Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 38 - Evidence for May 29, 2013
OTTAWA, Wednesday, May 29, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other acts, met this day at 3:06 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, honourable senators, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today, we are continuing our consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. This is our third meeting on Bill C-15.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website, and you can find more information on the scheduled witnesses on the website, under Senate Committees.
To begin our deliberations this afternoon, we are pleased to have, as our first panel of witnesses, Michel Drapeau, Professor, Faculty of Law, University of Ottawa; and his legal assistant, Joshua Juneau; and, appearing via video conference from the United States, Ian Holloway, Dean of the Faculty of Law at the University of Calgary.
Professor Drapeau, I believe you have an opening statement.
Michel W. Drapeau, Professor, Faculty of Law, University of Ottawa, as an individual: Yes, I do, Mr. Chair. Good afternoon. I would like to thank this committee for inviting me to speak here today on Bill C-15. As noted in my written submission, ostensibly, the purpose of Bill C-15 is to bring improvements to the current National Defence Act. Admittedly, some provisions contained in Bill C-15 are welcome because they are truly designed to strengthen military justice. I have highlighted some of those in my paper.
However, Bill C-15 contains a number of provisions that, in my opinion, are of no benefit to the military justice system. This includes the unnecessary addition of a deputy chief military judge; the pointless creation of a reserve panel of judges; the unwise removal of the Chief of the Defence Staff from the Canadian Forces grievance system; the cosmetic rebranding of the Canadian Forces Grievance Board; and what I consider to be the unwarranted empowering of the Vice Chief of the Defence Staff to issue instructions or deadlines to the military police during the course of a specific investigation.
In my opinion, these piecemeal changes do not ameliorate the National Defence Act. In fact, in my opinion, they make it worse.
More important, however, Bill C-15 ignores foundational and structural issues existing within the military justice system, which have long ago been addressed by our major allies. In short, in its current form, the National Defence Act is discombobulated and in need of significant reform.
Let me give you but two examples of reform needed if for no other reason than to make the act more coherent and more in line with contemporary judicial standards in Canadian law.
First, the summary trials. There are approximately 2,000 such trials in the Canadian military each year. These are not trials. Despite the fact that the commanding officer, who presides at such trials, has the ability to sentence a member to detention for up to 30 days, an accused has no right to counsel, no right to submit a grievance and no right to appeal. Additionally, there are no rules of evidence and no record of proceedings at trial.
In my opinion, any charge warranting imprisonment or the imposition of a criminal record should automatically be referred to courts martial, where full procedural rights, as guaranteed under the Charter of Rights and Freedoms, are provided.
Let me provide you with a second example. The supreme judicial authority in the military justice system is the Chief Military Judge. Yet, the act provides for another judge, whose military rank is higher than that of the Chief Military Judge: I am referring to the Judge Advocate General. The Chief Military Judge wears the rank of colonel, and the JAG wears the rank of major-general.
First, the JAG title is a misnomer because the incumbent is not a judge. He is the legal adviser to the military chain of command, which is quite a separate job: a big job.
Second, as explained in my paper, the JAG lacks the essential prerequisite to be a judge. Therefore, the word "judge" should be removed from the title of Judge Advocate General. That would go a long way in changing the perception of who the supreme judicial authority in the military justice system is.
Third, the Chief Military Judge should not wear a military rank. He does not need a military rank to exercise his judicial functions. However, at present, as a colonel he is currently lower in rank than the JAG and also nearly 100 general officers, including the Chief of the Defence Staff and the Vice Chief of the Defence Staff, all of whom, I must point out, are subject to his judicial authority and would appear before him if any one of them were to be court- martialled. The Chief Military Judge, like any other judge in Canada, should have rank and title of judge or justice.
In closing, and to reiterate, what we need is reform, an actual overhaul of the entire military justice system, a rethinking of how to better render justice to our troops in a military context.
Those are my opening comments, Mr. Chair.
The Chair: Thank you, professor.
Professor Holloway, do you have opening comments?
Ian Holloway, Dean, Faculty of Law, University of Calgary, as an individual: Yes, I do. The first thing I want to do is apologize for the informality of my dress. I happen to be in southern California right now attending a meeting of the Law School Admission Council. When in Rome, do as the Romans do. I promise you that you should not take my dress as any indication of lack of respect for the seriousness of the proceedings, because the contrary is true.
The second thing I wanted to say is that I cannot see you, as you may or may not know. Is Senator McIntyre there, by chance?
The Chair: He is.
Mr. Holloway: I am particularly delighted to be here with Senator McIntyre.
Senator McIntyre, I come from Bathurst, and it is an honour to be appearing before you.
Senator McIntyre: It is certainly an honour to have you appearing.
Mr. Holloway: I thought the most useful thing I could do, by way of opening statement, would be to tell you something about myself and about the perspective that I bring to my analysis of the bill, and then say that I would be happy to answer any detailed questions you may have.
As the chair noted, I am currently the Dean of Law at the University of Calgary. Before that, I served 11 years as the Dean of Law at the University of Western Ontario. I have been a member of the bar for 27 years now and I hold the rank of Queen's Counsel.
As importantly, maybe more importantly than all that, for someone appearing before you today, I also spent 21 years in the Canadian Forces, all of my time as what today the CF would call a non-commissioned member, in old- fashioned language, as a rating in the navy. I had the experience of being subject to the system of military justice and the apparatus of the military justice system for well over half my adult life. I think that might give me a different perspective than some people from whom you are hearing, even people with military experience but who never experienced it from the perspective of an enlisted person.
That leads me to say do let us talk about the details of the bill, but the important perspective from which to begin is the philosophical one, and to appreciate that the context in which the system of military justice exists is very different from the context in which the system of civil justice exists.
The purpose of a civil society — the society in which all of us who are civilians, Mr. Drapeau and I alike — is to maximize freedom, to maximize liberty and to minimize the opportunity for the state to interfere with our personal liberty interests.
The purpose of military society is to protect civil society. In order to do that we, as Canadians, need a body of people who will, upon command, do unnatural things. We need a body of people who, when lawfully ordered to do so, will put themselves in harm's way. We need a body of people who, when lawfully ordered to do so, will engage in deliberate acts of violence and run the risk of punishment if they refuse to engage in violence with other people.
As a civilian, that is a very unnatural way to conceive of things but, like every society governed by the rule of law, it is absolutely essential that we have a body of people who place themselves at our disposal as Canadians. We need the police to protect us from within and we need the Armed Forces to protect us from without.
The price that we, as Canadians, have to be willing to pay for demanding this very unnatural commitment is that we have to be willing to accept that their values can be profoundly different from ours, but not completely different. Members of the service do not give up being Canadians by joining the service, but they place a premium on discipline, order, the willingness to obey commands — seemingly irrational commands — in a way that we do not.
I say these things because it is important for civilians to appreciate that when we compare the system of military justice with our own, it is not an apples to apples comparison. We are comparing apples to oranges, at best. It is very easy for us to assume, when making a comparison, that because the system of military justice looks different from ours — Mr. Drapeau talked about summary trials and things like that — that it must be wrong, unlawful and unbearable in Canadian society today. I just do not think that is accurate.
I think, as Canadians, we demand of these men and women that they will do unnatural things on our behalf, and we have to be willing to accept that the price of that is that the rules and social norms governing the conduct of military society must be different from ours sometimes.
We have to accept that the service has to draw a different balance between fighting effectiveness, unit cohesion and willingness to subject individuals to discipline, than we draw as a civil society.
That is what I have to say by way of opening statement, although I would be delighted to answer any questions any senators may have with respect to particular aspects of the bill.
Senator Fraser: Welcome to all of you. Professor Holloway, I will begin with you, if I may, because I think I know where Professor Drapeau stands on this. I would like to ask you about your view of proposed section 18.5(3). That is the one which says:
The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.
Could you tell me if you think that is appropriate, overly broad or not broad enough? What do you think of that?
Mr. Holloway: Thank you, senator. In my view, it is appropriate. There is no doubt that it would be used sparingly. There is a transparency requirement. The directions have to be given in writing. However, it is easy to foresee an operational context in which that would be essential.
Our troops have recently come home after an extended period in Asia. It is easy to contemplate a situation where the Provost Marshal and the military police might be conducting an investigation into something, as they used to say in the service and probably still do, outside the wire, which would require the deployment of military assets to protect that investigation. That is an easy context to see where there might be operational circumstances where the Vice Chief would have to — it is hard for me to understand how someone could not see that that would be a right circumstance for the Vice Chief to — be able to provide directions to the Provost Marshal with respect to his or her investigation.
Appreciating military society, it is not the sort of thing that you anticipate happening very often at all, but I think it is an important — I do not want to say safety valve because that is not the right expression — tool for the Canadian Forces to have in the right operational context.
Senator Fraser: I understand. Obviously, we can all envisage circumstances in which it would be appropriate to say, "Do not investigate this," or perhaps even, "Do investigate this." However, there are no limitations proposed here. It is true that the instructions must be in writing, but then the other safeguards of, so to speak, the public interest, the interests of justice, are that the Provost Marshal shall ensure that the instructions are available to the public. However, there is no time constraint there. They could be made available to the public a long time later and we do not know what "available to the public" means. Posted on the bulletin board in the mess for a couple of hours? I do not know.
Then, he or she does not even have to do that if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction to be available to the public.
It seems to me that what we are setting up here — and I would really like you to shoot me down and tell me why I am wrong — is a situation where, on occasion — I am not saying this would happen every day — there could be, at least, the appearance and, perhaps, the fact of improper interference in an investigation when that interference was not operationally necessary.
Mr. Holloway: You did not use these words, so forgive me if I seem like I am putting words in your mouth. The problem with conspiracy theorists is that conspiracies are tremendously hard to pull off. It would get out. You people know better than I do, because you work inside the fishbowl. It would get out if the Vice Chief were inappropriately trying to influence, interfere with or forbid an investigation into an allegation of criminal activity. It would get out. That would be, as they say in the service, a career-limiting move for the Vice Chief of the Defence Staff. There are social and systemic safeguards built in so that this would not happen, in the same way that, in theory, the Chief of the Defence Staff, if you look at the terms of his appointment, has immense power to do all sorts of nefarious things. It does not happen. Why? Because there is a transparency sort of built into the system, aided perhaps by the fourth estate. In a parliamentary system, it is aided by the opposition. In the realm of probability, Senator Fraser, I think that this is so low as to not be something worth worrying about.
Senator Fraser: I hope you are right.
Senator White: Thank you for being here, each of you. Some have spoken to the support for the summary trial system, in particular when it comes to maintaining discipline. It is great to have Dean Holloway here, primarily because of his involvement as a serving member in the military. I will ask whether or not you share the same sentiment of the need for that system in relation to maintaining discipline within the military.
Mr. Holloway: Absolutely. I will tell you this, too. Most often, servicemen and women who elect summary trial do so because they would rather be tried by their commanding officer than they would by someone else. To the extent that any part of the disciplinary system is popular amongst the rank-and-file service, there is no doubt that that is. You are much more likely to get a lenient eye gazing upon you from a commanding officer who knows you, knows your strengths as well as your weaknesses and appreciates how you fit into the operational scheme of things. To my mind, it is unimpeachable.
I should say, too, that there has not been, at least to my knowledge, the definitive constitutional challenge to the summary trial system, but we know that the framers of the Charter turned their mind to the system of military justice. Not in depth, but they did. No questions were raised about the legitimacy of the summary trial system. We also know that the late Chief Justice Dickson, who did wartime service and lost a leg during the war, turned his mind to it and did not find any systemic problems with the summary trial process. Anytime someone who has a much more sophisticated appreciation of these things than I do has looked at it, the summary trial system has withstood scrutiny.
Senator White: Would you also see it as a part of positive morale when it comes to that system being used internally? You talk about the individual being tried but also about the fact that people in arms, working in the same place, would also see it as a positive aspect of having quick justice, justice that is understandable and justice that is often maybe more defined than in another justice system if you know what I mean around the ownership internally.
Mr. Holloway: I think that is right. That was certainly my experience. The typical scenario is that the ship would pull into a foreign port. In my day — at least my early days as a sailor — it was all men. The guys would go ashore. Trouble would ensue. The next day, there would be defaulters and a series of trials carried out. Everyone knew the consequences. It was contextually based justice. It was swift but fair, and it served not only a morale-building role — it certainly did that — but also made it evident to other servicemen that, "If I do this, I will get into trouble."
[Translation]
Senator Dallaire: Mr. Chair, I assume that Professor Holloway is getting the translation. I want to speak with Mr. Drapeau.
Mr. Drapeau, there is no doubt in my military spirit that you have a fairly firm and rigorous position toward the military justice system.
You have raised several points with regard to that. I have a reason for asking you to provide me with a more general perspective, which does not appear to be in the nature of Bill C-15. Justice Dickson and General Belzile, in 1998, and Justice Antonio Lamer, in 2003, studied this issue. It seems that Judge LeSage, in 2012, looked at similar issues. Those people did not go as far in their recommendations as you.
I am very interested in the basis of this argument. Does Bill C-15 not go far enough? Should a transition phase be considered in any future changes to the system?
Mr. Drapeau: Bill C-15 is like a multi-level shelf. Additions are being made that complicate things and that, in certain cases, do not seem to provide the bill with a backbone or an overall plan.
I mentioned the position of chief judge, which was created relatively recently, in 1999, when the position of judge advocate general was "diverted." That position was created. The judge advocate general remained in charge of the military justice process. That person was also given the title of judge advocate general. Among my academic contacts and in practice, most people think that the chief judicial officer is the judge advocate general, but that is not the case. We are talking about a military judge with a totally unnecessary rank. His salary, terms of service and function have nothing to do with a colonel's work, requirements or career. He is asked to act independently and to do everything a judge is supposed to do. However, he is treated as a ranking officer.
While all this is going on in Canada and while we continue to play with military law as expressed in the National Defence Act, other countries are doing things we should learn from.
I heard Professor Holloway say that he used to be a serving member when he talked about summary trials. I was also a serving member. I began my career in the Voltigeurs de Québec, as a private, and then as a corporal. I have served for 34 years. So I know that what used to be acceptable in the 1950s, 1960s and in 1975 is no longer acceptable today. We have evolved. We have had a Charter since 1982, and I do not think that Canadian military members should be excluded from the Charter. Detention for up to 30 days is possible in summary trials. Your boys, cousins and girls who are serving in the forces have the same rights as those appearing before civilian courts. They should at least have the right to a lawyer, if summary trials are to continue being used.
I am not opposed to that. However, the right to appeal should be maintained. Where does the right to appeal come from? It has been implemented in England, New Zealand, Ireland and Australia, in response to the pressure applied by the European Court of Human Rights, which ruled that English summary trials violated the European human rights charter. That document is basically the same as our Charter. They decided to force Great Britain to conform, and it did. The British kept their summary trials, but they introduced an appeal trial, where people have the right to legal representation. The number of summary trials has dropped. The number of appeals has risen. And the number of overturned decisions has benefitted the troops. Are British forces now less disciplined than ours? I do not think so. The United Kingdom, Australia, New Zealand and Ireland have followed suit.
Why does Canada want to shut its eyes and ears, and not benefit from the work done by competent courts, which have decided that those tribunals no longer have a reason to exist today? I think that we can make those changes and keep a solid record.
I am a soldier deep down. I have served in the military, as did my father. I am in favour of the establishment. We want a better military justice system that will reconcile the constitutional rights of our boys and girls serving in the forces with our military needs. I think that, as a sophisticated and educated nation based on the rule of law, we can achieve that reconciliation.
[English]
The Chair: Thank you.
Senator Dallaire: I was going to try to follow up.
The Chair: You have done well. The answer was quite long. We will make sure we give you another opportunity.
Senator Dallaire: Thank you very much.
Senator Batters: Mr. Drapeau, Chief Justice LeSage appeared before this committee yesterday and reaffirmed his support for the constitutional validity of the summary trial process. In fact, he stated that he personally was a bit surprised that he found that to be the case, but he did. You have expressed the view that you are concerned about the constitutionality of summary trials. In Justice LeSage's report, he said:
. . . regarding the constitutionality of the summary trial process, I am satisfied, as was former Chief Justice Dickson, that "the summary trial process is likely to survive a court challenge as to its constitutional validity".
Could you please explain why you still reject that opinion of those respected Canadian jurists, Dixon and LeSage, when they have stated that Canada's summary trial process is constitutionally compliant with the Canadian Charter of Rights and Freedoms?
Mr. Drapeau: I have been practising law for the past 12 years, and I have had occasions to dissent, very respectfully, to the opinion of somebody from the bench, and I can say so respectfully. I can say so, in fact, advancing arguments, which I have done in the French language as to why I feel this way. I am informed not only by what Justice LeSage said, which I read. He is professing an opinion that, if it were to be challenged, would probably sustain a challenge. I happen to disagree with that. Clayton Ruby, who is respected and very experienced, sat at my side when I testified at the House of Commons and said exactly the reverse. I am not saying one is right or wrong, but I am saying there is room for a diversity of opinion. If I were bold enough to suggest that I were sitting on the same bench as Mr. Justice LeSage, I would come to a different conclusion.
I am alluding to the fact that the European Court of Human Rights has sat on exactly this question in response to a challenge of the British summary trial, identical to ours, and they came to a very different conclusion. Australia followed suit. Ireland followed suit. New Zealand followed suit. In France and Germany, they have eliminated these tribunals altogether. Now, a member serving in the military of these countries relies upon civilian courts. The world over, and more particularly our allies, have civilianized their court-martials. That is the trend.
Despite the fact that Justice LeSage and I are at the opposite end of the spectrum, I am expecting we have reciprocating respect for each other's opinion. He says throughout he has not got a whole lot of experience in military law. I happen to have some. I do not have the judicial experience he does. We would have to agree to disagree.
Senator Batters: Dean Holloway, during your testimony before the Standing Committee on National Defence, you were asked a number of questions about clause 75 relating to criminal records. As you might know, that clause was amended by the committee so that 95 per cent of those found guilty at summary trial would not be subject to a criminal record. I wonder if you have any comments about that amended clause and if it benefits the members of the Canadian forces.
Mr. Holloway: Well, it does. Thanks, Senator Batters. You will recall as well that probably the only area where Mr. Drapeau and I are remotely close in our views relates to criminal records.
The view I tried to express before your colleagues in the commons was that for people who have committed purely military offences, we should minimize the opportunity or the likelihood of them having criminal records. I use language that sometimes startles civilians, but it is what I believe, which is that we want our service people to have an aggressiveness that we do not want civilians to have. If a sailor happens to slug another sailor, as a civilian, that is assault and there is no question about that. You asked me my honest view. In context, in the life of a war ship, should that sailor have a criminal record for the rest of his or her life? My answer is no.
We want our service people to have an aggressiveness, because that is a key element of the make-up of a fighting person. In today's age, we want to sort of discourage people from excessive consumption of alcohol, but that is the sort of context where I do not think someone should have a criminal record. Maybe I am wrong, but Mr. Drapeau and I may have similar views on that point.
Mr. Drapeau: We do.
Senator Batters: I appreciate your perspective, Dean Holloway, because you offer the legal expertise as well as possessing the military background. Thank you very much.
[Translation]
Good afternoon, Mr. Drapeau. I will follow up on this line of questioning because I think it raises an extremely important issue — the degree of aggressiveness. In the army, you can strike a subordinate, as stated in section 95 of the National Defence Act.
[English]
Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him. . . .
[Translation]
In other words, you can get strike a subordinate with impunity. Fortunately, we now also have women in the forces, and this will be a nice way to tell men that they can hit women without getting a criminal record. Or as in 1987 —
[English]
. . .strikes or uses or offers violence to any other person in whose custody he is placed. . . .
[Translation]
So you may be detained, but you are free to strike the person in whose custody you are placed. This is different from a situation where a soldier fights with another soldier because he is under the influence, in politically correct terms. We have seen that in movies. They are free to fight amongst themselves, as that will help them be even more aggressive in a combat situation. The Criminal Code does not set out a light defence for a crime where intoxication is involved. That is not even a type of defence under the Criminal Code.
How can we accept violence against another person being tolerated in the army? How is it conceivable that we now need that violence to maintain their level of aggressiveness, so that they can fight the enemy better? We are no longer in the Middle Ages; we are in 2013. I think that the idea of maintaining their aggressiveness to fight the enemy is being taken too far.
Mr. Drapeau: I hope that you do not think I disagree with you. You are perfectly right. Our military members today — as you say, we are not in the Middle Ages — are people who are recruited, supervised and disciplined. As Canadians protected by the Charter, if they are assaulted, they should be protected by the law, and if they commit an offence, they should be punished like everyone else.
The Criminal Code is incorporated in the Code of Service Discipline. As far as I am concerned, military members have the professional duty to be not only as disciplined as their civilian counterparts, but even more so. I totally disagree with giving military members a licence to behave in a violent manner, assault their fellow members, subordinates or even women under their leadership. I am totally against that.
Senator Joyal: So you do not accept the bill as is.
Mr. Drapeau: Yes.
Senator Joyal: Have you made any specific recommendations?
Mr. Drapeau: I have not considered this particular point.
Senator Joyal: Which of the offences listed under clause 75, which amends section 249.27, would you consider? A list of sections — 85, 86, 87 — is provided under which an offence is described. Could you come back to us with your recommendations on the offences that should not be covered under that exception to having a criminal record?
Mr. Drapeau: Senator, it would be my pleasure and honour to do so.
[English]
Senator McIntyre: Thank you both. Incidentally, Dean Holloway, I am from Charlo, New Brunswick, which is 50 kilometres from Bathurst, New Brunswick. It is nice to have you appear before this committee.
My question is addressed to Colonel Drapeau. Dean Holloway, if you wish to add to it, that would be fine. Colonel Drapeau, I had an opportunity to review the brief you submitted to this committee. I note that your brief is broken down into four parts: A, B, C and D. I would like to review with you Parts C and D.
In Part C, you shed some light on positive changes proposed in Bill C-15, such as civil law and penal law, as well as outlining certain sections, such as leaving the discretion to a tribunal for the granting of an absolute discharge.
In Part D, you deal with several items, including the summary trial system, which obviously remains the dominant disciplinary method to try offences in the Canadian military, as opposed to court-martial. As I understand, you are not opposed to summary trials, per se, but are concerned by their structure.
Mr. Drapeau: Precisely.
Senator McIntyre: Bearing Part B of your brief in mind, what impact, if any, will Bill C-15 have on the summary trial system?
Mr. Drapeau: None whatsoever. It will continue as it is. I cannot see how it will be affected by any of provisions of Bill C-15; it does not touch on the sections dealing with summary trials.
Senator McIntyre: Dean Holloway, do you wish to add on that?
Mr. Holloway: I agree with Mr. Drapeau.
If I may, I want to go back to what Senator Joyal was talking about with Mr. Drapeau. I am not sure if you misunderstood me. First, I am unfamiliar with any provision of the National Defence Act that says that an inferior can strike a subordinate with impunity; that is contrary to the ethos of military life. It is not on, and it never has been, not even in the Middle Ages, so to speak.
Second, I was not suggesting — if you thought I was — that a person would get off. They would be punished; they would be punished in some respects much more harshly than in civilian life.
I simply do not think that they should necessarily have a criminal record for the rest of their life. I am not talking about sort of ensuring there is no punishment; I am just talking about the consequences forever more of their punishment — to say that because one soldier slugged another soldier in the mess that they should never be able to travel to the United States again. That does not seem to make sense to me.
On the summary trial issue, we need to think about the operational aspects. Our ships today are crewed very leanly, as are our regiments. Our infantry battalions are mostly under strength. What happens if an allegation of an offence takes place in an operational context? Do we say that we will wait another six months until the deployment is done until we act on this, or do we haul the accused, the accuser and witnesses out of the operational system? Do we fly lawyers in? We need to think about the practical operational context in which most of these trials take place.
This should not be about making work for lawyers. If we give 2,000 of those summary trials, we give the right to counsel; you know there will be lawyers in all 2,000 trials. That may be good for the business of defence lawyers. However, I am not sure whether it actually fits with the operational requirements of the Canadian Forces as they exist on the ground.
Remember that summary trials are used for relatively minor offences.
The Chair: Senators, I encourage you all to make your responses as succinct as possible, because I have a number of senators who wish to pose questions.
[Translation]
Senator Dagenais: I want to thank our guests. Mr. Drapeau, I have often seen you on television. You give good interviews, which are always clear and simple.
I would like to hear about your concerns for victims in the military justice system. We understand that people are accused. You know that our government does have many bills for protecting victims of crime. I would like to hear your thoughts on victims, as the military justice system must have produced some victims as well.
Mr. Drapeau: Yes, victims do exist. I did not prepare for this question, but I will give you my undiluted opinion. I am talking more specifically about victims of sexual assault and sexual harassment. Those of you who have been following current events know that this issue has been making the headlines in the United States. It involves the whole American military justice system and the power the chain of command has over military justice in issue resolution. The matter is currently being considered by the Congress — the U.S. counterpart to our Senate. I am actually consulted fairly regularly with regard to this.
In Canada, we have underlying problems that are similar to those the U.S. is facing. Do we really have effective measures that give alleged victims of sexual assault or harassment sufficient faith in the chain of command, military police and the military justice system to come forward and submit a complaint? I do not think so. A number of victims do report such events. However, in my practice, I have seen cases where people deprive themselves of access to the military justice system because of apprehensiveness. I am not saying that is the right thing to do, but such cases do exist.
This does not only apply to sexual assault cases. The military has a high number of suicides. I think that suicide victims do not know how to seek help, and the military system does not know how to reach them in time to save them. This is a serious issue that must be examined. There is no point in hiding that truth. Some victims of sexual assault and sexual harassment have not sought help, and some suicide victims have missed their opportunity and unfortunately lost their lives.
Senator Boisvenu: Mr. Drapeau, good afternoon. We have seen you on television more than we have seen you in the Senate.
Mr. Drapeau: You too.
Senator Boisvenu: Yes. I have read your résumé, which is impressive. I was curious about something. Is an adjunct professor at university the equivalent of a lecturer in Quebec?
Mr. Drapeau: I could not tell you. I do more than a lecturer does.
Senator Boisvenu: The terms used in Ontario are not the same.
Mr. Drapeau: I think this would be an adjunct professor in Quebec.
Senator Boisvenu: Probably. Senator Joyal discussed a very serious topic. He said that the bill would legalize certain acts of aggression. Is that right?
Mr. Drapeau: That is how I understood it, and I disagree with that opinion. I do not think that is the goal. If that were the case, I would have certainly objected before.
Senator Boisvenu: So your understanding is not the same as that of Senator Joyal?
Mr. Drapeau: No.
Senator Boisvenu: Professor Holloway, you and Mr. Drapeau seem to have different views, especially when it comes to whether the court — or at least the judges — should be civilian or military. In his testimony yesterday, Justice LeSage said that this bill was a major step forward when it comes to the administration of justice in military life.
Why are you advocating for judges with a military career — with military ranks — rather than judges from the civilian world?
[English]
The Chair: Professor Holloway, can you hear us? Are you getting the interpretation?
We will move on. I am not sure if this will make it more difficult for your second round, Senator Fraser.
Senator Fraser: I will begin, if I may, chair, and of course I will yield to Senator Boisvenu.
I would like to come back to this question of criminal records. It seems to me the way the bill is drafted, the drafters tried to build in a protection against the kind of abuse that Senator Joyal is so concerned about by saying you will not get a criminal record if the sentence has been comparatively light: severe reprimand or reprimand, a fine, basic pay for one month or a minor punishment.
If we assume that the justice system in the military is going to operate as it should, you would only get that kind of a fairly light sentence for a fairly light offence: hence the absence of criminal records.
However, when you look at the list of offences covered by this, some of them strike me as deserving of criminal records. For example, being aware of the desertion or intended desertion of a person from the forces without telling your superior officers, or signing an inaccurate certificate in relation to an aircraft or aircraft material. Those would be more military than civilian-type offences. They strike me, on the face of it, as very serious. Do you think anybody should be exempt from a criminal record for offences like that?
Mr. Drapeau: I have two answers to that. The drafting of this is not the easiest to read. It says if you are tried and convicted of some of these offences and the sentence is a severe reprimand or below, which is really what it says, you will not get a criminal record.
I do not like it because it leaves an extraordinary level of discretion to the sentencing judge. I will not sentence you to a fine of $2,000, I will sentence you to $2,001, and then you get a criminal record.
Senator Fraser: Or the other way around.
Mr. Drapeau: Or the other way around.
My bigger problem has been addressed. This is why I talk next about structure. If you stand to lose your liberty — because a summary trial can detain you for 30 days — or you have the possibility of getting a criminal record, you have to have the constitutional protection of having a lawyer and having this or having that. You do not go to summary trial. If you do and end up with a criminal record, it would be after due process. I have no difficulty with that. I have difficulty with this.
[Translation]
That procedure will be used in such a way by a trial judge with no legal training. The accused has no defence and no opportunity to appeal. Not only do I dislike that, but I dislike the bill's current structure — and even more so with these additions.
[English]
The Chair: Professor Holloway, can I ask you to be concise, please? We have limited time left. Please proceed.
Mr. Holloway: I did not mean to interject. I wanted to let you know I was back: I lost you for a while.
The Chair: Good to have you back.
Senator White: I would like to hear his response to the question that was put by Senator Boisvenu.
The Chair: Did you hear that question, professor?
Mr. Holloway: About the civilianization of the judges, was that the question?
The Chair: That is right.
Mr. Holloway: I heard the first half of it.
I would say it is important for a judge to have an appreciation of the social context. That has been understood as a principle of jurisprudence since the early part of the 20th century, since the legal realist movement.
It is hard to imagine how a judge could properly make the kind of evaluations that need to be made in a military trial unless he or she had military experience, in the same way that it is hard for me to imagine that someone who was a lawyer in Germany could be parachuted into Canada and be told to be a judge here. They do not have an appreciation of the social context. That is why it would be an ill-founded move to civilianize the trial judges in our system of military justice.
Senator Dallaire: Professor Holloway, are you familiar with the movie Breaker Morant?
Mr. Holloway: Yes.
Senator Dallaire: In that movie the defence argues that unless you served in an operational theatre and under the conditions of soldiers under fire and so on, you should never be considered to be able to comprehend and give an appropriate assessment of what those conditions were that potentially brought about the infraction.
Are you in agreement that we should go that far?
Mr. Holloway: First, Breaker Morant played fast and loose with the facts of that actual case, so I do not think you can take it as an actual representation of the history of that particular incidence. I would say it is an ideal. The fact is that the majority of Canadian servicemen and women today have not been under fire. I do think it is an ideal. An appreciation of an operational context is an important aspect of being able to be a military judge, in the same way that in order to be a civilian judge you have to have been a barrister for 10 years. This is partly because we want to give our trial judges some sense of what it is like to be in the trenches, as we say in the law, as a lawyer before you preside over trials.
[Translation]
Senator Dallaire: Mr. Chair, I have a very quick question. I do not necessarily think that operational experience is needed, but I do not agree with Mr. Drapeau in saying that a civilian judge would be fine. I am somewhere in the middle.
Regarding your analysis of the bill, I want to go back to the question. This is supposed to rectify 82 of the 89 recommendations issued by Justice Lamer, who analyzed Justice Dickson's reform recommendations after the Somalia inquiry. Some substantive actions have moved things forward. However, you are introducing a considerably different perspective.
Here is what I want to know. Should we move in the direction of your perspective? How should that be done? Is there any indication in the military structure or even in the analysis of military law, or in its application by commanders and judges, that it would be worthwhile to go, perhaps not as far as you, but certainly in the same direction?
Mr. Drapeau: A single voice is heard in Canada — the voice of the Judge Advocate General and his office, which specializes in these matters. I am saying that other voices — and not only mine — especially abroad, could provide some guidance.
Professor Holloway just answered a question about civilianizing the process by using civilian judges, who could not have the authority or the experience to carry out a fair trial. For instance, Sub-Lieutenant Delisle was tried by a Halifax court according to civilian criminal rules. He was found guilty and sentenced, and a military judge was not needed for a court martial. Our criminal courts are competent, and they are supervised by appeal courts and the Supreme Court. The legislation will damage military law once again. We do not have a consistent and well-structured legislation. This is a mishmash, with attempts to change things being made here and there.
A comprehensive, in-depth review is urgently needed. Perhaps it would be a good idea for the committee to go on tour, go see what is happening elsewhere — maybe in the United States. You would have an opportunity to see whether we really have the military justice system our troops deserve. I would say that we do not.
[English]
The Chair: Thank you for your appearance today and for your assistance in our deliberations.
For our second panel today, please welcome Peter Tinsley, the former Chair of the Military Police Complaints Commission; and the Honourable Gilles Létourneau, former Justice of the Court Martial Appeals Court.
Justice Létourneau, we will begin with your opening statement, please.
Hon. Gilles Létourneau, former Justice of the Court Martial Appeals Court, as an individual: Thank you, Mr. Chair. Thank you, members of the committee, for this invitation to appear before you today. I did make some submissions before the House of Commons some time ago, but to no avail. I thought that I made the mistake of making them in English and that my poor English is why they were not understood. Today, I will make my submission in French.
Before I do that, I just want to tell you that I entirely support Mr. Drapeau's view about the unconstitutionality of the summary trial, and I will be pleased to answer questions about the criminal record. I know there have been some amendments that I do not have in front of me, but Senator Fraser has raised the issue of the criminal record being linked to the sentence. I would like to say a word about that eventually.
[Translation]
Today, I suggest we do something that should have been done a long time ago. I suggest that we consider the future, somewhat in the vein of what Senator Dallaire was saying earlier. We need a proper in-depth review of the legislation, and not the patchwork imposed by the courts in response to the public clamors and outcry following abuse. We need a comprehensive review carried out by an independent organization, of course, in consultation with the Office of the Judge Advocate General. The review should not be performed by the Judge Advocate General, as is the case in the so- called five-year review of the legislation, which has now become a seven-year review.
When I joined the Law Reform Commission in 1985, this was the idea I had in mind. The Charter had just been adopted, and a working group was created to study the National Defence Act. Unfortunately, the provinces and the federal government had an agreement to review the Criminal Code. All the monetary and human resources were dedicated to that project, so our review was put on the back burner and never carried out.
One of the key issues in the current legislation is the fact that the Criminal Code is being turned into a code of discipline. All the offences under the Criminal Code become disciplinary offences, and if someone violates the Criminal Code, they get a criminal record. The offence becomes disciplinary. It is as if the bar was turning the whole Criminal Code into its own instrument and transforming it into a code of discipline. The same goes for doctors.
A criminal conviction can lead to a disciplinary conviction. We often see that in the case of lawyers and doctors. But in this case, all that is mixed together, leading to major operational problems, especially in terms of criminal records.
Another problem is that we have concurrent jurisdiction — with both civilian and military courts exercising their authority. Section 273 and 71 of the act provide for that concurrent jurisdiction.
It would be important to review, specify and define everyone's role in the exercise of concurrent jurisdiction. Jurisdictional duality requires exercise priority and purpose. Who would act first, and who would have the last word? When it comes to this, the Australian law is very interesting because it requires a causal military link for military jurisdiction to be exercised and for the accused to be deprived of their right to a trial by jury.
You know that subsection 11(f) of the Charter deprives military members of the right to a trial by jury when the accusation is brought before a military tribunal. In that case, all offences under the Criminal Code — with the exception of murder committed in Canada and manslaughter — can be brought before a military court, where the right to a trial by jury is lost.
Article 21 of the Australian legislation requires the director of military prosecutions to be satisfied that taking legal action pursuant to military law may reasonably be seen as a substantial contribution to the maintenance and strengthening of military discipline.
Article 63 of the Australian legislation states that military jurisdiction, for a certain number of serious identified offences, must obtain the consent of the general prosecutor or the director of prosecutions before taking the case to a military tribunal.
Australia has memoranda of understanding between the public prosecutor and the military prosecutor. And even when the consent set out in article 63 is not required, the military authority has to consult the director of prosecutions — for instance, in cases where the conduct in question is so serious that public interest would be better served by a trial before a civilian criminal court.
I will conclude with the following. We need to make sure that Canadian citizens — even in uniform, as in the case of police officers — are not deprived of their right to a trial by a jury. That deprivation should occur only in cases where it is necessary for military discipline, as all Canadian citizens are equal under the law, in principle.
If we look at the history behind military judges having the independence their duties call for, 20 years of disputes before tribunals went into obtaining the required legal independence. At every step of that process — in the Généreux, Lauzon, Dunphy and LeBlanc cases — the chain of command fought tooth and nail against that job security and that necessary institutional independence.
We must not forget that, until 1998, military judges could sentence people to death. When a decision was rendered in the LeBlanc case in 2011 by the Court Martial Appeal Court, the four military judges were the only judges in Canada whose terms were renewed every five years. That was a problem in terms of constitutionality.
I am ready to answer your questions on Bill C-15, even though I was not fortunate the first time I discussed it.
[English]
Peter Tinsley, former chair, Military Police Complaints Commission, as an individual: Mr. Chair, honourable senators, thank you for the invitation to speak with you today. I appreciate very much the opportunity to participate in this process of consideration of the continued evolution of the military justice system.
My interest in this matter and my belief in the importance of what you are doing is based not simply on my experience, as the chair introduced me, as a former chair of the Military Police Complaints Commission, but based on a 28-year history of service in the Canadian Forces, first as a military police officer and then as a military lawyer, and subsequently with some broader national and international experience in terms of the governance and oversight of security forces.
Accordingly, my wish is to focus a few minutes of this opening statement specifically in respect of section 18.5, most specifically (3), (4) and (5), and as you have discussed and well know, the proposed provisions to give the Vice Chief of the Defence Staff the power to direct the Canadian Forces Provost Marshal in respect of specific military police investigations. In my view, this is a very small provision in the context of the amendments being proposed, but it is the most significant in terms of contradicting the short title given to the act of Strengthening the Military Justice System.
The evolution, as I have called it, of the military justice system, which commenced most recently after what was commonly called the "Somalia Affair," has had many steps in its process. I am not going to bore you or repeat what those steps were, but I would highlight, specifically in terms of section 18.5(3), three critical steps, the first being the report of the commission of inquiry's report, Dishonoured Legacy: The Lessons of the Somalia Affair, in which it was identified in the report the significance, the importance, the necessity of divorcing the command structure from the control of individual investigations.
Shortly following that, we have the Dickson reports. I call them the Dickson reports because they were both initially chaired by former Chief Justice Dickson and, as you were reminded earlier this afternoon, someone from a background of military experience, significant operational experience, as was Chief Justice Lamer. It cannot be suggested that either of these gentlemen, in making their pronouncements and recommendations, were operating in any sort of legal utopia or vacuum. They had a practical background of experience.
Applying that experience, the first Dickson report suggested a bifurcation of the military police resources in operational circumstances, segregating the one in respect of the conduct of investigations again, as called for in the Somalia report, from the command structure.
The second Dickson report, which was actually published following Chief Justice Dickson's death and signed off by Lieutenant-General Charles Belzile as the chair, someone else who I suggest cannot be thought of as not having a background of operational experience and applying that in the course of the report making, found the accountability framework to satisfy the recommendations in the first Dickson report.
Finally, we have the first review of the National Defence Act issued by former Chief Justice Lamer, who found indeed that the accountability framework cut the mustard, so to speak, in what was required, but the only shortfall was that it was in the form of a memorandum of understanding and not embodied in legislation.
We are now in the process of your committee reviewing Bill C-15. Bill C-15 does indeed comply with Lamer's recommendation to fill the legislative void about the responsibilities of the CFPM by proposing they be codified in the NDA. The irony, however, is that notwithstanding the consistent recommendations of the Somalia commission, the Dickson reports and Lamer in respect of the necessary independence of the military police from the chain of command in respect of police operational decisions and investigations, as well as in stark contrast to the accountability framework, it includes a provision that specifically authorizes the VCDS to issue instructions. It is also noteworthy that there is no requirement for the VCDS to provide reasons or justification.
It is my understanding that you have heard submissions from the government, in the person of the minister, that this power will only be exercised in exceptional and/or operational circumstances. This, I suggest, requires significant reading into the legislation, and even more so dependence on much good faith, as there are no such restrictions in section 18.5(3) as presently framed. In my experience, the requirement for reading this in good faith is not a firm or sound foundation for the confidence of the Canadian people that the rule of law is to be applied.
It is also my understanding that you have heard submissions that it is required that the VCDS have this power in order to effectively arbitrate the inevitable tensions between MPs and operational commanders. This position would seem to be based on the conclusion that independence is synonymous with working in isolation. Quite frankly, I do not understand that. Moreover, it also suggests that MPs are not capable of appreciating operational exigencies and would knowingly put themselves in harm's way in the pursuit of an investigation. I respectfully question these conclusions, particularly given the example provided by the minister, the investigation of a traffic accident.
Honourable senators, in my view, the use of this cited example of an auto accident, which I suggest trivializes the matter before you to the point of absurdity, the push for the evolution of the military justice system and military police independence as a key constituent thereof, did not originate with auto accidents. It originated in the dark of an African night, in a machine gun pit in Somalia, with the killing of a 16-year-old Somalian boy trussed up with a riot baton and hanging from the roof of that machine gun pit. That young boy was blindfolded, had a riot baton shoved in his mouth and ultimately was beaten to the point of being bloodied, broken and dead.
The initial investigation of this horrendous event was commenced by a unit summary investigation, the lowest form of military administrative investigation within a unit, to account for the death of a prisoner, unexplained, overnight. But for the intervention of an MP sergeant returning from leave a couple of days after the event and raising his hand, saying something is wrong with this, and also what some might say was the serendipitous presence of a Canadian reporter from Pembroke at the time when one of the perpetrators attempted suicide, the Somalia affair might have gone in a totally different direction. I suggest to you that is why some of the changes were put in place, including the accountability framework, in order to ensure that never happened again.
What might be of even greater concern in respect of the justification for this provision is what you, I believe, have not heard, that is, evidence of events that have called for this power of direction by the VCDS, whether in the context of the lengthy experience in Afghanistan or elsewhere during the 15 years since the accountability framework came into force. Dickson did not impose the accountability framework. The accountability framework was constructed within the Canadian Forces in order to address Dickson's recommendations. It was drafted in the office of the Judge Advocate General, presumably thoughtfully and carefully. It was signed initially in 1998 by two senior officers, the Provost Marshal and the Vice Chief, presumably again thoughtfully.
Section 9 of the accountability framework requires it to be reviewed annually. We can only work on the presumption that it has been reviewed annually, and thoughtfully, but no changes were ever called for, none. I ask you whether you have heard of any one event justifying this extraordinary retrogressive step.
The Chair: Mr. Tinsley, sorry to interrupt, but we have a five-minute guideline.
Mr. Tinsley: I think you get my point.
The Chair: We like to give members the opportunity to ask questions.
Senator Fraser: I would like to pursue the issue you were discussing, Mr. Tinsley.
[Translation]
Mr. Létourneau, I will come back to you in the second round, if that is okay.
[English]
You do not like 18.5(3), (4), (5) at all. However, out here in the real world, where we're faced with a bill that has been drafted the way it has been drafted, I am interested to hear your point about there being no requirement for reasons. Would it be helpful to require that the reasons be part of the instructions or guidelines that the vice chief may issue? Would it be helpful to be more precise about what is meant by making them available to the public and when? Would it be advisable, would it be helpful, from your point of view, to be a bit more precise about the Provost Marshal's ability to withhold making the instructions public if satisfied that it would not be in the best interests of the administration of justice?
I know this is familiar legal language, but it strikes me as a very broad and potential umbrella. Do you think that improvements could be made in these sections along these lines that would make the whole concept a little more palatable to you?
Mr. Tinsley: Understanding the exigencies of the real world, as you have pointed out, I would have to say, yes, some greater definition — any degree of definition — including, as you pointed out, 18.5(5) with respect to the interests of justice. What are the interests of justice?
The suggestions you have made in terms of greater definitions, et cetera, I would suggest could improve the situation somewhat. I still must return to the basic question of why this provision could be justified to take it out of the norms of Canadian policing and the control and oversight of policing, as we know it today. This includes a Supreme Court of Canada judgment, one of several, but the 1999 judgment in Campbell and Shirose, where it is specifically spoken to. Indeed, it is in the context of the Commissioner of the RCMP, the court went into some points to make clear that police officers, peace officers, holding a public office not being accountable to or under the direction of the executive in respect of investigations. They do not say "not accountable." It is in that narrow scope in respect of investigations.
That is what is significant here. In that respect, the Supreme Court said that, in that specific context of criminal investigations, the police officer is the servant of the law and presumably — I think I am quoting accurately — his or her own conscience.
Senator Fraser: I have a point of clarification, in case anyone out there in television land was wondering, when you made your basic presentation you referred several times to MPs. That would be military police, not members of Parliament?
Mr. Tinsley: In this context, totally.
Senator White: I would make the same comment. I thank both of you for being here today and for your presentations.
I appreciate that the example given, you are challenged with understanding how that direction could possibly be justified. I was in policing for 31 years, and the extraordinary is typically what I ended up trying to deal with in the 31 years. Is there not one case that you can come to where you think such an action would be necessary? If there is, then you still have to have the authority. We end up dealing with the extraordinary in policing matters. In theatre, for example, that is the one I continue to have thrown my way, are in-theatre circumstances.
Mr. Tinsley: An awful lot seems to be based on the notion that in theatre everything is totally different: mindsets are different, et cetera. I am not sure, senator, or I will call you chief.
Senator White: Vern works, actually.
Mr. Tinsley: You could think back to incidents where a crime scene is in the centre of a large building that has just been consumed by fire. Yes, the police investigators, believing there is a dead body in this building, want to go in and get to their crime scene as quickly as possible. The notion, to me, that they would not await the "okay" of the fire marshal or the city engineer, in terms of the structural safety of the building, is absurd.
In my years of experience associated with the police, I have noticed — and I am sure you have in your experience — there may be observed to be some consistent traits: curiosity, meticulous attention to detail, hopefully, et cetera, that sort of thing.
I have never noticed a common trait — as I said to the House of Commons committee — to be a suicidal tendency. Yes, they want to pursue their investigation, but to unnecessarily throw themselves in harm's way, for military police personnel in an operational theatre to go in with the presumption they cannot identify with the operational exigencies, that they would be prepared to override an operational commander saying it is too dangerous to go there, we cannot get you there at this point with the necessary support, is absurd.
Senator White: Respectfully, if I may, I used to sit on the selection committee of the Governor General's Decorations for Bravery awards. I can tell you in that room there were many times when I thought we should not be giving out medals of bravery to police officers, and firefighters in particular, and instead should be disciplining them for doing exactly that: putting their lives in danger when it was not needed. They were so focused, and I mean the word "focused," almost tunnel vision, on an investigation or on something that really did not allow them to see beyond the scope of what was in their hands.
Although I appreciate your commentary around the political interference, I do not see this in the same light as political interference or the potential for it. Accountability is the key piece to me: in writing, accountable to, responsive of and the ability to review later, is an important part of this. I do not mean to be argumentative.
I don't have a question. I apologize, Mr. Chair.
Mr. Tinsley: In terms of accountability, you will have noticed my remark that, yes, judicial bodies and quasi-judicial bodies are required under our law to give reasons for directions or decisions they make.
There is no such history of a military commander being required to give his subordinates reasons. There may be moral or leadership imperatives but no legal requirements. There is nothing in this act that requires something being put on the record that could be reviewed. Remedial mechanisms for an operational commander who did not agree with the MPs, even within the accountability framework, are there now. He could take them. It is called a conduct complaint.
Senator Dallaire: I will come back to it, if I may, in second round. I am learning to set myself up beforehand.
[Translation]
Judge, when we last met, I was in your place and you were in mine. I testified before your commission on the topics of leadership and development. The recommendations on Somalia were published, even though the investigation, as you said, was not necessarily completed.
I would like to come back to the work tools unit commanders need to carry out their mission. Unit commanders have a huge amount of power when it comes to decisions that exclude detention. In the context of detention, we see a balance scheme among certain accusations, and that could be seen as something that is deserving of a criminal record in the civilian world, but not in the military world. Do you think detention — which is basically a disciplinary tool — should lead to a criminal record, simply be relegated to minor sentences, or be referred directly to court martial?
Mr. Létourneau: Obviously, if the accusations are of a disciplinary nature — such as the accusations brought before the bar or the order of engineers — there is no criminal record and there is usually no detention. However, fines are imposed.
Ultimately, what we have a problem with is a Criminal Code offence that, under cover of disciplinary action, becomes a military offence. At that point, there are no guarantees because, if it leads to a criminal record, you end up in a process where a person is found guilty by someone who has no legal training, no legal knowledge, relying on hearsay evidence and with no possibility to appeal the conviction.
There is no doubt in my mind that dealing with Criminal Code offences in summary trials is unconstitutional.
Senator Dallaire: We remove offences that could be seen or analyzed as having crossed the line to the Criminal Code; we take those offences out of the hands of unit commanders. In so doing, we do not necessarily remove the ability to detain individuals for disciplinary problems.
Mr. Létourneau: Having an exemption for the criminal record would solve another constitutional issue. However, would it be possible to go to detention without legal representation and the possibility of verification? I am not sure whether that would be constitutional. As I recall, England's latest reform indicates that you cannot send someone to jail if the person is not represented by counsel.
I would just like to say something about the conditions of detention, if I may. If you look at the Queen's Regulations and Orders, the conditions of detention are extremely harsh, with no right to talk, whistle or smoke. And if you are caught doing something like that, you get nothing to but bread and water. I was told that, after the ruling I rendered in the Trépanier or Nystrom case, that things used to be like that, but it is no longer so.
Senator Dallaire: The system used to say that you have no rights, only privileges.
Mr. Létourneau: That is correct.
Senator Dagenais: Thank you to our guests. Like my colleague Senator White, I was a police officer for the Sûreté du Québec for 39 years and I was also the president of my union. We had to deal with cases like the ones you mentioned, Mr. Létourneau. When our members were charged as criminals, they could be acquitted in a criminal court. They still had a charge from the disciplinary committee hanging over their heads. And even if they were acquitted of the disciplinary charge, they could be accused on ethical grounds, so you can imagine all the complications.
Did I understand you correctly when you said in your presentation that some cases should not be heard in a court martial? If I understood correctly, could you explain what you mean?
Mr. Létourneau: There are already cases that are not heard by court martial. I mentioned murder committed in Canada and manslaughter, which is an offence that is included in a murder charge.
The Supreme Court has validated the existence of a special jurisdiction, the military jurisdiction. It was the president of France who said that all French people are equal before the law. Special courts create inequality, and, since military courts are special courts, they must disappear, which they did. People are prosecuted in civilian courts.
If the system were here to stay, I think they could deal with some serious charges. It would be much simpler if you go back to Judge Laskin's decision in McKay, where he said that I cannot imagine that, in a country like Canada, there are two ways to prosecute criminals, one in military courts where there is no trial by jury and one in civilian courts.
Take police officers, for example. They are Canadian citizens in uniform. Military members are Canadian citizens in uniform. If the two are accused of sexual assault, one has a right to trial by jury and the other does not. We especially have to look at cases when the act is committed in civilian settings where you might find a guy on leave in Canada, somewhere. Say he sexually assault a girl in a bar. Why should that end up in a military court? The act was committed on a civilian in a civilian setting. Why would he be denied the right to trial by jury?
We live with military courts. The French kept just one court in Paris for cases committed outside France, but now they have abolished it completely. Military courts were only meant to be used in wartime.
Senator McIntyre: Mr. Létourneau, I would like to discuss the issue of arrest without a warrant with you, as raised under clause 60 of Bill C-15, which says that a member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person is in breach of a disposition made by a court martial or a review board or of an assessment order.
Do you agree with this amendment to Bill C-15?
Mr. Létourneau: I have not been following the amendment but I remember that I was reviewing the power given to police officers under the legislation and, if you compare it to the Criminal Code, the conditions are similar. They include the need to establish a person's identity, and so on.
If you look at the Criminal Code, the power to make an arrest is clearly accompanied by a duty not to do it. And this duty is not limited to minor offences. This duty not to arrest applies to all hybrid Criminal Code offences and most are hybrid offences. The power to make an arrest without a warrant is already much broader than the power set out in the Criminal Code.
Unfortunately, I did not quite understand the nature of the subsequent amendment. I cannot find it. Is it with clause 60?
Senator McIntyre: Clause 60 identifies three circumstances under which an arrest can be made without a warrant: a disposition made by a court martial or by a review board, or an assessment order.
I know that, in the case of the review board, a police officer may arrest a person without a warrant if the person is in breach of an order given by the same board.
Mr. Létourneau: It is sort of the same thing for parole. In general, a warrant is issued. Proceeding without a warrant requires safeguards because you need to ensure that there is enough evidence to justify an arrest without a warrant. Without safeguards, it is difficult to validate the power to make an arrest without a warrant.
Senator Fraser: The people who have this power seem to be the ones who change. We are now going to have the member of the military police or the peace officer instead of the officer, the military member or the peace officer. I will let you dissect all the implications of that.
Mr. Létourneau, did you not say in your opening remarks that you had some comments to make in response to my questions to the previous witnesses?
Mr. Létourneau: With respect to the criminal record and the sentence, the Criminal Code says that any offence you commit leads to a criminal record, unless the verdict is an absolute discharge or conditional discharge. The conditional discharge comes with conditions, with a period of time at the end of which, if you were on your best behaviour, you are deemed never to have been convicted and your criminal record will be erased.
I think the latest reading of the bill that introduces a fine is absolutely extraordinary. In terms of offences, I am thinking of section 129, among others, the conduct to the prejudice of good order and discipline, which is a catch-all, since practically everything can fall under it. If you have the bad luck of being fined $525, you have a criminal record, because it is a disciplinary offence, whereas if you are fined $475, you do not have a criminal record.
If you are fined $525 and you want to appeal in the Court Martial Appeal Court to reduce the sentence to $499, good luck to you, because the margin is so small that it practically makes the appeal impossible. Introducing the fine makes no sense. The offence is either serious or it is not. Even in this case, since we are talking about disciplinary offences, they should not lead to a criminal record. That would be the simplest, fairest and most equitable solution. The person may then go through a process that has its strengths and weaknesses, but there is no criminal record at the end of the day. The problem is that the soldier has no legal counsel. He gets an officer who tells him that he can go to a court martial if he wants but that it would attract bad publicity, and so on. So he feels the need to solve the matter quickly, but he does not know that he will have a criminal record, which will haunt him for the rest of his life.
This is the first time I have seen a provision like that and I hope I will never have to see it again.
Senator Fraser: Thank you very much.
Mr. Létourneau: Allow me to make a comment. Professor Holloway said that you need a military mind to understand the military. I say that, if we were to push that reasoning to the limit, it would mean that, to judge someone accused of gang rape Ð you would need a murderer to understand the psychology of murder and the circumstances to know exactly what happened. We would never get anywhere like that and it makes no sense.
[English]
Senator Batters: I am not sure how to follow up that comment.
Mr. Létourneau, you stated before the House of Commons committee that examined this bill that, regarding the constitutionality of summary trials, Chief Justice Dickson and Lamer's opinions go back a number of years. However, yesterday before the committee, Chief Justice LeSage testified he was supportive of summary trials. Having examined its legal structure and speaking with stakeholders across the country in doing his substantial report, he shared Chief Justice Dickson's view that the summary trial was constitutionally compliant. He expressed some surprise that he came to that view, but he said that was his view.
Given Chief Justice LeSage's testimony, supporting Chief Justice Dickson's opinion, can you please outline your position on why you disagree with that respective view?
Mr. Létourneau: I have sat for 21 years on the Court Martial Appeals Court. I have heard a fair number of cases and rendered a fair number of decisions, as well. I know Pat LeSage quite well; he was a consultant when I was on the commission. He had no knowledge of military law, of course, and he admitted as much publicly.
Therefore, he just followed a trend. However, I do not know if he has mentioned the European Court of Human Rights to have found this system to be unconstitutional, on exactly the same provision as our Charter of Rights of Freedoms. As Mr. Drapeau mentioned, the British did amend their act and provide some safeguards. The British are not against the summary trial, but they have to provide some safeguards — those that we do not see here.
You have to realize that here is the evidence: A case is heard by a commander, who has no knowledge whatsoever of the law except for two weeks of training and who is dealing with a Criminal Code offence, hearing gossip and deciding on the basis of any kind of evidence. That cannot fly if you have a criminal record and you are sentenced to detention. That is the Middle Ages.
For example, the constitutionality of the independence of the judges — at the time Chief Justice Lamer wrote the general case, he found that they were not constitutional. However, at that time, the security of tenure had not taken the expansion that he took thereafter in the provincial judge's case where it was found that it was a component of the Charter.
The military did not follow. We made them follow in the LeBlanc case, because the writing was on the wall; it was clear that they could not be doing criminal law on the renewal term at a whim.
Senator Batters: This question is for Mr. Tinsley. In 2009, the Senate committee recommended that the National Defence Act be amended to reduce the limitation period for summary trials from within one year after the day on which the service offence is alleged to have been committed to the time of trial to instead six months after the day on which the service offence is alleged to have been committed.
Noting your previous experience as a legal officer but also as a military police officer, do you agree that these amendments to the National Defence Act — clauses 35 and 36 of Bill C-15 — are necessary and would improve the timeliness of investigations and also the nature of summary trials?
Mr. Tinsley: You are referring to the reduction by the six months?
Senator Batters: Yes.
Mr. Tinsley: I think it is very logical, given the arguments and for the existence of a summary trial system, the necessity of having it. If they are valid, then swift justice is a part of that, so I would not disagree whatsoever.
If I can add, further to the concerns about the summary trial system, I am of the belief that there must be a balancing of the law but that the military, for operational purposes, may need this mechanism. One of the greatest concerns associated with it, particularly from a Charter perspective and also ultimate fairness when it comes to matters of record or not, relates to the reviewability. I question why we are not providing a foundation within the act to make these trials reviewable.
Even in the most primitive of circumstances, with technology today, an electronic record can be provided. That then could provide you with a foundation for review by legally trained people, if that is required. I think it would make the system fair.
Senator Dallaire: As a formation commander, I reviewed all summary trials of commanding officers in my formation — 13 of them, but not to the extent of the verbal exchange. However, I had the AJAG participate in that to give me his professional advice. It is not as clear as you would require it, and I have no problem with that being far more formalized.
I still sit here, with my experience, both operational and garrison, and say that I believe the summary trial is an essential tool. However, I do not agree with our being able to produce a criminal record from summary trials. I think that has to go court martial, at a minimum.
Also, reducing the rank of members of the court martial down to even sergeant, which I find incredible, brings it closer to the peers of the individual who is being tried. That is not a negative gesture, but it is not a reform, which I think Mr. Létourneau and Mr. Drapeau are looking for. I hope someone does take that on.
I want to come to the VCDS. Everything you described as to why we do not want the VCDS to be involved in that history is there. Now, nearly anyone can interfere. The Provost Marshal is, of course, nominated by the CDS, and there could be interference there.
The point I am getting at is: What if the VCDS, who is the second highest in the military structure and has oversight over all of the operations, garrison and so on, is not the one to take on that possibility, extreme as it is, though it is always the extreme scenario that goes to pot, just like Somalia was? If that requirement is essential, or if the army or military say it is, and if it is not him or her, where do we find it outside of the chain of command? Bringing the VCDS in brings the chain of command back in. Where could we find that?
Mr. Tinsley: Senator, I think you have that focal point, that point of accountability, that point of arbitration or resolution in the mechanisms that are currently available, under the accountability framework, to the operational commander/VCDS, the Canadian Forces Provost Marshal or the MP on the ground. In that context, there is what I would call an equality of arms currently. An equality of arms, by the way, is not a military expression but a legal expression, talking about fairness. If the operational commander is concerned about the conduct of the MPs — acting irresponsibly in terms of forcing their way out into operational areas, et cetera — currently, that operational commander has two mechanisms available. One would be a complaint to the Military Police Complaints Commission under conduct. Conduct is improper, and that would have to be resolved. Those recommendations with respect to outcome are passed back to the chain of command. That is not interfering with an investigation. That is looking at professional conduct.
Second, with respect to the Provost Marshal's appointment, the operational commander could seek the inquiry process, which could lead to his termination for, again, non-professional conduct either personally or in the supervision of his police officers.
On the other hand, in the current scenario, the military police person — not the member of Parliament, the military police person on the ground — the warrant officer, sergeant or whatever or the Provost Marshal, if the operational commander is saying, "You cannot go there right now," has the ability to say that that order is being given for improper purposes. They can make an interference complaint, or, in the most severe case, they could mount an investigation for obstruction of justice.
Senator Dallaire: Because we did not go to the VCDS under this law.
Mr. Tinsley: The accountability framework would not allow the VCDS in. However, as I have said, if this inevitable conflict that the minister referred to comes to pass — and you have not been given an example where it has for 15 years — there are two mechanisms for relief on either side. If this provision is passed, it is not only the independence, both perceived and real, of the military police that is put in jeopardy, but it also renders oversight totally nugatory.
I was surprised at the minister's support — several times, and it was unprecedented in my mind — for the Military Police Complaints Commission. He said, "If there is a problem, they can make a complaint." I respectfully suggest that he is absolutely wrong. There would be no jurisdiction because the act would allow the interference. The MPCC's jurisdiction is twofold, first, with respect to interference — if we put a provision in that counteracts the current non- interference provision — and, second, with respect to conduct. The department and the minister, in my experience, particularly during the Afghanistan investigations, have gone to great lengths and tremendous legal cost to point out to the commission that its jurisdiction, with respect to conduct, applies to military police personnel only, not to others within the Canadian Forces.
The Chair: Thank you very much, gentlemen. We appreciate you taking the time out of your schedules to appear here today and to assist us with our deliberations.
This is our final panel today. We had an opportunity to discuss the proposed legislation with Chief Superintendent Walker yesterday. Chief Superintendent Walker is the Director General of the Canadian Criminal Real Time Identification Services with the RCMP. Unfortunately, we were left in mid-question by Senator Joyal yesterday; and that is why we have invited Chief Superintendent Walker to return. We are hopeful that Senator Joyal will appear shortly. In any event, do other members have questions of the Chief Superintendent, or shall we bid him adieu and thank him for his services?
Senator White: I cannot remember what the question was.
Senator Fraser: I have been provided with a transcript but, unfortunately, the gavel came down in the middle of it; so I am not sure where it was going to end up. It had to do with a concern that Senator Joyal has raised several times about violent offences. He was setting his scene, and then it was time to end the proceedings. I do not want to speak for him because he did not really get to put his question.
The Chair: We cannot guess where he was going with the question.
Senator Dallaire: Does this committee permit questions to witnesses in writing subsequent to the committee meeting so that the responses may be sent to all committee members?
The Chair: I am sure if the Chief Superintendent is willing to accept that, it would be fine.
Senator Dallaire: Would it be acceptable here?
The Chair: Yes, certainly.
Senator Dallaire: That would be most appreciated.
The Chair: That concludes the meeting.
Chief Superintendent, I apologize. Thank you again for taking time out of what I am sure is a very busy schedule to assist us. Unfortunately, we cannot pursue the issue. I am sure that Senator Joyal will follow up with a note; and we will look forward to your response.
Chief Superintendent Chuck Walker, Director General, Canadian Criminal Real Time Identifications Services, Royal Canadian Mounted Police: I will be happy to provide that. Thank you for the gift of time. It is a nice surprise to get out of here earlier than I thought I would. I appreciate that.
The Chair: Senators, tomorrow we will meet at 10:30 a.m., our regular time. The meeting is adjourned.
(The committee adjourned.)