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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 3 - Evidence for March 12, 2009


OTTAWA, Thursday, March 12, 2009

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:45 a.m. to study on the provisions and operation of An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another act (S.C. 2008, c. 29).

Senator Joan Fraser (Chair) in the chair.

[English]

The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study on the provisions and operation of An Act to amend the National Defence Act (court martial) that was passed last June. Because it was passed very expeditiously, we undertook then to study it in more detail, with not only the agreement but the encouragement of the Minister of National Defence, to whom we shall make any recommendations that we believe need to be made when our study has been completed.

[Translation]

It is pleasure to welcome as witnesses Lieutenant-Colonel Jean-Marie Dugas, Director, Directorate of Defence Counsel Services, Department of National Defence; Corvette Captain Pascal Lévesque, Defence Counsel, Directorate of Defence Counsel Services; and Navy Captain Holly MacDougall, Director, Military Prosecutions.

Welcome, everyone, I believe you know the drill. We ask you to make a statement, and then we ask you questions, all within one hour. Everyone will be very disciplined, will they not?

[English]

We will be good about observing our time constraints this morning. Lieutenant-Colonel Dugas, will you be the lead speaker?

[Translation]

Lieutenant-Colonel Jean-Marie Dugas, Director, Directorate of Defence Counsel Services, National Defence: Madam Chair, I am Lieutenant-Colonel Jean-Marie Dugas, the Director of Defence Counsel Services, Department of National Defence. I am joined today by Lieutenant-Commander Pascal Lévesque, one of the four Regular Force Defence Counsel members. I thought he would be of great assistance as he has just submitted his post degree thesis on military justice, which includes some aspects of both Bill C-60 and some of the Court Martial Appeal Court of Canada's decisions.

[English]

Thank you for extending the invitation and giving us the opportunity to appear before this committee today. You are making history just by doing so. Obviously we have been very involved in the constitutional challenges leading to the Court Martial Appeal Court of Canada's decisions that are, in part, incorporated in Bill C-60. We will be happy to attempt to assist you in any way you wish during this review.

[Translation]

While participating at this committee review the Director of Military Prosecution and I are sitting at the same table. In real professional day-to-day life, we sit at different tables in court. Without judging the value of our respective positions, I can say that our views on issues are, at times, quite different. My colleague represents the Crown, while we represent the members that are going through some very difficult moments in their career and often of their personal and family life.

[English]

Finally, if our mandate in court is quite clear, may I ask your indulgence here today, as this one is unprecedented and will be a real challenge for both Lieutenant-Commander Lévesque and myself. Our differences with our colleagues should never be construed as criticism of their work and labour. By definition, we come with different perspectives and experiences, and the military justice system makes us aware of our different realities. Furthermore, as I have had the privilege to discuss some of the issues with late former Chief Justice Lamer while he was reviewing the National Defence Act, this may give me a somewhat different, idealistic vision of the military justice system.

[Translation]

We must keep in mind that the opinions that we will articulate here are our professional views as defence counsel representatives, not always perfect, they are not those of the government.

Again, we sincerely thank you for your confidence and the honour you have in both my team and myself by having us here today.

[English]

As one of you said, we all want the same thing here: the best system.

Captain (N) Holly MacDougall, Director, Military Prosecutions, National Defence: Good morning, honourable senators. I too want to thank the committee for the opportunity to appear before you today.

[Translation]

I was appointed as the Director of Military Prosecutions by the Minister of National Defence on January 16, 2005 and reappointed to the same position on January 16, 2009 for an additional term of four years. As the Director of Military Prosecutions I act under the general supervision of the Judge Advocate General, but exercise my duties and functions independently.

As the Director of Military Prosecutions, I am statutorily responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at court martial. The Director of Military Prosecutions has been authorized by the Minister of National Defence to exercise the right to appeal from courts martial to the Court Martial Appeal Court and to act as counsel for the purposes of any appeal, including appeals to the Supreme Court of Canada.

[English]

In the execution of my duties, I reply upon a team of regular and reserve force military prosecutors, along with civilian paralegals and support staff. The team, collectively known as the Canadian Military Prosecution Service, is organized regionally and consists of a headquarters here in Ottawa, staffed by myself, two deputy directors, appellant counsel and one staff prosecutor. Regional military prosecutor offices, each established for two regular force prosecutors, are located in Halifax, Nova Scotia; Valcartier, Quebec; Ottawa; and Edmonton, Alberta. We also have nine reserve force prosecutor positions located across Canada, and these are generally senior Crown in the civilian service who assist us in performing our duties.

I too hope, like Lieutenant-Colonel Dugas, that the impact of the Trépanier decision on the court martial system and in particular on the Canadian Military Prosecution Service and the subsequent mitigation of this impact by the enactment of Bill C-60 will be of some assistance to you. After the Trépanier decision was released on April 24, 2008, the whole process for preferring charges to court martial was uncertain. The ruling effectively removed the only express authority related to the convening of courts martial. This uncertainty was further magnified with decisions in three different courts martial that had already been convened prior to April 24, taking three different approaches regarding the issue of the choice of type of court martial. No courts were convened between April 24, 2008, and July 18, 2008, when Bill C-60 came into effect.

Since that time, 41 courts martial have been convened, and the process for preferral of charges to courts martial is again clear and unambiguous. I am unaware of any negative impact that the provisions of Bill C-60 have had on the prosecution stream of the military justice system, and in particular as it relates to delay. I will leave it to my colleague, Lieutenant-Colonel Dugas, to comment on the impact if any on the defence side.

Since July 2008, 41 courts martial have been convened. Seven of these will likely be general courts martial. I say likely because at this time they are scheduled to be general courts martial, but of course the accused always has the option during certain time periods to re-elect a standing court martial. This represents approximately 17 per cent of all courts martial. If this general trend remains, and it is granted a short period of time to draw any absolute conclusions, I do not foresee that the provisions of Bill C-60, which afforded the accused latitude to elect the more complex and time-consuming general court martial, will have a significant impact on delay in the court martial system. Certainly we have not seen an increase in section 11(b) Charter delay motions as a result of Bill C-60 to date.

With respect to the Grant amendments, if I might use that term, in Bill C-60 — and what I am talking about when I say the Grant amendments is the clarification that the one-year limitation period on holding a summary trial may not be waived, that the Court Martial Appeal Court may order a new trial by court martial only and that the duty to act expeditiously under the Code of Service Discipline arises only upon the laying of the charge — I am unaware of any cases where these amendments have been challenged. So the jury is still out on the impact, if any, of the Grant amendments.

[Translation]

Thank you again for the opportunity to address the committee. I would be pleased to respond to any questions you may have.

The Chair: Thanks to all of you.

[English]

Senators, for reasons beyond the control of anyone in this room, our time is rigorously limited today. I will ask that all senators keep their questions tight and concise. We can only keep these witnesses for another 50 minutes. This is frustrating for all of us, but it is the way things are. I apologize for that.

[Translation]

Senator Nolin: We have already heard some witnesses. We read Justice Lamer's report with a great deal of interest, and you said you took part in it.

Justice Lamer was thoroughly knowledgeable and understanding of the military structure and of the martial structure of military justice. When you read all this and see all the accumulated delays, it is quite surprising that defence counsel have not raised these arguments earlier.

Has this assisted in developing your defence strategies or has it changed nothing?

Lt.-Col. Dugas: I cannot talk about my predecessors in defence. I said I worked with Justice Lamer for two and a half days and on a few other occasions when they contacted me for further details. I have been in the Defence Counsel Service since 2003. Justice Lamer's proposal were extremely progressive in terms of improving the National Defence Act, and everyone was under the yoke knowing that would probably be done from one month to another or, even on occasion, from one week to the next.

However, none of these provisions was adopted, except in the regulatory area, and a few in certain bills. As a result of the Lamer report, we can now see the files. Counsel are not the only ones to decide whether we can produce the files in court, whether it be under the Charter or provisions that might have been improved. We have found ourselves with cases in which, on occasion, the accused was not interested; he wanted to settle his case, or other cases that did not lend themselves to that because the provisions were not favourable to an application before the courts.

Senator Nolin: This is nevertheless a major amendment from a legal standpoint; it is great that the Military Court of Appeal has made this decision. Does this help you in your defence strategy or it does not change your life?

Lt.-Col. Dugas: I cannot talk about the defence strategy. Does it help us? You will see that there are a number of cases. Some of you read the decisions of the courts martial or appeal courts. Some applications are still there in the committee's selection because we have a lot of committees at the National Defence. So for us, it is pretty much the same?

Is the disappearance of the Disciplinary Court Martial a good thing for members? We are far from sure about that. That is probably not the solution we would have put forward. We know that the Charter states, "except in the case of military trials". However, I was a student when the Charter was drafted. I assume all types of courts martial were considered. Is there anything coming down the pipe?

I do not dare go too far because we still have a lot of cases before the Court Martial Appeal Court today. So the applications that you see in our court martial cases are still active, but in another area.

The Chair: A clarification. Do the cases currently before the Court Martial Appeal Court concern matters involved in this act?

Lt.-Col. Dugas: Depending on the case, perhaps one or two have consequences because they are cases that proceeded when the Trépanier decision was rendered. And for some, the decision was rendered after the bill was amended. So there is indeed an interaction with the Trépanier decision — because there were two decisions involved in the Trépanier decision — and the amendments to the bill.

Senator Joyal: I have two questions, one for Mr. Lévesque and another for Mr. Dugas and Ms. MacDougall, together.

Mr. Lévesque, you are preparing a thesis on the swiftness of military justice, according to the biographical note you have submitted to us. Have you had to alter the content of your thesis since Bill C-60 was adopted?

Lieutenant-Commander Pascal Lévesque, Defence Counsel, Directorate of Defence Counsel Services: In fact, I was particularly lucky academically because I was just finishing writing the thesis when that happened. I had to include it in the thesis. I obviously wrote the thesis in a personal capacity, but it was as part of a program subsidized by the forces. It was at the time of the Grant decision. Part of my thesis concerns the Grant decision, and I found that the practical effect of adding the word "laid", when a duty is performed, that is to say the duty to act expeditiously once the charge is laid, somewhat limits the scope of the Grant decision, which had been extended by Justice Létourneau, writing on behalf of the court. That limited the duty to act expeditiously. He had extended it in the pre-charge period. I understood the legitimate interest of having added the word "laid" because, with respect to the outcome of Grant, the aim was to limit the judge's authority to order a summary trial. From their point of view, that was perhaps a power that the judge gave the authorities that the act did not appear to grant them. That is why the word "laid" was specifically used.

However, the untoward effect was to somewhat diminish the pre-charge scope of the duty to act expeditiously. Knowing that, I conducted some legislative historical research to determine Parliament's intent in 1950. I saw that the English word "charge" or "accusation", had the same meaning at the time as the word "dénonciation" in the Criminal Code, sections 504 and 505. Thus, in 1950, the complaint, it was the word "charge" and the commandant thus had to investigate expeditiously. It was in that context.

Now we have evolved toward a system in which the charge follows the police investigation or unit investigation. The same word is retained, but the obligation of swiftness has shifted with time.

[English]

Senator Joyal: It is an important element in our appreciation of the content of Bill C-60 in relation to the Grant decision. Thank you for your answer.

[Translation]

Lieutenant-Colonel Dugas, you are familiar with the court martial system and the Charter since you just said you were trained at the time of the Charter.

Lt.-Col. Dugas: Yes, senator, with Mr. Beaudoin.

Senator Joyal: I am smiling as I look at you. To your knowledge, are any charges subject to alleged Charter violations in cases currently in court martial?

Lt.-Col. Dugas: You mean whether we currently have any cases before the court in which it is alleged. . .

Senator Joyal: ...Charter provisions which, in your view, have not been complied with?

Lt.-Col. Dugas: Indeed. First, earlier we talked about the Middlemiss case, in which the defence felt that not selecting a jury or a committee that more faithfully reflects the spirit of the Criminal; that is a major problem for us. I know and accept the fact that my colleagues have a different view on that. We believe that, if a soldier is big enough to enlist in the armed forces, is big enough to vote and to go to war, his duty being to defend himself and to fire as necessary, and if he would be entitled to sit on a civilian jury, we have some difficulty with the fact that that individual cannot be a member of the committee. The discrepancy between the officer ranks has changed a little, but is nevertheless still there.

If I went to the other absurdity of the regulations, that would mean that it would ultimately be only the best officers, if I wanted the best panel, and that is the experience of these people, I would have to require that all the colonels and generals be on the panels to defend people. We have more of a civilian approach, and that increases the pool of individuals available for a court martial.

Senator Joyal: In his report, did Justice Lamer, since you met him, comment on this matter, or did you raise it with him at the time?

Lt.-Col. Dugas: He commented on it, but unfortunately, even though I recently re-read the document, my reading is not as good as it was four or five years ago when the report came out. He mentioned that, if there was no ground or particular reason to do things differently from the Criminal Code, we should be something of a mirror or reflection of the Criminal Code.

In the provision before the committee, he did not accept the fact that there was such a discrepancy among the ranks or the representation of one rank rather than another on the panel.

Senator Joyal: So you based your analysis of the make-up of the panels on the Charter provisions, as the regulations provide.

[English]

We had asked for a copy of those regulations. You will recall that our first witnesses were supposed to give us a copy of the regulations.

The Chair: We apparently sent them out yesterday.

[Translation]

Senator Joyal: Are there any other aspects of the Charter that are subject to allegations? Other prosecutions, in your opinion?

Lt.-Col. Dugas: The most important other aspect currently raised is obviously section 139 of the National Defence Act, which is that, once again, for our members who are fighting for the defence of rights, they should normally, possibly at least, have the same rights as Canadian citizens when they appear before the court, if they are found guilty and receive a sentence. You referred to the Middlemiss case, for example. Under the new provisions of the act, having regard to the way it is conducted, that individual does not have a right to a conditional discharge. That is an important aspect.

There are also other provisions in the act that are somewhat archaic. We could come back to that later. We thought that, from one time to the next, that would change and the act would be passed.

You know, $200 means nothing today. It is hard for a court simply to impose a fine of $200 or less. Our members are suffering a little. We raise virtually all these points at sentencing.

The Chair: May I put you down for a second round, Senator Joyal?

Senator Joyal: Yes.

The Chair: I know, that is fascinating.

[English]

Senator Baker: I want to welcome the witnesses. Lieutenant-Colonel Dugas is well-known in case law stretching back many years, replaced by Lieutenant-Commander Lévesque in recent years. Since the passage of this legislation, Lieutenant-Commander Lévesque is on the record as putting forward constitutional challenges on three or four cases before the courts.

Surely the essence of the Grant decision is that, if justice were to be done as the trial judge determined, then the accused would not have been sent to trial as he was under a court martial at all, but that he would have been tried by summary trial. However, because the time limit had run out, the prosecution had no choice — well, they could have chosen not to lay a charge — but they decided to go indictably, as we say in civilian law, because they could not go summarily. The Crown even admitted this was the case, and that is why the judge ordered as he did — so that justice would be done.

Let me ask you this in relation to the bill we are talking about. There is a provision in the bill that says the accused can elect to go general court martial or standing court martial. What is wrong with adding summary trial? In other words, I know it is extraordinary, but I cannot see any other way of bringing justice to our soldiers who are charged in a more serious atmosphere of trial. It is seems strange that the choice was made simply because a time limit had run out.

The Chair: Who wants to tackle it?

Lt.-Cmdr. Lévesque: I would suggest simply removing the time limit for summary trial.

Senator Baker: There are two options, and I have two questions. First, why the year? Why not make it six months, since, correct me if I am wrong, the inherent time as judged by the court of appeal is four months to bring something to trial—four months. Therefore, what are we doing here legislating one year, when four months is the inherent time? That is one question I want to put forward.

Second, why not give the accused the option of electing down, just as we do in civilian court? You have an election to make. You elect to Supreme Court or down to provincial if you are accused under a federal act like the Controlled Drugs and Substances Act. Why should that not be put into the legislation to correct the bill?

Lt.-Col. Dugas: Obviously, that is one of the things that we discussed. As you know—and I will be happy to be corrected if I am wrong — there is no longer a prescription under the National Defence Act that forces my colleagues, when it comes to them, to use criminal convictions instead of summary convictions. Before this, there were some statutes of limitation under the National Defence Act. We did away with it. Maybe there will be a time that it comes back. If it were to be taken care of and prosecuted, if that is the sense of the act, as quickly as possible, then shorter statutes of limitations should apply.

There was sympathy in the Grant case. Basically, the whole chain of command wanted to proceed with summary trial, as did the accused. The year went by. Changes were introduced, which meant that whatever came before she was charged would not count anymore, even if it took two years to go to trial. That person would be waiting for a long time.

The idea of the Criminal Code prescriptions or statutes of limitations would please the defence.

Senator Baker: The six months.

The Chair: Captain MacDougall, would you like to comment?

Capt. MacDougall: I will limit my remarks to stay away from policy because, as prosecution, that is not part of my responsibility. My responsibility is to enforce the law. I want to highlight that I can see some practical problems with carte blanche permitting the accused to re-elect. I will give you a couple of examples that will highlight at least some times where it would not be appropriate.

For example, all cases where it has been more than a year have to go to court martial, so they are automatically sent to court martial. They are automatically sent to my office for a determination of whether there is a preferral court martial. I can foresee that in at least some of those cases, the commanding officer may well have sent that case directly to court martial in any event because of the seriousness of the offence.

I caution honourable senators that there will be some circumstances where permitting the accused to re-elect without looking at those circumstances where the accused would never have had a choice of appearing at summary trial in any way could create major difficulties and could permit the accused, again, to self-limit his punishment.

Senator Baker: I will be very brief. I am not suggesting that. I am suggesting that a section in this bill we are dealing with now says, "Here are the conditions for standing court martial," and it applies, it says there, to the lesser charges under the list of offences. It says "lower on the scale of offences," right? Relatively minor charges are identified.

Surely there must be a way to work into the system a situation whereby those particular charges that would have gone to summary trial but are, because of a time limitation, sent to a court martial. The accused would have the option of electing down. That is only my suggestion. I am not suggesting that, in the case of murder or another similar charge, you be allowed to go back to summary trial.

The Chair: Your suggestion is clear, Senator Baker.

Senator Baker: We need you back here.

The Chair: Captain MacDougall, did you want to make further points on that?

Capt. MacDougall: No.

The Chair: Do either defence counsel?

Lt.-Col. Dugas: While it did happen and it went to the court of appeal, we are not talking about many instances where it did happen.

The Chair: Senator Baker, I am sorry. I will go to other senators.

Senator Milne: I will ask my questions all at once and you can reply as you wish. First, has the passage of the bill put your clients at any disadvantage? I am speaking of the cases that have been tried since then.

Since the committee is going through this exercise in order to advise the minister at his request, what would you like to advise the minister? What would you like to see changed in this whole system? This might apply to Captain MacDougall, as well.

My only concerns are specifically with civilians who are caught up in the military justice system. In the civilian courts, a much wider range of punishments can be administered. Under the military system, either the charges are dropped or it is a fine or jail. In the civilian system, in the civil courts, you can also have a sentence of probation. When they come out of the military system, they may quite often end up with a criminal record, where they would not have in the civilian system. Could you comment on that briefly?

Lt.-Col. Dugas: I will try to be careful. We do have a court of appeal coming up to hear some of the arguments that will be made there. I can tell you a disadvantage is that someone who would have been in front of the disciplinary court martial before and ends up in front of a general court martial is, instead of facing a maximum of two years less one day, now facing life. The spectrum is larger, and I am talking about sexual assault, for example. That would be one of the consequences that actually we are going through.

As for suggestions, again, you have mentioned the question of either going to jail or having a fine. That would only be for the civilian, and I say "only" in the sense that for the military members, section 139 still applies with a long list of possibilities. What is not in there is exactly what you mentioned, the probation capabilities and, as was mentioned, conditional and non-conditional discharge. With Bill C-45, we are looking at introducing some of those dispositions, but not them all of them; and our question, without doing policies, is why not all of them.

I may have missed the latter part of your question.

Senator Milne: It was how civilians may be disadvantaged in military courts, particularly when they come out facing a criminal record.

Lt.-Col. Dugas: Exactly. "Civilians" probably would include you if you have to go to trial, if you have to travel and accompany the Canadian Forces.

Senator Milne: If I went to Afghanistan as a guest of the Canadian Forces and refused to obey an order.

Lt.-Col. Dugas: Bill C-45 brings a lot into it.

The Chair: Do you think Bill C-45 does enough, or would have done enough as it was written?

Senator Milne: Or will when it is rewritten?

The Chair: We do not know how it will be rewritten.

Lt.-Col. Dugas: I will discuss that with the people who work on the legislation.

Senator Bryden: The goal that Antonio Lamer set out, which to me is really the thrust of what he did and what he was trying to attempt, was to develop a two-tier system whereby the general court martial would try the serious offences and the standing court martial would try the minor offences. That is a pretty clear understanding. However, it goes on to say "with no distinction made on the basis of rank."

Captain MacDougall, is it the case now that there is absolutely no distinction in your job on the basis of rank?

Capt. MacDougall: I think, unequivocally, that there is no distinction on the basis of rank in respect of the trial, whether it is a standing court or a general court martial.

There are provisions in the act that say, for example, if it is a non-commissioned member, that there is a possibility for warrant officers or non-commissioned members to sit as members of the panel on the general court martial. I do not want to mislead you to say that it will be the same rank that will sit as members of the panel for everyone because there are provisions to do that, but as far as the determination of whether, based on the charge, it is a general court martial or a standing court martial, and whether the accused gets the right to elect, there is no distinction on the basis of rank at all.

Senator Bryden: It is the other part that concerns me. If a ranking officer commits an offence and a sergeant commits a comparable offence, the panel that gets established for either one of them would be absolutely free from any concern that the accused is a ranking officer, a general or whatever, in one case and is a sergeant or a corporal in the other case.

Capt. MacDougall: I am sorry. Maybe I did not quite gather the question.

Senator Bryden: Let me try to be clear. I thought you indicated that there are situations where an officer would be added to a panel.

Capt. MacDougall: There are situations where I said a warrant officer would be, if it was a non-commissioned member like a sergeant who was tried, so that there will be representation on the panel other than the officer ranks. There are situations where a warrant officer or master warrant officer or chief warrant officer can sit on that panel. It is not exactly like a peer. I will have to confirm whether it is one out of five, to be honest. I can check that in the regulations and let you know.

Senator Bryden: Who makes that decision?

Capt. MacDougall: It is the court martial administrator. Parameters are set out in the regulations as to what the composition of the panel is, but in terms of who the individuals will be, it is the court martial administrator. I just had a response that two of five of the members of the panel can be warrant officer, master warrant officer or chief warrant officer. Just to clarify, you would not have a warrant officer, master warrant officer or chief warrant officer sitting on a panel that was judging an officer.

Senator Bryden: Who would you have on the panel judging the officer?

Capt. MacDougall: It would be officers.

Senator Bryden: Only officers?

Capt. MacDougall: Only officers.

Senator Bryden: Why?

Capt. MacDougall: I cannot answer the why. I can give you what traditionally the thought is. It is a hierarchical structure, and our courts exist on the basis of instilling discipline, and you do not have warrant officers disciplining officers in the traditional military structure. I suspect that is the rationale behind it, but I am really not an expert. I could not give you the historical context.

The Chair: I thought I had gathered from some witness, and I am not sure which one, that there was also some sense that a person of lower rank might feel inhibited about judging a person of higher rank. I may have misinterpreted something, but it sticks in my mind. I could sort of understand that, actually, as I was listening.

Senator Bryden: One of our witnesses today said that we have to assume that if people are competent enough to be put into the Canadian Forces and prepared to go to Afghanistan and be blown up by a bomb, then they should be taken as competent enough to sit on a blinking panel.

What I am getting at is the old thing that came out of the military, I believe, that rank has its privileges, and I wonder to what extent. I will now ask the defence counsel if, in your practices, rank still has privileges that gives them some sort of position of preference in relation to the rank and file guy who actually does the fighting.

Lt.-Col. Dugas: If I may, senator, I will answer you the other way around. I do not find any reason. That does not mean that for many purposes rank should not have its privileges, because you do need a chain of command and you do need to ensure that everyone goes the same way when we do battle.

Again, what I said here today is related to what we are doing in court. We may be wrong; we have been proven wrong before by the court. However, at the end of the day, we have not found anything and we were not invited to believe anything else in regard to the court martial panel.

Senator Baker: You tried a case.

Lt.-Cmdr. Lévesque: In my practice, generally speaking, the feedback that I heard is that every single panel member will take his duties very seriously regardless of rank. They know they have taken an oath and they will do it very carefully. That is my sense of it.

In my daily practice, I have not seen someone using his rank in order to influence the course of justice as we have seen instances from the United States regarding command influence. I have not perceived that here.

Senator Bryden: In the system of justice we have developed over the years, it is known that a person has the right to be judged by a jury of his or her peers. I assume that applies to panels as well if we are trying to do the best we can to give the Armed Forces the same rights, benefits and privileges that civilians have.

How does a jury of your peers happen when you have selections being made that include two officers, two privates and one corporal? In your world, is that a trial by one's peers?

Lt.-Cmdr. Lévesque: As a lawyer, I am a stuck with section 11(f) of the Charter that says everyone has a right to a trial by jury except those prosecuted under military law. We have referred to military law as it was in 1982 when the Charter was enacted to determine the intent of the legislators at that time. As a lawyer, I am still stuck with that.

From a defence point of view, I have to push military law as close to a jury by peers as is possible. Anyone could, no matter the rank, use his own intellect to determine the findings and that would be it.

Lt.-Col. Dugas: If I may, I will give you an example. Before 1999, when we made the changes under the National Defence Act, sexual assault was prosecuted under the Criminal Code in Canada. Outside Canada, it was another issue. However, in Canada, members were entitled to 12 jurors including members who are privates, master corporals, and so on. Since the change in 1999, we have had jurisdiction under the National Defence Act and we do prosecute under the act. It went from a jury of 12 peers to a panel of five members. Therefore, I previously had more rights as a member of the Canadian Forces and now I have fewer rights.

That is why we are challenging some of these issues. Even if it makes sense, there may be offences where we would have to look at that and say we need really better people. I do not know.

Senator Bryden: You cannot change the Charter without many problems, but you can change military law by going through these two houses of Parliament. This includes whatever is in the military law that inhibits having the same level of protection as exists for civilians. The reason for the difference is not simply because of the Charter, it is because military law says, "We do this."

Capt. MacDougall: My only comment with respect to that, senator, would be that the exemption in the Charter was probably there for a very good reason. There was a requirement that military law be different and that military members would not be judged by their peers. We come to it from both ways. We can go broader than what is in the Charter; that is correct. However, we cannot ignore the fact that there was probably a good reason for an exemption in the Charter for the military with respect to panels.

The Chair: We have at least one person around this table who actually worked on the Charter.

Senator Milne: In a civilian trial, the jury is chosen from names at random on the voters list or people corralled off the street in some cases. In a military trial, is the panel chosen from a general pool of officers and warrant officers or are they specifically chosen for certain trials?

Capt. MacDougall: The court martial administrator has a process, and I believe we can probably provide the committee with the process. I am not the expert on this, but my understanding is that there is a very broad pool across the Canadian Forces that is selected at random.

The Chair: If you could send us a copy of the procedure, that would be very helpful. Thank you.

Capt. MacDougall: I would be happy to do that.

Senator Angus: Lieutenant-Colonel Dugas and Lieutenant-Commander Lévesque, did either of you work on the Trépanier case representing the defendant?

Lt.-Cmdr. Lévesque: I was involved in the very early stages. I talked to the client when he was arrested by the police, and then I provided some arguments to my colleague who represented Mr. Trépanier at the trial level. Then I was also involved when the prosecution asked the Supreme Court of Canada to grant leave for appeal.

Lt.-Col. Dugas: I was involved in my capacity as Director of Defence Counsel Services. Because of our workload at the time, I retained a reservist to handle the case at the appeal level at the Court Martial Appeal Court of Canada. I took care of the first portion on the delay issue with Lieutenant-Commander Lévesque and I took care of the factum to submit against the leave for appeal.

Senator Angus: Both of you then, in some way or other, would have had something to do with the defence strategy in getting to the court decision, which held that it was ultra vires.

Lt.-Col. Dugas: Yes. At the same time, the court issued the Beek decision, which was another thing. However, the motions were the same. When the client agrees and the case warrants the raising of those issues, it is not done by one lawyer by himself.

Senator Angus: Right, it is teamwork, as it is in the private sector. Both of you have been in the Barreau du Québec. I think you are both aware that we had a witness here yesterday who talked to us about her experiences working with former Chief Justice Lamer on his report. I thought I heard you say, Colonel, that you knew Justice Lamer and actually had some conversations with him. Is that true?

Lt.-Col. Dugas: Yes, and I had conversations with the two ladies that worked with him. They really dug in deep. I was the Assistant Judge Advocate General in Montreal, supervising the Quebec area at the time. He came there for two or three days and we travelled to Valcartier. They asked questions from everyone around the table, from the privates to the generals, and it was very deep.

Senator Angus: This is helpful. All of us on this committee were yesterday feeling a little uneasy asking a witness what she thought was in the mind of Chief Justice Lamer. Who knows what is in someone else's mind? However, best evidence came out that they had a view.

Was it the strategy that was ultimately deployed in the defence of Trépanier, based on what you understood from your discussions with Chief Justice Lamer as to the constitutionality of the process?

Lt.-Col. Dugas: It goes back to the time of the Charter, when I was raised as a student. Mr. Justice Lamer was very important at the time. When he visited, his views were around whether there was a need to have big differences or any differences. He wanted to be told. In his report, he does show those differences. The Department of National Defence, also, came out with very welcome dispositions in the Lamer report. There are others that are included in Bill C-45, for example.

Therefore, lots of work has been done since, but, because it has been busy, by the time it comes to all committees and it becomes the law, sometimes it is a bit longer. Lots of things have been included in what I see. That does not mean we have to stop there, either.

His mindset was to get the best system, as has been mentioned, and a humane one. Overall, that is what it is.

Senator Angus: I think it is clear what I am getting at, Madam Chair.

The Chair: Thank you. Honourable senators, we do not have time for a proper second round so here is what I will do. I know that many senators are frustrated that we could have profitably kept you here for probably four or five hours with questions. However, we are very grateful for the fact that you are here at all.

I will ask senators who have further questions that they really want to have an answer to from these witnesses if they could convey those questions in writing to the clerk this afternoon. We will then forward those questions to you and, if you are agreeable, we would ask that you could write back with your answers to those questions. That is the only way we can fairly handle them, because so many very interesting and important issues have been raised.

Do honourable senators agree?

Senator Angus: Is there another alternative?

The Chair: Not right now.

Senator Angus: Can we have them back after the break? Viva voce is more responsive. These questions may deter the senators.

The Chair: You are familiar with the timetable around this place, Senator Angus, and you know how the days go by. The fascinating work assigned to this committee piles up. It is fascinating work.

Senator Baker: When we get the next bill involving the subject matter here, could we then call back the same witnesses?

The Chair: That would be an excellent idea.

Senator Baker: Let us ensure that we do.

The Chair: We will be seeing you again. In the meantime, thank you all very much. It has been most helpful to us and, as I say, if senators have further written questions for this portion of our work, we will give them to you.

Honourable senators, we will go into a brief session in camera.

(The committee continued in camera.)