Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for March 4, 2009
OTTAWA, Wednesday, March 4, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 4:15 p.m., to study Bill C-60, An Act to amend the National Defence Act (court martial).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we are considering the provisions of Bill C-60, An Act to amend the National Defence Act (court martial), which was passed in June 2008, rather quickly.
[English]
The decision was that Parliament would move quickly to pass Bill C-60, because the Court Martial Appeal Court of Canada had ruled in a case called Trépanier that certain aspects of the former system of courts martial were unconstitutional. Without replacement legislation, courts martial in the military justice system would have been brought to a halt.
Therefore, it was decided, with the agreement of all parties, to pass the bill rapidly. However, concerns were expressed, particularly in the Senate, about the fact that we were thus not able to assess thoroughly the potential impact of the bill.
The Minister of National Defence, the Honourable Peter MacKay, asked that this committee consider studying the provisions and the operations of Bill C-60 once it had become law, and forward to him our findings and recommendations. That is what this study is designed to do.
Before I welcome our witnesses, I would like to observe that we have the privilege of holding our meetings of this committee in room 257 in the East Block of Parliament, which is a particularly beautiful room. It was established — renovated especially — for the G7 economic summit, which was held here in this room, around this table, where ministers and presidents sat in July of 1982. The room has been preserved as a record of that historic occasion and called the Summit Room. We have the great fortune of being able to use it for our meetings, which gives an extra element of pleasure.
We have the pleasure of welcoming two witnesses to launch us on our study of this bill. They are from the Office of the Judge Advocate General, Colonel B.B. Cathcart, C.D., Deputy Judge Advocate General/Military Justice and Administrative Law; and Lieutenant-Colonel Jill Wry, Director of Law/Military Justice Policy and Research. You really know what we are here to study.
I would invite you to make an opening statement and then we will ask questions. Do you have copies of your statement?
Colonel B.B. Cathcart, C.D., Deputy Judge Advocate General/Military Justice and Administrative Law, Office of the Judge Advocate General: We do not. Unfortunately, we did not have them fully translated, but we can make them available quickly after the meeting. I am not sure of the logistics.
The Chair: Is that agreeable to you, Senator Joyal? The problem is that these are representatives of the federal government system and they do not have a presentation, as yet, in both languages. If it were distributed, it would be in one language only.
Senator Joyal: Are you short of personnel to translate it?
Col. Cathcart: We are, to be honest, given the short notice in which to prepare for this. The remarks themselves have bilingual aspects, certainly, but the entire remarks are not fully translated.
The Chair: It was short notice to them. You will recall, senators, that there was some confusion about who would appear today. We had originally intended to hear from the minister today, but he was not able to be with us. He will be with us at our meeting next Wednesday. Therefore, we find ourselves grateful to the present witnesses for being able to be with us.
Senator Joyal: For the benefit of our witnesses, they know the procedure already, and we usually operate in both official languages. We would want to have the text in both languages.
The Chair: We will have the text in both languages.
Senator Joyal: They should know, especially as Department of National Defence staff — a department whose performance the Commissioner of Official Languages reports yearly on. I think you have to behave accordingly.
Col. Cathcart: Understood, senator. We are well aware of the obligations, and I have no further explanation other than simply timing and resources.
The Chair: You will take this as notice, however. These are not afterthought matters; these are core matters.
Col. Cathcart: Yes, we understand.
Good afternoon. As noted by the chair, my name is Colonel Blaise Cathcart and I am the Deputy Judge Advocate General responsible for Military Justice and Administrative Law. I am joined by Lieutenant-Colonel Jill Wry, the director responsible for Military Justice Policy and Research.
I would like to start off by thanking you for the opportunity to appear before the committee today. Both Lieutenant-Colonel Wry and I were involved in the development and staffing of Bill C-60, as well as the subsequent regulatory amendments. We are pleased to be here to assist the committee in this review.
I would like to begin by giving a brief recount, which will hopefully benefit everyone. I know some senators were involved in the debate in the Committee of the Whole. However, I would like to recount a little bit about the introduction of Bill C-60 and how it has been implemented since it received Royal Assent.
[Translation]
As you know, on April 24, 2008, in Trépanier, the Court Martial Appeal Court found that the director of military prosecutions' exclusive authority to determine the type of court martial to be convened violates the constitutional rights of the accused pursuant to the Charter.
The court also ruled inoperative the provision allowing the court martial administrator to convene courts martial. The convening of courts martial is an essential step in leading a case to trial. More significantly, the court found these provisions of the National Defence Act of no force or effect. The court was not prepared to suspend the effects of its judgment.
[English]
I will now speak about the effect of the judgment. After the decision in Trépanier, while ongoing courts martial could continue and those that had already been convened could commence, new courts martial could not be convened. Left unaddressed, the inability to convene courts martial would have adversely affected the administration of military justice and with it the maintenance of discipline, efficiency and morale, upon which the operational effectiveness of the Canadian Forces depends.
At the same time, important societal interests were at risk. Accused persons would not have had the benefit of being able to be tried within a reasonable time. As well, without the ability to convene courts martial, serious offences would have gone unpunished, in which case, victims and society would not have seen justice done.
To address the Trépanier decision and its effect, two approaches were undertaken: leave to appeal and a stay of execution of the decision were sought from the Supreme Court of Canada, and legislative amendments that would allow courts martial to again be convened were pursued.
While these two approaches arose from the same circumstance, their purposes were not the same. Leave to appeal was pursued in order to challenge the constitutional conclusions made by the Court Martial Appeal Court of Canada. The courts are the appropriate forum through which to address the important constitutional issues that were raised in Trépanier, yet it was recognized that an appeal was unlikely to provide the timely and certain answer to the challenges that have been created for the courts martial process.
Legislative amendments — namely, Bill C-60 — were pursued to address the effects of the decision in Trépanier, so that certainty and stability could be returned to the court martial system in a timely manner. Simply stated, without conceding the constitutional issues, amendments to the National Defence Act were required to address the concerns raised by the Court Martial Appeal Court of Canada so that courts martial could again be convened.
As you are aware, on September 25, 2008, the Supreme Court of Canada denied our leave to appeal. Fortunately, through the support of parliamentarians and senators alike, when this decision was rendered, the legislative amendments had already been made and the court martial system continued to operate.
In general terms, Bill C-60 simplified the court martial structure, established a comprehensive framework for the selection of the type of court martial to try an accused person and enhanced the efficiency and reliability of decision making. Specifically, it reduced the number of types of court martial from four to two and gave both remaining types of court martial the same jurisdiction over accused persons and offences.
[Translation]
With respect to the type of court martial that would try an accused, the bill provided the serious offences having to be tried before the general court martial and prescribed cases where relatively minor offences were to be tried before the standing court martial. In all other cases, it allows the accused to elect either a trial by judge alone or by a committee of the court martial.
With respect to the court martial's decision-making process, the bill granted military judges the authority to rule on pre-trial matters earlier on in the process, and strengthened verdicts by requiring of the general court martial committee a unanimous verdict for guilt and acquittal.
[English]
In keeping with the objective of providing clarity in the system, Bill C-60 also provided the opportunity to clarify certain provisions of the National Defence Act following the judgment of the Court Martial Appeal Court of Canada in R. v. Grant. Unlike the Trépanier decision, the court in Grant did not find a breach of the Charter of Rights and Freedoms but ordered a matter that was statutorily required to be tried by a court martial due to the passage of time be retried by a summary trial.
The court noted it was providing a remedy tailored to the specific facts and circumstances of that case. However, the direction given by the court that a new trial be conducted by summary trial instead of at court martial created considerable uncertainty in respect to the accused person's election rights and the ability of a commander to refer a matter to court martial prior to or during the summary trial.
Through Bill C-60, the issues raised in the Grant decision were clarified.
I will now address the implementation of Bill C-60. As you are aware, Bill C-60 received Royal Assent on June 18, 2008, and came into force on July 18, 2008. Once Royal Assent was received, the focus shifted to the preparation of the regulatory amendments that were necessary to both reflect and support the amendments made through Bill C-60.
The vast majority of these amendments were consequential in nature. The key regulatory amendment introduced was the process to be followed by the court martial administrator for notifying accused persons when they have the right to select the type of court martial and for receiving their election or selection.
From the coming-into-force date of Bill C-60 until February 26, 2009, 39 courts martial have been convened. In all of these cases, the legal framework introduced in Bill C-60 has been used to determine the type of court martial.
From the information provided to our office by the court martial administrator, we have discerned that, of the 39 matters convened, 5 were general courts martial and were convened automatically; that is to say, because of the nature of the charge, the charge was referred directly to that type of court martial. As you may recall, general courts martial are comprised of a military judge and a panel of five Canadian Forces members. One general court martial was convened as selected by the accused; five standing courts martial, which comprise a military judge sitting alone, were convened automatically; and 28 standing courts martial were convened as selected by the accused.
It should be noted that with respect to one of the general courts martial that was convened automatically, it was subsequently changed to a standing court martial on the request of the accused and with the consent of the Director of Military Prosecutions. Again, that was in accordance with the provisions introduced by Bill C-60.
This process for determining the type of court martial gives the accused person the opportunity to select the type of court martial in circumstances that align with the process used in the civilian criminal justice system. From all accounts, the process introduced in Bill C-60 for determining the type of court martial and for giving accused persons the opportunity to select the type of court martial is working well.
In conclusion, Bill C-60 was introduced at a critical time for the court martial system to address the effects of the decision in Trépanier. Bill C-60 not only restored much-needed clarity, certainty and stability in the court martial system, it also enhanced the fairness of the military justice system as a whole from the perspective of both accused persons and the Canadian public. By reinstating a statutory provision authorizing the convening of courts martial, the bill ensured that justice could continue to be done for accused persons as well as for victims.
The amendments introduced through Bill C-60 have been fully implemented and form the basis for how the type of court martial is determined in all cases.
Thank you for the opportunity to address the committee. Lieutenant-Colonel Jill Wry and I would be pleased to respond to any questions from the committee.
[Translation]
Thank you. I would now be pleased to answer your questions.
The Chair: Thank you, Col. Cathcart. I am certain all members of the committee appreciated your straightforward, clear and easy-to-understand presentation, making it even more surprising that you were unable to provide a translation.
Before we proceed to questions I have two comments.
First off, I would like you to ensure that the committee receive, within the next 24 hours, a comprehensive and accurate translation of your remarks. Furthermore, I would like to inform you that I will be writing to the General Counsel to remind him that testimony before a parliamentary committee is a serious matter and that any material provided by witnesses or future witnesses, specifically those representing the federal government, must be presented in both official languages.
Senator Nolin: I would like to thank both of you for traveling to meet with our committee.
I do not want to tear apart Bill C-60 once again, but I believe it may be worthwhile to provide some context. My colleagues will surely want to ask questions, especially in light of the report by the late Chief Justice Lamer who, in 2003, recommended — to you — that amendments be made, specifically to what was in Bill C-60.
Why delay and even, dare I say, tease or excite the Court Martial Appeal Court to the point where it had no other choice but to rule as it did in Trépanier? Why wait so long to finally adopt that which, to many people, seems quite sensible?
[English]
Of course, you can answer in English.
Col. Cathcart: Thank you very much for the question. As was explained when the minister and the Judge Advocate General appeared, a number of those recommendations from the Lamer report have been implemented, many of them through regulatory changes and through policy changes. Obviously we cannot control the charge-laying process and the eventual court martial and potentially be on that down to the appeal court. Therefore, while we are considering the Lamer recommendations — and of course those are not just simply legal considerations; the government has to look at them from policy-choice perspectives as well — the court martial system continues and charges proceed. It always leaves it open for a particular court on a particular day, whether it is a court martial itself or an appeal court, to disagree with the current system, if I can put it in that way.
At the same time, as the people know from our last appearance, the process in implementing the Lamer changes was introduced primarily through Bill C-45. That process was going through the House of Commons at the time Trépanier was handed down.
It is simply a combination of looking at the system as it existed and making decisions, both legal and policy, that it met the requirements of the military justice system; and at the same time, recognizing that changes would be made, but obviously through the regular legislative process. Unfortunately, if you go back to the Lamer recommendations, they were first Bill C-7, which died on the Order Paper, and Bill C-45 also died on the Order Paper. It was just a combination of the timing.
It was not necessarily a perspective of saying we have identified a serious problem from Mr. Justice Lamer's report, because we had agreed, both legally and in policy, to implement an aspect of the eventual decision that came down from the Court Martial Appeal Court in Trépanier.
[Translation]
Senator Nolin: As a result of a political decision, which I am not asking you to comment on, Bill C-45 was not amended but rather replaced by a specific bill, Bill C-60; in fact, it turns out that that was a good decision because Bill C-45 died on the Order Paper whereas Bill C-60 is now part of martial law.
Before addressing the outcome of Bill C-60, can you tell us whether you are working on preparing a new and improved version of Bill C-45? And when would this new set of amendments be tabled, reviving, we hope, Judge Lamer's recommendations?
[English]
Col. Cathcart: From our perspective, we have made our recommendations to the minister, and I understand the minister will be appearing here before you next week. I would leave it to him to answer with respect to the government's decision and his decision on the possibility of reintroducing the bill. It is my understanding that there is an attempt to do so, but I am afraid you will have to get the details from the minister.
Senator Milne: Colonel, if I understood you correctly, the new regulations — or the new system, really — has only been in place for a very few days.
Col. Cathcart: No.
Senator Milne: Since February 26?
Col. Cathcart: No. Royal Assent was June 18, 2008.
Senator Milne: I realize that. You said it took until February 26, 2009, to get the regulations.
Col. Cathcart: I am sorry if I misled you. The regulations were in place 30 days after Royal Assent, so that would have been July 18, 2008. What I highlighted was that from the time of Royal Assent to February 26, 2009, there were 39 courts martial convened using the new legislation and the new regulations.
Senator Milne: I see.
Col. Cathcart: Sorry to have misled you.
Senator Milne: It is good to have that clearly on the record, then.
I understand that at the time we passed the bill the first time around, the time it got Royal Assent, there was a backlog of about 50 cases. If you have done only 39 cases since then, what has happened to the rest of the 50 cases? I am sure more have appeared before you in the interim.
Col. Cathcart: That is a very good question. At the time, I believe there were 45 cases, and it was a combination of a different status for each of those cases in the system.
All of those were dealt with primarily under the existing rules. For instance, those that had been convened continued; those that had been preferred but not yet convened were then withdrawn, in terms of the prosecution reconsidering them. That withdrawal process was really as a result of the courts martial that were going to deal with them indicating that they were in the process of, in most cases, staying their proceedings and sending them back to the prosecution to deal with.
Essentially, it was a process in that interim period, from April 24, at the time of the decision of Trépanier, to Royal Assent, of the 45 cases still being dealt with in the system. Then the 39 are the new ones dealt with since the regulations and legislation were in place.
Senator Milne: The information that there were 45 cases as a backlog was not correct either then. They were already in the system and working their way through.
Lieutenant-Colonel Jill Wry, Director of Law/Military Justice and Policy Research, Office of the Judge Advocate General: It is confusing because we are dealing with these different time frames. After April 24 we were in a situation where we had some courts martial already in progress. We had some that had been convened and we had some that had only been preferred for court martial but not yet convened, and some the prosecutions were doing post-charge review of that had not yet been preferred. There were different stages of the process.
The challenge that was faced with the decision in Trépanier was that at that point no new cases could be convened. We could proceed with the five that were ongoing; we could proceed with, I believe, the 17 that had been convened, but the remaining ones were in between. They were stalled.
Senator Milne: They were in limbo, it has been said.
Lt.-Col. Wry: Exactly. They were in limbo. Courts continued to hear, for those five that had already been commenced, and the remaining that had been convened the courts continued to sit. On each of those occasions, accused were given the opportunity either to concede to the type of court that had been convened or to put forward an objection.
In some cases, they objected to proceeding with that type of court martial, at which time the judges either stayed the charges or terminated them. In approximately 11 cases, the accused were happy to proceed with the type of court martial that had been convened, and they proceeded.
We take you now to July 18. When Royal Assent occurred and the new system came into place, all of those matters that had been preferred — and there were about 24 that had been preferred and not convened — got sent over immediately to the court martial administrator to have preferred under the new system.
Any of those courts, for which the charges were stayed or terminated, the prosecution looked at them again, and based on the delay that had occurred and the nature of the case, they made a decision whether to re-prefer them and have them convened and dealt with in the new system. In some cases they did re-prefer, and in some cases they chose not to. They withdrew the charges or chose not to prefer.
Some of the number that have been convened since that time were part of that backlog. Some are new matters that have arisen, and it is difficult to be able to give you a clear line as to the exact number. I am sure you will find that some of the matters that were convened after July 18 are still working through the system. Some have been determined, the courts martial have been held, and others may be still ongoing because of adjournments, and so on.
Senator Milne: Normally what is the length of time it takes to go through this system, the two different kinds of courts?
Lt.-Col. Wry: To choose the type of court martial that would be determined?
Senator Milne: Once they have been preferred, I believe the term is, then how long does it take before their trial would be over, on average?
Lt.-Col. Wry: It is so dependent on the type of matter. I would hate to speculate and end up low-balling or high- balling it.
Senator Milne: Between the two courts it simplifies it.
Col. Cathcart: Obviously for those who are more familiar with the civilian system, because we do not have the structure, the courts have to be created in certain areas of the country or outside the country. There are variations, but in the quickest fashion it could be three, four or five months in terms of getting all the players, the accused and defence counsel content and ready to go.
In other cases, with motions and adjournment, they could easily go on for years—not much different from the civilian system.
Senator Milne: Has cutting it down from four kinds of court to two simplified your life or made it more difficult for you? Has it simplified life for the people charged or made it more difficult for them?
Col. Cathcart: We cannot directly answer that question. Our role in assisting the Judge Advocate General in his superintendence role is to monitor and do the policy and system development.
The actual participants or players — the prosecutors, defence counsel, the court martial administrator and judges — from whom you may be hearing, could give a more accurate picture. From where we sit, it is connected. It is a small system, so we hear quite a bit informally and formally.
As I said in my opening remarks, by all accounts things are going well. There have been no motions or challenges by defence to new sections that were introduced through Bill C-60. I cannot speak for them, but that generally indicates that they are so far content and that it is working for them as well.
Senator Angus: First of all, Madam Chair, I apologize for being a moment or two late. You were in some preliminary discussions when I arrived. I cannot get my coat on and off as quickly as usual. Knowing me, you would imagine it cuts my style.
I wanted to understand, first of all, the issue at the beginning. What I gathered, as I was sitting down, is that the witness did have a written preliminary statement in English but not in French and that led to the contretemps? Am I correct? It was just a document the witness read from, and therefore was available to us in French if we wanted to hear it in French?
The Chair: No, it is available only in English. People listened through the earphones to the translation.
Senator Angus: I understand the issue.
The Chair: I asked that a written, translated document be provided within 24 hours.
Senator Angus: I would never question your decision. I found it quite strict though, teacher, inasmuch as the transcript in French will be available on our network.
The principle, I appreciate. The 24-hour delay, if they do have a shortage of staff, might be a bit tight. I will look forward to receiving my copy.
The Chair: That is why I waited to hear the statement to be sure it was a clear, intelligible — even to laypersons — document, so that I did not think the one and only person capable of translating highly abstruse legal language would be summoned back from maternity leave or whatever.
Senator Angus: We will see it. It is a French translation of a document they had prepared as a courtesy to hand out. Witnesses do not always give us a copy of their statement.
The Chair: We on this committee tend to draw a distinction between ordinary witnesses and those who come from branches of the federal government. As you know, the Official Languages Act applies to the Government of Canada, and we take those obligations seriously.
Senator Joyal: We have for 14 years, Madam Chair.
Senator Angus: They are not obliged to bring a copy of their statement.
The Chair: We do not distribute it unless it is available in both languages, and we tend to assume that, in the vast apparatus of the federal government, the facilities should be available.
Senator Angus: Thank you for that clarification. That leads me to my next point: my acknowledged ignorance about matters of military justice. I am looking forward to learning more about it during this particular series of hearings.
I notice that the problems, if I can call them such, that have arisen and led to Bill C-60 — and to Bill C-7 before it and Bill C-45 — were one or two decisions of what is referred to as the Court Martial Appeal Court of Canada. Although it may be a rather elementary question for you all, may I ask the witness to explain to me what these section 93 courts are? Are these superior courts? What is the Court Martial Appeal Court of Canada?
Col. Cathcart: It belongs in the Federal Court and is composed of Federal Court judges but with appointees from other superior courts. It consists totally of civilian justices, unlike the courts martial themselves which are composed of military judges. It is the equivalent of an appeal court in the civilian system, composed of civilian justices.
Senator Angus: Are they judges who are appointed to the appeal division? As you know, the Federal Court has been divided. The court of first instance is a separate court and then there is the Federal Court of Appeal, which is another court.
Are they judges from the Federal Court of Appeal?
Col. Cathcart: They can be judges from either section.
Senator Angus: That applies to hearing and appeal both, I assume. In the first instance, there is a court martial being held. Is it presided over by one, two or more judges?
Col. Cathcart: One military judge forms a standing court martial and a military judge and a panel of five Canadian Forces members form what we call a general court martial.
Senator Angus: It is one of the two now.
Col. Cathcart: Exactly, senator. We have the two types.
Senator Angus: Thank you for that. I will study up on that more.
The next question will follow from Senator Milne's questioning. Like her, I saw 39 cases since June 18. I wondered if that was a large number of cases for a six-month period. Do you have a lot of business?
Col. Cathcart: It is all relative, I suppose. The system is fully occupied in terms of dealing with the processes, from initial investigations and charges to preferrals to the courts martial themselves. In a sense, the system is not located in one particular area or province. It is a transferable system. Theoretically, we could have a court martial in Afghanistan if the charges arose from that theatre.
It is busy on both the real, substantive portions of counsel participating and doing the court martial, and at the same time there is a lot of administrative and logistical work going on to set them up.
Senator Angus: If I were to ask the Chief Justice of the Superior Court of Quebec how many cases a year, on average, come before the Superior Court, he could give me a number. I was wondering whether 78 cases a year is a reasonable average.
Col. Cathcart: Yes. Between 70 and 80 cases is standard.
Senator Angus: My next question would again follow on Senator Milne's questioning. She got to the heart of the matter about the transfer over of pending litigation under the new system. I think she was trying to get at the following answer, and I was curious to see what it would be: Did any cases get lost in the shuffle?
You said "remained in limbo," and I think you described how those ones, depending on their nature, were dealt with. However, at the end of the day, were some cases lost in the shuffle or were any dropped because they did not fit into the right pigeonhole?
Lt.-Col. Wry: I would not say that. They reassessed a number of them and decided whether, in light of the delay that had occurred and in all the circumstances, did they wish to re-prefer. They did not re-prefer some, so those matters ended there.
Certainly, however, all of them have been dealt with in one manner or another, which could be a non-preferral. I believe in one case, the charge was actually withdrawn. Many others were re-preferred. Now, they either have been convened or are in the process of being convened.
Senator Angus: The last little line of questioning may be elementary to you all. The problems created by the Court Martial Appeal Court of Canada in Trépanier and in Grant are quite far reaching. Obviously, they have led to this. Why did it take so many years? For the system to suddenly say the system is null and void, that it does not work, blows my mind. It is staggering to be reading and seeing this, on top of then having the Supreme Court refuse leave to appeal.
I am actually a member of the bar and I understand the civil system. The court is busy, but regarding important matters of law, it will generally grant leave. I was surprised, given that.
Lt.-Col. Wry: First of all, the Trépanier decision is really the heart of Bill C-60. When that issue, that is, the challenge that was raised regarding the role of the accused in deciding the type of court martial, first arose, the jurisdiction or the case law in existence at the time involved a previous Court Martial Appeal Court of Canada decision from 1993 in the case of R. v. Lunn. In that particular case, the court confirmed that there was no constitutional requirement for the accused to have a role in deciding the type of court martial.
As was mentioned before, there was the recommendation contained in the Lamer report. In his preface, he was clear in saying that he felt we had a very fair military justice system, and he was recommending a few changes, a few improvements. Yes, he did recommend a mechanism that would allow the accused to select the type of the court martial, but there was nothing in his recommendation or in the preamble leading up to it to indicate he felt it was a constitutional necessity. That, read with his previous comments in the preamble of the entire report, affected the review of the recommendations.
Then, there was a further decision that the court in Trépanier referred to — Nystrom decision; I do not recall the year of that particular decision. In that case, the court referred to obiter discussion that had come up. Obiter would be a non-binding explanation.
Therefore, the situation that existed when the military judge looked at the matter was that there was a binding decision by the Court Martial Appeal Court of Canada in Lunn versus non-binding discussion in Nystrom and a recommendation by Lamer that was a recommendation that did not appear to have any constitutional necessity. Therefore, the military judge in Trépanier first found that there was no constitutional breach. He concluded the matter in accordance with the law under Lunn.
Of course, the Court Martial Appeal Court of Canada disagreed, came down and basically now gives us law separate from what the case was at the time in Lunn.
Senator Angus: That is why I asked you what that Court Martial Appeal Court of Canada was composed of. I understood you to tell me five judges in the civilian system.
Lt.-Col. Wry: It is composed of three civilian judges of primarily the Federal Court level.
Senator Joyal: I would certainly not want to start a debate with Lieutenant-Colonel Wry on the substance of the report of former Justice Lamer, but as they say in the Court of Appeal, I humbly disagree.
The Lamer report, as I read it, contains a lot of considerations that have legal implications. A former Justice of the Supreme Court cannot say in a report, "This is contrary to section 5 of the Charter" for obvious reasons — he does not sit as a judge — especially as advice to his former colleague.
I will read from page 35 of the report, to take one instance out of the air:
When one scrutinizes the above-noted types of court martial, it becomes apparent that two individuals charged with the same offence have different rights under the current regime based on their respective ranks and the discretion of the DMP.
If you are a lawyer — I do not mean that you are and that you came to the wrong conclusion — but to me, as a humble lawyer, not as eminent as my colleague on the other side who has just spoken, this raises the fundamental principle of the Charter.
This next bit is from page 38:
See, for example, Working Paper 27 published by the Law Commission of Canada entitled The Jury In Criminal Trials:
Empirical research relating to the jury's deliberative process suggests: first, that minority views are more likely to be expressed and considered under the unanimity rule; and second, that the quality of discussion is superior. From these findings, the greater likelihood of an accurate decision under the unanimity rule can be inferred.
If the unanimity versus the majority rule is not a principle of justice, I do not know what it is. This is totally legal. That is why he recommended that a court martial panel must be arrived at by unanimous vote, for legal reasons.
Again, I do not want to start a debate with you, but I have the perception from your statement that you are trying to downplay the substance of this, when in fact we are still struggling with the successor of Bill C-45 to ensure that the courts martial justice system in the Department of National Defence is in sync with this.
Senator Angus: "This" being the Lamer report?
Senator Joyal: Yes. I do not want to start a discussion of the whole report, but I took two extracts from the chapter that is involved and is covered by Bill C-60. If the approach of what you say is the mindset of DND with the report, I can understand that you are waiting to be told that it is contrary to sections 7 and 11 of the Charter before you start acting, unless bringing to the study of the report and the implementation of the substance of the report the kind of reaction that I would say an average lawyer would suggest you take if you do not want to find yourself in the embarrassing position of going to the Supreme Court and having the Supreme Court says "No, go back and do your homework and we will not give you a delay to do that. Do it now."
Do you not think you have to draw lessons from that?
Lt.-Col. Wry: Thank you very much. I would like to say first and foremost that the report produced by former Justice Lamer was taken extremely seriously. It was looked at for a considerable amount of time, and the initial review of it left us accepting 81 of 88 recommendations. Two pieces of legislation were introduced in Parliament to implement the vast majority of those recommendations.
Certainly, they were taken very seriously. I did not mean to mislead Senator Joyal to leave the impression that the report or any portion of it was dismissed or downplayed. When we reviewed those provisions, we attempted to read the report in its entirety to ensure that the fullness and the seriousness of all of the recommendations were properly looked at.
I referred to two particular statements in the foreword to his report, on pages 1 and 3. Senator Joyal, I would refer you to the paragraph under the heading "A sound and fair military justice framework." Former Justice Lamer said:
While Bill C-25 dealt with a variety of issues, one of the main areas was the reform of the military justice system. I am pleased to report that as a result of the changes made by Bill C-25, Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.
On page 3, when talking about the amendments and giving his assessment, particularly with regard to the Code of Service Discipline, which is the portion of the National Defence Act that the military justice system falls within, he stated:
I have recommended certain relatively minor changes that reflect the ongoing need to balance the norms and values of the Canadian society with the unique needs of the military for discipline, efficiency, and portability.
Recognizing that reasonable people can differ in their interpretations of different provisions, I would respond to the senators to let you know that the recommendations that came after those preamble comments were certainly taken from Lamer's own words, that he looked at them as being relatively minor changes.
The recommendations that he made were taken very seriously, to the point that 81 of them were accepted. An assessment had to be done on each and every one of them to determine what the appropriate course was from a policy perspective.
Clearly, the climate — when looking at recommendations 23 and 25, back in the 2003 and 2004 time frame — altered significantly once we were aware that the decision in Lunn was no longer the current and latest state of the law. The Trépanier case showed a clear decision about the constitutionality with regard to those provisions. That caused us to look again at what was the most appropriate way for us to proceed. It was on that basis and that policy decision that Bill C-60 came before the House of Commons and the Senate.
Senator Nolin: I am listening to you, and you referred to Nystrom, which came about in 2005. The Lamer report came about in 2003. Bill C-60 was in 2008; and it took Justice Letourneau, who was probably the pen in the decision on Trépanier.
Unfortunately, you are here in front of us; but imagine that we would love to have the rest of the department to really understand who is behind the decision. Probably it is the higher level of the department.
We are puzzled by the time it takes. It takes the court to say it is serious and we want those changes to take place, not in the far-off future, but now. That is why we are raising those questions. We all want the same thing — the best system.
Col. Cathcart: Absolutely, senator.
Senator Nolin: We had Bill C-7 and Bill C-45. When is the next one and how soon will we get it?
Col. Cathcart: As I said, I would love to be able to give you that straight answer today. Unfortunately, I cannot because; those decisions are not in my hands.
Senator Nolin: It was raised in front of Nystrom and the court refused to rule on it, but the same reasoning was there then that emerged in Trépanier.
Col. Cathcart: I am sure, senator, you will recall that in Bill C-7 and Bill C-45, the crux of the issues that Trépanier focused on — the selection of the courts martial system — was indeed going to be part of those bills. They are going through the process. Unfortunately, we, in our directorate and division, cannot control it once it enters the parliamentary process.
We are trying to focus on helping the committee today with what has happened since Bill C-60. I am familiar with Senator Joyal and Senator Nolin's questions from the previous debates before the bill was passed. I am not suggesting for a moment that those questions are not valid and legitimate. I think every observer would ask the same questions about the delay business. At the end of the day, some of that is answered by the possibility of a new bill being reintroduced, and also the fact that we have had Bill C-60 passed and functioning well to address those issues raised by the Court Martial Appeal Court.
Senator Angus: Could I ask the date of the Trépanier decision?
The Chair: April of 2008.
Senator Joyal: April 24.
The Chair: That was why Bill C-60 had to be brought in and handled so expeditiously.
Senator Angus: I understand.
Senator Joyal: You mentioned that you have amended the Queen's Regulations and Orders for the Canadian Forces. Could we circulate a copy of that regulation? My colleague will have a copy in both languages, of course, and I want to read them, if possible.
Col. Cathcart: Absolutely.
Lt.-Col. Wry: I believe I have a copy with me, so I can provide a copy to the committee presently, or after we are completed.
Senator Joyal: We are not concluding our study today.
Lt.-Col. Wry: Of course.
Senator Joyal: As you know, Justice Lamer recommended a certain number of changes to those regulations, and I would like to read them to satisfy myself.
Lt.-Col. Wry: Absolutely, senator. I would just clarify that some of the regulatory amendments that came into force in July related only to what was necessary for Bill C-60.
Senator Joyal: That is what I understand from your information.
Lt.-Col. Wry: As well, as Colonel Cathcart mentioned, we have implemented a number of the other Lamer recommendations via regulatory change. Would you be looking for those as well?
Senator Joyal: If you have them at hand, certainly. I am sure that my colleagues would be appreciative of those, because it is part of our general reflection, and we take that into account. We cannot isolate one aspect of the system. I am grateful to you for that.
In your report on the implementation of amendments in Bill C-60, you have not mentioned the other aspects of Bill C-60 that dealt with other issues. Do you have nothing to report on those, or do you feel that the changes in the system were essentially on the structure of the court martial and you do not have any additional information on the rest? Were you not expecting that question?
Lt.-Col. Wry: No, not at all. The heart of the amendments in Bill C-60 related to the court martial selection process. The other amendments are undoubtedly, but it is not something concrete that we are able to put our hands on. The selection process is a concrete process.
Along with the comments we have received with regard to the court martial selection process, we have not heard of any issues with the other amendments that were implemented.
Senator Joyal: I will read to you the terms of reference we received from the minister:
I would ask, however, that your Committee consider studying the provisions and operation of Bill C-60. . .
It is not just a structure of the court; it is the whole. If you could look into the other aspects of the bill and see if there is anything you would want to provide us with as to where you stand in terms of the use of those other sections, I would be grateful. It would help us complete the terms of reference we have in front of us.
Col. Cathcart: We will certainly do so, senator. As I said, in many ways, a number of the provisions you are aware of were consequential amendments that dealt with the determination of mental fitness for an accused to stand trial; simply a matter of no data. Seven months is not a long period of time to see how all the provisions were implemented and to follow them and track them from a statistical basis. Again, you may hear from other witnesses in your deliberations who deal with the system on a daily basis, and they could probably give you at least anecdotal evidence of those types of provisions.
We have and continue to monitor and make inquiries on everything we can. Certainly, as we gather more data, the intent would be to make it available for anyone, including the committee. It is simply looking at the crux, the heart of the decision, which is the shrinking from four to two courts martial and the election by the accused.
On that score, our early data is interesting to the extent that prior to the changes, when we had the four different types of courts martial, particularly the two types of general courts martial and disciplinary courts martial — which were similar except for the number of CF members on them — the election of those was about 20 per cent, I believe, before Bill C-60. Election to those types of general courts martial is hovering around 15 per cent now, which in and of itself is pure statistics at this point. We are not able to drill down to find any more details on that issue.
That is a rough, grosso modo sense of how the system has been used. There was perhaps an anticipation that giving more ability for the accused to elect would cause a large jump or spike in the number of general courts martial, and to date that has not happened.
Senator Joyal: My question stands. If you can provide us with additional information on the other aspects of the bill that come to mind, I would be grateful. It will help us complete our study.
Senator Wallace: Colonel, since you remind us we are here to focus on what has happened since the adoption of Bill C-60, I am thinking in particular of accused who were in the system immediately prior to the implementation of Bill C- 60. They could have been at any stage of the military process at that point.
Would all of the accused who were in the system at that point and who would not fall within the mandatory general court martial — what is now the standing court martial — have been provided the option to choose?
Lt.-Col. Wry: As I mentioned before, any matters that had been convened or commenced before the Trépanier decision continued to progress. Certainly, in every single case, the accused was given an opportunity to either concur with the type of court martial that had been convened or raise an objection to it.
In situations where an objection was raised, the charges were either stayed or terminated, and then a decision was made by the Director of Military Prosecutions whether to re-prefer those charges when the new regime came into place. When charges were re-preferred, the accused would have the opportunity to have the type of court martial determined in accordance with the new regime.
Senator Wallace: The result of which would be that any of the accused who were in the system immediately prior to the implementation of Bill C-60 could not feel they were disadvantaged because they were in the system before it was passed; they were given full opportunity to enjoy the benefits of Bill C-60?
Lt.-Col. Wry: Yes, they were given the opportunity for any matters that had not yet been concluded.
Senator Wallace: That had been ongoing.
Lt.-Col. Wry: Yes.
Senator Wallace: I sense you are pleased with the result of the implementation of Bill C-60. However, in the 39 cases that have followed since then, I am wondering whether any situations have arisen that, perhaps, were unanticipated leading up to the passage of Bill C-60 and that would lead you to believe that maybe some further refinement is still needed in the system. Or have no blemishes surfaced? Has the new system worked well? I know nothing is perfect. Is there anything we might be talking about in the not-too-distant future that we could further refine?
Col. Cathcart: At this early stage, the short answer is no. We are truly trying to express ourselves objectively; we have no interest in the outcome of particular courts martial. We are just looking to make sure all the players have the right tools and resources to allow justice to run smoothly.
The information we have would lead us to fairly say, "Yes, we are pleased." Nothing immediately jumped out at us. Of course, with any transition, there is a bumpy period in which the participants have to adjust to the new system. However, as in any court system, the accused has every right to raise objections and motions and go on to appeal courts. We have not seen much of that sort of potential displeasure with the system expressed by those players.
Senator Wallace: Is that true even among counsel of the accused? Are they completely satisfied?
Col. Cathcart: I would like to go that far, but I cannot, senator. They probably would not be doing their job if they were always satisfied.
Senator Baker: I have a question based on that last point. Regarding R. v. Middlemiss, as I recall there were several judgments pertaining to the new rules based on Charter arguments that were held since this legislation came in. Would you agree with that?
Col. Cathcart: Motions were raised, but they were not —
Senator Baker: They were also adjudicated.
Col. Cathcart: However, they were not directly related to the Bill C-60 amendments.
Senator Baker: Let us talk about the Bill C-60 amendments. You gave a requirement of one year from the occurrence of the event to the laying of the charge. I noticed that was in Bill C-60. Did you notice that?
Lt.-Col. Wry: Is that in relation to summary trials?
Senator Baker: It is in relation to summary conviction.
Col. Cathcart: In relation to summary trials.
Lt.-Col. Wry: Our system is different from the civil system, so it is easy to get the terms mixed up.
Senator Baker: Yes, I know. In the Criminal Code, it is six months from the date of the occurrence of the event to the laying of the charge. You gave one year in summary matters and matters that deal with the Criminal Code, as such.
Let me ask you about the process and a statement by Justice Lamer in his report. Pertaining to the selection process for the panel, he said:
To look at the rank of an accused as one of the factors governing the type of court martial to be convened is contrary to the modern-day spirit of equality before the law. There must be a military justification important enough to justify this different treatment.
As I understand it, the chief of staff to the Chief Military Judge decides the panel and has some discretionary power in the decision of the panel — the jury, in this particular case. Correct me if I am wrong, but the Chief Military Judge could be the judge at the trial of the accused, whereas, in our civil system, the accused would be judged by his or her peers and would have an opportunity in the selection of those who would sit on the panel. I presume that is what Justice Lamer was referring to. The new system, with the court martial administrator, of selection of the panel is dramatically at odds, certainly, with the system we have in the civil law or in civilian courts.
Do you have any comment on how that has worked since the system came in? I think it is the chief of staff to the Chief Military Judge who selects the panel, is it not?
Lt.-Col. Wry: The court martial administrator does so.
Senator Baker: The chief of staff to the Chief Military Judge is Ms. Morrissey. Who is the administrator?
Lt.-Col. Wry: You have raised five different things.
Senator Baker: Is it Ms. Morrissey?
Lt.-Col. Wry: Thank you for your queries. I am happy to provide any information I can. First, the court martial administrator is currently Ms. Morrissey. I believe what you are referring to was when she was asked to describe her function at that particular court; she described it as akin to a chief of staff.
Senator Baker: Which court was that?
Lt.-Col. Wry: I thought you were referring to the Middlemiss court martial.
Senator Baker: I probably am.
Lt.-Col. Wry: When describing her function, she said she was similar to a chief of staff. She is not formally the chief of staff, to my understanding. The court martial administrator does have certain functions defined under the National Defence Act and under the Queen's Regulations and Orders for the Canadian Forces.
Before the amendments in Bill C-60, the court martial administrator was the individual who empanelled the court; when we have had empanelled courts, the provisions in the Queen's Regulations and Orders for the Canadian Forces set out the mechanism used by the court martial administrator to do that empanelling. That is not a new process. In the past, she would empanel them or convene the type of court martial and, if it was an empanelled court martial, do so in accordance with the type of court chosen by the Director of Military Prosecutions.
Now, the court martial administrator, when convening the court, has to do it in accordance with the regime in Bill C-60. Once she looks at the type of charge or offence or she receives the election from the accused, if the accused has elected a general court martial or if the type of trial would require that, then she uses her functions under the regulations and empanels. That is the role.
Clearly, the process that was used in the military justice system is different than the process used in the civilian system. A panel is not meant to be a jury. Even within the Charter, that distinction is recognized.
I was quickly trying to find the exact recommendation from Mr. Justice Lamer on the matter of the rank of the accused before a court martial. I would like to settle the issue for you, if I could, in that when the amendments and changes were made with regard to the courts and we went from four courts martial down to two, we eliminated all differences between who those two courts could try and what type of matters they could try. They now have the same jurisdiction over all accused. They now have the same powers of punishment and the same jurisdiction over any type of offence.
I wanted to ensure that change was clearly understood.
Senator Baker: I would like to get back to the distinction made by Justice Lamer. He noted, and I read into the record, that there must be a justification important enough to justify this different treatment.
When the court administrator selects the panel, there is a restriction in the types of people who qualify for the panel. In civilian courts, it is your peers who form a jury; but in the case of the military panel, your rule — correct me if I am wrong — is that you cannot have anybody below the rank of captain, if the accused is a commissioned officer. If the accused is a non-commissioned officer, you cannot have anybody below the rank of —
Lt.-Col. Wry: Warrant officer.
Senator Baker: Yes, warrant officer. Therefore, you have a restricted group of people who can serve on the panel and you have somebody who works in the office perform some of the functions, as was explained in that court judgment. Fifty per cent of his or her work is with the Chief Military Judge, who could be the judge who will adjudicate the charges against the accused, having the discretion to select those people on the panel from only a restricted number of people on the panel. Somebody is not obviously tried by their peers, but the discretion given to the administrator under the act is that the person would, I suppose, phone up prospective panel members and be able to make a judgment as to whether or not that person would be suitable for the panel. Is that the way it works?
Lt.-Col. Wry: The way it works currently is that the regulations set out automatic exclusions for the panel members, as well as discretionary exclusions. For example, I will never be a member of a court martial panel because I am a lawyer. If I was the commanding officer of the accused, I would be excluded. There are the regular automatic exclusions.
Senator Baker: Could you provide those regulations?
Lt.-Col. Wry: Absolutely. There are then several discretionary exceptions as well. My understanding of how this works, from the court martial administrator herself, is that the names are randomly generated using the processes within the department. A list is obtained. Then the court martial administrator could contact the individual to find out information. For example, it may not be clear what connection I might have that would automatically exclude me, so she has to obtain that information.
Based on the information that is obtained, it is determined whether persons fall under one of the automatic exclusions or fit into one of the areas for which the court martial administrator may exclude them or may not. It is not a broad discretion that the court martial administrator has. There are I believe six or seven reasons for which the court martial administrator may choose not to include a person on a panel.
Senator Baker: Just a final question — I know you are getting impatient with me. As Justice Lamer says, there must be a military justification important enough to justify this different treatment. He is talking about the entire picture of having only people higher than captain sit on a panel and then having somebody in the Chief Military Judge's office who could be the judge facing the accused to select those panel members.
The military justification for not going further and eliminating a possible panel member — we understand what you say when there is an exclusion made in the Charter for military courts — but as Justice Lamer points out, there must be a sufficient justification. Would you have any comment on that?
Col. Cathcart: Yes, obviously that is another good question for people looking at our system and doing the obvious comparison with the civilian system.
To be clear, we are talking about the composition of the military panels that sit on a general court martial now. That was not an element of Bill C-60 or taking the Lamer recommendation to implement it through Bill C-60. Those were reducing the numbers of types of courts martial, maintaining the same selection process other than the key part where the prosecution no longer prefers the type. It is now the court martial administrator, based often on the type of charge or the election of the accused.
I want to be cautious; the issue you are raising is a valid one to discuss, but it was not the subject of Bill C-60, with respect to saying now, "Well Mr. Justice Lamer said this and we did not address it in Bill C-60." It may or may not be addressed in coming legislation — for instance, if Bill C-45 in its next format gets reintroduced by the government.
Having said that, there would be always a military justification and a number of factors that would go into making those types of decisions. Number one is usually based on the decision recognized by the Supreme Court of Canada in a case called R. v. Généreux — the need and the requirement for a separate military justice system. The importance of that is to maintain discipline, which at the heart of things is what separates the military from the civilian world: the importance of discipline and maintaining a coherent, effective and high-morale fighting force.
Within that military structure, a key aspect of the panel composition is that we still recognize we are in a military, and the panel is not necessarily at this point designed to be a panel of one's peers. Part of the rationale would be that officers or senior non-commissioned officers who could potentially in the future become panel members, because of their experience, bring more to the table in terms of military ethos, understanding and leadership. When they are sitting in judgment of individuals, that is an added factor; where, with respect, a bright, intelligent young private may not bring that same element to bear.
Then it starts to cause one to think if a private could have a panel of his peers, being other privates, why could not privates sit in judgment of sergeant majors and captains and generals? We are into problematic areas.
My answer will not be full, because that very issue that you raised is still under consideration and was not a part of the Bill C-60 process.
The Chair: I think I hear a supplementary.
Senator Joyal: Very quickly, because I think it is part of this. If the accused wants to oppose a name on the panel, does the regulation provide the procedures for it?
Lt.-Col. Wry: Yes, there is an ability to raise an objection to a member of the panel. Unfortunately, I do not have my regulations with me to give you a direct referral to that, but I am happy to make sure a copy of that particular regulation is presented for the committee.
The Chair: Thank you very much. Before we go to a second round, I have a couple of questions. One is a simple matter of clarification.
Going back to Bill C-45, it is my understanding that Bill C-45 did not provide for the choice of court martial. It had the unanimity but not the choice.
Col. Cathcart: That is correct.
The Chair: Second, arising out of the other subject that has preoccupied us here today, could you give me a brief description of the system as it exists for minority language accused who face court martial? They would normally be, I suppose, francophones. Do they have the right to a full court martial in French, or do you not have the staff who could do that? Do you have translation for both oral and written matters? How does that work? I do not want to take up a lot of the committee's time with this issue.
Col. Cathcart: The system is designed to be fully bilingual in the sense that, if someone prefers a trial completely in English or French, it happens. That would include the judge, the prosecution, the defending officer or, if the accused can retain his or her own civilian counsel, that individual as well, and the court support staff.
The Chair: That includes documents, does it?
Col. Cathcart: Yes, it includes documents.
The Chair: Thank you.
Senator Wallace, did you have a second round question?
Senator Wallace: I do not at this point. I might want to follow Senator Baker.
Senator Milne: My questions will take you back to Bill C-60 and Chief Justice Lamer.
Sections 25 and 26 of Bill C-60 refer to the appeals process. I know you did not come prepared to speak to some of these other issues in the bill, so if you cannot answer, I will wait for a written answer.
How many appeals have there been in the last 10 years, and do you anticipate that this new regime will increase the number of appeals? Will it make appeals easier or more difficult for the accused?
Col. Cathcart: If I understand you correctly, the sections referred to deal with the mental fitness of the accused to stand trial. I do not have any hard statistics at my disposal today to give you a precise answer. In general terms, we are not aware of any appeals that have been done on that specific issue. Fortunately, from a certain perspective, that sort of fitness test has not been used in our system.
Senator Milne: As a follow-up question, Lamer's twenty-sixth recommendation —
Lt.-Col. Wry: May I give you some supplementary information in relation to your first question? I would highlight section 26. It was one of the amendments brought forward to clarify an issue that came out of the Grant decision. The key part is that it clarified the fact that, when the Court Martial Appeal Court of Canada sends a matter back for a new trial, in the Grant decision, the court interpreted that to include a summary trial, which is a whole different regime, if I may describe it that way.
This provision, however, clarifies that when the Court Martial Appeal Court of Canada sends a matter back, it is for a new court martial. That is consequential. A number of provisions talked about sending something back for a new trial, and this was to clarify that it meant a new court martial.
Senator Milne: Section 26, of course, is for someone who is mentally unfit.
Lt.-Col. Wry: The main provision is elsewhere.
Senator Milne: However, Chief Justice Lamer wrote in recommendation 26 on page 42 of the report that the regulations dealing with the composition of the appeal committee be amended. Additionally, he suggest what the makeup of an appeal committee should be, and he suggested that an appeal committee review cases and determine whether to provide legal counsel for persons seeking representation to an appeal of a court martial to the Court Martial Appeal Court of Canada.
However, when my assistant went through the relevant chapter — I think it is 115 of the Queen's Regulations and Orders for the Canadian Forces — he saw no mention of a court martial appeal committee.
Was that change ever implemented, and if not, why not?
Lt.-Col. Wry: That is a very good question. I believe we have had an appeal committee since early 2000, before Chief Justice Lamer's report. It was provided for in the regulations in Chapter 101.21, I believe. I am saying that from memory, but I believe that is the article.
First, there is an appeal committee, and that is one part of the amendments that I referred Senator Joyal to that have been implemented to implement parts of the recommendations. We have made regulatory changes to reflect Chief Justice Lamer's recommendations. It was not exactly the way that he recommended, but we have changed the composition and adopted the other recommendations he made, including clarifying what is meant by "professional merit."
Therefore, yes, that is in place.
Senator Milne: Good, I am glad to hear that.
The Chair: Do we still have a supplementary?
Senator Joyal, I have to tell you that you are coming up right after Senator Nolin on the second round list.
Senator Joyal: I can wait.
[Translation]
Senator Nolin: I have a brief question and I assume the answer will be long. You may answer in writing or get back to the committee on this.
We have been looking at these reforms since Bill C-25, in other words for the last 12 years. It seems there has been some delay in implementing Chief Justice Lamer's recommendations. Without a doubt, successive minority governments have probably contributed to these delays.
I am convinced that you have been reflecting on ways to expedite the process to update matters and uphold the rights of individuals who are called to appear before your particular system. What has this thought process led to? We may have to recommend improving the speed at which amendments are made. I would like to hear what you have to say on this point, if you have any recommendations.
As I stated, you may not have answers for us this evening, but if in considering this matter, you arrive at a few ideas, we would be pleased to read your recommendations.
The Chair: This issue is of great concern to us.
Senator Nolin: Like you, we are interested in Bills C-7 and C-45 or at least C-7 or C-45 being passed. It has not been the case. What could we do to improve the process?
[English]
Col. Cathcart: Again, I would dearly love to be able to give you our detailed recommendations in writing. We could give you several volumes, in fact.
From the start, the role that I and Lt.-Col. Wry play on behalf of the JAG is to continually monitor our military justice system and look for every avenue, not only for regulatory but also policy changes, we can do. That occurs daily. We spend many long hours doing that work.
On the issue of what might come in Bill C-45, I honestly cannot comment, because the recommendations that we have made are just that, recommendations. They are recommendations to the minister and, ultimately, whether to proceed with introducing new legislation will be decided by cabinet.
Senator Nolin: My question is not the content; it is the process. What should we recommend? We will have a recommendation. What can we recommend?
The Chair: In order to avoid 12 years of delays.
Senator Nolin: To be fair, it is not 12 years.
Twelve years ago we started in this room with Bill C-25, and it was a lot of fun. We knew that someone would come up with brilliant recommendations during the next twelve years and Justice Lamer was that person. We dearly like Justice Lamer's recommendations, but it is now six years later.
What can we recommend — using your very intelligent thinking — should be done to accelerate the adoption of those amendments? What is in Bill C-45 is in the minister's and your purview for now.
Col. Cathcart: It looks like Christmas can come twice very quickly.
Honestly, senators, I would like to be able to go to that length. In terms of process, I am at the mercy of when reviews are done, as in the case of the one by Mr. Justice Lamer. He makes good recommendations. Then it becomes a question of what is required to make those happen. It is always a combination of regulatory, legislative and policy changes. When you are into legislative changes in particular, you have to engage the parliamentary process. Again, I would have a number of personal comments on that, but I will not engage in that.
My position here is to provide recommendations on how the changes and future changes can be made, but if they end up — as most seem to — requiring changes to the National Defence Act, then we are engaging the parliamentary process. I defer to your experience and intelligence, honorable senators, to advise your colleagues here, and perhaps in the house, on better ways to process it.
We know how it works, particularly in minority governments. I am not saying that is the total answer to the situation. I am sure there are other issues involved.
Senator Nolin: No one likes to be told by the court that we should have done it differently.
Col. Cathcart: Least of all us. We are all in agreement.
Senator Angus: Would it be helpful to point out the letter from Minister MacKay invited comments that would include suggested amendments or amendments that he would bring forward, pursuant to our recommendations? I assume you are aware of that.
Col. Cathcart: I am very aware.
The Chair: What I might ask is whether you can reflect, over the next two or three days, on whether individually or institutionally work has been done that could be made available to us.
We understand the concept of work that has not reached a final conclusion yet. At the same time, in our reflections it might be useful to understand if there have been reflections in this area within your department. For example, you would be better placed than we to understand what might be the barriers facing an otherwise apparently highly desirable change, or otherwise.
If any such material is available, or if you have any further thoughts that you would be prepared to offer the committee, we would be grateful to receive that material.
Col. Cathcart: Understood, Madam Chair. We will look at that.
Senator Joyal: I would like to continue on the fundamental principle on which the system operates and in relation to Bill C-60's provisions.
Bill C-60 contained sections 23 and 24 that allowed or imposed that a new trial be by court martial, essentially, and not the option that was prevailing before, that the new trial could be before another court, be it one of common law or one that is not a court martial.
It seems to me that change is an important one. In other words, if you have the opportunity to order a new trial in the common law or in the court martial system, it is a protection, in my opinion, for the rights of the accused or of the person who has been found guilty, because we are at the appeal level.
What is the rationale behind the conclusion that that has been changed in Bill C-60? It is a parallel exceptional system to sections 4 and 5, which my colleague Senator Baker raised earlier on. Respectfully, you have not answered the suggestion that the accusation could last for a one-year period instead of six months.
In other words, there must be a rationale if you are curtailing the protection afforded by the system to a person who has been found guilty or someone who should have the benefit not being charged after six months, as it is in the common-law system. Could you give me the answers on that?
Lt.-Col. Wry: I will try, Senator Joyal. I hope not to insult anyone by giving a quick refresher on the two types of service tribunals there are in the military justice system.
We have courts martial, as you are aware, and we have summary trials. Summary trials are held by members of, most likely, the accused person's chain of command. It is often the commanding officer, someone who has been delegated by the commanding officer or someone superior to the commanding officer who is referred to as a superior commander.
Currently, in the system, the summary trial process and the court martial process are dealt with — if I can put it in colloquial terms — in two silos. They come together in that persons who have been charged can elect, in the majority of cases, whether they want their trial to occur at summary trial or whether they wish it to be dealt with at court martial.
Once they make that election, or once a matter has been referred to court martial, that is the silo in which it is dealt with.
Up until the decision in Grant, when the Court Martial Appeal Court dealt with a matter, quashing a finding or sent it back for trial, it was always the case — and it was always expected to be the case from our perspective — that it would be a trial in the court martial regime because it is a separate silo.
In our view, it is not an issue of referring a matter to trial outside of the military justice system. I do not believe that was ever anticipated. However, within the military justice system, it was always interpreted that when it refers to a trial, it is a trial by court martial.
That is the answer to the first question you raised, senator.
Senator Joyal: Has it happened in the past that the Court Martial Appeal Court decided to send a case for retrial outside the court martial system?
Lt.-Col. Wry: There is no possibility to do that. As you know, our system is a black-on-white system, and we are limited to the provisions that are written in the Code of Service Discipline. It is dealt with in its own stream.
There is the ability for some matters to be tried in a civilian court; however, there is no authority for a court martial to have the matter referred to another authority. It would be at the discretion and decision of the civilian authorities as to whether they would proceed with a particular charge. I believe there are one or two examples where the civilian authorities were engaged in that regard.
I would like to go back to the very first part of your query, Senator Joyal, which referred to a comment made by Senator Baker. I apologize for not having addressed it. I remember it, but I did not write it down on my list.
With regard to the one-year limitation period relating to summary trials, I would make two comments. First, the whole purpose of the summary trial system is to have a matter that can be dealt with quickly and efficiently. If it cannot be dealt with in that manner, the idea is to not let it languish at that level. Rather, you want to give the person an opportunity to have it dealt with in a more formal manner. The one-year limitation period begins on the date of the event and continues until the commencement of the trial, unlike the civilian system, where it is the date of the event to the date of the charge. It is a small distinction between the two.
Second, I would refer senators to recommendation 43 in the Lamer report. In that, former Chief Justice Lamer recommended that the current one-year limitation period for summary trials be retained. The one-year limitation period existed previously. There was concern about how it was provided and interpreted in the Grant decision. It was restated in the National Defence Act to be even clearer. Its purpose is to provide protection for the accused such that if something is not being dealt with in an expeditious manner at the unit level, the accused does not have a charge pending indefinitely. If the system is to proceed with the charge, then it has to go to court martial so that it can be dealt with and the member can put the issue behind him or her.
Senator Joyal: My last question is on your report today about the implementation of Bill C-60. On page 1 you said 28 standing courts martial were convened as selected by the accused. Further along in the paragraph, you state that in 6 of the 28 cases where the accused member chose to be tried by standing court martial, the selection was made after having earlier selected or being deemed to have selected trial by general court martial.
Without giving the names of the accused, could you tell us the reasons for their change of mind?
Lt.-Col. Wry: We would not know the reasons. It could have been any number of reasons, and I would not want to speculate on that.
Senator Joyal: No, I do not want you to speculate. That could be dangerous.
Lt.-Col. Wry: I am not sure of the reasons.
Senator Joyal: Could you review them quickly without too much burden?
Lt.-Col. Wry: Senator Joyal, the difficulty is that we would not have access to a decision made with benefit of counsel.
Senator Joyal: Is it not in the minutes?
Lt.-Col. Wry: It would not be on the record. It would be a request in writing asking the court martial administrator to change the selection.
Senator Joyal: In other words, you would not know what prompted a person to change from one system to the other. Normally, an accused with the option to select might think that option A would be more beneficial than option B, depending on the case at hand.
Lt.-Col. Wry: There is some information that might assist in considering this. As the provisions currently read in Bill C-60, a member has 14 days to communicate the choice back to the court martial administrator. If they have not done so within 14 days, they are deemed to have chosen general court martial. Then, they have the ability as of right up to 30 days before the planned commencement date of the trial to change that.
Part of it might be a time issue. I am not meaning to speculate, but within the 14 days, that could be a factor with regard to obtaining advice and making a full and complete decision.
The Chair: We intend to invite defence counsel to testify. Obviously, this would be a key issue to explore.
I would remind colleagues that we are into overtime.
Senator Baker: We accept what you mentioned about the recognition in Généreux of a military court being different than a civilian court and the reasons for it. In Généreux, the person handing down the judgment said:
Their training is designed to insure that they are sensitive to the need for discipline, obedience and duty on the part of the members of the military and also to the requirement for military efficiency. Inevitably, the court martial represents to an extent the concerns of those persons who are responsible for the discipline and morale of the military.
Of course, this was in sharp contrast to the words that I read to you from former Chief Justice Lamer's report, when he said:
To look at the rank of an accused as one of the factors governing the type of court martial to be convened is contrary to the modern-day spirit of equality before the law. There must be a military justification . . .
The only point I wish to bring to your attention was that the words explaining the difference and the necessity of the difference in the military trial were also said by former Chief Justice Lamer in Généreux. However, in law, if you have a change of attitude, you normally take the most recent change as being the one that shall prevail at the time. That is why we are so interested in former Chief Justice Lamer's review when he suggested things that one might say are contrary to what was said in the judgment in Généreux.
Do you have any comment on that?
Col. Cathcart: The quote from the Lamer report spoke to the heart of the kinds of courts martial that were available at that time. As Lieutenant-Colonel Wry has responded previously, the issue of difference in rank does not exist in the system today with the general court martial and the standing court martial. If the question is more towards panels and composition, as I said earlier, that is certainly a valid point to raise. However, that is not the issue we have been working on specifically in the context of Bill C-60.
Senator Baker: I understand that. We ask you these questions and appreciate any material you can give to us afterwards. We sit here as a committee, having watched over the past year your trilogy of cases that attacked the reappointment of judges after five years. I forget the names of the cases, but they are regarded as being the trilogy of cases. I see you smiling so naturally you know about them. They changed the law. Then you had the Governor General's regulations, which were passed in March 2008, followed by a bill in June. Meanwhile, we had Bill C-45 and another bill, which did not see the light of day. Sometimes we conclude: Why do we not put everything in one bill at the appropriate time rather than do it in such a piecemeal fashion? I hope that explains why we are interested.
Col. Cathcart: Absolutely, 100 per cent. We share that sentiment frequently.
Senator Milne: You have to be careful what you wish for. You might get another budget.
Senator Baker: Perhaps you might want to comment. I listened to your response to Senator Joyal that the summary determinations are for matters that should be decided immediately and perhaps are simpler in nature. The court martial trial would be for more serious matters.
I am a prolific reader of case law. One of the last three cases from the Canada Court Martial was R. v. Osmond, reported, that concerned an absence without leave for a day while he was in Toronto. Another case dealt with the fact that the soldier slept in from 7:30 a.m. until 10 a.m. and he was charged, as he should have been. Middlemiss is the one that took the most time to adjudicate. Last month, we went to the final sentencing of Mr. Middlemiss and I discover that all of those cases had to do with the fact that he refused to go to the mess dinner and purchase the ticket.
It is not a matter of having the urgent things and the simple things dealt with in a summary hearing with the court martial being for the more important matters. However, the case of Mr. Middlemiss displays that his lawyer certainly went the entire route in trying to get this fellow acquitted.
There were five judgments handed down in Middlemiss that involved the Charter. However, in the end, he was sentenced for not purchasing the ticket to go to the mess dinner, whereas, if he were in Colorado Springs, he would not have to purchase the ticket. That is not a requirement. However, if you are here in Canada, you have to purchase a ticket and that is an offence under the act.
Do you have a comment?
Lt.-Col. Wry: I have a couple of points. Those are valid observations that you make.
There are two important observations to make. First, there are two ways that a matter can go to court martial. First, if it is a matter in which a presiding officer feels that his powers of punishment are not adequate or if it is too serious a matter to be dealt with in that manner — for example, if there are Charter issues that appear to be pending — he can refer it to court martial.
The other way is that the accused can elect it. To help give our system as much fairness as possible, we provide accused members with a broad ability to elect trial by court martial so that all of the trappings that come with a more formal court, such as funded defence counsel and the whole gambit of rights and opportunities, are available to them.
I do not know about the cases you mentioned. The first two cases might very well have been situations where the individual elected the right to be tried by court martial. We think that is a good thing, even though we would agree those are not on the more serious end of the spectrum.
I am glad you raised the case of Middlemiss, because that one was convened under the new provisions. As you will recall, the way we have made the differences between what goes to general court martial and what goes to standing court martial and for what one gets an election is based on the punishment that could come out of that particular charge.
Disobedience of a lawful command carries with it a possible maximum punishment of life imprisonment. As you can well imagine, you have situation where you disobeyed the lawful command to buy the ticket to go to the mess dinner as well as a situation where a person refuses to pick up arms and engage a military target. There must be a wide ability to deal with that.
Given the maximum punishment available, that type of offence garners an automatic referral to a general court martial. That is a situation in which, when you are choosing where the lines will be, it does not make sense in all cases.
Senator Baker: Why, in the bill that is under present consideration, were all of the punishments either detention or a fine? There was not a case there that I could see where the punishment was "and/or a fine."
Lt.-Col. Wry: I do not understand the question. I apologize.
Senator Nolin: There is an infraction where, depending on how you are sued, the punishment is you go to jail or you are fined, or both, depending on how the process is applied.
Senator Baker: Under this bill we are looking at now, it is either/or; you cannot do both. You cannot detain and issue a fine. I noticed in all of the reported judgments over the past two months under this bill that the punishment carried a strong reprimand and a fine of $250 in the minor cases but not detention because you cannot do it under this new law. It has to be one or the other.
The Chair: Senator Baker, I think you have made your point. I think you have put your question clearly, with the assistance of Senator Nolin.
Lieutenant-Colonel Wry, do you have an answer now or can we ask you to give us that answer in writing?
Lt.-Col. Wry: I think I should give the answer in writing. I would have to look at the provision that is being referred to.
The Chair: We can all understand that. I will thank you very much. You have put in a little over two hours of sometimes strenuous questions and answers and we are grateful to you for it.
Colonel Cathcart and Lieutenant-Colonel Wry, we are extremely grateful to you and we look forward to receiving the further material from you.
Senators, in reference to earlier comments about documents being available in both official languages from anyone than a representative of the federal government in all its manifestations including agencies that are covered by the Official Languages Act, people can submit material to us in the official language of their choice, and we will distribute it and we will get a translation made as quickly as possible, but we will not delay the distribution of the original until we get the translation. I think, for example, of an absolutely extraordinary brief that the Barreau du Québec brought us in the last Parliament, which was only in French, but we needed the brief in order to do our work properly, and we got it translated as fast as we could. That was the practice in the past, with everyone except, as I say, federal bodies that we hold to a higher standard.
I have discussed this with the members of the steering committee, and we thought that was a policy that was worth continuing, but we did want to bring it before you. It is not academic, because we have a witness appearing tomorrow who has provided a brief in only one language.
Senator Angus: Who is not in the federal government?
The Chair: Who is not in the federal government.
Senator Angus: I think it is an intelligent policy and I agree with the steering committee that we should carry on with it.
Senator Joyal: I said what I had to say at the opening.
The Chair: I think it is absolutely appropriate to remind all federal agencies of their obligations.
Second, you have before you, colleagues, some budgets. You will recall that I had said that budgets for the current fiscal year, which ends in a little less than one month, were going to be handled by emergency funding. Internal Economy has changed its mind, or somewhere along the line that operating instruction has changed.
You have, therefore, before you an application for budget authorization for legislative studies for the remainder of the current fiscal year, the next four weeks or so, and a comparable application for a budget authorization for this study, the one we are working on today on the amendments to the National Defence Act.
Perhaps I could ask for motions to approve those. The first one is moved by Senator Angus. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Carried. That was for the legislative budget for this fiscal year.
For the budget for the study of the National Defence Act amendments for this fiscal year, moved by Senator Baker. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Carried.
Now we have two budgets for the coming review of the DNA Identification Act, which we have discussed and which the Senate authorized earlier this week.
[Translation]
Senator Nolin: I so move.
The Chair: So moved by Senator Nolin for the current fiscal year.
Senator Nolin: Will you put the question?
The Chair: All those in favour? All those opposed?
Hon. Senators: Agreed.
The Chair: The motion is carried.
[English]
The Chair: It is moved by Senator Nolin that the second budget for the coming fiscal year for the DNA Identification Act study be carried. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Carried.
Colleagues, I thank you very much.
Senator Angus: I gather you shared the work plan with the rest of the committee; I must not have been there the first day. What are we planning on this Bill C-60?
The Chair: I will adjourn this meeting and address this right away.
(The committee adjourned.)