Mr. Speaker, it was after listening to my colleagues' speeches on the bill to amend the National Defence Act that I thought it would be appropriate to speak as well to ensure that we explore the legal concepts associated with the matter before us.

I would invite my colleagues to go beyond the briefing notes from the House, to distance themselves from the talking points, but not from the party's position. I therefore invite them to conduct their own research and engage in an intellectual and mental exercise. I think our audience, those who watch us regularly, would like that. Sometimes the speeches we hear in this House can be redundant because people simply repeat the information they have been given, it is a rehash.

When I heard the speeches by my colleagues across the way, but particularly those of my own colleagues, some ideas seemed familiar. First of all, you must understand that I am a criminal lawyer. When I began to study law, we were told that the administration of justice in the military was different than what the common law courts applied across the country. That is why we spent very little time on the subject, or in fact none at all. I even wonder whether specialized courses were offered at the university, but I doubt it. However, we learned that people in the Canadian Forces were trained in it, that the JAGs, the ultimate decision-makers, were trained, that courses were given and that it was training that was observed first and foremost within the military.

However, there are recurring concepts in my colleagues' speeches, including the right to a lawyer, the independence and impartiality of the decision-maker and other concepts that refer to the charter. Those concepts rang a bell with me and I decided to investigate a little further. I spent several hours researching the topic last night and this morning. It was a last-minute minute decision, and we needed speakers on the topic. So I launched into my research and came up with a considerable amount of information, particularly on statutory instruments, the various acts and regulations that apply to the situation and to the bill under consideration here, but also on case law and doctrine.

The research I did was nevertheless basic, since it is impossible to grasp the ins and outs of an issue of this scope in a few hours. However, further on in my speech, you will see that several levels of legislative and regulatory authority apply to the situation, and I will go over them. I will stick very close to the statutory instruments at our disposal. That will be a change from what we have heard in this House to date. I think this is relevant and that the general public deserves to be informed about the scope of this matter.

The ins and outs of the military justice system are initially a forbidding prospect when viewed from the standpoint of legal practice in the field. By that I mean they may seem incomprehensible at first glance, reminding one that it is risky to adopt the vision and reflexes of a criminal lawyer in examining a bill that concerns, for example, summary trials in a military justice context.

When I began this study, I suspected that the principles that had been instilled in me during my years of legal training might possibly be applicable, but with certain qualifications. I was right, since some concepts that I had learned were tested when I actually looked at the authorities and at what applied in the military field. I noticed some subtleties and adaptations. So I like to think of the training given to JAGs and to people who work in the administration of military justice as additional training and that those subtleties and those transposed principles will genuinely help shed light on the specific characteristics of military life.

When I researched the statutes, I came to several major levels, which I will describe in a moment. The subtleties expressed there very much call for revisiting and exploring the material.

That is why I say it may be uncomfortable and risky at times simply to rely on notes prepared in the lobby in addressing these matters, which genuinely need to be closely examined. They are particular and specific enough that they require one to consider many elements that, incidentally, exceed the scope of a 10-minute speech.

Assuming that the officers presiding over summary trials render judicial decisions in the same way as common law courts, certain rules of procedural fairness and the principles of fundamental justice apply. Based on that assumption, I was subsequently able to conduct the statutory research necessary to examine the bill in question.

In their speeches, my colleagues invoked such principles as audi alteram partem—hear the other side. A person who is accused has the right to make his own claims. This is true in criminal law as well, whether we are talking about summary conviction or indictment. It should be understood that in the criminal courts, under common law, cases tried summarily lead to lesser sentences than cases involving indictable offences. Indictable offences can involve more serious crimes or repeat offences and are much more serious. They are treated more seriously by the courts. Those are concepts I verified to see if the same kind of reasoning applied in the military sphere.

I will refer to the laws on the books and to various tools that apply to a given situation. I will begin with the Constitution Act. It gives the federal Parliament the exclusive right to legislate in matters of military justice. That is the basis. I said there were several levels, and that is the first. It opens the door for all the other legislative tools.

Second, the National Defence Act sets out the organization of the Department of National Defence and the components and elements of the military justice system. It also addresses the concept of a criminal record. I will not discuss that aspect, because I think it deserves a study on its own, and I certainly would not be able, in 10 minutes, to describe all the ins and outs of transferring the sanctions applied in the military to criminal law. I have not grasped all the nuances that apply. That is why I will leave it for now.

Now, here is the third level, the Code of Service Discipline. This code is part of the National Defence Act and sets out the foundation of the Canadian military justice system, including disciplinary jurisdiction, service offences, punishments, powers of arrest, organization and procedures of service tribunals, appeals, and post-trial review.

That brings us to the fourth level. The procedure for summary trials and receipt of proof is set out in sections 108.20 and 108.21 of the Queen's Regulations and Orders, the QR&Os, which were made pursuant to the National Defence Act.

I said it was fairly specific and tricky, and this proves it.

I will now read the first part of section 15 of the Queen's Regulations and Orders, which applies to Canadian Forces members who insist on the right to have a lawyer:

For example, the Regulations do not expressly provide the right to counsel to the accused; however, the presiding officer has discretion to allow legal counsel to participate and, if so, to determine the level of participation to be allowed. When deciding whether to permit an accused to be represented by legal counsel at the summary trial, QR&O indicate that the presiding officer should, at the least, consider the nature and complexity of the offence, the interests of justice, the interests of the accused, and the exigencies of the service.

In closing, all of these elements accurately convey the complexity of the summary trial system within the context of the administration of military justice. In my opinion, this bill requires a review that would reveal a number of unknown factors and flaws to justify opposition at second reading.

[Aboriginal Affairs, December 3rd, 2012]

Mr. Speaker, to fulfill its mandate of healing and reconciliation, the Truth and Reconciliation Commission of Canada must have access to the documentation. The fact that the commission had to go to court to get the documents it needs goes against the principle behind the apology made in the House.

The commission may not be able to complete its work on time and within the budget it was given.

Do the Conservatives really want to get to the bottom of what happened in the Indian residential schools?

[November 30th, 2012]

Mr. Speaker, I thank my hon. colleague for the question.

We have seen so many examples of fast tracking on the part of the Conservatives—in fact, I only learned the term here in the House in the past year and a half. It is important that this not become their trademark, because anytime things are done too quickly, certain aspects can be overlooked and sometimes corners are cut, as they say.

In my opinion, having studied the bill, the government was somewhat lax about this for a number of years. Now, at the last minute, the Conservatives want to fix everything. Of course that must be done, out of necessity, but it should not become their trademark. Some subjects warrant careful consideration and must be studied for many years.

[November 30th, 2012]

Mr. Speaker, I thank my colleague for her question. She will also be the next to speak on this subject.

We will be supporting the bill at second reading. The principle and the international obligations are of crucial importance, although the Conservatives should also be paying attention to the other international obligations they must honour. This important bill is a priority, and that is why we will be taking the path of reason and supporting it.

Bills have to go through the Senate eventually anyway.

[November 30th, 2012]

Mr. Speaker, I thank my colleague for his question. First, I would note that I will be sharing my speaking time with my colleague from Terrebonne—Blainville.

To answer my colleague’s question, when I was working on this bill, I recalled my psychiatric clients. Sometimes, my clients simply stopped taking their medications, and as a result they were disorganized and made threats.

I think there are cases where someone is really not in possession of all their faculties and threatens to use a nuclear device to blow up Canada. I have heard people say things like that, but there was really no nuclear device involved. It would be worth ensuring that the bill require that people actually have the ability to get their hands on a nuclear device or nuclear material, before we think about charging them and accusing them of making threats.

[November 30th, 2012]

Mr. Speaker, I would like to begin by saying that I will be sharing my time with my colleague.

Preparing this curious speech to defend the claims in a bill on nuclear terrorism was, in a sense a personal act of bravado. When I say bravado I mean that when I looked at the House calendar and saw that a question dealing with nuclear terrorism had been entered, I told myself it was a golden opportunity for me to reconnect with my old passions.

When I was a graduate student, I often took part in these types of exercises. Graduate studies at university often involve oral presentations and plenary sessions. That is why obscure topics are studied and discussed. Moreover, it is why I decided to embark on a discussion of an issue that may appear inaccessible and intangible at first.

Over the past few days, I invested some effort in reviewing case law and the definitions of “threat” and “terrorism” in the Criminal Code, as well as concepts such as criminal intent or mens rea. This helped refresh my memory of concepts that I learned during my legal training and allows me today to spend a little more time on them and investigate them more deeply.

In light of the scope of the issue, as well as its specificity, I would like to focus particularly on the concept of threat set out in this nuclear terrorism bill. A few offences are mentioned in the bill, including the threat of use of nuclear material and devices. I will focus on this specific concept.

The degree of specialization associated with the scope of the bill gradually helped direct my arguments toward highlighting the impact of the provision creating the threat offence. Here I will rely on the text of the bill. This is not something I am in the habit of doing, but considering the specialized nature of the bill, it is just as well to remain close to the text and refer to it. The bill refers to the threat to possess, use or dispose of nuclear or radioactive material or a nuclear or radioactive device, or to commit an act against a nuclear facility or its operations, with the intent to cause death, serious bodily harm or substantial damage to property or the environment.

With regard to "substantial damage to property", it is important to understand that in the Criminal Code, more often than not threat is limited to two situations, either threats against persons or threats against property. I will come back to this later on, when I go into greater detail on the concept of threat, its impact and its use in this bill.

The bill before us also refers to the threat of using or altering nuclear or radioactive material or a nuclear or radioactive device, or committing an act against a nuclear facility or its operation, with the intent to compel a person, government or international organization to do or refrain from doing any act.

Here, I will focus on the concept of nuclear facility as provided in the bill before us. I will refer to it in my conclusion, when I briefly address nuclear facilities in Canada. It should already be possible to see where I am going with my speech.

Finally, the bill refers to the threat of committing an indictable offence under federal law for the purpose of obtaining nuclear or radioactive material, a nuclear or radioactive device, or obtaining access or control of a nuclear facility.

This particular bill incorporates notions that are already covered by the Criminal Code, such as the definition of threat as an offence, as well as the notion of terrorism. With regard to the definition of threat—I have already taken a few steps along this path—the Criminal Code sets out two very specific cases, that is, the threat to the integrity of an individual and the threat against property. These two cases are covered here, in the bill.

In the case of threat, there is very little in the way of a defence that can be made when an accused faces this type of charge. Ultimately, the accused must show that the threat as expressed should not have been taken seriously because it was only a joke or pure fantasy.

This is the notion of threat. In my view, that is the only defence available under the Criminal Code. However, it must also be understood that the notion of threat, as it is set out in the Criminal Code, does not necessarily involve an investigation of the individual’s ability to commit the act or the medium that was used to formulate and make the threat. The threat may be expressed orally or it may even be sent through an intermediary on the Internet. There are countless methods of transmitting a threat.

Ultimately, the Criminal Code does not consider the actual ability of the person making the threat. His or her actual ability to make good on a threat is not necessarily taken into account. This is what I would like to emphasize because nuclear materials and devices are quite specific.

At the very least, it might be worthwhile to introduce a degree of nuance regarding the possibility for an individual to formulate a threat relating to nuclear devices and to determine whether the individual is in fact able to get his hands on a nuclear device. Even though we support this bill at second reading, it must be understood that, once the bill has become law, the terrorism aspect will automatically apply when this variable, the nuclear aspect, enters the picture.

The offences created under this bill are far-reaching and are very likely to lead to a serious record for an individual. Therefore, we should be very careful in this regard.

While I will support this bill at second reading and despite the fact that the threat offences, as defined in the Criminal Code, disregard an offender’s ability to commit the intended offence, the high level of specialization inherent in the handling of nuclear materials should militate in favour of tightening the criteria relating to the threat offence involving nuclear devices or materials.

As I was saying, these concepts are imported. The Criminal Code already contains very specific terminology and provisions relating to threats and terrorism. If we incorporate these same notions in this bill, we must ensure that the distinction is made. This is a big challenge in light of the fact that, as soon as someone is found guilty of one of the offences set out in this bill, he will automatically be labelled a terrorist, and there is quite a stigma attached to that label. These are very important matters that must be carefully examined.

As some of my colleagues mentioned this morning, this notion of threat goes far beyond Canada's international obligation. This bill was initially drafted to fulfill our international obligations, but we must not get carried away.

In conclusion, I will say—a message from our sponsors—that the greatest nuclear threat is here, in Canada. Some members of my team have told me that some plants here in Canada are storing radioactive waste, including the plants in Gentilly, Quebec, and in Toronto, Ontario. Right now, a rather large and measurable quantity of nuclear waste is being stored in Canada, right under our noses, which is a problem. The nuclear threat is hiding right here in Canada.

I humbly submit this information and hope that I have made members more aware of and interested in this issue.

[First Nations Financial Transparency Act, November 27th, 2012]

Mr. Speaker, I thank my hon. colleague for the question.

The concept of self-determination has been put forward, and the Canadian government supposedly supports that. A supposedly historic meeting and event was even held last January regarding the self-determination of peoples. That is what it was about.

This work needs to be done from within the communities themselves. It must be developed based on consensus. It must start from within. It is certainly not going to be achieved through a legislative initiative concocted by apparatchiks from who knows where in the pecking order. The Conservatives decided here in Ottawa, far from any of these communities, to unilaterally impose this legislation. That is not how this should happen. Yes, accountability is needed. Yes, a steady flow of information is not always available. Accountability is needed within the communities. However, it is a matter of identity in the communities, a matter of "Indianness”, and this needs to be addressed first and foremost by the community. A little housecleaning is needed.

Ours is a predominantly oral culture. For 20,000 years, most if not all aboriginal nations in this country were able to apply these principles of emulation. These people spoke to one another directly. This should still happen today.

Accountability needs to happen above all in the community. Initiatives created by the Parliament of Canada are certainly not the answer.

[First Nations Financial Transparency Act, November 27th, 2012]

Mr. Speaker, I thank the member for his question.

I would like to point out that band councils are accountable to their own members and not to the Canadian public as a whole.

There is a biased theory that at the end of the day, our taxes support the band councils. This disregards the autonomous revenues earned by the communities and their economic dynamics. Band councils are not accountable to the entire country. The government is simply trying to please lobby groups, very specific and marginalized groups that clearly have power and influence over the current government. It is trying to please them by saying the financial information will be provided. Since it cannot go into these communities, it will find a roundabout way to get this financial information. That is wrong and the government knows it. Take my word for it: at the end of the day, the government will be exposed.