Proceedings of the Standing Senate Committee on Legal and
Issue 5 - Evidence
OTTAWA, Wednesday, December 8, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill S-10, to amend the National Defence Act, the DNA Identification
Act and the Criminal Code, met this day at 3:30 p.m. to give consideration to
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, before we hear witnesses, I have copies of a
press release that I sent out yesterday about our work on Bill C-7. Copies of
that press release will be distributed.
We have received a letter from the Solicitor General, and I will read it into
It was a pleasure to appear before the Standing Senate Committee on Legal and
Constitutional Affairs on December 1, 1999, to address Bill S-10 (An Act to
amend the National Defence Act, the DNA Identification Act and the Criminal
Code). I appreciate the excellent work this Committee has done in reviewing
this legislation and the draft regulations.
I am pleased to accept the Committee's recommendation to amend the draft
regulations to specify that the RCMP Commissioner's Annual Report will provide
a review of DNA caselaw over the preceding year.
I would also like to provide you with a copy, in both official languages, of two
government motions for consideration by the Committee at clause by clause
review of Bill S-10. The motions would amend both the National Defence Act and
the Criminal Code to authorize peace officers or persons acting under their
direction to take fingerprints at the same time that samples of bodily
substances are collected for the data bank from persons convicted of a
designated offence. This amendment was recently recommended by the
Federal/Provincial/Territorial Heads of Prosecution and is considered necessary
for the purpose of verifying the identity of a person specified in a DNA data
bank order or authorization.
I would like to thank you and the other members of the Committee for your
excellent work in promptly reviewing Bill S-10.
I will read the proposed amendments into the record, too, so that senators will
have them available when we are questioning the witnesses today and as they
consider the bill.
That Bill S-10, in Clause 1, be amended by adding after line 19 on page 9 the
"(3) A peace officer, or any person acting under a peace officer's
direction, who is authorized to take samples of bodily substances from a person
by an order under section 196.14 or 196.15 or an authorization under section
196.24 may take fingerprints from the person for the purpose of the DNA
The second one is:
That Bill S-10, in Clause 19, be amended by
(a) replacing line 26 on page 18 with the following:
"19. (1) The portion of subsection 487.06(1) of"
(b) adding after line 38 on page 18 the following:
"(2) Section 487.06 of the Act is amended by adding the following after
(3) A peace officer, or any person acting under a peace officer's direction, who
is authorized to take samples of bodily substances from a person by an order
under section 487.051 or 487.052 or an authorization under section 487.055 or
487.091 may take fingerprints from the person for the purpose of the DNA
Written copies of these amendments are being distributed.
We will hear first from Lieutenant-Colonel Couture.
Lieutenant-Colonel Denis Couture, Director of Defence Counsel Services, Office
of the Judge Advocate General/Operations, Department of National Defence:
Honourable senators, by way of a brief introduction, I have been with the Judge
Advocate General for about 23 years. I have been responsible for defence
matters in the Canadian Armed Forces for about 10 years.
I am now in the newly created position of Director of Defence Counsel Services,
a position that arose from Bill C-25. Honourable senators will be aware of that
bill. I have been in that position for approximately 10 years. My day-to-day
business consists of looking after the interests of Canadian Forces members,
especially those who face disciplinary proceedings or who have involvement in
investigative processes within the Canadian Forces.
I have two primary responsibilities. The first is that of advisor to individuals
either in face-to-face meetings or in telephone consultations. As an example of
this advisory capacity, we apprise people of their rights to counsel under
section 10(b) of the Charter.
The second responsibility is the actual representative of accused persons at
courts marshal as required at the appeal level, bail hearings and other similar
situations that call for full representation before a court.
The impact of Bill S-10 on our business is that, as part of our duties, we must
accommodate this new law and become fully informed and aware of the new
applicable laws. This one will apply to a limited extent, based on past
experience. However, other counsel and I must be aware of the provisions of
Bill S-10 and govern ourselves accordingly when both advising and representing
I am neither an expert in policy making nor in the drafting of legislation, but
I am a courtroom lawyer and am pleased to try to help you. I am glad to see
that the defence bar of the Canadian Forces was invited to this committee.
The Chairman: Have the Armed Forces any experience in using DNA as a matter of
proving who committed a crime?
LCol. Couture: Not to my knowledge. I discussed this with colleagues prior to
this meeting. I am not aware of any military police, either NIS or other MP,
involved in such an experience. I do not recall advising anyone on this topic.
For example, section 487 has been in force since 1985. During that time, I was
in a position similar to that which I now hold. I have not advised anyone on
such taking of samples, nor am I aware of my counsel having so advised.
Therefore, our exposure has been limited. I am not competent to discuss whether
our personnel have been trained. It may well be that they have.
The Chairman: I shall ask the next witness for that answer.
Senator Beaudoin: You are in the judiciary of the Armed Forces?
LCol. Couture: Although I am not a judge, I am part of the legal system as a
defending officer of the court.
Senator Beaudoin: They referred to you as being involved in defence, and defence
in criminal law is fundamental.
LCol. Couture: That is right.
Senator Beaudoin: You are involved in that field.
LCol. Couture: I do courts martial at criminal court or at the appeal level.
Senator Beaudoin: We have devoted a lot of time to courts martial and I think we
have considerably improved the system. I am glad to see that.
What use are you making at this moment of DNA? Is it something that is entirely
new, or was it used before?
LCol. Couture: To my knowledge, it was used very little. I have yet to be
involved in a case where DNA has been used.
Many years ago, when I was defending a case in Germany, there was collection of
samples, but that was handled by the German authorities. There was no use of
DNA made at the time and, to my knowledge, none has been used in the past 10
Senator Beaudoin: To your knowledge, is your system quite secure? I refer to the
DNA data and material that we have before the courts martial courts. What do
you do with the exhibits? Is there a system that is provided for?
LCol. Couture: There is a system in place but not for DNA because we have not
used it as such. As for the security of evidence, our court martial judges
travel with court reporters, who are entrusted with the safe keeping of
evidence, which, in turn, is kept in Ottawa under the jurisdiction of the
Senator Beaudoin: The court is not always in Ottawa.
LCol. Couture: No.
Senator Beaudoin: It may be elsewhere, for example, in Germany.
LCol. Couture: That is correct. A court martial will generally assemble where
the need arises. There might be an offence committed in Cold Lake and a
subsequent trial or possibly an offence committed and a trial convened in
Senator Beaudoin: Do you sit there?
LCol. Couture: That is correct.
Senator Beaudoin: Are you involved in the disciplinary arena?.
LCol. Couture: That is correct.
Senator Beaudoin: Is it only Canadians who may appear before the court?
LCol. Couture: Not necessarily. It is possible that a foreigner may be called as
a witness. For example, if a Croatian in Bosnia or a German in Germany were to
witness an incident, that person could be called either by the prosecution or
the defence. However, generally the players involved would be Canadian.
Senator Beaudoin: Especially the accused.
LCol. Couture: Especially the accused.
Senator Beaudoin: You are referring to persons from other nations as being
LCol. Couture: That is correct. We have no jurisdiction over those people.
Senator Beaudoin: You have no jurisdiction over a person who is not a Canadian
LCol. Couture: That is right.
Senator Beaudoin: You said that the DNA system is just starting at National
LCol. Couture: Amendments are being made to Bill S-10 in order that the National
Defence Act be similar to that which has been proposed for the Criminal Code.
Although some provision has existed since 1995 to a limited extent under
section 487, I am not aware that it has been utilized much.
One must understand that we deal with a limited pool of individuals. It appears
that our exposure to crime is somewhat different and much more limited than in
the civilian arena.
Senator Beaudoin: How many cases do you have in a year?
LCol. Couture: Over the past few years, we would have averaged 40. This year, it
would be close to 50. As we speak, we probably stand at 48 cases. Those are
Senator Beaudoin: You have two levels at first instance, namely, courts martial
and appeal court?
LCol. Couture: If you are talking about types of courts martial, there are four.
They are all first level, first instance, if you wish. From there, there is an
appeal to the Court Marshall Appeal Court, which is composed of a number of
judges appointed from the Federal Court or Superior Court of various
jurisdictions. From there, should the need arise -- and it has a few times over
the years -- there is an appeal to the Supreme Court of Canada.
Senator Moore: I wish to follow up on a question asked by Senator Beaudoin. In
the event that the DNA sample is taken in a case in Bosnia, what can you tell
us about the security of that sample in that forum? I can understand where, in
an event or an occurrence in Canada, it would be deposited in some secure
depository here. Would you use the same depository as the RCMP? What would you
do in a case that takes place on foreign soil?
L Col. Couture: I have a fairly simple answer for that: I do not know. I am not
aware. Presumably, this would be determined by way of regulation. I am not
entirely sure. At the end of the day, however, the samples would make their way
to the RCMP, under the provisions of the Criminal Code, which are parallel in
Senator Moore: We have other witnesses to whom we can ask that question; I was
just wondering if you had any information.
LCol. Couture: I could only speculate. I am sure some means could be derived. We
have medical personnel, so there are various possibilities. However, I am not
the one who would have formed any plans on that.
The Chairman: It may well be that court reporters are not the proper way to keep
this particular kind of evidence in safekeeping.
Senator Fraser: This bill, as it applies to the military, essentially sets up a
new system of records. That system will be controlled by the civilian police
authorities. The DNA data bank will be controlled by the RCMP. I wonder to what
extent now the military justice system is integrated with or turns to civilian
records systems as it goes about its work? Will the implementation of this
require a change in administration? In particular, will it require a shift in
military culture to work this closely with civilians?
LCol. Couture: Commander Price is responsible for prosecution. He currently
liases with civilian authorities, who can be prosecutors, Crown attorneys, or
civilian police. I am aware at this time of extensive liaison between the legal
departments of the military, provincial, and federal authorities. Also, there
is liaison with the police, to a certain extent.
Concerning what is required, I am not quite comfortable to say. Commander Price
could tell you. However, I do not foresee that as being much of a problem. I
know there is an exchange of information.
Senator Fraser: Records can also be useful for the defence. We know, for
example, that the highest profile cases relating to DNA in Canada have involved
acquittals -- indeed, the overturns of earlier guilty verdicts that turned out
to be wrong verdicts.
Do you foresee the use or the exploration of this tool becoming a regular part
when you are defending serious cases?
LCol. Couture: Absolutely. To that extent, disclosure laws that apply to
civilian criminal trials apply equally in the military. As defence counsel, we
would have access to that information. I believe it is provided for somewhere
in there that, for example, independent analysis could be made of the sample by
the accused person. We, as counsel, would be involved in that.
With respect to access and news from the defence point of view, we would be in
exactly the same position as any civilian counsel involved in a high profile
civilian criminal trial.
Senator Fraser: You said that there has not been a case where DNA has been part
of the evidence in your experience in the military system.
LCol. Couture: That is correct.
Senator Fraser: Are you aware of any cases where a defendant may have sought the
use of DNA evidence, as we have seen in the civilian cases to which I was
LCol. Couture: No. I cannot think, for example, of a case similar to the
Milgaard case or other such cases. Such cases were not in existence in the
military. Those are extreme cases. Nor am I aware of any situation in which,
for example, someone would approach the defence bar and say, "I have this
piece of evidence which could be helpful." No such thing has happened.
Senator Fraser: In other words, you are not aware that there have been any
events that might be perceived as miscarriages of justice because of the denial
of a DNA test?
LCol. Couture: No. In my experience, either with respect to use or misuse of
DNA, there has been no case.
There was only that case I referred to earlier -- it was a few years back --
where they contemplated using it, but the tests were never completed.
Senator Joyal: I apologize to the witness, Madam Chairman, but I wish to point
When I arrived at the meeting, I read the letter that the minister forwarded to
you, Madam Chairman, following his testimony to this committee. I notice a
major omission between the French and English version at paragraph 2 of the
letter. In the English text, which seems to be very close to the point that we
raised here -- and I was one of the senators who raised it at our previous
meeting -- it states:
I am pleased to pleased to accept the Committee's recommendation to amend the
draft regulations to specify that the RCMP Commissioner's Annual Report will
provide a review of the DNA caselaw over the preceding year.
That is a very important point. However, the French text states:
Je suis heureux d'accepter la recommandation du comité visant à
modifier le projet de règlement afin qu'il précise que le rapport
annuel du commissaire de la GRC doit contenir un examen des analyses génétiques
menées au cours de l'année précédente.
It is not a review of the DNA analysis, but a review of the identification.
I think we should contact the minister's office, to have the translation matter
settled, because this is very important. It is a fundamental issue that we have
raised and the minister has agreed to amend the regulations. The letter should
reflect his intentions.
Senator Fraser: Just on a point of clarification. I suspect that the intended
version is the English one. The commitment that the officials made here was in
reference to case law. I do not think we will find ourselves with a problem
The Chairman: I read the English version into the record. We will get a
clarification in writing about the French version.
Senator Joyal: I would be grateful to you, Madam Chairman.
The Chairman: This bill will authorize DNA testing of persons convicted of
primary offences as well as, perhaps, secondary offences. Some of the secondary
offences include striking a superior officer, striking a subordinate, and
handling of dangerous substances. In your view, are these appropriate offences
for inclusion in the DNA data bank?
LCol. Couture: I have reviewed them carefully and have compared them to those
provided for in the Criminal Code. The stated intent is that, beyond those
Criminal Code offences that can be captured under section 130 of the National
Defence Act, there are others of the same quality. I have reviewed them
carefully. In my view, they are reasonable. They belong to the same league, in
if I may use the expression, as those referred to as secondary offences.
I saw in some literature somewhere the offence of 107(a) summarized as "endangering
an aircraft" -- which is an improper summary. The actual offence in 107(a)
deals with endangering a person on an aircraft. That was the necessary
connection that had escaped me. If you ever run across this short form, it is
not quite accurate. However, subject to that comment, I am of the view that they
belong to the same category of offences provided for in the Criminal Code.
The Chairman: Striking a superior officer?
LCol. Couture: It would equate to assault.
The Chairman: Are there any others that you believe should be added?
LCol. Couture: Frankly, I have never conducted a review with a view to adding
offences. However, in all seriousness, I am quite familiar with the various
offences under DNA. It looks to me as if it is an accurate reflection. When one
accepts the principle of primary, secondary, and so on, I believe it is a fair
Senator Joyal: I have two questions following up from previous questions. On
your question, Madam Chairman, I wonder if the witness would be in a position
to inform us how many cases, from the overall number of cases that are dealt
with by the military justice, according to the definition of the offence that
is contained in the legislation, would be the object of a DNA sample. In other
words, of the classification of offences that are normally proceeded with under
military justice, how many are, in fact, submitted to DNA samples? That
information would assist us to determine if this is important in terms of
change in their procedure.
My second question follows up on a question by Senator Moore with respect to the
security of the DNA sample. I understand that the witness is probably not in a
position to answer fully; however, we should not leave the point in the air. I
wonder if the committee could look into which witness it could ask to come here
to inform us of the sampling being taken abroad and stored. We know that arms
are sometimes seized abroad, and they are lost or stolen, especially when there
are casualties in a war. The issue of the security of DNA needs to be
addressed. We cannot avoid it any longer; we must follow-up on it.
The Chairman: It is important. The Provost Marshall is appearing before us today
at six o'clock. I apologize to senators that it will not be before six o'clock.
Surely, she will be able to answer some of these questions. She will be the
person, presumably, who will set up the system.
LCol. Couture: When I said I did not know, I meant that I did not know what
procedures have been put in place. It is a police matter, an investigative
Concerning your first question, I am aware that Commander McGuire has provided
information to this committee -- I believe he has, anyway -- regarding cases of
primary designated offences between 1995 and 1997. Commander McGuire is
responsible for military justice, so he would be in a good position to know. I
would, too, had I made the research.
There were two cases of sexual exploitation, and there were eight cases of
sexual assault. In secondary designated offences, there were two cases of an
indecent act, and eight common assault cases.
There was an instance of someone being charged with both a primary and secondary
designated offence. The case has only been included under primary designated
The Chairman: There were 20 cases, unless we are getting an update.
LCol. Couture: That is correct -- over the three-year period of 1995, 1996, and
1997. I may have said two-year period; I apologize for that.
I should like to add that those relate to only cases that would have qualified.
They have met the burden.
I can attest that, for those cases, while it is difficult to second-guess, so
many would have qualified for exemption, but it is hard to say.
The Chairman: So it is a maximum of 20 over three years.
LCol. Couture: According to those figures, which do sound quite realistic to me,
being close to the scene.
Senator Ghitter: My first question was just answered and I thank you for that.
My second question arises more from my lack of understanding as to how military
courts work and where the judges reside. Are they basically stationed in and
work out of Ottawa, or are they spread throughout the country?
LCol. Couture: At present -- and I am not aware of any plans to change this --
there are three judges, all of whom are Governor-in-Council appointments. They
reside in Ottawa, but they do travel from place to place as required. A judge
may be in Halifax one week for a trial, and come home for a weekend; and then
he might be in Bosnia the week after or two weeks after, or he might take a case
Senator Ghitter: If a situation arose in Bosnia where the application of this
legislation were to be undertaken and a warrant was requested to take the
evidence, and the judge was in Canada, how would you deal with that
LCol. Couture: What you are raising is a matter of jurisdiction. I believe one
of the reasons to have similar provisions in the National Defence Act is that
provincial court judges, for example, do not have extraterritorial
jurisdiction, unlike in certain Criminal Code matters. I believe there is such a
thing as territorial limitation. Under this bill, the judges would have
jurisdiction over the member even overseas, and it would be the military judges
that would authorize the warrant.
Senator Ghitter: Could the application for the warrant be done by telephone? The
judge would not have to travel to Bosnia just for the warrant, would he?
LCol. Couture: It could be done by telephone, or by fax telecommunication, as is
referred to in the code and in the act. Presumably it could be viva voce, if
the investigator were in Canada, before returning or deploying. There are a
number of scenarios that are possible, but the military judge would have that
extraterritorial jurisdiction that is lacking to the provincial court judge.
Senator Ghitter: All military judges have legal training? They are lawyers?
LCol. Couture: Yes.
The Chairman: Are there any further questions of this witness?
As there are not, I thank you for your testimony today.
Our next witness is Commander James Price.
Commander James Price, Deputy Director of Military Prosecution, Office of the
Deputy Judge Advocate General/Operations, Department of National Defence:
Honourable senators, I should like to give you a little history about my
directorate, which really officially began business on September 1, 1999. Our
directorate was established by Bill C-25.
Prior to September 1, the convening of courts and the prosecution of courts
martial was within the hands of the chain of command. Senior officers in the
chain of command convened courts and technically oversaw the prosecution of
individuals. Bill C-25 changed all that as of September 1. Now, charges to be
heard by courts martial are preferred by the Directorate of Military
Prosecutions, and the conduct of courts martial is entirely within our hands.
We have changed almost 180 degrees, in the sense that we now have a referral
process and the chain of command makes recommendations to us as to what we
should do with the charges they send to us. Although we have the final
prosecutorial discretion to proceed or not in a particular case, we, of course,
pay close attention to what the chain of command is recommending to us, because,
after all, our object is to advance and preserve the discipline in the Canadian
Our prosecutorial service consists of 10 regular force lawyers and four
reservists. We are geographically deployed. We have a regional prosecutor in
Halifax, one in Valcartier, one in Edmonton, and two in Ottawa, plus a few
spares in Ottawa. The reason we are in the locations I just mentioned is that
we wanted to be co-located with the National Investigation Service. You may know
that that service is, in effect, the detective branch of the military police.
They are different from other military police in the sense that they report
centrally to the Provost Marshal and, secondly, that, unlike other military
police, they have the ability to lay charges, which they have had since
Apart from being prosecutors, we are the legal advisors to the National
Investigation Service. They typically consults us on issues of warrants, for
example. Also, we have a pre-charge screening process in place. They are
required to submit to us charges that they propose to lay and to get an opinion
from us as to whether the evidence is such that they can formulate a belief that
an offence has been committed. That responsibility vis-à-vis the NIS is
an important one for us as prosecutors, because they are a fledgling service
themselves, having been set up pursuant to Mr. Justice Dickson's report, as our
With respect to my involvement in the DNA data bank bill, I have been involved
for some months with an interjurisdictional committee. Mr. Zigayer has been
chairing the committee, which is composed of representatives from each province
and from interested federal departments. I am a member of that group. We have
telephone conferences about once every month or two.
We are looking at guidelines to establish prosecutorial policies regarding the
data bank. On occasion, we would seek an order for a secondary designated
offence, for example. Mr. Zigayer is leading the group and we have various
people in the group who have volunteered to produce papers and so forth. Like
the other jurisdictions, ultimately we will have a policy as to how we deal with
the data bank issue. As much as we can, we intend to parallel other
Senator Beaudoin: I have two questions. The first is on the Dickson report, and
the second is on the different levels in the military courts.
Some time ago, several witnesses appeared before us and talked about the Dickson
report and its recommendations for the military system in Canada. Do I
understand that nearly everything advocated by former Chief Justice Dickson has
Cdr. Price: To my knowledge, virtually every recommendation has been.
Senator Beaudoin: It is a very good report. You say, generally speaking, that it
has been implemented.
Cdr. Price: Yes.
Senator Beaudoin: I asked Mr. Couture how many levels you have in the military
justice system. I remember that he said that there is an appeal to the Supreme
Court of Canada. Is it direct? You have the first level, the Court of Appeal,
and then do you appeal directly to the Supreme Court or the Federal Court?
Cdr. Price: Yes, and Colonel Couture was speaking from recent experience because
he was just there and won. We have a Court Martial Appeal Court, and either we
the prosecution or an accused or convicted person can appeal to the Court
Martial Appeal Court. It is made up of federally appointed judges from both the
Federal Court and provincial supreme courts. There is an appeal from that court
to the Supreme Court of Canada. When there is a dissent, as there was in the
case in which Colonel Couture was involved, there is an appeal as of right to
the Supreme Court of Canada.
Senator Beaudoin: The first court of appeal is not the Supreme Court but rather
a civilian court.
Cdr. Price: It is a court that is established in our statute, the National
Defence Act, but the judges of that court are federally appointed judges drawn
from the Federal Court on an ad hoc basis and drawn from provincial supreme
courts. They ordinarily sit in the Federal Court, trial division or appeal
division. Mr. Justice Strayer can call together a quorum of three judges to hear
our appeals. There is a pool of 52 or 53 judges.
Senator Beaudoin: From that level, they go to the Supreme Court of Canada.
Cdr. Price: That is correct.
Senator Beaudoin: Leave must be granted to go to the Supreme Court of Canada.
Cdr. Price: No, there is an appeal as of right if there is a dissent by one of
the three judges.
Senator Beaudoin: If there is a dissent in the court of appeal, they may appeal
directly to the Supreme Court without leave?
Cdr. Price: Yes, that is the current system.
Senator Cools: How many cases does the Court Martial Appeal Court, of which Mr.
Justice Strayer is chief, hear per year?
Cdr. Price: I would say 20 to 25, which is quite a few considering the number of
courts martial we have, which are 50 this year. I am guessing that we have
probably had close to 20 appeals.
Senator Cools: Is that number up from previous years? It seems to me that, the
last time I looked at this, we had a bill before us creating a new position and
making the chief justice of the court martial court a member of the judicial
council. It was very complicated. It seems to me that, at that time, we were
told that there were eight or ten a year. It was a single-digit number.
Cdr. Price: I suspect the number is going up. One of the changes that has been
made with the defence team that Colonel Couture had is that they now take cases
to the Court Martial Appeal Court on behalf of accused people. It used to be
that people convicted at Court Martial and who wished to go to the Court
Martial Appeal Court had to fund their own lawyer. The defence team that Colonel
Couture is involved with has now expanded so that servicemen can actually get a
lawyer free of cost to take their case to the appeal court.
Senator Cools: I am surprised it has not gone beyond 20.
Mr. Chairman, the notice for the meeting today indicated that we would hear
witnesses from the "Deputy Judge Advocate," and I have been racking
my brains trying to determine what the "Deputy Judge Advocate" is.
Our noble and kind researcher clarified that there is a mistake, that the notice
should say "the Office of the Judge Advocate."
The Chairman: We had the word "deputy" in the wrong spot.
Senator Cools: I have a few questions about the constitutional relationship
between the Judge Advocate and the Attorney General of Canada. What is that
Cdr. Price: Senator, I do not believe there is a relationship.
Senator Cools: I can assure you there is a relationship.
Cdr. Price: He is an Order-in-Council appointee. The Judge Advocate General
reports to the Minister of National Defence. In a sense, he is kind of the
attorney general of our military justice system.
Senator Cools: My understanding is that he is not a "kind of the attorney
general." I understand that the position of the Judge Advocate is the
attorney general for the military. If you are not sure, you can send the
information back. However, my understanding is that the Judge Advocate is one of
the law officers of the Crown, along with the Attorney General and the
Solicitor General. I am curious how it works these days.
Cdr. Price: Perhaps one way to describe his position is as attorney general, in
the sense that he superintends the military justice system, but that
descriptive is not used in the National Defence Act.
Senator Cools: It is almost a piece of constitutional history. The terms are no
longer used, so obviously, in the fights that go on for terrain in this
business, the Attorney General has emerged as superior. My ancient
understanding of the constitutional relationship in respect of the exercise of
prosecutorial discretion is that the Judge Advocate and I think the Provost
Marshall were also law officers of the Crown.
Cdr. Price: I do not have the historical background to assist you as to where
the term "Judge Advocate General" originated. Certainly, it is in use
in other countries. As you say, there is probably a fascinating background.
Currently, our act says that he superintends the military justice system. In
terms of his relationship with us, the prosecutors, he can give us direction in
individual cases, but that direction must be made in public.
Senator Cools: For example, if there were an individual military person who was
being prosecuted and about whom the Judge Advocate was exercising the
prosecutorial discretion to prosecute, and for whatever set of other reasons
the Attorney General of Canada were to believe that that prosecution should not
proceed, which opinion would prevail? Such a consideration would come in if
cases of enormous notoriety were to happen or in cases of enormous national
security considerations. I am curious which opinion would prevail.
Cdr. Price: I am not sure the Attorney General of Canada has a direct
relationship with the Judge Advocate General. Certainly, he could go to the
Minister of National Defence in some extreme case, if we were doing something
that was conceived to be terrible. He could conceivably at least ask the Judge
Advocate General to instruct us, the prosecutors, not to proceed in a particular
case. That can be done; however, it must be made public.
Senator Cools: My understanding is that the opinion of the Judge Advocate
General would prevail. It is an interesting point.
The Chairman: It may be of interest to you, Senator Cools, but we went into
quite a bit of the history of the Office of the Judge Advocate General when we
were studying Bill C-25. It might be of interest to you to read some of the
Senator Cools: I am quite new to this committee. Someone has just handed me a
copy of Bill C-25, which amended the National Defence Act. Section 9.2(1) says
clearly that the Judge Advocate General has superintendence of the
administration of military justice in the Canadian Forces. Therefore, it is in
the statute. It is quite clear which opinion would prevail.
Senator Fraser: Commander Price, I should like to ask you the same kind of
question I asked your colleague in terms of present practice, culture and
habits. Is it now a somewhat comfortable matter of your services practice to
deal with the civilian records system for fingerprints or criminal records or
Cdr. Price: It is not. One of the initiatives we have under way right now is to
amend the Identification of Criminals Act. This would allow for offences under
military law to be entered into the CPIC system, which they are not currently
and ought to be, in my opinion, in certain cases. That is something we have
been lacking and are moving to fix.
Senator Fraser: Would it work in reverse as well -- that is, that someone who
has committed a military offence will not fall between the cracks once they are
out in civilian life?
Cdr. Price: Correct.
Senator Fraser: What about someone who committed a civilian offence and, so to
speak, fled into the military? Would you automatically go to CPIC to do a
Cdr. Price: Yes.
Senator Fraser: You can do that and you do that?
Cdr. Price: Yes.
Senator Fraser: Do you expect the addition of the DNA data bank to be a useful
tool? I understand that not many cases come along; however, in those that do,
do you foresee making much use of this?
Cdr. Price: It is very useful that we have access to it and that offenders,
where appropriate, have DNA samples deposited into the bank. We are capable of
trying serious offences within the military. For those who fall within the
category of primary offence, and perhaps some from the secondary category as
well, it is right and appropriate that they be included.
Senator Fraser: Are you comfortable with the list of primary and secondary
offences? Are there any that you think should be added or subtracted?
Cdr. Price: No. I have looked at the list and it seems complete. We have covered
those kinds of offences in our system that are analogous to the list set out in
the Criminal Code.
Senator Fraser: In answer to an earlier question, the suggestion was that
striking a superior or, I suppose, striking a subordinate would be roughly
equivalent to assault. I assume that the reason it is in here is that if you
strike a superior you are tried under that military article rather than just the
general assault category?
Cdr. Price: Correct. It is a more serious offence to strike a superior than
simple assault within our context. If a private struck an officer, we would
typically charge the private with striking a superior, but it is an assault as
Senator Fraser: There was some discussion earlier of how far the Code of Service
Discipline jurisdiction runs. What about the case of civilian employees abroad
who work for the Canadian Armed Forces but who are not Canadians?
Cdr. Price: We would not have jurisdiction over those people.
Senator Fraser: Therefore, if one of them runs amuck in the office and kills
someone it is the local force that would have jurisdiction?
Cdr. Price: Yes.
Senator Fraser: You would cooperate, I presume, with records and such?
Cdr. Price: Yes.
Senator Cools: May I just clarify in regard to Bill C-25, which was passed some
months back by this committee. I referred earlier to section 9.2(1).
Section 9.1 of the National Defence Act -- a section that was enacted as a
result of Bill C-25, clearly says that:
The Judge Advocate General acts as legal adviser to the Governor General, the
Minister, the Department and the Canadian Forces in matters relating to the
It also says clearly that the law officer of the Crown in respect of the
military is the Judge Advocate General.
Senator Pearson: My question follows up on Senator Fraser's questions. I am
interested in this because Canadian soldiers serve overseas; therefore, this
brings in an entirely different dimension than if we are looking at the law in
Canada. Among those dimensions are our armed services operating under UN
control and so on.
I am curious as to how your jurisdiction applies. You have, for example,
striking an officer. I suppose that refers to a superior officer, for
example.This is an officer of another country.
Cdr. Price: Yes.
Senator Pearson: It must get very complicated.
Cdr. Price: That might just be simple assault, but it would be an aggravating
factor that it was an officer of another country.
Senator Pearson: I see. Therefore, it is the crime that is being charged and not
the person against whom the crime is committed?
Cdr. Price: Yes, however, it would depend. If one of our soldiers struck an
officer of another country, we could still charge the soldier with simple
Senator Pearson: I wish to refer to the case where some peacekeeping soldiers
have been engaged in the sexual abuse of children in places where they have
served. I am not saying Canadians have done this, but it is always a potential
because we know other countries have been involved in situations in Mozambique
and so on. How would we operate in those kinds of cases? Again, the person who
is the victim is not a national of Canada and the country in which it is taking
place is not Canada.
Cdr. Price: We still have jurisdiction over the soldier, and the Criminal Code
still applies to the soldier. A breach of the Criminal Code is a service
offence through section 130 of the National Defence Act. We would certainly
pursue an individual who committed an act like that.
Senator Pearson: In that case, would you require the cooperation of the country
where the incident had taken place?
Cdr. Price: We might. I am prosecuting a case next month in Germany and some
Belgian nationals are witnesses. I have no way of compelling these witnesses to
attend, other than to ask them in the interests of justice to attend our
tribunal. I believe they will attend, but that sometimes is a difficulty
Senator Pearson: If a Canadian soldier, or a member of the Armed Forces, is on
leave somewhere and commits a crime, how would that work? I am thinking of the
issues around sex tourism, where people go off on rest and recreation so to
Cdr. Price: If it is in the operating area we would probably go after the
individual because he is on leave and because he is in an area of operations.
However, it would depend. If a soldier from Canada went to Hawaii on leave,
obviously there is no military nexus. We do not have a particular interest in
what a soldier does as a private citizen in the community; therefore, we
probably would not assume jurisdiction in that kind of case.
Senator Pearson: It applies only when he is in an official capacity?
Cdr. Price: Yes, and it applies when he is in theatre.
Senator Ghitter: Commander, for my own curiosity, what investigations are made
of an individual who applies to go into the military? Do you check an
individual's criminal record, as a matter of course?
Cdr. Price: I believe so. The Provost Marshal can tell you for sure, but it is
my understanding that every applicant is checked on CPIC.
Senator Ghitter: Do you know if fingerprinting is done?
Cdr. Price: Fingerprints are taken but not for the purposes of CPIC. They are
taken for our own purposes. We do not enter records onto CPIC when someone
joins, but we do check the CPIC to see if they have a record.
Senator Ghitter: Fingerprints are taken but not used for any purpose?
Cdr. Price: We store them for DND's own internal purposes. We are not permitted
to use them for criminal identification purposes.
Senator Ghitter: If a criminal charge arose within the military, you would not
use those initial application fingerprints to eliminate suspects?
Cdr. Price: No. It is a matter of privacy. The prints were not taken for the
purpose of criminal records.
Senator Ghitter: Is it because they would not be admissible in court, or you
just do not do it?
Cdr. Price: We just do not do it. We could not get at them short of a search
warrant. We typically do not go after fingerprints that have been taken for
National Defence purposes.
Senator Ghitter: Have you ever considered taking DNA samples in the same
Cdr. Price: We have not done so thus far. Frankly, I do not foresee us taking
DNA from every applicant in the military. That has never occurred to me.
The Chairman: It could be a rather expensive proposition.
Senator Poy: Commander, if a Canadian soldier who is a peacekeeper under the UN
umbrella commits a crime in another country, could he or she be prosecuted
under this proposed legislation, or would another law apply? Does the UN have
laws that might apply?
Cdr. Price: No, the National Defence Act would apply.
The Chairman: Does the National Defence Act apply to all Canadian soldiers
whether they are serving under the United Nations' aegis or as part of our own
Armed Forces and no matter in what location?
Cdr. Price: Yes. In most theatres, we have "status of forces"
agreements to permit us to take jurisdiction over the individual, no matter
what crime was committed.If a crime is committed against society, such as an
assault on a private citizen of that country, for example, we would most
probably take jurisdiction.
The Chairman: To be absolutely clear, following on Senator Fraser's question,
there will be an exchange of DNA information between the RCMP, the civilian
data bank, and military police, if and when it is needed. If a soldier is
charged with something in your jurisdiction, then you will take a DNA sample if
it is relevant and share that information with the civilian police. You may then
find out if the solider has a civilian record.
Cdr. Price: Certainly. If it is appropriate, a DNA warrant would be sought and
checked against the DNA data bank.
The Chairman: We now have before us Brigadier-General Patricia Samson, who was
before this committee on the last bill and who did an excellent job of
presenting her evidence, the Provost Marshal.
Brigadier-General Patricia Samson, Provost Marshal, Canadian Forces, Department
of National Defence: Thank you for the opportunity to be here today. I am the
Canadian Forces Provost Marshal. My role is to make a law enforcement, police
and security policy, to have command and control of the Canadian Forces
National Investigation Service, and to provide oversight to ensure military
policing, training, selection and professional standards are met.
Given my role, I am especially pleased to be here to talk about Bill S- 10, and
I would propose to highlight some issues within the bill as they relate to the
military police. I will try to confine my remarks to approximately five
As you well know, in recent years, the role of the military police and the
structure of the military police organization has been reviewed and revamped in
order to restore confidence in the competence of the military police. One of
the key areas that has undergone great change is investigation and the conduct
of these. In particular, the investigative training provided to military police
persons stresses the importance of establishing links amongst the various facets
of crime scene, victim, physical evidence, and the suspect.
One of the most fundamental assumptions of any investigation is that an offender
at the scene of a crime may have left behind some physical evidence. To assist
investigators, tools are provided to enable them to do their job. One of these
tools is the use of the genetic fingerprint or DNA evidence.
DNA, or profiling, though it is relatively new to policing, with it first being
used in 1985 in England, has grown tremendously over the years throughout the
world. This also includes use by the military police. The military police have
obtained and used DNA warrants on two occasions. The first, in 1996, as it
relates to a sexual assault; and once again, about a month ago, in connection to
an arson. It is stressed that both of these cases happened here in Canada and
we went to civilian judges in accordance with the procedures set out in the
If cases similar to this happen in Kosovo or Bosnia or any other theatre of
operations, and in some locations in Canada involving personnel subject to the
Code of Service Discipline, the military police would be hard-pressed to find
someone who could issue a warrant for DNA printing. Bill S-10 provides the
military police, especially those in theatres of operations, with the same
investigative capability that is available to all the other policemen and women
in Canada and will go far to enhance their ability to solve crimes.
Given the distances that the military police are separated from military judges,
the inclusion of tele-warrants in Bill S-10, at clause 196(13), will further
enhance the investigator's ability to do his things or her job.
Bill S-10 also enables the Canadian Forces to bank DNA information on
conviction. This is important not only for the Canadian forces but also for the
protection of the rest of Canadians. The information in the bank will not only
assist the military police in the identification of persons who have committed
designated offences but will help other police services as well. I am sure you
appreciate that not everyone who is in the military stays in the military until
their very last breath. They do get out and get into other walks of life, and
they do come under the jurisdiction of other civilian police forces. That
information is important.
If a warrant is obtained, or if the court directs on conviction that a DNA
sample be obtained, the same procedures and processes put in place for other
civilian agencies will be followed by the military police.
As a matter of fact, a member of my staff participated today and is a member of
a working group with the members of other police forces to discuss the
implementation, procedures and processes. The procedures the military police
will use will be exactly the same as our civilian counterparts. If the process
is abused, we will also be subject to the same penalties that they face.
Ultimately, the changes I have mentioned will not only enhance military policing
but will indicate to the Canadian public that the military police can avail
themselves of the same investigative tools as the other police forces. As we
grow and come into our own, the issue of credibility is key to our success.
Senator Beaudoin: To what extent is your system different from the system of the
RCMP? My impression is that it is generally similar. However, you referred to
the civilian system and to the military system. Are there any differences if
you compare your military system to the civilian system, as far as the DNA is
concerned, such as the application, the security? Are you following the same
lines as the Royal Canadian Mounted Police?
BGen. Samson: We are following the same line as the RCMP and every other police
force in Canada.
Senator Beaudoin: Every other police force does the same thing?
BGen. Samson: Every police force may tweak them somewhat, but we must follow the
same ones. My people are trained the same way the RCMP are trained. They take
practically the same courses. Sometimes they go to the same places. They must
follow the same processes and procedures because, when they get to court, they
will be questioned the same way the RCMP or the Ottawa Carleton police are
questioned. We follow a similar pattern; it is parallel.
Senator Beaudoin: Is it parallel?
BGen. Samson: Absolutely.
Senator Beaudoin: We have established in this committee in part, at least, the
military court system, courts martial. The courts have stated that there is
such a thing as a parallel system of justice which is the military system, or
the court-martial system, and it is a bit different, but it offers the same
protection. There is the same independence of the judiciary in your system as we
have in the civilian system.
I understand that, for the application of criminal law or the National Defence
Act, you are following, generally speaking, the same principle.
BGen. Samson: Exactly. The same laws, the same principles, investigative
techniques and accountabilities that the RCMP have, we have now. We are subject
to prosecution if we do not do it correctly.
Senator Beaudoin: When you are sitting outside Canada, you follow the same
BGen. Samson: Absolutely.
Senator Beaudoin: When you apply for, say, warrants or seizure, if it is
necessary, do you follow the same guidelines?
BGen. Samson: We must.
Senator Beaudoin: You must?
BGen. Samson: Absolutely.
Senator Beaudoin: In Canada or elsewhere?
BGen. Samson: Yes. We do not go off and make our own regulations with regard to
law enforcement and policing standards. We must follow those policing standards
that are in Canada for all police forces. That is one of the things we must do.
Senator Beaudoin: When you sit, for instance, in Bosnia, or in Europe somewhere,
and you hear witnesses who happen to be European, you follow the same rules
also? Perhaps when you obtain a warrant, it is different.
BGen. Samson: No, I had the good luck, I suppose you could say, to spend a year
in Bosnia as the Provost Marshal there when we were dealing with the French. We
used the French laws especially when it came to bringing people to court or if
evidence had to be secured for court. When we dealt with Canadians, we used the
In Canada, when we are dealing with military people, we follow the Canadian
laws. In Kosovo, Bosnia or in the Gulf, if we are dealing with Canadians, we
follow Canadian laws.
Senator Beaudoin: Could you define the role and function of Provost Marshal?
BGen. Samson: The function of the Provost Marshal is to make all the policies
with regard to law enforcement, policing and security for the Canadian forces
and for the military police.
I am also the commanding officer of the Canadian Forces National Investigation
Service. That is our investigation unit that does all the investigations into
sensitive and serious offences, indictable offences.
I am also responsible for oversight, audits, and ensuring that the military
police are following the policy, to ensure that the selection and training
standards and the professional standards of military police are met and
The Chairman: In other words, the top cop with the whole ball of wax.
BGen. Samson: More or less, except the military police on bases work for their
base commander, but they must follow my policies.
Senator Fraser: I have two areas I wish to ask about. First, you said that the
military police have used two DNA warrants?
BGen. Samson: Yes.
Senator Fraser: We had witnesses earlier from the defence and prosecutorial
services who said that there have been no cases using DNA evidence. What
BGen. Samson: These are cases that would go downtown. They would not be heard in
Senator Fraser: Those cases went to civilian courts.
BGen. Samson: We have not used any in military court. The first one was in 1996,
which was a sexual assault. We went downtown. The second was an arson, for
which we received the warrant about a month ago.
Senator Fraser: Is that a civilian court proceeding?
BGen. Samson: Yes.
Senator Fraser: I gather that the draft regulations that have been given to us
apply to the military DNA system as well as to the civilian DNA system.
BGen. Samson: Yes.
Senator Fraser: There is one element that interests me. I am looking now at the
draft regulation about collection, removal of access, electronic transmission,
et cetera. These are impressively detailed regulations, setting out all kinds
of things that must be done -- forms for the identification and signature of
one witness who was present during both the taking of the fingerprints and
samples if they were not taken by the same person. There all kinds of details.
It also says that the DNA data bank sample kit must be safely and securely
packed, sealed, labelled and addressed for transporting the samples to the DNA
data bank. It does not say anything about transportation. Why would that be?
BGen. Samson: They are still working on those processes. I have with me a draft
handbook that they will be giving out. I can leave that with the clerk, if you
Senator Fraser: Yes, please.
BGen. Samson: In that handbook, they say that the sample can be carried, can be
sent via mail, via courier, or taken by hand. Once those specifics are
finalized, everything will be covered.
As a matter of fact, my staff member who was at the working group today had a
flowchart of exactly how it will be done. All of those issues related to
collection after conviction will be addressed.
Senator Fraser: In a handbook rather than in regulations; is that correct?
BGen. Samson: At the moment, there is a handbook. There will be a flowchart. As
to whether it will be in the regulations, that is what the working group is
working on at the moment. However, there are steps that must be followed.
Senator Fraser: Do you think the mail is sufficiently secure?
BGen. Samson: Evidence is sent through the mail, usually via registered mail.
Senator Fraser: It is not just dropped in the mail room at the other end, is it?
BGen. Samson: I am sure some have tried it. They probably would not try it
twice, however. For every piece of evidence you send to be tested, there must
be an audit trail. When you do an audit, there has to be a trail. There is no
paper trail if something is just dropped in a mailbox and has not been signed
for. There must be a paper trail.
Senator Fraser: What I am asking about is standard procedure for transporting
evidence, which is why one would not need specific regulations for DNA.
BGen. Samson: That is right. I imagine that is left open because, as technology
changes, there may be other ways to send evidence. I am not in that field. I am
just a simple police person.
Senator Moore: Brigadier-General, the questions I am about to ask I asked of a
witness earlier this afternoon. I suppose you are the person to try to answer
them. Let us say that a DNA sample is taken by a military person from a person
who has been accused of a crime. Is that sample stored in the RCMP data bank
facility that we have been talking about? Where do you store your samples?
BGen. Samson: When the sample is taken, we send it to the lab to be tested. The
lab provides us the information to say whether the DNA matches or not. Once we
finish the court, and because we are using it for identification, it is
destroyed. It does not go into the data bank. The only time it does is if the
judge says, "This person is now convicted. I want it in the data bank."
Also, for the secondary offences, the prosecution may ask the judge to make
such a ruling.
The one we use as an investigative tool is completely separate from the other
one. They cannot be mixed.
Senator Moore: What can you tell us about the provision for security of the
storage of this information and samples?
BGen. Samson: This information is stored like any other evidence. It is
protected. There are rules and regulations with regard to evidence. If there is
any abuse, there is a section in the Criminal Code that deals with it. It is
clear that, if the sample is abused or misused, the police officer or the
military police person can be charged with an indictable offence. In this case,
they can be sent to jail for two years less a day, be subject to a $2,000 fine
under summary conviction, or be given a sentence of six months. No police
officer likes to go to jail. For some reason, it is not very comfortable for
Senator Moore: Do these standards of procedure apply in Canada as well as with
regard to legal action taken in Bosnia, for example, or any other theatre of
activity of our forces in the world?
BGen. Samson: That is right.
Senator Moore: Are you satisfied that the same degree of security and so on with
regard to the storage of information can be achieved outside as well as inside?
BGen. Samson: Yes. I had no problems with that the year I was in Bosnia. It is
one of the first things we look at when we do an audit. It is one of the things
we are very, very hard on our military police about. If there is an issue
concerning the securing of evidence or with the continuity of evidence, we
might as well stop investigating.
Senator Beaudoin: If the accused is declared not guilty, do you destroy the
BGen. Samson: The investigative sample is destroyed once the court is finished,
unless, of course, the judge tells us not to do it for some reason. That is
within his purview. I would not know why he would do that.
Senator Beaudoin: I suppose the judge has a certain discretion.
BGen. Samson: He does. There is an exception where he might say that, for
whatever reason, it should not be destroyed. That is provision 196.23(2), which
provides that the judge may make that determination if he is satisfied that it
might reasonably be required in an investigation or prosecution of the person
for another designated offence. If he does not think that, it is gone. It is an
investigative tool. Once the investigation is over and the judge is happy with
the case, it is gone.
Senator Beaudoin: Is there a possibility in some cases of there being an
exchange of DNA data between National Defence and the RCMP? Or is it top
BGen. Samson: No. We do joint investigations with many police forces across
Canada. Whoever has the lead will probably get the DNA. If we are investigating
a similar case, say, such as a serial rapist or arsonist, we will get together
with them and say, "This is what we found. What have you found?" The
elimination of suspects is an investigative tool.
Senator Beaudoin: That is only natural.
BGen. Samson: If we are to increase our credibility, then we must work with
other police forces. We must exchange information. We must grow. That is what
we are trying to do.
Senator Beaudoin: I would go one step further. What would be the case if it were
to involve a foreign country with whom we have an extradition treaty or some
BGen. Samson: I usually leave those things to the RCMP. We deal only with
Senator Beaudoin: What about the RCMP?
BGen. Samson: They deal with the other civilian police forces at those levels.
If we came to a situation like that, we would be running very quickly to our
lawyers to get legal advice to ensure that we are not breaking any law. We are
very careful in those areas.
The Chairman: Since this is also very new to the military and to the military
police, what sort of training are you having your people take in the taking of
DNA samples, to ensure it is properly done?
BGen. Samson: That is a very good question, senator. We have six people who, at
the moment, are trained to do it. They received their training from the
Canadian Police College. It is the same training that other police officers in
The working group intends to have a training package ready for March 1, 2000.
All police officers and peace officers in Canada will follow this training, as
will the military police. We will not do anything differently. We will not
reinvent something that works. Why would we?
The Chairman: Thank you very much. Your evidence was very clear to all of us, as