National Defence committee  If your question is meant to imply that I have very little connection with the military, you are absolutely spot-on. You have intuited that quite correctly. I acted in the one case that prohibited the armed forces from discriminating on grounds of sexual orientation. I'm proud

National Defence committee  It's only a positive development if you don't attach a criminal record to any of it, because then it becomes arbitrary. It becomes unreasonable. You ask, “Why is this guy getting a criminal record for failing to show up on time, and that guy not?” If you're going to make a law t

National Defence committee  No. I think if you want to have a criminal record with the consequences that follow a person forever in life now, with not ever a pardon in the ordinary layperson's sense—which this government has made worse, not better—and you want that consequence, you have to give protections

National Defence committee  Yes. I did concede that. I think that's what those judges were talking about when they said this is all constitutionally compliant. You can have a separate justice system, but each part of it needs to be examined to see if it complies with the charter on a one-by-one incident bas

National Defence committee  Sure, but there have been studies of exit interviews with people who had experience with summary trials. They were referred to before this committee when you were here the last time. What they show is that with regard to those rights—being told of the option, for example, to choo

National Defence committee  No, because no one, as we've discussed, ever gets to challenge it. I narrow it, as the Constitution requires, to one aspect at a time. Giving criminal records, in my respectful submission, to some of the people who go through a summary trial proceeding is unconstitutional. I'm no

National Defence committee  Sure. As long as imprisonment is a possibility—and I don't go to other serious concerns as well—you must provide more fairness, so you get rid of that possible punishment or you provide the same standards that you and I are subject to in ordinary Canadian trials. Again, if you

National Defence committee  I think you're right in general: if you take away the criminal record aspect from where it doesn't belong, your chances of a judge's striking it down are greatly diminished. There's been reference to the military justice system being constitutional; it is constitutional, in my vi

National Defence committee  That's not necessarily true, but there's no clear way to challenge it. I think you could apply for declaratory relief if you were the subject of this kind of trial, but you're going to have to pay for it and have the courage to stay in the military afterwards, which is not going

National Defence committee  The last time I did it was when the armed forces discriminated against gays and lesbians. I was counsel in the case in which the judgment was signed to say that it must stop because it's a constitutional breach.

National Defence committee  I'd have asked for it, but I don't know the military system enough to deal with it.

National Defence committee  Can I just add something?

National Defence committee  Some people talk as if a Canadian soldier, when he enlists, loses his rights to the kind of procedural fairness that takes some time and that may be difficult or awkward in the field. That's not the right way to think about it. Wherever a Canadian soldier goes on a mission, he ca

National Defence committee  Thank you, sir. It is an honour to be here to try to assist your understanding of this legislation. I want to bring two perspectives from my own work to bear on the summary trials issue, which is the one that concerns me in particular. The first perspective is that of an autho