Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for March 11, 2009
OTTAWA, Wednesday, March 11, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:03 p.m. to study on the provisions and operation of an act to amend the National Defence Act (court martial) and to make a consequential amendment to another act (S.C. 2008, c.29).
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs, which is continuing its study on the provisions and operation of an act to amend the National Defence Act (court martial), which was passed last June — and for good reason — quite expeditiously. At the time, this committee did not have the opportunity to examine it in the detail that it would have preferred.
We have as our witness today the Minister of National Defence, the Honourable Peter MacKay, to discuss the bill. I want to stress that, at the time the act was being passed, the minister had a most constructive and cooperative exchange of correspondence with this committee, encouraging us to do this study and undertaking to give our recommendations the most serious of consideration.
[Translation]
Mr. Minister, we are delighted to have you. I imagine your time is limited. I believe you have an hour to devote to us. I am going to ask my colleagues to act accordingly when it comes to asking questions since everybody will want an opportunity to ask the minister at least one question.
[English]
Mr. MacKay, we understand that you have an opening statement. We would be delighted to listen to it and then ask you questions.
[Translation]
Hon. Peter MacKay, P.C., M.P., Minister of National Defence: Thank you very much, Madam Chair. I am here with Brigadier-General Ken Watkin. I apologize for my inability to appear before you last week and thank you for your patience and understanding.
I am pleased that I was afforded the opportunity to appear today before this committee, as it shares my interest in an effective military justice system.
When the Senate agreed to review Bill C-60 on an expedited basis on June 17, 2008, I invited this committee to consider studying the provisions and operations of Bill C-60 and provide me a report of your findings and conclusions.
As you know, the bill received Royal Assent in June 2008, and came into force on July 18, 2008.
Bill C-60's essential changes to the National Defence Act have been operational now for almost eight months. Those changes not only brought clarity, certainty and stability to the court martial convening process, but ensured that our military justice system remains one in which Canadians can have trust and confidence.
[English]
Madam Chair, I am pleased that the Standing Senate Committee on Legal and Constitutional Affairs has undertaken this important study and, in this context, I welcome the opportunity to appear before you.
As I mentioned, Brigadier-General Ken Watkin, Judge Advocate General — or JAG as he is known on television — will be ably assisting me in answering questions. As you have quite rightly pointed out, because of scheduling and the necessity to have this legislation accelerated through both chambers, I want to personally thank you, members of this committee and all members of the Senate for accommodating us in such a way. The impact of not doing so, I would suggest, would have had quite serious consequences on cases that were in the system for consideration and deliberation.
Madam Chair, as you know, Bill C-60 was precipitated by the Court Martial Appeal Court's finding in the case of R. v. Trépanier. In that case, it was found that the power the director of military prosecutions had at the time to select the type of court martial that would try an accused person, and the duty the court martial administrator had to convene the type of court martial selected by the director of military prosecutions, violated an accused person's constitutional right to make full answer and defence, and to control the conduct of that defence.
The court held that these provisions of the National Defence Act violated the Charter of Rights and, in fact, were of no force and effect.
The court also refused to suspend its decision at that time in order to allow the government to address the court's concerns, which led to the necessity of moving expeditiously to avoid losing some of those cases — some of which I would remind the committee, were of a very serious nature.
Turning quickly to the effect of the judgment, as explained by my officials who appeared before you last week, the effect of the Trépanier decision was to remove the authority to convene courts martial — an essential step in the military justice system for bringing a matter to trial. Left unaddressed, the inability to conduct trials by court martial would have severely undermined three concepts critical to the operational effectiveness of the Canadian Forces: maintenance of discipline, efficiency and morale.
Furthermore, there was a real risk that serious offences would have gone unpunished and that victims would have been denied justice which, as in any system, would have had a debilitating effort on public confidence.
With respect to the steps taken to address the judgment . . .
[Translation]
As explained by my officials last week, I believe, two courses of action were followed in order to address the effects of the Trépanier decision. We sought leave to appeal the decision, along with a stay of execution of the decision, from the Supreme Court of Canada. This approach provided an avenue for challenging the constitutional issues raised in the Trépanier decision.
We also sought amendments to the National Defence Act that would address the effects of the decision, and reintroduce the necessary authority relating to the convening of courts martial. Legislative amendments were essential as an appeal alone would not have provided a timely, or certain, answer to the effects of the Trépanier decision.
As it turns out, the Supreme Court of Canada denied the request for leave to appeal in September. So, if the essential amendments introduced by Bill C.-60 had not been made proactively, subsequent legislative changes would have been required in any event. The situation needed to be addressed and I appreciate your efforts to keep the military justice system functioning effectively.
[English]
Honourable senators, Bill C-60 successfully addressed the challenges that arose from the Trépanier decision. As you would know, when decisions like this come down, there is what is sometimes described as a knock-on effect. What this bill seeks to do and has done is enhance the fairness of the military justice system from the perspective of both the accused person and the confidence held by the Canadian public.
I believe that has been accomplished. It provides members of the Canadian Forces and civilians a right that was previously in question. This right for Canadian Forces' members to choose how they will be tried parallels that found in the Canadian civilian criminal justice system. It ensures that courts martial can be convened again and that justice could continue to be done for accused persons and for victims.
The amendments in Bill C-60 closely aligned the process for selecting the type of trial by court martial, as well as court martial decision-making, with the approach in the civilian criminal justice system. To put it in straightforward terms, we have gone, by virtue of the amendments in Bill C-60, from a system that had four modes of trial to two modes of trial.
While it does not mirror exactly the civilian criminal justice system, for obvious reasons — practices and procedures that are found only in military law — it was meant to streamline and simplify the election process of the mode of trial.
The Lamer report obviously played into the process of amendments that occurred in Bill C-60. I understand that during last week's testimony, members of the committee had a number of questions on the implementation of the recommendations of the Lamer report.
I want to assure committee members that the government has taken the review process and the recommendations made by the late former Chief Justice seriously. Since its initial consideration of the Lamer report, the department has continued to consider and assess all of the recommendations.
I am proud to report that, to date, the department has accepted 84 of the 88 recommendations in full or in part. There have been several legislative attempts to implement many of the recommendations. The last attempt, Bill C-45, which would have implemented many of the recommendations, was before the House at dissolution. As you would know, it therefore died on the Order Paper.
Bill C-60, notably, implemented four of the recommendations. In addition to these legislative efforts, numerous recommendations have been implemented by policy decisions or regulatory changes.
Our military justice system is designed to promote the operational effectiveness for the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale. It furthers respect for the law and the maintenance of a just, peaceful and safe society, but I also must stress that it must ensure that members of the Canadian Forces are dealt with fairly. As is the case with the civilian criminal justice system, fairness requires adjustments to the system in response to judgments of the appellate courts, which is the case with Trépanier.
In conclusion, I would like to state that reform of the Canadian military justice system is not just a one-time event. As with our civilian criminal justice system, which has often been described as "a living tree," the justice system requires a process of continuous improvements to keep pace with evolutionary changes within the law, changes that reflect our legal values, the expectations of Canadians and, in the case of this bill, legislation that is given due consideration by both houses.
Bill C-60's amendments 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.
The bill's amendments also responded to the concerns expressed by the Court Martial Appeal Court. They more closely aligned the Canadian military justice system with processes found in our Canadian civilian justice system which respect the Charter while preserving the system's capacity to meet essential military requirements.
Simply put, Canada's military justice system has remained one in which Canadians can have trust and confidence. The critical efforts of this committee in ensuring an effective military justice system are greatly appreciated by the men and women in uniform who this system will accommodate. Again, I thank you for your invitation to be here and I look forward to your questions.
The Chair: Thank you, Mr. Minister. Before I go on, I apologize to Brigadier-General Ken Watkin for not introducing him at the outset. The judge advocate general is a person of considerable importance in these matters and we are grateful to you too for being with us, sir.
[Translation]
Senator Nolin: Mr. Minister, thank you for appearing before us, and thank you for your trust in our ability to handle a matter that is very delicate, but very interesting.
Last week, we heard the evidence of Colonel (Ret'd) Michel Drapeau, and I assume that his evidence was reported to you. One of the points in that testimony was that retired Col. Drapeau claims that the basis or main argument in the Trépanier decision was to close the gap between the civilian criminal justice system and the military criminal justice system.
The Federal Court's argument in the Trépanier decision is based on our obligation to reduce that gap to nil, and thus to offer an accused the option that he has in the civilian criminal justice system. Col. Drapeau goes a little further by saying that, if the court's reasoning is such that the gap between the two processes must be eliminated, why not have used Bill C-60, since the government has decided to use emergency legislation to close the gap identified in the Trépanier case?
Why not have used Bill C-60 in order, among other things, to introduce one of Mr. Justice Lamer's recommendations — I forget the number of the recommendation — but I think it was recommendation 52, in which Judge Lamer recommends that the military justice system afford the range of penalties offered in the civilian criminal justice process.
My question is political. Why has the government decided not to go all the way with that reasoning?
Mr. MacKay: With the rendering of the Trépanier decision, there is clearly a certain urgent need to find a constitutional solution, and, at the same time, you are right in saying that there is a difference between the civil and military systems.
I said that there were four options for the court, for a person under the military system, but there are two under the civilian system. Former Justice Lamer had other recommendations, such as having certain types of sentences, such as intermittent sentences. I hope to remove from one part of the bill . . .
Senator Nolin: ...Bill C-45.
Mr. MacKay: Yes, the old Bill C-45, and to have the opportunity to introduce certain changes in order to find a more similar system, options for sentences in the military system.
[English]
It is my hope that will be addressed in another bill which we intend to reintroduce into Parliament. I might take this opportunity, Madam Chair, to suggest that recommendations such as have been put forward by Senator Nolin, if they find their way into your report, and depending on the timing of the reintroduction of Bill C-45 under a new title, could certainly, at an early stage, find their way into amendments were that bill to be introduced prior to your report. I would encourage your input of suggestions such as the one the senator referred to that was discussed by another witness for consideration and possible inclusion in this bill. Any helpful suggestions you have found in your deliberations that have not been included in Bill C-60 simply because of the timing of the introduction, would be welcomed for this second bill that is more inclusive of recommendations of the Lamer report.
That is a long answer but the short answer is that, because of the timing of Bill C-60, it was necessary to have that bill brought forward to directly address the shortcomings identified by Trépanier. The recommendations from Lamer can be included in a second bill pending before Parliament.
The Chair: Senator Baker, you do recall the short time we have available.
Senator Baker: You will notice, Mr. Minister, that the chair always gives this caution prior to my saying anything.
First, I welcome the minister and the brigadier-general. I hope that you do remain here, minister, and that the rumours are not correct that you would be leaving because we really need you in the Government of Canada.
Mr. MacKay: I am honoured to represent your province, Senator Baker.
Senator Baker: Your father before you did a wonderful job as well. You are great parliamentarians.
Mr. MacKay: That is very kind.
Senator Baker: We appreciate that you asked us to give you recommendations.
The major concern I have in reading the case law is that we have too many cases on the record in the past two years of the application of section 11(b) of the Charter in which charges have been stayed. I am not saying that should not happen; I am saying that should happen. However, for one of our soldiers to have the pressure of charges pending over his or her head in the execution of their duties is sometimes just too great. I noticed in some of these cases that these people have had serious problems following two-and-a-half years of a charge not being adjudicated by the court martial.
Then there is the one-year requirement instead of six months. As you know, minister, it is six months under the Criminal Code as far as summary conviction is concerned regarding delay of charge. Under this act, it is one year to the commencement of the trial. What does "commencement of the trial" mean? Normally it means when you accept plea. Give consideration to reducing that to six months, like we have in our civilian courts, and also like we have in the National Defence Act in other sections of the act.
In fact, in this amended bill we have on the front page, where it says if it is not covered under the act, subject to a limitation period, had it been dealt with other than under the code, which is the military code, then that limitation period applies, which is six months in this case.
Here is the main question. I present to you the case of a corporal who came back from Afghanistan. He was not a drinker. I am not telling anything secret. This is case law. It is in your records.
An altercation took place when the soldier came back from Afghanistan. The altercation took place with two gentlemen who had consumed over a dozen beers each and three or four shooters. Because the charge was not laid within the one-year requirement of summary trials, it was laid as a court martial.
Minister, you were a litigator, a prosecutor. You would have to go with an indictable offence if it was beyond six months, if it was a hybrid offence.
In this case, they went with court martial. Here is the point. What happened was that he was convicted and his DNA sample was taken because it was one of the offences under 487.04 of the Criminal Code, which would not have applied if he had gone with summary trial in the military. It was appealed and he won on appeal.
The point is that, if we give a soldier the choice of going from standing court martial to general, or general to standing court martial, why are we not giving that soldier the choice of going back down to summary trial as well? In other words, you could bring in the legislation or we could amend this bill in the two sections where it says that a soldier has the choice of going from general to standing court martial, and insert the words "or summary trial." I am using the example of the case of R. v. Grant, and the brigadier-general knows that.
Under this bill, the soldier, when the charge was laid one year after the event, would not have the option of going back to summary trial, which is where it should have been litigated in the beginning, and he would not have been subjected to DNA samples and convicted as he was.
The Chair: Minister, do you have a comment?
Senator Baker: I am sorry if I have gone on too long.
Mr. MacKay: Senator Baker, your recitation of the facts of the Grant case are quite compelling. I know that you also spent time in a courtroom. Often, anomalies like this occur that certainly do appear on their face to have been an abuse of process. That is why the Grant case made its way through the courts and has impacted on this legislation. For reasons of precision, I will let the judge advocate general respond to the question. He is intimately familiar with the Grant case.
I agree with you that certainly there are occasions where prosecutors, both military and civilian, have opted to go with an indictable or general court martial process in a case like this because of the delay. After the Stinchcombe decision, there was a fear of many cases, some serious, some not so serious, being dismissed out of hand as a result of the delay in the process.
In any event, the issue of the number of cases making their way through the system and the number of judges available to hear them is a broader question within our system, but I will let Brigadier-General Watkin respond to the specifics of the Grant decision.
[Translation]
Brigadier-General Ken Watkin, Judge Advocate General of the Canadian Forces, National Defence: It is an honour to be here to discuss this bill. I am very proud of our justice system. It is a very fair system and, at the same time, must regulate discipline for members of the Canadian Forces.
[English]
There is a double goal here: to be fair to an accused and to meet the disciplinary needs of our forces. It is important in responding to highlight that it is a two-tiered system, a summary trial system and court martial system, and 96 per cent of our trials are dealt with at the summary trial system. The vast majority are done within one year, so we are talking about 4 per cent of the actual disciplinary proceedings are at court martial. That is just to put it in context in terms of delay.
We do have a delay challenge in the military justice system with respect to courts martial, and this is mirrored in the civilian justice system in the same way, for many of the same reasons. While I will not get into great detail, we have a number of projects from a policy perspective well outside of the context of this legislation that try to address the issues of delay. That is part of the reason for the one-year requirement, because summary trials were meant to be exactly that, summary. It mirrors that concept of a summary conviction. It is more of a process question to move it on.
The other piece to highlight is that the purpose of the court martial is twofold. It deals with more serious offences. Since the accused is given the right to elect court martial in the vast majority of offences, it offers a safeguard that, when an accused elects to have court martial, they will have all the protections available, such as funded defence counsel, before a judge, able to plead and all those things that we recognize as being required to deal with in a court of law.
The genesis of the Grant issue, and why it was in the legislation in particular, was simply in terms of providing clarity because the Court Martial Appeal Court had ordered the matter back to summary trial. The problem that was addressed in simply ordering it back to summary trial to start over again was that it was not then clear as the trial proceeded if an accused wanted to elect court martial, whether they would be able to do it because they had been ordered to have a summary trial.
Similarly, one of the safeguards in the system is that a trying officer can choose to send it directly to court martial if they believe that the evidence is such or the seriousness of the offence as it unfolds would attract trial before a court martial. That is what the legislation was addressing by ordering back to a court martial.
Mr. MacKay: It could be the equivalent of a direct indictment where the Crown can prefer an indictment and basically in essence make the election for the accused, so there is that parity again with the civilian system and the military system.
Senator Angus: Mr. Minister, I add my word of welcome to you and Brigadier-General Watkin. As I said the other day, I am new on the committee. I am finding this military justice system to be fascinating, speaking as a lawyer with 49 years of practice.
I am quite satisfied through your answers to Senator Nolin that what we have here is a situation where you were already reviewing the system and the antecedents of Bill C-45 and the Lamer report to try to upgrade the system and bring it up to modern standards in the best way possible, and to make such amendments as are necessary. Then the Trépanier decision intervened and the process took place in the Committee of the Whole in the Senate last spring, and you issued a letter. I found all of this to be fair. Undertakings were given to study the matter and report any ideas to strengthen it even further. I am impressed that 84 out of 88 of the recommendations of Chief Justice Lamer's report have already been implemented or are in the process of being enacted in the new Bill C-45, as it will be, and we will see it here.
I do not have any specific questions on this particular process, but as I suggested to the chair, this is about trying to be as fair as possible to the military personnel. The justice system is very particular for the nature of the beast. I have been reading some of your statements recently, minister, and the one that I keep seeing repeatedly is the problem of post-traumatic stress disorder, which of course can have an effect in legal cases. It could be, indeed, a defence, if one were in that boat. You have confirmed that it is a really difficult problem that you and the department are facing at the moment. Could we take advantage of your presence here and have you tell us what you are doing about it?
Mr. MacKay: Senator Angus, you are absolutely right in that, like our civilian justice system, the issue of post-traumatic stress can, and I suspect, has and will enter into a court room as a legal defence. This speaks to the broader issue you have identified. As members of this committee would be aware, we have many young men and women coming back from Afghanistan, as they have from previous theatres of operation, wounded physically and mentally as a result of their exposure to high stress and a very high tempo of operations that inevitably affects people, as it has in previous generations. The good news is that I believe the modern military has responded more appropriately than we have in the past. We have to do better. There was a time when people returned from military deployments and stepped off the train or the boat and were lucky if someone was there to meet them, let alone a system that would embrace their needs.
We have taken steps as recently as last week to invest in centres of excellence on military bases that are meant to augment existing services, counselling, more specifically, psychological and mental counselling to deal with this very real issue and very debilitating affliction known as post-traumatic stress disorder. Like many psychological afflictions, more has become known in recent years because of in-depth study. One of those centres of excellence is not on a base but at McGill University of which I believe you are quite familiar. The work of Dr. Porter and others in studying and helping to diagnose and treat post-traumatic stress is really one of the best not only in the country but in the world in advancing the treatment of post-traumatic stress. We are trying, as quickly as possible, to pull those important treatment practices and approaches that have been identified at McGill and other universities and medical clinics around the country and to make that treatment available in these centres of excellence on various bases. We have identified eight. We hope to expand that availability of treatment eventually to all of the bases and to as many places in the country as we can.
These JPSUs, as they are known — the military certainly have many acronyms, as you are aware — the intention is clearly there to up our game when it comes to the treatment of psychological illness and damage as a result of our deployments. Those suffering from these afflictions are just as wounded and just as worthy of treatment as those who have suffered catastrophic physical injuries, and that is very much how the modern Canadian military treats those soldiers when they return.
We have more to do. I believe significant improvements and steps have been taken, and we will continue to do so. That is an obligation that any government at any time owes to those men and women who put themselves in harm's way for the protection of our rights and our values as Canadians.
Senator Bryden: I found it interesting that Senator Angus would raise that issue, but we have now 15 minutes left of our hour. It would be useful if the committee could concentrate on this for now and invite the minister back some time when he can hold forth on the wonderful things he is doing, albeit not as they relate to this particular bill.
The Chair: Thank you, Senator Bryden. Indeed, we are studying the operation of this particular bill.
Senator Milne: My question is about this particular bill so we will get back to it.
Minister MacKay, I appreciate the fact that you have given this committee a chance to undo what happened back in the spring. When you came before us previously, you said that this absolutely had to be passed quickly because of the Trépanier decision.
However, when you look at that decision, it is not true. Trépanier offered a couple of simple solutions that would have tied us over on an interim basis so that we could do a proper study at the time and put it all together in one.
Why did you do that? Why did you push us so strongly? When I look at Trépanier, he offered the solution.
Mr. MacKay: I respectfully disagree with the senator's submission that it was not necessary to proceed in the fashion in which we did. The advice I received from officials within the Department of National Defence was that we had cases we would be in jeopardy of losing, thus creating what I felt would be an unjust situation for victims and those seeking to have their cases heard if the Trépanier decision was not in effect given implementation through legislation.
Therefore, we chose to expedite the process, albeit it did require extraordinary measures and did require cooperation, which we received from the Senate. As a result, those cases were able to proceed through the military justice system, and I believe that was the effective response that prevented any further delay or injustice which could have resulted if the Trépanier decision did not make its way into law.
Senator Milne: I thank you for that answer. However, that brings me directly to my next question. Your department and the office of the JAG have been aware for years that a decision similar to Trépanier would happen. Lamer pointed it out years ago. It has been raised in the Lamer report, it has been raised in the Court Martial Appeal Court, and the department has chosen to ignore these early warnings about what would happen.
It makes me wonder what else they have failed in their duty to advise this government and the previous government of these things that were arising. What else is lurking in there that we should be aware of and expect in the future?
Mr. MacKay: That is what in a courtroom you call a leading question.
I would submit that we have excellent lawyers working within the judge advocate general's office. I would never presume, as a current paid-up member of the bar, to be able to accurately predict what any judge might do in a future decision, nor do I suggest that courts or, in fact, Parliament should live in the shadow of the Court of Appeal. We have to proceed with the law as we know it, and we have to respond appropriately to decisions as we receive them.
As far as the question from the honourable senator, I will perhaps give the judge advocate general an opportunity to present for the defence.
Brig.-Gen. Watkin: I welcome the opportunity to respond to that question. As far as speaking for the defence, as superintendent, I supervised the whole system, which of course involves not only the defence but the prosecution.
To put it in context, my concern with the view that the department did nothing is that it seems to have a sense to it that we ignored Chief Justice Lamer's report. Clearly, a retired Chief Justice of the Supreme Court of Canada, it was taken with all seriousness that would accord to that.
I think we have to put this whole thing in context in the sense of the very provision that was found to be unconstitutional in Trépanier, which was, in fact, based on a recommendation by another retired Chief Justice of the Supreme Court of Canada, Chief Justice Dickson, in his report of 1997. Of course, the five-year —
Senator Milne: From 2003 to 2007, we are still waiting.
Brig.-Gen. Watkin: We had the five-year review, fully understanding that was one of the recommendations, and there was nothing in the recommendations from Chief Justice Lamer that indicated this was a constitutional issue, as I believe either Colonel Cathcart or Lieutenant-Colonel Wry would have testified last week with respect to the nature of the recommendations that were in the report.
It did go to trial in a case called Nystrom in 2005 where the Court Martial Appeal Court telegraphed in an obiter dictum — and I know there are many lawyers amongst the senators — a non-binding part of the decision. That has to be put in context because there were pre-existing Court Martial Appeal Court decisions. One was Lunn in 1993, which had indicated that the convening authority, who was a member of the chain of command that chose the type of trial at that point, was not unconstitutional.
There was another case from 1994, Gravline, which indicated that having to send five members of a panel, which is exactly the number of members of the panel of a general court martial, to an isolated location could be problematic and that might be why you would pick one of the other types of trials that existed at the time.
We did have the decision in 2005 from Nystrom. That was not ignored. The director of military prosecutions in 2006 changed her policy to allow representations from accused. Seven were made, and the accused had choice as to which they wanted.
The other piece — this is the time at which I became the judge advocate general, and one of my first acts in the first two weeks I was in the position was to assist in putting Bill C-7, the predecessor of Bill C-45, before the house. Of course, concerns over whether the Lamer recommendation had been properly dealt with could have been dealt with in that forum. As it turned out, it died on the Order Paper. This matter did go before trial at the Trépanier trial level decision.
Senator Milne: Madam Chair, I do not want to interrupt the judge advocate general but, on the other hand, the minister's time is fleeting. Perhaps you could answer the rest of my question after I address the next question to the minister, and you can do so after he leaves.
The Chair: You have almost no time to do so because we have two other senators who want to put questions.
Senator Milne: It is very short. My concern is for some of the civilians who will be tried and are presently being tried under military law by courts martial and the disparity between some of the possible sentences under military law and the sentence for the same type of crime under civilian law, if they were tried in a civilian court. Perhaps this is something you can look at very carefully. Look at Colonel Drapeau's presentation very carefully when you are coming up with your next bill.
Mr. MacKay: I certainly will. I thank you, Senator Milne, for the suggestion. We have, of course, reviewed Mr. Drapeau's testimony here. We will take that into consideration with the bill that will follow in terms of recommendations and the range of sentence.
However, it has been a long-standing tradition that civilians interact with or find themselves on a military base. Honourable senators, you would know as well that this is the case today in Afghanistan. We have a large number of civilians there in support of our men and women in uniform. We are conscious that we have to avoid any disparity of treatment in the system.
This is a case where the judge advocate general would exercise discretion in how we would proceed with charges in the military that involve the civilian.
I appreciate you pointing that out, senator.
Senator Joyal: My question is about the time frame that looms ahead of us. When I say "us," I include Parliament.
I understand from your presentation on page 10 and I quote that: "To date, 84 of the 88 recommendations have been accepted in full or in part."
A former professor of law would say to me that "accepted" is not necessarily acted upon. There is a distinction in the selection of words. Are recommendations 52, 53 and 54 of Chief Justice Lamer's report part of the 84 recommendations that have been accepted?
Paragraphs 52, 53 and 54 deal with sentences, the aspect covered by Bill C-45.
Mr. MacKay: Please give me a moment, senator.
Senator Joyal: They are on pages 65 and 66 of the Lamer report. It is subparagraph 7 entitled "Sentencing" — (a) More flexible range of punishments and sanctions, (b) Enforcement of fines imposed by service tribunals and (c) Punishments of reprimand and severe reprimand.
Mr. MacKay: On review, Senator Joyal, I am advised that those were contained in the former Bill C-45 and would be contained in the new legislation. You are right to say that they are in the legislative pipeline. Therefore, they have been accepted and acted upon, but not implemented due to the fact that the bill did not make its way through Parliament.
Senator Joyal: I am concerned about the overall deadline ahead of us. I think we share the objective essentially to model the military justice system as much as possible from the civilian one. Bill C-45 received first reading in the House of Commons on March 3, 2008. It is now March 11, 2009. It has been a year and this bill has not seen again the light of day thus far.
Your letter sent to us on June 17, 2008 was well accepted on all sides of the Senate. I quote from that letter signed by you: "The government will review these recommendations and provide the committee with a written response that could include proposed amendments within 90 calendar days."
Let me make a proposal to you. This committee will wind up its report by the end of this month, which is March 2009. You will have 90 days to respond to our recommendations. That will bring us to the end of June. At that time, both houses will adjourn to the end of September. Suppose you accept our recommendation to include in that new bill the substantial content of the former Bill C-45. With the agenda of the other place and given the precarious situation of its future life, acting quickly on this would not seem to be a reality. Once you have our report, which is in sync with many recommendations contained in Bill C-45 as stated by former Chief Justice Lamer, would you consider introducing that bill in the Senate first?
Many senators around this table on both sides are familiar with substantial aspects of the Lamer report and elements of the National Defence Act. We could act more quickly. You are a learned lawyer yourself. You well know that justice delayed is justice denied. The principles included in Bill C-45 are security of tenure for military judges — an important principle of the independence of justices — and the sentencing principles. We might suggest for you to consider other recommendations. That way, it could be acted upon in 2009 rather than 2010, a year-and-a-half after Bill C-49 would have been tabled in Parliament. I know you may want to review that with your office, but could we get from you at least a commitment to look into that possibility?
This is the reality of how we live. Two years from now, we would have been able to act upon those principles and have acted upon those recommendations.
Mr. MacKay: Senator Joyal, I think this is an excellent suggestion. I will take this up with the house leader in the other place. I do not disagree with you that there is compelling reason, given the fact that this bill has been drafted and that your work will be completed soon. It is my intention, as Minister of National Defence, to see that the bill is introduced this spring. If there is room on the legislative agenda in the Senate, I see no reason why we could not introduce it in the Senate.
As a veteran of this place, you will know that the legislative agenda is not solely up to me. However, I am prepared to take that suggestion to our house leader. I would be delighted to see the bill introduced here. Given your prior knowledge of the bill and that the legislation should be done in as close proximity as possible to Bill C-60, it is an excellent suggestion. I will give you the undertaking that I will attempt to see this done.
Senator Joyal: In that context, minister, are there other of the 84 recommendations accepted in principle that have not been acted upon and have been implemented either through regulations or through legislation that would have brought the National Defence Act in sync with the overall recommendations of the Lamer report?
Mr. MacKay: Without prior knowledge of the bill itself as it will appear when it comes back, I have no reason to think it will be any different. However, I would like to have the opportunity to review recommendations from this committee to ensure that they are encapsulated in the new legislation. What better way to do that than to have the bill introduced here?
What you have proposed is infinitely reasonable. I will do my best to expedite the process and see that there is habeas corpus and we will produce the body.
Senator Wallace: My question may have been covered in part by Senator Milne's second question. Civilians covered by the military justice system are covered and would be affected by Bill C-60. I think you had a chance to see the testimony of Colonel Drapeau from last week. My initial question was to be whether there would be receptiveness to making changes that would perhaps create additional remedies available to civilians that would more closely parallel the Criminal Code.
I sense from your earlier response that there would be a receptiveness to consider that as part of future amendments. Is that true?
Mr. MacKay: We would always be willing to look at and accept amendments if we deem them to be reasonable. Given the seriousness of anyone who finds themselves in jeopardy and charged under either the civil or military justice system, we want to always ensure fairness. Clearly, when a person is serving the Canadian Forces or serving with the Canadian Forces, the constant effort is to ensure a balanced approach.
Therefore, we want to address any anomalies that may exist.
Senator Wallace: I may be overstating this but, when I think back to Colonel Drapeau's evidence of last week, he compared the remedies available to civilians covered by military justice to what those would be under the Criminal Code.
I was almost left with the impression that he felt there should be a different set of rules applied to civilians covered by military justice as opposed to those that are performing for the military.
Is that something that would seem to be reasonable or would ever be considered?
Mr. MacKay: I will let the JAG respond to that. My initial reaction is that we would potentially be creating a third system of justice. We would have a military, a civilian and a civilian-military. I do not believe that would simplify matters. It would complicate them further. However, I will let the JAG respond.
Brig.-Gen. Watkin: As the minister said, we are open to all terms of recommendations and are looking to how it fits within the operation of the military justice system. It is important to note that the present sentencing, which is imprisonment and a fine, was exactly what was reflected before Bill C-60 with respect to the special general court martial. The bill simply passed that on into both the general court martial, specifically, and the standing court martial.
I understood Colonel Drapeau's remarks to focus around this issue of intermittent sentencing and other options once the sentencing takes place. However, if there are other sentences which make sense, certainly, why would we not consider them?
I would like to put this into context in terms of even the issue of conditional discharge, for instance. It is a common way of dealing with punishments, obviously, in the civilian system. Civilians coming before our process would largely be a one-time thing. They do not live within the military community. The question would become how one, after you get a conditional discharge, then looks after that in terms of the ongoing review of conditions. It might require bringing civilians no longer co-located with us back before the system.
It is that kind of detail that would require us to look through it to see how realistically we could do it. There may be some options that, for good public policy and administration reasons, we cannot suggest to Parliament.
Senator Wallace: As you say, for the overriding purpose of having to maintain discipline, efficiency and morale in the services, there are special requirements that you have to take into consideration.
Mr. MacKay: Obviously, one of the forms of discipline in the military is removal; you are kicked out. You do not have that remedy available, although I know of a judge in Pictou County used to have the "get out of Dodge" clause whereby someone would be banished from the county. I do not know if that was constitutional.
The Chair: It sounds dubious to me.
Could we ask Brigadier-General Watkin to stay on after the minister leaves? He was interrupted in his answer to Senator Milne. Also, Senator Baker never had the chance to put forward his second-round question. If it is one that is suitable to be addressed to the brigadier-general, we would be perfectly happy to let that happen.
Brigadier-General, you were in the process of answering a question from Senator Milne and we cut you off.
Brig.-Gen. Watkin: Yes. I think I left off at the trial level.
The issues were argued at the trial level. The judge at the trial level accepted the previous cases on the Lunn basis that, in fact, it was not unconstitutional to have the DMP — Director of Military Prosecutions — selecting the mode of trial. That is why it was appealed to the Court Martial Appeal Court of Canada. Sorry, that case was in 2007. It was then appealed to the Court Martial Appeal Court in 2008.
There was a lot of activity going on and, from a legal perspective, there were many issues to be raised before the court. As I say, I superintend the whole system. They were raised by defence counsel, as they should be, before the judge and argued by the prosecution. We had a decision of the trial court where, confronted with what looked like two conflicting approaches — and albeit the recommendation of Chief Justice Lamer — it came down on the Lunn series of cases and the Court Martial Appeal Court in Trépanier clearly said they did not agree. This led us to April 2008 and dealing with the consequences of that.
Senator Milne: However, Trépanier offered you a solution. In paragraph 117 of the decision, all you have to do is ask the accused what kind of court martial they want.
Brig.-Gen. Watkin: Right. I know you will have the director of military prosecutions come in and she can testify in terms of her responsibilities. However, she is the superintendent of the system. This is looking out over the whole system and not simply the question of the actual case and the nature of the issues before that trial. Rather it is to do with how one then deals with it.
It is clear that, in the case, the court found unconstitutional, not only the section that dealt with the director of military prosecutions preferring the charge, but also the convening of the actual court martial.
The case itself dealt with section 130 offences. Section 130 offences are the incorporated Criminal Code offences. Of course, under military law, they are all military law offences, whether they are incorporated from the Criminal Code or some other statute, or they are specifically enumerated in the National Defence Act. Therefore, we could have the accused charged with offences that might be disobedience to lawful command and charged with a section 130 offence. The option available to the system was to refer those to the civilian justice system because there is a provision in the act that at least allows for it. There is certainly no guarantee they would accept it in terms of options that were there.
There were matters that preceded. The issue was taken very seriously; the goal was not to have the system come to paralysis, and matters were proceeded with before courts. The courts at the trial level dealt with those matters in different ways so there were issues of clarity.
It happens all the time in courts, and the concern simply becomes one of clarity in terms of what is the option for providing clarity and certainty, avoiding that there might be serious cases where the clock is running to allow the matters to go forward. We have already heard from Senator Baker on the concerns over the delay piece, which is one of our concerns. The two options that were selected were to seek leave to appeal and to seek a stay and, second, to deal with the issue of Bill C-60.
The other piece I would like to highlight is the different types of court martial we had. The disciplinary court martial was a maximum of two years less a day; the standing court martial was two years less a day; and the general court martial was imprisonment up to life. Charges such as manslaughter and murder, which we have had in our system —
Senator Milne: I have been waiting for this part of the answer.
Brig.-Gen. Watkin: — would have allowed an accused to choose a standing court martial, which would have allowed them to self-limit the potential punishment they were going to get to two years less a day. From a broad public policy, that is very problematic.
Senator Milne: This was the answer I was expecting — a much shorter one a long time ago.
Can I carry on briefly on the civilian court system — the civilians who are tried under this military system, who now only have the two choices and the punishments never include a fine. They can be tried for a crime which would be just a fine in civilian court, but it is not going to be a fine. It is going to be something much more severe in the military system.
Brig.-Gen. Watkin: No, the two options available under the legislation are imprisonment or fine. Those are the options.
Senator Milne: In the civilian system.
Brig.-Gen. Watkin: And under the military justice system.
Senator Milne: There is a fine also available under the military system?
Brig.-Gen. Watkin: Yes, there is.
The other punishment, such as dismissal from Her Majesty's service and reprimands, obviously would not apply to a civilian.
The Chair: I think Senator Bryden has a supplementary.
Senator Bryden: It is not really supplementary but it is very short. I did not get my first round.
The Chair: No, you did not so I will let you sneak in before Senator Baker.
Senator Bryden: The minister indicated that, to date, 84 of the 88 recommendations of Lamer have been accepted in full or in part. Which four were not?
Brig.-Gen. Watkin: The recommendations in Lamer are much broader than the military system per se. There were also recommendations with respect to the grievance system and Military Police Complaints Commission. That is in the overall.
Senator Bryden: Are not all of his recommendations numbered?
Brig.-Gen. Watkin: The one I can say for sure was the recommendation to make the court martial administrator a deputy head. That was not accepted. Not all the recommendations went really to the type of issues that got before Bill C-60. I can certainly ask my officials to provide a list of those recommendations that were not accepted.
The Chair: That would be extremely helpful. I was going to ask for that.
Brig.-Gen. Watkin: I can tell you now. I have the four. I cannot tell you what their subject matter is, but I have the numbers.
The Chair: The numbers will be helpful.
Brig.-Gen. Watkin: They are 21, 49, 71 and 74.
I would also like to clarify the question with respect to recommendation 54; it was a question of the reprimand, which is not in Bill C-45. It is a note in regulation.
Again, I think last week there was some testimony that not all Lamer's issues actually got into statute. They were regulation based.
I can tell you that one of his recommendations, which was to reduce the number of times you had to go to legal advice in terms of proceeding with charges, is a matter that has fallen under the study that we have been doing on trial delay. That is one of the things we are implementing to try to reduce that, so the Lamer recommendations continue to have resonance in our office as we go forward.
The Chair: For certainty, I want to repeat back those numbers — 21, 49, 71 and 74.
Brig.-Gen. Watkin: That is correct.
Senator Baker: I will put my questions and let him finish so you will not have to cut me off, chair.
As it pertains to the bill before us, you mentioned trial delay. I note that in two cases a year-and-a-half ago, there was a determination that it took too long.
I will read you a sentence from R. v. Major M.W. Brause, paragraph 15:
During this time period, and for some time well prior to this period, the chief military judge wrote to both the Minister of National Defence and the Judge Advocate General, pointing out the need for a fourth military judge to be appointed.
I could cite other cases for you in which a francophone judge was not available for a period of four or five months. That counted in the period of time in which an adjudication was made, that an Askov argument was made out as a violation of the time.
You can comment on that if you wish. Also, we have the case of the director of military prosecutions who is coming here who took the chief military judge and you to court and several other people in a mandamus application, which you might want to comment on — and whether or not you have straightened things out with the director. That was recently in the Federal Court.
Here are the amendments I wanted you to look at. You said that the punishment could be imprisonment and a fine. That is what you said a moment ago.
In the two sections in this bill, it says a punishment of imprisonment or a fine. That is in paragraphs 9 and 12. This goes against the consistency in the act. In every other part of the act, it says imprisonment or a fine or both. I would suggest to you that section 302 of the act says exactly that. Why in this act did you make a change in the normal procedure that you had of punishment?
The second amendment that could probably be looked at seriously here — there are three or four — under 165.192 concerns the standing court martial. Then it says that on the charge sheet, if the charge preferred is an offence under the act other than under section 130 — which, as you pointed out, is the Criminal Code or any other federal act of Parliament — that is punishable by imprisonment of less than two years or by a punishment that is lower in the scale of punishments. I presume from that that you have a scale of punishments and you have got lower. I presume that is halfway down and what is beyond halfway down.
That is fine, but then you say in (b), an offence that is punishable under section 130 — which are Criminal Code offences and federal acts — and is punishable on summary conviction under any act of Parliament.
The problem with that, as I see it and as the committee would see it under examination, is that hybrid offences under the Criminal Code and other acts of Parliament involve very serious offences in which somebody can end up with 10 or 14 years in jail. Assault causing bodily harm is a hybrid offence. It could be by summary conviction, yes.
The Chair: Senator Baker, we are running long.
Senator Baker: I am sorry. Well, there are four or five amendments there that could be looked at. I cannot get to all of them.
If we had examined this bill prior to its passage, there are about four or five sections where I am sure amendments could have been made.
Brigadier-General, I still think that the person should be allowed to go back if there is a choice of general or standing court martial. In the case where you have preferred a charge after the time limit of the year, which should be six months — another amendment that should be made — the soldier does not have a choice of going back to what the charge would have been charged under.
Brig.-Gen. Watkin: Thank you, senator. As far as the cases you are referring to, I am at a loss. I would have to go back and look at the particular details of when those cases took place.
I can tell you that, since 2006, three of our four judges are francophone, so I would be surprised to find that this has been problem. I am not aware of it ever being a problem.
Senator Baker: It is in the case law.
Brig.-Gen. Watkin: I would have to refresh myself on the case law.
On the matter of the mandamus application, I was not named.
Senator Baker: I see.
Brig.-Gen. Watkin: It is an indication of the strength of our system and the independence of defence counsel services and the director of military prosecutions. It had to do with a question in respect of a classified court martial and of pre-trial matters. It went to the Federal Court of Appeal. I can safely say that it is sorted out in terms of how that issue might be dealt with in the future.
On the matter of the drafting of the section, if I said "and" not "or," I obviously misstated.
Senator Baker: You said what should have been drafted.
Brig.-Gen. Watkin: I would have to read and reflect on that. In terms of legislative drafting, I must say that I find it a bit of an art rather than a science, and the standards change in terms of the legislation. If that is problematic, the matter should be brought forward and cleaned up on a consequential amendment. The intent was that you would have the option of both punishments in terms of being available to the court, as I understand what we were putting forward.
On the issue of two years less a day and summary conviction, the system was set up to parallel the civilian system. In terms of the type of punishments that go to a judge alone without providing an accused the opportunity to choose the type of trial, they are, in fact, summary conviction offences. On the hybrid offences, they have a choice in our system like in the civilian system except for the same type of offences where you do not get that choice in the civilian system. Those offences attract the punishment of life in prison. As you can see, those have been mirrored with respect to offences that do not fall under sections 130 and 132. The ones that attract life imprisonment, such as disobedience to lawful command, and are paralleled in the civilian justice system, specific reference is made to those in a section of the Criminal Code. It might be section 495 but I do not have it in front of me to be certain.
Senator Baker: Yes, it is section 495 — arrest without warrant.
Brig.-Gen. Watkin: It is the one that includes murder, manslaughter and piracy. It is section 469. For a similar matter in the civilian justice system, you would go to a jury trial — we call it a panel court — general court martial. We have mirrored the system whereby the accused can ask to have a standing court martial, which is a judge alone. It requires the concurrence of the director of military prosecutions in the same way that it would require the concurrence of the Attorney General in the civilian system. This was also one of the late Chief Justice Lamer's recommendations, as I recall in the actual statements.
Senator Bryden: I want your opinion on whether Bill C-60 has reached what I consider one of the most significant goals that was put forward by Chief Justice Lamer. I will not do the preface.
The goal of the working group would be the creation of a two-tier system whereby the general court martial would try serious offences and the standing court martial would try minor offences with no distinction made on the basis of rank.
Does Bill C-60 comply with that? I know it meets the first two. Are there still distinctions on the basis of rank in Bill C-60?
Brig.-Gen. Watkin: There are not distinctions on the basis of rank, and that is clearly the result of the amendments. I believe you are referring to recommendation 23 of the Lamer report.
Senator Bryden: Yes.
Brig.-Gen. Watkin: We have substantially met what was set out in slightly different fashion than had been contemplated by the late Chief Justice Lamer. For example, in the text above his recommendation in the report was the idea of making civilians subject to these two types of trial. It contemplated a judge alone and a judge and panel, although it was looking at a standing court martial and the general court martial having the ability to have a judge alone or a judge and panel.
Senator Bryden: You are satisfied that a general and a private charged with the same offence are treated identically and fairly under Bill C-60?
Brig.-Gen. Watkin: I am satisfied of that.
The Chair: Thank you, Brigadier-General Watkin.
We are fortunate to have with us as our next witness, Lynn Larson, a lawyer who worked with the late Antonio Lamer, former Chief Justice of the Supreme Court of Canada, on his much-cited report on military justice, which was produced in September 2003.
[Translation]
Ms. Larson was to appear with her colleague Ms. Catherine McKenna, but has unfortunately been detained as a result of travel problems. She was unable to be with us, but we are pleased that Ms. Larson has agreed to appear before us.
I believe you have a statement to make, Ms. Larson.
[English]
We invite you to make your statement and then we will ask you some questions.
Lynn Larson, Lawyer, as an individual: As a preliminary matter, I thank Jessica Richardson, clerk of the committee, for all her help in getting me here. It was a surprise to receive the invitation, and I thank the committee for inviting me to speak. You will note that my statement is in the plural. I do not have an imaginary friend. Catherine was supposed to be with me today and was quite excited about providing our input to the committee. Unfortunately, she could not be here, as Madam Chair explained.
My name is Lynn Larson. I am a lawyer. I would like to thank the committee for the opportunity to appear before you today. Both Catherine McKenna and I enjoyed the privilege of working with the late Chief Justice Lamer during his 2003 review of the provisions and operation of Bill C-25. I will refer to his report as the Lamer report just for convenience throughout the question period.
My work with former Chief Justice Lamer began when I was an articling student and then continued as an associate. I was assigned various duties on this file including research, organizing base visits and meetings with interested parties, and assisting with pretty much anything that former Chief Justice Lamer requested of me. Ms. McKenna worked as an associate similarly assigned to assist Chief Justice Lamer.
I would like to make clear at the outset that I am not an expert in criminal or military law, nor am I really in a position to comment as to the extent to which the recommendations set out in the Lamer report have been or are in the process of being implemented, but I would be interested to receive some questions on that point if you are interested. Indeed, over five years have passed since the Lamer report was tabled in Parliament on November 5, 2003, and as you all know, former Chief Justice Lamer himself passed away on November 24, 2007. I am, however, happy to provide information regarding the process and approach followed by Chief Justice Lamer in drafting his report and developing his recommendations. I can also provide some context regarding certain recommendations contained in the report that appear most pertinent to the review of Bill C-60. However, I must make it clear that Chief Justice Lamer's report must speak for itself and I cannot presume to speak on his behalf.
It would be useful to provide some background information regarding Chief Justice Lamer's report. As you are aware, unlike previous reports relating to the military justice system, such as those arising from the Somalia inquiry, the report was not precipitated by serious incidents. It arose out of the requirement that the Minister of National Defence arrange for an independent review of the provisions and operation of Bill C-25, which also sounds simple but was not in practice. While Bill C-25 dealt with a variety of issues, one of the main areas subject to review was the military justice system. A number of significant changes to the military justice system made by Bill C-25 were intended to address perceived deficiencies within the military justice system, including the goal of establishing clear standards of institutional separation between the investigative, prosecutorial, defence and judicial functions. The success of this goal was, in turn, reviewed by former Chief Justice Lamer, and several of his recommendations were intended to form the basis for further improvement.
Chief Justice Lamer was given complete access by the Minister of National Defence to the employees of the Department of National Defence, and officers and non-commissioned members of the Canadian Forces of all ranks, as well as to any information relevant to the review. Chief Justice Lamer took a consultative approach to his review, as he had the hope that sharing his concerns with the relevant people and affording them an opportunity to either institute corrective measures or explain why his concerns were unjustified would result in expedient reforms addressing the issues identified by him. During the six months Chief Justice Lamer was afforded to conduct this review, he consulted numerous times with the judge advocate general, the director of military prosecutions, the director of defence counsel services, the Canadian Forces military judges, soldiers of all ranks and many other people with expertise in matters falling under Bill C-25.
Sessions were also conducted at bases across the country — Valcartier, Montreal, Comox, Esquimalt and Gagetown — where, generally speaking, we had round tables with members involved in the military justice system in the morning and confidential meetings with people who requested them in the afternoons. Chief Justice Lamer also received and considered numerous submissions from interested parties in response to his call for comments published in the Canadian Forces newspaper The Maple Leaf and base newspapers where feasible.
I believe it is accurate to say that Chief Justice Lamer found, as a result of the changes made by Bill C-25, that Canada could boast of a very sound and fair military justice framework. However, as his recommendations demonstrate, there were areas where Chief Justice Lamer felt that further improvements could be made to improve the military justice system, keeping in mind the requirement that such a system need often operate abroad under circumstances of duress, hostility and outright war. As noted by Chief Justice Lamer, an independent military judiciary is the hallmark of a fair military justice system, and we can confirm this was one of Chief Justice Lamer's guiding principles when forming his recommendations.
I had originally intended to go through a few recommendations that I thought were pertinent, but given time constraints that we are faced with, I am happy to take any questions.
The Chair: I expect that it would be helpful to have on the record your views on the recommendations in question. As one of my colleagues observes, it is only about a page-and-a-half, so I think that is probably worth doing. If you want to tighten up a little as you go, that is okay.
Ms. Larson: Chief Justice Lamer recommended modernizing the types and jurisdiction of courts martial provided for under the National Defence Act. In particular, he recommended that a working group consider the creation of a streamlined, two-tiered system whereby the general court martial would try serious offences and standing court martial would try minor offences, with no distinction made on the basis of rank.
You will recall that prior to Bill C-60, the director of military prosecutions was required to determine the type of court martial that should be convened and that there were four types of court martial which differed based on their jurisdiction over an accused due to rank, differing powers of punishment and the composition of the court. Chief Justice Lamer's goal was to encourage the Department of National Defence to consider a streamlined system that was capable of avoiding redundancy and confusion, and would grant equal protection to all ranks of the Canadian Forces, while also offering greater protection to the accused. That is his recommendation 23 at page 37 of his report.
His recommendation 24 at page 39 recommended that the findings of guilty or not guilty by a court martial panel be arrived at by unanimous vote. While Chief Justice Lamer noted that the historical rationale for the determination of verdict by majority vote is expediency, he explained that the risk with reliance upon majority vote is that the process of fact finding may be reduced as any minority could be ignored in deliberations and minority views therefore less likely to be expressed.
At recommendation 25, Chief Justice Lamer recommended that an accused charged with a serious offence be granted the option to choose between trial by military judge alone and a military judge and panel. Chief Justice Lamer was particularly concerned that the system, subsequently challenged in the Trépanier case, gave the prosecution, rather than the accused, the power to choose between trial by military judge alone, or trial by military judge and panel without any significant military justification presented to us during our research for the report. He noted that statistics from the Department of National Defence demonstrated that the decision was made to proceed by military judge alone in the vast majority of cases. Only four of the 220 trials between September 1, 1999 and March 31, 2003 were assigned to a panel assisted by a judge. To quote former Chief Justice Lamer, when it comes to a choice between expediency on the one hand and the safety of the verdict and fairness to the accused on the other, the factors favouring the accused must prevail.
Thank you for the opportunity to address the committee. I would be pleased to respond to any questions.
The Chair: Thank you, Ms. Larson.
Senator Nolin: Do you have the Lamer report before you?
Ms. Larson: I do.
Senator Nolin: Please go to recommendation 52. It deals with the comprehensive review of the sentencing provisions. Do you have a recollection of the discussion you lad with Justice Lamer? What was behind that recommendation? Streamlining, of course, but what else?
Ms. Larson: Streamlining, and his concern was that there are many situations where there are civilians who are acting for the military.
Senator Nolin: What was the meaning for you and for him of the word "streamline"?
Ms. Larson: For him, I am not sure.
Senator Nolin: We have pure regulars, reserves and civilians. Did he have in mind something different, or what did streamlining mean in that regard?
Ms. Larson: Streamline meaning a clear reason for the composition of the panel and for the options for the accused, and also as regards sentencing. In particular, it is difficult when you are a civilian. There are some sentencing options that are just not available to the military judges that make it very difficult for them to address punishment of civilians. As we were saying, even Bill C-60 only allows for a fine or imprisonment. One concern Chief Justice Lamer had that was in his report is if you are a civilian and a reservist and you are sentenced to imprisonment, you might lose your civilian job. He was hoping, I think, to have further and better options available.
Senator Nolin: Full parallel?
Ms. Larson: I cannot speak to full parallel. We only had six months to conduct this review. If you read the full report, it was quite exhaustive, covering many areas of the military justice system. I do believe that is why it is phrased the way it is, that he wanted a panel to look at the options available and what made sense and what did not make sense.
Senator Nolin: Do you recall having a discussion with Chief Justice Lamer about the importance of discipline?
Ms. Larson: Very much so. Chief Justice Lamer was an honorary colonel and he served in Shilo, Manitoba, so he was very cognizant of the requirement for discipline.
Senator Nolin: My question begs exploring the meaning in the justice system, the implication of maintaining discipline. That is why I began with trying to make the distinction between, let us say, being a regular and a reservist, so being a member of the CF and a civilian working within the CF. Justice Lamer did not make a distinction between the two; he thought there should be only one system and that discipline is for all?
Ms. Larson: It was one system, but with expanded sentencing options available to address the difference between, for example, a civilian or military, even regarding collecting of fines and that sort of thing.
Senator Nolin: Thank you. It is quite interesting to have a witness who helps us to explore the mind.
The Chair: She is doing a good job of distinguishing between what she knows and what she does not know.
Ms. Larson: I have been adequately instructed on that.
The Chair: We appreciate that. Do not hesitate to continue making those distinctions, because they also are valuable to us.
Ms. Larson: Thank you. I would like to add something that I have not yet seen or heard discussed in the debates, which is that the composition of the panel has not changed in the courts martial. You still have a bit of a distinction at the panel level based on rank, because officers are tried by officers, and non-commissioned members are tried by officers and non-commissioned members. I believe that goes along with the idea that discipline is necessary and it would be awkward to have an officer with a non-commissioned member sitting in judgment.
Senator Baker: I will deal with just two recommendations of Chief Justice Lamer. I was going to deal with only one recommendation, but the brigadier-general drew out of the blue section 495 of the Criminal Code, which is arrest without warrant. He meant the section on first-degree or second-degree murder. I went back to Chief Justice Lamer's report and it is recommendation 32.
This has not been implemented, and I doubt whether it has been accepted by the military, and that is that section 495(2) of the Criminal Code be accepted into military law. That section prohibits a police officer from arresting someone for a hybrid offence unless they are in the process of the commission of the offence or if it is necessary for the identification of the person for exigent circumstances, or if they had committed an indictable offence. The brigadier-general did not mention recommendation 32, and that certainly has not been incorporated into military law with any of the provisions.
Ms. Larson: I was interested in Senator Bryden's question about what provisions had and had not been implemented, because it was not a plant. I had just before that asked for confirmation as to what provisions had and had not been amended, because it has been five years and I am not certain.
I am certain this one has not been amended, and there are a couple of other recommendations that Chief Justice Lamer made — for example, creating a permanent court martial court — that have not been implemented in full, but there have been measures taken to address them.
Senator Baker: Partially. In other words, you could bring an application prior to the assignment of a court martial judge, which you could not before, but now you have an interim judge that you can bring an application to prior to that judge being assigned.
Ms. Larson: Yes.
Senator Baker: Because the court martial only exists for the purpose of the case that it is addressing.
Senator Joyal: On a point of order. I am sorry to interrupt Senator Baker, but Bill C-45, which of course you know, provided at clause 25 that section 155 of the National Defence Act would be amended. You say that it has not been amended.
Ms. Larson: Bill C-45 died on the Order Paper, so it has not been implemented.
Senator Joyal: When you say it has not been implemented, it does not mean it has not been accepted. You will remember that I made the distinction with the minister that what is accepted is not necessarily what has been acted upon.
Senator Baker: Indeed, but also Chief Justice Lamer suggested that sections 155 and 156 be replaced and that section 495(2) of the Criminal Code be substituted in its place.
Senator Joyal: But clause 26 also amends section 156. I do not want to argue.
Senator Baker: Let me get to the question. Senator Joyal is absolutely correct and I am wrong. Well, I am not wrong.
The Chair: We will take that as read, Senator Baker. Moving along.
Senator Baker: My question relates to something that Chief Justice Lamer had approved of, and that is the one-year limitation period. His reasoning was that it is, as Senator Nolin points out, a requirement of discipline to be enforced promptly and to ensure that only minor, non-complex offences be tried by summary trial. If he agreed with that, why would he not make it six months?
Ms. Larson: That I cannot ask him. I am not certain as to why he would not make it six months.
Senator Baker: Let me suggest what the answer is. In the previous paragraph he says:
The suggestion has been made by some CF members that an accused should be able to waive the limitation period because the accused may still prefer to proceed by summary trial rather than by court martial even though the limitation period may have expired.
The reason they were suggesting that was that, if you wait until after the year is up, they have no choice but to prosecute you under court martial, although the offence would have been prosecuted under the direct summary trial if they had done it within that period of time.
Ms. Larson: Did he not go on to explain his reasoning as to why that was not a compelling reason?
Senator Baker: No.
Ms. Larson: What page is it?
Senator Baker: It is on page 59, recommendation 43, at least of the text that I have. Then he says:
The JAG Report suggests that the one year limitation is necessary to reaffirm the requirement that discipline be enforced promptly . . .
The point being there that he is mixing apples with oranges, because what the Canadian Forces people were telling him is they have no choice. After the charge is preferred by the prosecution for a minor offence because the time limit is out, then they cannot go back to a summary trial, where it should have been. Now, why would they not want the offence before a court martial? It is because under the Criminal Code, with many of these charges now, such as assault causing bodily harm, your DNA is taken. You come under provisions then that you would not if you were tried under summary trial.
Chief Justice Lamer appears — and I only say "appears" — to perhaps have misinterpreted what the Canadian Forces officers were telling them. As we heard from the National Defence authorities two meetings ago, it was a great thing that they could choose. However, they cannot choose where they should be able to choose, which is what they should have been charged under.
Ms. Larson: What I was referring to is the line before his recommendation which says:
. . . once an accused has been forced to wait a year for a trial, if the matter is to proceed at all, a court martial should be convened to ensure that the accused is given the attendant procedural and legal guarantees.
I think he did put his mind to it. Again, it was five years ago when I was an articling student working for Chief Justice Lamer. However, I think he did put his mind to it.
Senator Baker: A civilian trial would have been better? I do not think so.
The Chair: I would take what you just said to suggest that, after a whole year, he was of a view that the defendant would be better served.
Ms. Larson: Exactly, yes. That is exactly what he said.
The Chair: Okay.
Senator Angus: Ms. Larson, thank you for coming here today. Welcome.
I am not sure if this came out in Senator Nolin's questioning, but to me it is basic to what you folks were doing, Chief Justice Lamer and his assistants, namely, reviewing the law as it then was to see if it was okay for the intended purposes, if it was working well and if you had suggested improvements. The report was prepared — a very excellent report, many of us have cited it and looked at it — and then along comes the Trépanier case, which has blown some of us out of the water. How can this law that has been on the books for so many years and has processed all of these accused persons through the system, suddenly, as a result of the Court Martial Appeal Court, be declared against the Charter?
At any time during your review and the study, did you brainstorm and say, "This is pretty hairy? There are circumstances here that could be against the Charter. Maybe we should do something." Is what the judges in the Trépanier case came up with so off the wall that no one ever thought of it before?
Ms. Larson: No. I would point you to a quote that Chief Justice Lamer says often throughout his report, which is that "We should strive to offer a better system than merely that which cannot be constitutionally denied." I realize people have expressed interest in his point of view regarding Dickson and Dickson's recommendations, and the Lamer report and how they fit together, and R. v. Généreux and how his decision in Généreux fits with his recommendations in the report. I can only say that he was truly striving to do the best that he could for the military. He did not feel that we were necessarily doing the Canadian Forces much benefit by only, in some circumstances, granting them something that merely cannot be constitutionally denied. I would have to refer to that quote.
Senator Angus: Well, I have been wrestling with that quote. In any event, as I understand the timeline, and knowing the late Chief Justice Lamer as I did, and as you did, do you not think that he would have been very surprised at the decision that came down in that case?
Ms. Larson: In Trépanier?
Senator Angus: Yes.
Ms. Larson: Very surprised in that the Court Martial Appeal Court ruled the provision?
Senator Angus: In that the wheels of justice ground to a halt. That is what has led to all of this and to a very special session of the Committee of the Whole of the Senate to deal with those 39 cases that were pending last spring. I know there is a view that maybe the government did not take the easier course out, but they did what they did thinking that four recommendations of Lamer needed to be implemented right away and that this bill needed to be passed.
We are now reviewing the bill.
The Chair: Yes, we are.
Ms. Larson: Although, as Senator Milne pointed out, I am not certain there was no option. Although, again, I am not an expert in military affairs, I have read the Trépanier case. Mr. Justice Létourneau did offer some options.
Senator Angus: Yes, an alternative.
Ms. Larson: But to say, in a way happily, at least the bill got passed. Bill C-7 died on the Order Paper, as did Bill C-45. When I was asked to speak today and to put my mind toward Bill C-60, it is difficult to peel the onion back and see what exactly Bill C-60 intends to address and whether it was intended to work hand in hand with Bill C-45.
Senator Angus: I think you know what I am getting at.
The Chair: Senator Angus, tighten it right up, please.
Senator Angus: I was going to conclude. If Justice Lamer — "if" is a big word — and yourself had concluded that there is a risk that that kind of Trépanier situation could happen, we better put a red flag out for DND to do something about it or there will be trouble.
Ms. Larson: Yes. That is exactly what he did in his recommendation in his report. He did highlight that an accused should be given the option. If he were with us today, I think he would be surprised that, five years later — indeed, when I believe another review to Bill C-25 is supposed to start happening — we would be discussing his report of five years ago. I think he had intended the recommendations to be expedient.
Senator Angus: Whenever you say "Bill C-25," it then became Bill C-45, for the record. Is that not the same?
Senator Nolin: No.
Some Hon. Senators: No.
The Chair: That is why Senator Joyal was suggesting to the minister that the next iteration should begin here in the Senate.
Senator Nolin: By the way, the review was amended here.
Senator Angus: I understand that.
Senator Joyal: We asked for it at the time.
Senator Nolin: We agreed — what a wonderful idea.
The Chair: Institutional memory is wonderful.
Senator Joyal: Thank you for your testimony. It is very helpful to us in making our recommendations.
May I conclude that recommendations 23 and 25 have been dealt with by Bill C-60 but that recommendation 24 has not been dealt with by Bill C-60? As a matter of fact, I find it at clause 53 of Bill C-45, the unanimity recommendation.
Could you confirm to us that in your mind, the way you are informed of the substance of recommendations 23 and 25, that has been dealt with by Bill C-60?
Ms. Larson: Recommendations 23 and 25?
Senator Joyal: Yes.
Ms. Larson: Yes.
Senator Joyal: I do not want to pull out teeth here. I want to ensure that we understand the orientation of your comments because, in my opinion, recommendation 24 has not been dealt with by Bill C-60 because Bill C-45, at clause 53, amends section 192 to request that the presiding judge has to discharge the panel if there is no unanimity.
In other words, that recommendation is dealt with in a bill that has not been adopted so far. If we are to make recommendations in our report, and we want to take into account recommendation 24, we would have to restate the importance of having clause 53 of Bill C-45 included in our report, because it dealt with the issue of unanimity.
Ms. Larson: In my version of the bill, which was assented to on June 18, in sections 192, 191(1), 192(2), there is unanimity but it is with regard to unfitness to stand trial.
Senator Joyal: It is section 192(1), line 32, I think.
Ms. Larson: Yes, exactly. The way I read section 192(2), it deals with unanimity.
Senator Joyal: So that one would be dealt with.
I will repeat my question, Ms. Larson.
Recommendation 24 that you pointed out in your brief would have been dealt with in Bill C-60 at clause 14 when it amends 191 and 192, et cetera, and especially 192.1, paragraph 1 and 2, is, as I read it, inspired by the similar section of Bill C-45.
Ms. Larson: Right.
Senator Joyal: I restate my question: Are you satisfied that all three of those recommendations, in your reading, have been dealt with in Bill C-60?
Ms. Larson: In my reading, yes, but again, it has been five years and I am not a military law expert. In my review of the recommendations of the report and the bill itself, I feel that they have been dealt with.
Senator Joyal: One last question. We were informed today following a question that recommendation 49 of the report has not been accepted. Recommendation 49 of former Chief Justice. Lamer's report recommends amendments to the Queen's Regulations and Orders in order to require that willsay statements be provided to the defence at or prior to the time when a charge is preferred rather than simply before a court martial commences.
This recommendation aimed to give the same kind of access to willsay statements to an accused in the civilian system. Why, in your opinion, would that recommendation be refused?
Ms. Larson: I do not feel at liberty to answer that question. I am sorry, Senator Joyal.
Senator Joyal: Give me the reasoning why you have put it forward.
Ms. Larson: Why Chief Justice Lamer put forward those recommendations?
Senator Joyal: Yes.
Ms. Larson: I will have to let his report speak for itself in this case. I would point you to page 64 of his report where he explains Stinchcombe and willsay statements. I will have to leave it at that.
Senator Joyal: Do you not consider that an essential element of reform?
Ms. Larson: Actually, I did not say that. I said that I am not an expert and that it has been five years since I looked at this and that I do believe Chief Justice Lamer's report has to speak for itself. He mentions the Stinchcombe case. He was an eminent criminal lawyer. As an articling student, I do not feel qualified to explain his reasoning.
Senator Joyal: Let me put it in a different way.
Ms. Larson: I am still not going to answer.
Senator Joyal: It is the privilege of the witness.
Senator Baker: You must answer the question.
The Chair: This is not a criminal court.
Senator Baker: It governs this proceeding.
Senator Joyal: Let me put it candidly to you. An important situation in which an accused person finds himself or herself is to prepare a full and complete defence and be afforded the means that the Criminal Code provides to that person to prepare his or her defence.
The recommendation of former Chief Justice Lamer in relation to a willsay statement is a very important element of preparing a defence. If that recommendation is not accepted, as we were told this afternoon it would not be — it was one of the four excluded — would it not be possible for an accused person to challenge his or her constitutional right to prepare a full defence under the Charter by not having access to that information in the appropriate context to prepare his or her defence?
Ms. Larson: I am certain if it were possible, it will be done and that there will be a new bill that will be introduced. I agree with you that Chief Justice Lamer took the rights of the accused very seriously. He approached this report with the history of being an eminent criminal defence counsel at the outset. When preparing for this report, as I noted earlier, it is difficult to tell what recommendations of Chief Justice Lamer had been implemented in whole or in part and were intended to be implemented by virtue of Bill C-45.
Having had a week to dust off the report and to review Bill C-7 and Bill C-45 and to compare them with Bill C-60 and to review Chief Justice Lamer's report, for the record, do I think he thought it would be very important? Yes. Otherwise, it would not have formed a part of his report. He had six months to do a very comprehensive review of the military justice system. I think he did a very good job, and he had to, of necessity, focus on items that he considered of the utmost import. It is in there. Do I think he would have thought it was important? Of course.
Senator Milne: Ms. Larson, on the trial of civilians in military court, and since there are really only two punishments possible — either you get off or you are fined or are thrown in prison — did Chief Justice Lamer consider at all some sort of a system of probation that would make it more similar to a civilian court?
Ms. Larson: I know he turned his mind to, for example, serving your sentences intermittently and different options that are available. That is as far as I can go.
Senator Milne: Do you know that he was thinking about that but it did not end up in the report?
Ms. Larson: Again, I think his recommendation was quite broad, that he felt that the sentencing provisions of the National Defence Act needed to have a wholesale review and update. Given his mandate constraints and time constraints, he could not do that, so he was left with, "Here are some weaknesses. This is bigger than I have time or the mandate for. The whole thing needs to be looked at, start to finish."
The Chair: We are running into conflicts with other committees that senators have obligations to, but Senator Joyal said he had one last query.
Senator Joyal: Yes. I cannot resist but to ask, since you were involved with the drafting of this report and the research and the overall work that it entails, for your general comment about the legal substance of this report. Previous witnesses have told us that they have seen it rather as an administrative reorganization rather than involving legal issues that are fundamental to the constitution and the Charter of Rights. How do you see the substance of that report? Do you see it merely as an administrative reorganization suggestion, or do you think in that report there were substantial elements of principles of law that were essential to respect in the context of our system of law in Canada?
Ms. Larson: I do not think you can ever ask a former Chief Justice to conduct a review and a report without having in mind issues of import and legal and constitutional issues at the back of their mind. For the people who suggest that it is merely an administrative report, I find that interesting. If it were only an administrative report, I do not think that five years would have passed and there would still be a table of senators debating, researching and questioning the merits of some of the recommendations.
Senator Joyal: Thank you. You have answered my question.
Senator Wallace: I am following up on Senator Milne's question to you about civilians and what may have been in Chief Justice Lamer's mind when he wrote what he did in the report.
Was there ever a suggestion that civilians covered by military justice would be treated differently, would have different rights, remedies or penalties available to them compared to those that were in the service?
Ms. Larson: They would have to be because those who are in the service have a reprimand or a decrease in rank or different punishments.
Senator Wallace: That is right.
Ms. Larson: With respect to civilians, some sentences just do not make sense when you look at the sentencing provisions of the code.
Senator Wallace: That answers the question.
The Chair: Ms. Larson, thank you very much. It really has been an extremely interesting session.
Ms. Larson: Thank you.
The Chair: It is never long enough, but we are very grateful to you for being here, for the work you had to do to prepare to be here because you had to do even more than some witnesses normally do in that you had to go back to a previous life, so to speak.
Ms. Larson: Yes.
The Chair: We appreciate it very much. Thank you all.
(The committee adjourned.)