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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 37 - Evidence for May 23, 2013


OTTAWA, Thursday, May 23, 2013

The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other acts; and Bill C-299, An Act to amend the Criminal code (kidnapping of young person), met this day, at 10:32 a.m., to give consideration to the bills.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning and welcome, colleagues, invited guests, and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today, we begin our consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. This is our first meeting on Bill C-15.

Later today, we will complete our consideration of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), by proceeding to clause-by-clause consideration.

To introduce Bill C-15 to the committee today, I am pleased to welcome the Honourable Peter MacKay, P.C., M.P., Minister of National Defence. He is accompanied by Vice-Admiral Bruce Donaldson, Vice Chief of the Defence Staff; Major-General Blaise Cathcart, Judge Advocate General of the Canadian Forces; and Colonel Tim Grubb, CD1, Canadian Forces Provost Marshal.

Honourable senators, I would ask you to take note that our witnesses from the Canadian Forces will remain for questions for the second hour today. With that, we will begin with the minister. Please proceed.

Hon. Peter MacKay, P.C., M.P., Minister of National Defence: Thank you, Mr. Chair. Honourable senators, it is always a pleasure to be with you. As was pointed out by the chair, I am joined by a very able team from the Canadian Armed Forces. I also note the presence in the room of Colonel Michael Gibson, who has had carriage of this bill and is an expert on its content.

It is a pleasure for me to appear before this committee in support of Bill C-15, the proposed "Strengthening Military Justice in the Defence of Canada Act," a bill which I fairly say has a long history and, I would go so far as to say, is long overdue.

The bill before you today aims to implement a number of important amendments to enhance our military justice system, clarify the roles and responsibilities of the Canadian Forces Provost Marshal, and improve the military police complaints process and military grievance system.

As some of you will be well aware, certain sections of the National Defence Act dealing with the military justice and grievance system have not received a fulsome update since 1998. The provisions contained in this bill will allow the government to make a number of important and long-awaited changes to the act and to ensure that the provisions of the National Defence Act remain robust and relevant to today's operational requirements.

[Translation]

Ladies and gentlemen, the military justice system is designed to promote the operational effectiveness of the Canadian Armed Forces by maintaining the discipline, efficiency and morale of our military personnel. The need for such a system — separate from its civilian counterpart — has long been endorsed by Parliament and the Supreme Court of Canada.

That need has also been recognized by the Charter of Rights and Freedoms. Moreover, the strength of Canada's military justice framework has been validated in two independent reviews. The first was completed by Chief Justice Lamer, in 2003, and the second by Chief Justice LeSage, in 2012.

[English]

These reviews found that Canada's military justice system was sound and constitutionally compliant but recognized there were opportunities for improvement, which I believe this bill presents.

Since the publication of the Lamer report, the government has been diligently working to put Mr. Justice Lamer's recommendations into practice. Indeed, some of these recommendations have been implemented through changes to regulations and internal policies. Bill C-15 is critical to advance the government's efforts to implement the majority of the recommendations that are still outstanding from the Lamer report. With its passage, we will see, in essence, 83 of 88 recommendations move forward.

Honourable senators, the bill before you today is the culmination of the government's previous legislative efforts to address the recommendations made in the Lamer report, namely through Bill C-7, Bill C-45 and Bill C-41, and incorporates a number of the recommendations made by this committee in its 2009 report, which was worked on by many senators present, including Senator Fraser. This report pertains specifically to many of the provisions you see before you in the military justice system.

Bill C-15 will make several important changes to the National Defence Act to enhance the military justice system and its grievance framework, including outlining the purpose, objective and principles of sentencing in the military justice system; setting out a wider and more flexible range of sentencing options; enhancing the treatment of victims by introducing victim impact statements at courts martial; and clarifying the process and time lines for future independent reviews of the military justice system.

The government also recognizes that certain offences resulting in a conviction before a service tribunal are not sufficiently severe to justify a record for the disciplined military members within the meaning of the Criminal Records Act. I believe that this has been addressed substantially and will cover 95 per cent of offences that otherwise would not result in a criminal record. This proposed legislation will establish a list of 27 exempted offences that, depending on the severity of the punishment, will not result in a record for the disciplined member within the meaning of the bill.

Its implementation would also eliminate the need for the disciplined service member to apply for a record suspension — formerly known as a pardon — for the included offences. National Defence estimates that this provision will exempt approximately 95 per cent — the vast majority — of summary trial convictions from resulting in a record within the meaning of the bill.

Another provision that has attracted attention is the Vice Chief of the Defence Staff's authority to provide case-specific direction to the Canadian Forces Provost Marshal. Bill C-15 makes efforts to define the role of the CFPM and the relationship between this officer, the military police and the military chain of command and to clarify the scope of the Canadian Forces Provost Marshal's responsibilities to enhance accountability and transparency.

I will take a few moments, if I may, to speak to the particular relationship and aspects of it, namely the provision pertaining to the Vice Chief of the Defence Staff's ability to issue written instructions or guidelines to the Canadian Forces Provost Marshal with respect to a particular investigation. I understand there are some legitimate concerns that this provision would give the chain of command the ability to interfere with an investigation. I would just like to emphasize that this could not be further from the truth.

In fact, the provision will enhance accountability and transparency in military police investigations — and I will expand — in a manner that will address the unique mandate and the operational context of the military police in a transparent way. This is because it establishes a mechanism previously not available whereby the Vice Chief of the Defence Staff, under exceptional circumstances — in other words, rarely — when investigations are being carried out in an active area of operations could issue special instructions to the Canadian Forces Provost Marshal that consider the operational imperatives of the Canadian Armed Forces. We can speak about examples in a moment, if you like. This means that regardless of the circumstances there will always be a single point of contact and a single point of accountability. For instructions, there will always be an individual who carries that responsibility, mainly the Vice Chief of the Defence Staff.

Furthermore, the proposed amendment will establish a statutory requirement for such instructions to be issued in writing and to be made available to the public, unless the Provost Marshal considers that it would not be in the best interests of the administration of justice to do so.

While this may give rise to further debate, I respectfully submit that it is time to move forward on this legislation. Let us not let the perfect stand in the way of progress for the greater good of the Canadian Armed Forces.

[Translation]

Honourable senators, the men and women of the Canadian Armed Forces are second to none in the world. They are ever ready to deploy in the service of Canada — often placing themselves in harm's way. They need and deserve to know that they are governed and protected by a fair, transparent and effective military justice system that is equipped to meet the needs of today's operational environment and to effectively balance the need to maintain discipline with operational efficiency and morale. And that is exactly what the government is working to provide.

[English]

This is the third incarnation of this bill. Each advanced through the system to various stages and, to use the vernacular, died on the Order Paper. This legislation before you now has, I would suggest, been thoroughly debated. It has been studied in the other place, and it has in fact been the subject of two debates here in the Senate, which I followed closely.

It is time for this important bill to go forward so that the men and women who serve our country will be the beneficiaries of its ability to protect and serve this country. Canadian Forces members are our best citizens. They serve the best military justice framework, and they deserve the best system possible, which this bill attempts to achieve.

Thank you. I look forward to your questions.

The Chair: Thank you, minister. We will begin the questions with Senator Fraser, Deputy Chair of the Committee.

Senator Fraser: Welcome back to this committee, minister. You have been here for various iterations of this long process, and it is good to have you back.

There are many, many questions, but let me begin with the proposed section 18.5(3), which is the one that would give the Vice Chief of the Defence Staff the power to issue instructions or guidelines in writing with respect to a particular investigation.

I understand that there might well be very serious operational reasons, on occasion, for such instructions to be issued: "Stop your investigation because we are about to start dropping bombs in that neighbourhood," for example. However, nothing in this bill limits the power to issue or sets out guidelines for the circumstances in which such instructions could be issued, which, to a suspicious mind, would open the door to interference in investigations where it was not operationally necessary. Why would you not have set out some guidelines and some limitation on this power?

Mr. MacKay: I would respectfully suggest that the limitations are in the transparency and the accountability. That is to say, the behaviour of the Vice Chief of the Defence Staff in injecting himself into an investigation must be completely transparent. That puts a parameter around such circumstances that will provide the public with understanding and context for which circumstances might arise. Should questions appear after the fact, there was also, of course, the very real process of applying to the Military Police Complaints Commission where further investigation could occur into those circumstances.

If I might pick up on your point on the operational requirements for which such a circumstance might arise, it has everything to do with the very unique environment in which military police in a theatre of operation might find themselves. For example, there is a traffic accident, which do occur — I will use Afghanistan as a recent example — and, because of resources, the theatre commander places limitations on the ability of military police to properly investigate. Say that this happened outside the wire — a classic case of being at a forward operating base — and there might be Afghan civilians involved. The theatre commander says, "We cannot allow the proper investigation to occur. We cannot afford the resources. We cannot perhaps because of the circumstances involving IEDs in the particular area in which the investigation is to occur." The Provost Marshal feels it is imperative that the investigation does occur, and there is a natural chafing, a natural, if you will, clash of interests. There is no current process without the Vice Chief of the Defence Staff's ability to say, "We are going to have to now determine which interests are to prevail here." This can cause a real difficulty within a theatre of operation minus this system that we have placed before you.

I would suggest again, respectfully, that the operational circumstances are certainly unique and outside of our current justice system. They are unique to the military and yet in need of a resolution that involves the chain of command.

To come back to your point, all of this is subject to examination. All of this is to be in writing and all of this is to be publicly disclosed.

Senator Fraser: There is no time limit for making it public. There is no provision here that says that it must be made public within a given period of time. You could file a report every 10 years, if you wanted to, buried in the estimates somewhere so that nobody would find it.

Mr. MacKay: I would suggest, Madam Senator, that were there to be a failure to report it in a timely fashion, there would be the option of complaining to the Military Police Complaints Commission. It could become the subject of a further investigation if there were questions as to why this intervention occurred or why it did not occur.

Senator White: My question will focus around why there is a need for an internal justice system when we already have an external justice system. I have worked in organizations for 30 years that had exactly that, and I think that often the public do not have a full understanding of why it is necessary. If you would not mind, just explain the importance, from an organizational perspective as well as a public perspective, for the need for both to exist.

Mr. MacKay: It is, in fact, the very essence of this bill. I know that you are very aware of this, senator. The need for a separate military justice system has been upheld no less than twice by former Supreme Court justices who have examined the issue of the need for a separate functioning military justice system. It has everything to do with the maintenance of discipline and order within our military system. That is to suggest that the circumstances in which Canadian Forces personnel place themselves dictate that the justice system take into consideration that very real fact that they put their lives in harm's way and do so in circumstances that in many cases place them outside of the general public and the expectations that we place on our citizens. That circumstance therefore requires certain degrees of discipline.

Sir, I know that you have served both in your capacity as a police officer and as a member of the Canadian Forces. It places the necessity for timeliness of response, for discipline, for organizational cohesion, for lack of a better word, to be in a team environment that creates operational success. In some cases, people's very lives are at stake. That is not an exaggeration. Therefore, we need a military justice system that reflects those realities. Sometimes, for example, the necessity to carry out matters of discipline in a timely and efficient fashion that is subject to transparency, oversight and to the constraints of an operational theatre requires this very unique and finely tuned military justice system.

What has been lacking, quite frankly, is the modernization of the system that is found within this bill. While further recommendations are yet to be implemented, most particularly from the report of Justices Lamer and Lesage, what we hope to accomplish here is bringing into the 21st century the justice system in areas such as I mentioned in my opening remarks — the inclusion of victims and their rights before military tribunals and the inclusion of their realities in the military theatre of operation, including our efforts to combat terrorism.

I would suggest to you, sir, and to honourable senators that within this bill we have made a number of important improvements to the way our military justice system reflects the modern realities of theatres of operation and a modern military.

Senator Jaffer: Minister, before I ask my question, I want to recognize the exceptional work your men do on the ground. I have travelled with them. I always say to people that most security people that are not from our country that I have travelled with will, in the evening, look after their own needs, while our own men help to build orphanages. I want to recognize the great work that the men you work with do, and I want to thank you for the great service you give to the country.

My question is about the victims. As you know, and I have spoken to you about this many times, I am always very concerned about women, peace and security and UN Resolution 1325. In 2000, Canada was very much responsible for that resolution. I am very pleased that you mentioned how you would include victims.

If you do not have an answer to this today, maybe you could provide it to the clerk later. How will we use Resolution 1325 to include victims in what you were saying? If an incident happened in a conflict area, how will we include the victims that have been involved and unfortunately been hurt by one of our servicemen?

Mr. MacKay: One of the ways is through what is now commonly used in our civilian justice system, and that is direct input into the proceedings for victims, which is currently lacking. I can recall as a former Crown prosecutor when the introduction of victim impact statements occurred in our civilian justice system. That was a profound difference, because victims were feeling that their voices were simply not being heard. While the Crown prosecutor could present the facts of the case through various witnesses and at sentencing could speak on behalf of the victim, the inclusion of victim impact statements, including oral statements before the court, is very empowering for victims. It allows them to feel that the system is responsive and is including and carefully weighing the gravity of the impact it has had on a victim. To me, that is a marked improvement that occurred in our civilian justice system so that it is serving the larger Canadian public. Without these provisions that we are presenting here today, this is currently not the case in the military justice system. That is one area where victim impact statements, I would suggest to you, would be a real improvement, and an important one.

Senator Jaffer: Mr. Minister, may I urge that, as you set up these courts, you do have the UN resolutions as part of your training program so that when these justice systems are being put in place, that agenda of women, peace and security can be an integral part of the court system. Thank you.

Mr. MacKay: Very much so. Senator, thank you for your kind comments.

[Translation]

Senator Boisvenu: I want to welcome the minister and congratulate him on moving forward with the modernization of this legislation.

Yesterday, your officers told us about the history of the bill and the work that has gone into it.

I want to underline the fact that the bill takes victims into account, and I congratulate you on that. Those are innovative measures. The armed forces' legal process used to focus on prevention. Victims were forgotten. We know that the army is a closed environment, but the consequences victims have to live with are very real and profound.

Two measures will be integrated — the victim impact statement, which is essential, and restitution. For civil purposes, our government will make restitution and surcharge measures mandatory, instead of leaving it up to the judiciary to decide whether or not to apply those measures. As we have seen, those measures have rarely been used in the past.

Will the bill's direction be the same as that taken on the civilian level — where a victim impact statement is mandatory rather than optional — so that the application of those measures is not forgotten?

Mr. MacKay: This is currently a very important issue in our civilian justice system, but unfortunately, the bill contains no compensation provisions.

You are right in saying that the impact on victims is huge, but we may be able to add a section on those provisions in the future.

[English]

I think it is fair to say that we are open to examining all ways in which we can support victims within all areas of the justice system, including the military justice system. One of the areas that those who have taken part in international missions are quick to recognize, and we saw this in Afghanistan, quite frankly, is that the general nature of military operations very often, for lack of a better term, results in destruction of civilian property. While it is not included here in specific provisions, there is within the military the ability to compensate victims. We do that and have done that quite regularly. On international missions, there is the complexity of international law in terms of how we sometimes include the local government's taking of responsibility as well and how we enforce that.

Again using Afghanistan as an example, when a Leopard 2 tank is going through a grape field because this is where the Taliban have been staging their attacks and a local farmer loses his ability to generate an income through legitimate exercise of growing grapes, there is an informal process that does result in compensation for that, the same as if a wall or a building or an individual is injured. There is the ability to address and remediate those circumstances, but it has not made its way into this bill. That is the short answer.

I am reminded by the Vice Chief of the Defence Staff that this is done in an ex gratia fashion as opposed through a judicial process and calculation of compensation, but it is a very relevant point.

Senator Baker: I would like to be put on the list of questioners to officials after the minister is gone.

Minister, I would like to congratulate you on this bill. When we read case law, it is almost a daily occurrence that we see Charter applications made before your courts in the military. Happily, they are approved by the judge in a great many cases. Some of the provisions in this bill address some of those existing Charter violations. I congratulate you on the bill.

However, perhaps you will not agree with what I am about to say. I just noticed the words:

165.21(3) a military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.

Independence of the judge — removed from all contact, maintaining a position of independence, and here we are bringing in proposed legislation that says when you reach 60 you are out.

At the age of 60, many are finally beginning to understand some questions of law. At 60 years of age, that is young in law. You may not agree because at the age of 25, you were before the Court of Appeal arguing the Criminal Code provisions on sentencing. However, in that Court of Appeal — I was just looking at the judges — not one of them was under 60 years of age. It brings into question the rationale of this.

Under the present provisions there is a complicated procedure whereby it does not say 60. It says the regulations define when you retire. You are saying 60 years of age here. I believe this violates the Canadian Charter of Rights and Freedoms.

I see some officials saying, no, it does not. Perhaps it does not. I read a lot of case law on this and perhaps it does. I wonder what your reaction to this point would be.

Mr. MacKay: Senator Baker, thank you for the question. You have put your finger on an issue that I know is contentious. I think it is a very valid point to suggest that people beyond the age of 60 have enormous experience to draw upon, and that is true of our bench in the civilian justice system. It is certainly true of the Senate where, as we know, the mandatory age of retirement is 75.

However, I would suggest that because of the unique circumstances, the requirement for deployability of military justice is the component and therein lays answer. I say that because universality of service applies to everyone, and judges in the military are also required to meet those physical requirements of deployability. Going into a theatre of operations, and I say this without any disparaging intent, they still have to be able to fight. They still have to be able to qualify and carry a weapon. They are still expected to be able to defend themselves in a hostile environment. That is the unique component of a judge who wears a uniform. Presiding over a court martial in an austere environment at a forward operating base surrounded by the enemy demands that physical requirement of the Canadian Armed Forces still be met, even by a judge.

I know, sir, that you are in extraordinary physical condition yourself.

Senator Baker: Not as good as you are, Mr. Minister.

Mr. MacKay: I would suggest this is a requirement, and I do not want to sound like I am dramatizing, for self- preservation. It is a very real requirement. This is not stretching the imagination. We have seen instances in which military judges have to be able to perform to a standard of physical fitness, and that is why we have this universality of service that applies and the mandatory retirement at age 60.

Senator Batters: Mr. Ministers, could you explain why you think it is so important that this particular bill pass, especially because it passed through the House of Commons with the support of the official opposition? It has been 10 years since Mr. Justice Lamer made his recommendations. Could you tell us if you think they are still relevant?

Mr. MacKay: I strongly believe that it is not only relevant but also that this important bill reflects the evolution of society and the evolution of law. The fact that we have been 10 years in the making of this bill — and it has been before you, before this honourable chamber — we are lagging and falling behind some of the changes that have occurred. We spoke about victim impact statements. There are other significant areas in which it is essential to update the National Defence Act to reflect and ensure that we are keeping pace with Canadian values, legal standards, and serving the men and women in uniform with an effective instrument to ensure that the operational effectiveness of our military is serving their needs, protecting their rights and reflective of what, as I mentioned before, can be a complex situation in theatres of operation.

There are inevitably the accumulated lessons learned that I believe are reflected in this bill. It would be less than genuine of me to say that we are not going to have to do more. There will be the need for more legislation. Some of these provisions guarantee that we will be back with further improvements and amendments to the justice system. Quite frankly, 10 years is simply too long. In some cases it has been because of unavoidable circumstances, such as the arrival of elections. Here we have an opportunity to bring this bill into the 21st century, to bring the law up to date, and to continue to build on what we know is a living tree.

Senator Joyal: I see that Senator Dallaire is with us this morning.

The Chair: He is on the list.

Senator Joyal: I will restrict my question to allow Senator Dallaire to be part of the discussion this morning.

Minister, as you are aware, this committee has always paid deep attention to its study of proposed legislation. We have contributed to the improvement of the military justice system through our committee report chaired by Senator Fraser and Senator Nolin, who took a very deep interest in that. We are still committed to ensuring that the military justice system reflects the principles that Mr. Justice Lamer underlined in his report.

I have a concern about the two exceptional proposals that the bill contains dealing with criminal records and the fact that a sentence that would be included in the criminal records will not be included. It creates an exceptional situation for somebody who faces criminal justice in comparison with the civilian placed in the same condition who would not benefit from that proposed exceptional regime.

My second question relates to the intervention of the Vice Chief of the Defence Staff in the judicial process. That, of course, is totally non-existent in the usual criminal system. There is no outside interference, of course, in any legal proceedings. In the criminal record, it would be seen by the court as an undue intervention and would be struck down by any court.

How did you ensure that those two exceptional powers would survive scrutiny by the court on the basis that they do not exist in the normal civilian system of penal law? I am sure that you considered that when you established those proposals the way that you framed them in the bill.

Mr. MacKay: I would suggest to you that the answer is found very much in your preamble in that, on two previous occasions, upon detailed the examination by Mr. Justice Lamer and Mr. Justice Lesage, both upheld the principle of a separate and distinct military system. That is my general answer.

With respect to the special provisions that are very much intended to protect the interests of soldiers who find themselves in breach of either the Criminal Code or the code of discipline, included in this bill are provisions that now protect them, in our estimation, in 95 per cent, or the vast majority, of the cases described as summary offences, more minor offences like being late, being absent, appearance and things that normally would not result in a criminal conviction but are very much part of the credo of discipline, unity and cohesiveness. These provisions are required and have been justified.

The effort is to protect them from carrying forward into civilian life criminal records, and there are very specific provisions found here to accomplish that.

However, I would suggest to you — and I think Senator Dallaire and others who have served would also — that we do not want to expunge or in any way diminish what is criminal behaviour for serious offences, such as sexual assault, theft of confidential material or anything that would undermine the public confidence, as well as the confidence and cohesiveness of the military unit. There should be discipline and consequences in those instances.

Coming forward to your issue with respect to the insertion of the Vice Chief of the Defence Staff, I spoke to this earlier. I would suggest to you again, respectfully, the necessity for an arbitrator to intervene when you have this clash of interests between the Provost Marshal and the commander on the ground in a theatre of operation, where a decision has to be made quickly and effectively. The Vice Chief of the Defence Staff is in the chain of command and is empowered.

The current case is a good example. Our Vice Chief of the Defence Staff has operational experience, is directly linked to the Chief of the Defence Staff and is able to ascertain what the correct decision to proceed is, as opposed to the paralysis that can occur when this clash of interests arises.

The final point, sir — and I do not want to sound the least bit disrespectful or flippant — is that there will be constitutional challenges as sure as night follows day. My experience as a lawyer and a prosecutor is that if I looked at every case and said, "If we go ahead and try this case, it will be appealed," the system would grind to a halt pretty quickly. You charge on, present your case, and let the Court of Appeal sort it out.

[Translation]

Senator Dagenais: Thank you very much for joining us this morning, minister. We know that the length of legal proceedings can often damage troop morale, and perhaps even hamper the operational effectiveness of our armed forces. Am I to understand that this bill will improve and, above all, boost the effectiveness of military justice? I would like to hear your thoughts on that.

Mr. MacKay: Senator, I think that the answer is yes. A justice system must have certainty.

[English]

There is a need, I would suggest, to modernize and improve upon what is an exceptional system, a system that has served the Canadian military and our international partners very well. There have been, as you are well aware and as has been pointed out in your deliberations, very real and very serious changes that have occurred, particularly on the international scene. There have been hard lessons learned post-Somalia. As a result of that experience and even more recent experience, we have tried to encapsulate and build upon the functioning, the practicality, and the service of this military justice system for the betterment and the protection of men and women in uniform, their families and the broader public. They are also directly affected because we know there are exceptional circumstances where a civilian can find themselves under the jurisdiction of this act.

[Translation]

Senator Dallaire: Mr. Chair, I know that every committee has its own rules, but I thought that, as critic of the bill for the opposition, I would have the privilege of asking my questions after the deputy chair. As things stand, I have very little time.

Minister, Vice-Admiral Donaldson, I would like to discuss three aspects. The first is about the vice-chief's responsibility. The second concerns investigations, summary trials and detention. The third has to do with grievances.

I will begin with the vice chief and his involvement in the investigation process.

[English]

I am going back 15 years, and I could go back 20 years to the start of the Somalia exercise. Going back to Bill C-25 in 1998 and Justice Lamer's analysis and seeing where there are gaps in it and changes that, over the years, have to be brought in, we are still really at 1998 levels of capability, with a few amendments since then.

One of the fundamental premises of the post-Somalia exercise was that we would ensure that the chain of command would never be brought back into any process or ability to be engaged in any other process of investigation or the subsequent handling of whatever might be considered an omission or an infraction against the QR&Os or the act.

Now, bringing the Vice Chief of the Defence Staff back in, you are bringing the chain of command back into this exercise. We were quite clear that the Provost Marshal and the police post-Somalia would be reformed to give them the education and development that they needed to not be just simple policemen but military people qualified in operations and then also policemen. Using that policeman, as an example, to reach the rank of sergeant, he or she would need an undergraduate degree. We were pushing to raise the bar of that whole outfit to be able to handle the complexities and ambiguities that we face now in these new operational theatres. To what extent that has happened, I do not know.

However, the Vice Chief of the Defence Staff is amongst the other three stars — the army commander, the air force commander and so on — and under the influence, potentially, of their discussions and the like and the Provost Marshal, who is really outside of those individuals. He or she is under administrative control of the Vice Chief of the Defence Staff, which causes no problem, but not in the chain of command of the vice chief.

Why should the Provost Marshal be involved in influencing investigations when, one, they are operationally qualified — if not, they should not be in uniform — and, two, they are engaging the chain of command in a decision that brings back the possibility of it being influenced or it being treated as influencing, no matter what you write on a piece of paper? Why should the Provost Marshal, if there is a problem, not bring that to you, the minister? You are held accountable to the people of Canada in your responsibility. You have the ultimate responsibility, and you are totally outside the chain of command in the context of the military scenario. Why should the Provost Marshal not go to you? That is what we were lacking in the 1990s. We thought it was resolved, but obviously I do not think it has been.

Mr. MacKay: Thank you very much, Senator Dallaire. I have infinite respect for your innate understanding and knowledge of the military justice system.

First, military police are a new phenomenon post-Somalia. There is a much more robust selection process for military police. They have new powers post-Somalia. There was not, I would suggest to you, the ability for a completely independent and acceptable investigation into Somalia at the time of that very tragic circumstance and incident. That has changed. The policing powers themselves within our military system have vastly improved.

The oversight has also improved, and that oversight does include the Provost Marshal. Your suggestion that the Provost Marshal should answer directly to the minister is a novel one. The Provost Marshal is still, of course, part of the chain of command, as is the Chief of the Defence Staff. I would describe it as a healthy tension that should exist, should the circumstances arise, and we are talking about very rare circumstances in which the vice would insert himself. We described a couple of scenarios to Senator Fraser where in theatre you might find this clash of interests that could occur in an investigation.

To answer your question directly, quite frankly I would not feel comfortable as Minister of National Defence inserting myself into an investigation wherein I might have to answer to that. It is a bit like a prosecutor going to the scene of the crime or, to take the example further, the judge himself, before the investigation is complete and all of the evidence has been collected. There are practical considerations such as continuity of evidence and admissibility of evidence.

You have presented me with an interesting question that I have not given a lot of thought to, but I would find it inappropriate for an elected person. In many cases, the person who occupies the office of Minister of National Defence could have very little experience not only with the military but even less experience with the law and would be therefore asked in your scenario to rule on or make decisions and judgments with very little practical or professional training. I would suggest that that would be inappropriate. It would not improve the outcome and would not necessarily improve accountability. The minister would not be held to the same level of scrutiny as the Vice Chief of the Defence Staff, who has to put it in writing, disclose it and answer to that ultimate determination or adjudication between the Provost Marshal and the theatre commander when a conflict arises.

I am sorry for the length of my answer, but it is an interesting question.

Senator Dallaire: I would like to go on to second round because of the length of the answer.

Senator McIntyre: Mr. Minister, as you know, Bill C-25 requires that an independent review of the provisions and operations of the National Defence Act be carried out every five years. My understanding is that Bill C-15 will not change this and that independent reviews will continue to be held every five years. Is that correct?

Mr. MacKay: That is correct, although it is seven, not five years.

Senator McIntyre: Seven years.

Mr. MacKay: We extended it to seven, to be clear, because we found in our experience in bringing this bill through the system that sufficient time should lapse before we can see the impact of these particular amendments and then do a proper review, albeit several reviews have occurred in the meantime. Had this legislation been ratified and passed through our system some years ago, we would not be in the very uncomfortable position that the time has lapsed for the review itself that was included in the bill. It is a very obscure situation where we are technically outside the law because we have not been able to update the law through the passage of this bill.

Senator McIntyre: Some bills have died on the Order Paper, as you have indicated.

Mr. MacKay: Correct, yes.

The Chair: We have four or five minutes left for a second round. I heard Senator Dallaire's complaint. The tradition in this committee since I have been a member is that we initially go to the deputy chair of the committee and then we recognize members of the committee. We have the critic here, and we have the sponsor of the bill in the Senate. I would like to give you both the remaining time if Senator Fraser is prepared to cede her time. That being the case, it will give Senator Dallaire an opportunity.

Senator Dallaire: It was not a complaint; it was an observation, sir. Thank you very much.

I have to come back to this. I think that the minister can be held exceptionally accountable to the Canadian people.

Mr. MacKay: For everything.

Senator Dallaire: He can also be held accountable in writing. There is the argument, I agree, that maybe he does not have the experience and is maybe not a lawyer, but he can certainly seek advice. Just the proof that all these reviews are being done by former Chief Justices of the Supreme Court is an indication that you are going to the highest possible level to get the right answer. I do not think you would be standing alone trying to figure this problem out.

It is true that it would be an exceptional scenario, but it is the exceptional scenarios that are putting people in jail. It is the exceptional scenarios that are putting the forces at risk. Ultimately, it is those exceptional scenarios that put the chain of command in jeopardy. That is why I return to my debate.

The Vice Chief of the Defence Staff is still subordinate to the chief. The chief can be influenced by the field commanders, as well as the force providers. You, sir, are the only body out there that could in fact ensure that the Canadian people are guaranteeing that we will not return to the possibility of the chain of command interfering with a possible investigation and that the Provost Marshal, well qualified, should be able to query that and identify the exceptional circumstances. You hold a position. I know that I am throwing this at you, but it seems to me that when you drag in the chain of command at the level of the Vice Chief of the Defence Staff or at the Provost Marshal level, you are bringing the chain of command back into jeopardy.

Mr. MacKay: Again, your scenario of where the minister would ultimately adjudicate between a theatre commander and a Provost Marshal in an investigation would be very unlikely, to begin with. As well, my suggestion is that the Vice Chief of the Defence Staff, on behalf of the chief, within the chain of command is the appropriate person to do so.

I would defer to the commander on the ground for many of the important decisions that were taken during this Afghanistan mission. Those types of operational decisions should be made by a person of military experience, and by "military experience" we are talking about individuals who are now in high command. The Vice Chief of the Defence Staff is somebody who will have immeasurable experience, compared to a minister, to decide on subjects as serious as sending people further into harm's way to investigate. I would suggest as well that that healthy tension that might exist between the Provost Marshal and the theatre commander from an observation point of view and a military theatre perspective is best handled and decided by the vice.

I would suggest as well that within the Dickson report, going back to 1990, there was an effort in fact to take the minister out of that decision-making process. There is some precedent and recommendation by a Supreme Court justice in that regard.

There are, I think, very quasi-guarded devices already in place to try to divide the civilian control and the command decisions that are taken by military officers. It is, I would suggest, a somewhat dangerous path to follow when you have a civilian directing and intervening in a very direct way on operational matters. That has been sort of described to me as a red line and a very tenuous area for a minister to tread.

The Chair: Minister, we have reached our time, but I have a question from the sponsor of the bill in the Senate.

Mr. MacKay: By all means.

Senator White: My question refers specifically to morale and grievances. Expediency of grievance processes often will impact on morale. I want you to go through briefly why you saw this as important and how the bill impacts on the grievance process?

Mr. MacKay: There is the old legal maxim that justice delayed is justice denied. Certainly for decisions taken in a theatre of operations and the availability of the individual to go back out on patrol and the example it sets for that platoon, unit or regiment, I would suggest that it is much more pressing in nature than we would find in the civilian justice system. Time is of the essence because delays can affect the very life and success of an operation. It requires that we are able to respond in a nimble and sometimes expedited manner; and that is what this bill hopes to achieve.

The Chair: Thank you, minister, for your very helpful contribution to our deliberations on this proposed legislation. We thank you for being here.

Mr. MacKay: Thank you, chair.

The Chair: We will continue our discussion with officials and go to questions. We will begin with Senator Fraser, Deputy Chair of the Committee.

Senator Fraser: I have two questions, the first being a bit more complicated perhaps in terms of the answer than the second.

Since we are doing a fairly dramatic revision of the system in this bill, at least fairly complex, why did you not use the opportunity to provide in the summary trial process that the accused can have full legal counsel and a normal appeal process? Summary procedures can sometimes lead to important judicial precedence. I am thinking, for example, of the Forest case in Manitoba, which started as a traffic ticket and ended up transforming the country in many ways. That could not happen under your system. Why is that?

Major-General Blaise Cathcart, Judge Advocate General of the Canadian Forces, Office of the Judge Advocate General: That is great question, senator. We get this question quite frequently.

We have two types of tribunals: One is courts martial, which are the more traditional, with judges and counsel representing both sides. Summary trial is the other, which is by far the majority use in our system in that 95 per cent of charges annually are dealt with by way of the summary trial system.

Sometimes there is a bit of confusion between the term "summary" in our system and "summary conviction" in the civilian system. Ours is designed to highlight a system that is presided over by a chain of command where there are no lawyers or legally trained individuals involved. The focus is mostly on charges of a minor nature, so the enforcement of discipline, which is the heart of the military justice system, is truly what separates it from a philosophical perspective in the civilian system.

The maintenance of discipline needs to be fair and swift. The summary trial system is a system that has the ability to do that as compared to a courts martial system, which has much more of the trappings of formal presentations by judges and counsel.

A theme that you will hear throughout the military justice system is balancing the rights of the accused with the needs of the military to be able to enforce discipline, particularly in deployed scenarios. The summary trial system, in our view, is the best balance that we have reached. That has been supported, as we heard several times, by Justice Lamer, Justice Dickson and, most recently, by Justice Lesage in the sense that they do not believe that a constitutional challenge would be successful against the current structure of our summary trial system.

Senator Fraser: I still do not understand why there is no provision for appeal in the normal sense of the word "appeal."

Maj.-Gen. Cathcart: We have a review provision. Again, it is because of the nature of the system. We are looking to not formalize that system so much. First, the right of appeal is a bit of an overstatement. From a legal perspective, it is not a strict right in any system. In our system, we have offered the person convicted at a summary trial the ability to have it reviewed by a separate person in the chain of command, who also gets legal advice in those circumstances.

Senator Fraser: I understand that is what you have. I think that is the only answer I will get to that question.

Let me go now to the principles of sentencing. This one should be much easier for you to respond to. It is two parts. First, the principles outlined here, with some exceptions for military discipline, mirror the principles now in the Criminal Code, but as far as I can see, there are a couple of exceptions. One is that your proposed principles do not refer to consecutive sentences in the Criminal Code. Consecutive sentences must not, in total, impose unduly harsh sentences. I wonder why you did not do that.

Second, you have this interesting statement:

203.3(e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

I just wonder what that means.

Maj.-Gen. Cathcart: In general terms, there might be administrative aspects. In our system, administrative processes could affect an individual's career, so a guilty finding or conviction might have an impact. For example, in the case of a sexual misconduct offence, it might trigger administrative review and possibly an administrative release as a result. In general terms, I think that is what it is trying to capture.

Senator Fraser: Indirect consequences.

Maj.-Gen. Cathcart: Yes.

As far as consecutive sentences go, when our officials appear next week they can give you more detail. However, again, in our system where we have one punishment for multiple sentences, it was just a philosophical difference from the consecutive sentencing concept.

Senator Fraser: You do not do consecutive sentences?

Maj.-Gen. Cathcart: No.

Senator White: As I walk through the legislation, I try to look for different ways in which the system can be used. I am big on expedience when we talk about justice. It is probably the biggest complaint of both offenders and victims. Could someone walk me through how we would see a difference going forward, how some of the changes could allow for a more expedient system that could actually deliver justice in a quicker way that would be welcomed by both the system itself and those who are impacted.

Maj.-Gen. Cathcart: Thank you, senator, for that question. That is very key to the whole process. As I said earlier, we are looking for ways to improve that not only in the summary trial process, which is the majority of charges, but in the court martial system as well. In general terms, a lot of these changes will bring a lot of clarity to the system because our system gets bogged down. When I say "bogged," I do not mean that in a negative sense; it is just a factual statement. In debates in the courts amongst counsel and by critics of the system, they are saying, "If you made these changes for the independence of judges, then it would be better." Well, that is what we are trying to do. In the meantime, it is the debate, both within courtrooms and in public, that is preventing us from making the system more efficient in that sense. Debates are valid, but at some point we need to have a solution and to move on from there.

In general terms, all of the changes are really designed to bring greater clarity, and we believe that that will, directly and indirectly, bring greater efficiency to the system.

Senator Baker: I have many questions, but two main ones. Before I ask the main question, in reading the case law it sometimes appears to be confusing in that you appear to have rules of court. I presume you have rules of court, like every other court does. I was reading, for example, a case from about a month ago, where the judge says that constitutional arguments have to be submitted prior to plea. Are you aware of rules that say that, prior to plea, you can actually submit a Charter application and have it adjudicated? The issue that comes to mind is that prior to plea, you are not before the court. Could you explain that?

Maj.-Gen. Cathcart: I will attempt to, senator. If I understand your question correctly — and, again, it is a good technical question — our courts are what we refer to in a courts martial system as ad hoc courts, meaning that the courts are actually convened at the time of the hearing of the offence. By comparison, it is not a permanent court. Each time a court martial is convened, it starts the court martial process. Within that process, defence counsel, on behalf of the accused of course, can bring motions before the plea is entered before the court martial. Those motions, which in our system are often referred to as plea in bar of trial, are often constitutional or Charter type motions. If they are successful, they might have an impact on the trial, which might be to shut it down before a plea is even entered.

Senator Baker: The person determines their plea after they have tried out the Charter argument.

Maj.-Gen. Cathcart: Correct.

Senator Baker: That is rather interesting. The case I was looking at here was production orders issued under the Criminal Code, subsection 487.012. It is complex to us dealing with it because we are dealing with regulations and with an act that is, in some cases, foreign to what you would normally expect.

Going back to a case in which the argument was whether the English version or the French version applied in the case, the court said that neither of them applied but that the English was closer. I noticed that you were the lawyer in that case, called R. v. Hirter. We are into an area of extreme complexity when it comes to interpreting regulations as they apply to an act or to something else.

Let me get back to my original question. At 60 years of age, you have changed substantially what is presently the case in law. You have not changed the age. No, I do not think you have, but you certainly change the process. You have come out flatly and said, "Sixty years of age; that is it." Why did you do that? Why did you explicitly put it in the act when every other judge in this country in provincial courts, courts of appeal, tax court, Federal Court, and the Supreme Court of Canada have all now gone up to 70 and 75 years of age? Here we are bringing in legislation to say that when you get to be 60, you have to be able physically. No, these are brain cells we are talking about here.

A similar profession is the standard under the Human Rights Act — a comparable, similar profession. Remember 15(1)(c) that we struck down in 2011? That was a violation of section 15 of the Canadian Charter of Rights and Freedoms. How do you answer that?

Maj.-Gen. Cathcart: That is a great question, senator. You are a passionate advocate for 75-year-olds. I appreciate that.

In all seriousness, though, first, the reason we put it in the act is because the Court Martial Appeal Court told us that we needed to make tenure clearly established and constitutional. It was the case of R. v. LeBlanc that said you need tenure for judges.

The question is: In the military system — and I highlight that — what would tenure look like? As you well know, in the military the most advanced age in terms of compulsory retirement is age 60.

Senator Baker: You are not hired as a military person. You are hired as a judge.

Maj.-Gen. Cathcart: No, you are initially retained as military. Your qualifications to become a military judge not only require you to be a member of the bar but also to have 10 years of experience as a military officer.

Senator Baker: Now, you are making it 20 years. Is that what you are telling me?

Maj.-Gen. Cathcart: No.

Senator Baker: Yes, you just said 10 years as an officer and 10 years as a member of the bar.

Maj.-Gen. Cathcart: These are the qualifications to be able to be one. Once you are selected as judge, then you can stay until age 60. A difference that a lot of people do not understand is that generally speaking most of our judges are appointed much younger than civilian counterparts, so their tenures tend to be much longer.

[Translation]

Senator Boisvenu: Can you tell me the reason for removing 27 offenses for which a member of the military could be convicted without ending up with a criminal record?

[English]

Maj.-Gen. Cathcart: As the minister indicated earlier, we are always trying to find a balance between our separate military justice and the principles behind it in comparison to our counterparts in the civilian world. We often get the criticism that in some areas no service offence — if a person is found guilty of any service offence — should ever result in a criminal record. Through a series of debates and balances, we determined that the best way to achieve it is to still say that there are a certain number of offences.

Senator Boisvenu: Such as?

Maj.-Gen. Cathcart: Like disobedience of lawful command. Objectively, it might be a grave offence, but you have to combine it with what punishments are awarded. If the punishment is a lesser punishment for a pure military offence compared to the civilian world, we would not think it to be in the best interests of the military or the public at large to have a criminal record attached to it.

On the other hand, if it were a serious disobedience of lawful command, such as in an operational theatre in a war scenario, and the individual were to receive a detention or imprisonment, that would be serious and might be an issue that we would want to attach a criminal record to.

We went through a long process with your colleagues in the house of going through literally every charge under the Code of Service Discipline to determine that combination — the gravity of the offence combined with the punishment that might be given. That resulted in the number of charges you have highlighted, senator.

[Translation]

Senator Boisvenu: I would like to come back to a question I asked the minister this morning about clause 62 of the bill, which covers restitution.

I understand that this was a technical question this morning, so I am asking it again. Will the application of subclauses (h) and (i) be left to the judge's discretion, or will those provisions be applied in all cases involving restitution?

The following is stated in subclause 62(h):

to provide reparations for harm done to victims [. . .]

Subclause (i) states the following:

to promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims [. . .]

Will that be applied in all cases, or will the judge have the discretion of applying those provisions?

[English]

Maj.-Gen. Cathcart: In general terms, it is the judge's discretion because this is a formal restitution process following a court martial process.

[Translation]

Senator Boisvenu: Will victims receive legal support during court proceedings, or will only the accused be able to benefit from that?

Maj.-Gen. Cathcart: The prosecutor will occasionally provide the victim with assistance. But that problem exists in both military and civilian systems. The difference is that the prosecutor's role is to represent the Crown and not necessarily the victim. However, our system contains a number of other victim assistance mechanisms, such administrative assistance provided by a counsel.

[English]

Senator Jaffer: My question follows Senator Boisvenu's quite well. Normally when we study bills we have quite a large representation of victims. I am not on the steering committee, so I do not know what other witnesses we will have. I am not sure about that. You work mainly outside our country. You are often involved in armed conflict, in particular when we look at the situation in Afghanistan. My question has to do with the women, peace and security agenda and how we protect victims.

Point 9 of UN Resolution 1325 speaks to the need to follow international laws when you are in armed conflict. Point 10 talks about armed conflict and taking special measures to protect women and children, in particular against rape. I would like to hear from you about point 11, which says that you cannot have impunity when you are in conflict zones and you are to prosecute those responsible for genocide crimes against humanity and other war crimes. In particular, my concern is about sexual crimes and violence against women and children.

I understood you to say to Senator Boisvenu that under the system we used to have, the prosecutor would also aid the victim. We have moved forward in this country in that it is not just the prosecutor who helps. What is in place to provide services for victims in conflict zones where victims are very vulnerable?

Colonel Tim Grubb, CD1, Canadian Forces Provost Marshal, National Defence: We are in a fortunate situation with regard to that in the sense that normally when there is an investigation into something of that serious nature, it would be the responsibility of the Canadian Forces National Investigation Service to intervene and to conduct the investigation. Fortunately, within our structure we have victims' assistance coordinators, who are trained through the Canadian policing standards. We have an immediate response to support them. In addition, our investigators are trained through the Canadian Police College and other venues to the highest standards offered in this country to deal with victims.

On the more external resources, of course in some areas we may be the only police service that is in the area. We would conduct an initial investigation, collect as much evidence as we could and provide it to the appropriate authorities when they actually appear on the battlefield. The challenge that we often face is that in many areas the local police are no longer in existence. We would be the initial response.

Senator Jaffer: When you talk about coordinators, are they coordinators or child advocates? May I respectfully ask that you provide to the clerk of the committee, but not today, more information on the coordinators? I would like to look at that.

Col. Grubb: I would be pleased to do that.

Senator McIntyre: Major-General Cathcart, since 1998, we have seen the legislative evolution of our military justice system embrace three reports — Lamer 2003, SCOLCA 2009 and LeSage 2012; three court decisions, Généreux, Trépanier and Leblanc; legislative response with Bill C-25, Bill C-60 and Bill C-16; and others, such as Bill C-47, Bill C- 45 and Bill C-41, that have died on the Order Paper. I am particularly interested in Bill C-15 and Bill C-16. Bill C-16, as you know, basically dealt with the tenure of military judges. It addressed concerns raised by the Court Martial Appeal Court decision in R. v. Leblanc. Correct me if I am wrong, but my assumption is that Bill C-15 not only addresses the same security tenure issues raised in Bill C-16 but also proposes changes that go beyond what was found to be unconstitutional by the Leblanc decision. Am I correct in my assumption?

Maj.-Gen. Cathcart: Not precisely, senator, in the sense that the main point of Bill C-16 and Leblanc was the security of tenure piece.

Senator McIntyre: Bill C-15 and Bill C-16 combine that.

Maj.-Gen. Cathcart: There are other aspects to assist in the shaping of the independence of the military judges. In particular, for example, the Military Judges Compensation Committee, which is currently in regulations, will now be in the statute. That does a great job of strengthening not only the substantive pieces but also the perception of the independence of our judges in that case.

Another important aspect, which may not be apparent immediately to the civilian world, is the attempt to have the ability to appoint reserve judges. As you know, our forces consist of regular force permanent members and reserve force members. We are trying to have an ability to appoint reserve force judges. In heightened operational tempo, a surge of activity often comes along with a surge of disciplinary issues, so we want to have the ability to increase the number of judges available in those circumstances. In addition to the tenure piece, there are a number of those types of other things that are maybe not to the heart of independence but help to put a better cloak of independence around our judges.

Senator Joyal: I want to come back on two points, and the first is the appeal process for summary trials. The European court has found the British system that deprives an appeal for summary trial to be in contravention of the European charter, and the U.K. has amended its defence act to provide for an appeal. Why did you not follow the example of the British in relation to an appeal system that would be a real appeal system? If they can do it, why can we not do it?

Maj.-Gen. Cathcart: I appreciate that. Again, that question underlines a lot of what we do actively on a daily basis, and that is not only look at our own civilian justice system but also the military justice systems of primarily our allies, the U.K., the United States, Australia and New Zealand. The short answer is simply that in comparing between countries, countries do things differently. They have a different legal system and a different constitutional system, as do the Americans and the U.K. When you look at it in a technical legal sense, there is a real challenge that they have the European Convention on Human Rights and the European Court of Human Rights.

Senator Joyal: We have the Charter.

Maj.-Gen. Cathcart: We have the Charter, of course, and members are free and have occasionally in the past challenged the summary trial system through the Charter process. Simply to say, "They do it, so maybe we should." We certainly looked at it, but for our system, not only internal to the military justice system and CF operations but also in comparison to Canadian civilian society, we believe this is the best way. Not to be too flippant, to use the minister's view, but the U.K. drives on the left side of the road and we do not.

Senator Joyal: The principle of fundamental justice in common law is essentially what has inspired the Canadian common law. Any lawyers in their first year will tell you that. I do not think that your metaphor of driving on the left or right flies in the context of the principle of fundamental justice.

Maj.-Gen. Cathcart: There are the principles of fundamental justice, of course, but each state and each system within the state is open to policy options and choices to effect those fundamental principles.

Senator Joyal: My other question is in relation to the list of offences that will no longer be part of the criminal record. They are on page 49 of the bill. I looked into all of them — 85, 86, 87, 89 and so on — and was amazed to find that many of those offences would give rise to a criminal record in the civilian system. Violence against people, 87, which is assault, more or less, destruction of public property and making false documents are serious offences. They are not disciplinary, such as, "Your boots are not shiny enough," or "You have been impolite." This is not impoliteness or the appearance of an individual. Those are serious offences. For example, helping somebody to desert is not an offence in the criminal record, but to be a deserter is an offence, with five years or less of imprisonment, so it is very serious.

I fail to find the rationale under all the lists that we find at 249.27(a), when you read into the National Defence Act what each of them amounts to. Let me take some examples. For instance, one that I find very strange is that if you resist arrest physically, you will not have a criminal record. For any person, if they resist their arrest by the police, it is a criminal act. Why would it not be a criminal act if you are in the army? More in the army than anywhere else, you are expected not to resist an arrest.

Maj.-Gen. Cathcart: As I responded earlier, this was a very complex balancing of the unique aspects of military service and life in the military versus the traditional civilian view of offences, literally going through every offence and also looking at the objective gravity of the offence combined with the sentence. Any one of those offences that has a more serious sentence, like imprisonment or detention, will attract a criminal record. Also, there is the difference between a summary trial, where it is tried. A number of critics, particularly in the other place, were saying that under no circumstances should anybody convicted of any type of offence at a summary trial have a criminal record. Again, we just think that is not the right balancing effect. When you look at the nature of the offence and the charges objectively and the type of punishments that could be awarded and compare it to the civilian world, we felt from our perspective that this was the best balance at this time between those interests.

Senator Joyal: Again, the principle that was given to us by the minister, and I do not doubt his answer, is the fact that if you were in civilian life, you would not find yourself with a criminal record for an offence of that nature. However, when I look at the list of the offences in the act, it seems to me that the principle that was given does not find its application. I might not know the daily life in the military, but I know that if I make a false document or destroy public property or resist arrest or assault somebody else in civilian life, then it will be a serious act. However, if I am in the army, it is fine and I will not have a criminal record. I might have a sentence, and I do not doubt that and I hope so, but not in the context of a criminal record. Why do you still insist on making that long list of offences not subject to a criminal record?

Vice-Admiral Bruce Donaldson, Vice Chief of the Defence Staff, National Defence: I think the threshold of expected behaviour is different in the Canadian Forces than in civil society, and we may find that we pursue charges against an individual based on our expectations of behaviour in those respects that would not result in charges in civil society. Balancing that with sentencing gives us a sense that we are not being overly punitive to someone who fails our test of behaviour but perhaps will not fail civil society's test of behaviour. There has been detailed work to figure out how you draw a line, given that we are being explicit in this.

Senator Batters: When the minister was here, I neglected to point this out that, but I did want to get on the record. I really appreciate the pragmatic comment he made in his opening statement in saying let us not let perfect stand in the way of progress. I would say significant progress has been made with this major piece of legislation.

Vice-Admiral Donaldson, a year ago this June, a recommendation was made by the late Chief Justice Lamer, which was granted, giving financial authority to the Chief of the Defence Staff in order to settle grievances. Could you explain to our committee why the implementation of that recommendation is important and why you think that step will help in dealing with some of the financial impacts of grievances?

Vice-Admiral Donaldson: CDS is responsible for the maintenance of discipline and morale in the Canadian Forces and for the health of the institution. As such, it is the point at which the needs of the institution are reconciled with the needs of the individuals, so he or she is the grievance authority for the Canadian Forces. It is very much balancing those interests and ensuring that the institution is run to the benefit of Canadians and to the benefit of the members of the institution.

In reconciling grievances and making a finding in grievances, CDS makes those judgments of balance of interests. In the past, the chief has been challenged for decisions that had financial implications to be given effect; that is to say, he did not have the delegated authority to grant financial recompense to those that he agreed had been aggrieved and should be compensated. We found that this was a particularly challenging issue to resolve, notwithstanding the findings of the reviews of the NDA and the recommendations. It was not so much a disagreement that the chief be given the authorities. In fact, the chief has the authority now to make a decision. It is giving effect to the decision that has been the problem.

We have looked at different ways of doing that, ranging from enshrining it in the legislation, and not just the National Defence Act. A number of different acts would have to be adjusted, and a number of different ways in which the position of the Chief of the Defence Staff would have to change relative to a deputy minister, so it would be a complicated and long way of doing this.

We have looked at orders in council. We have looked at regulations and procedures. We have come up with a balance of the last three, so that we work better with the agencies within Defence that do have the authority to grant ex gratia payments so that they are involved earlier in the grievance process so there can be a parallel analysis done of a case and so that where their powers can be employed, it can be done more quickly after the CDS had rendered a decision.

We have looked at giving to the CDS the authority to make ex gratia payments. We have come up with a mechanism for doing that that aligns with the practice and responsibilities of the Treasury Board. We continue to ensure that we fully understand how that would be implemented with the chief given delegated authority from the Treasury Board within certain limits. I do not think we have had a case yet where we have been able to walk down that road, but we are in discussions with the Treasury Board and others to figure out how to make this work going forward.

Since I last appeared on this, we have made significant progress. There is still work to be done, but I am confident that we have a path forward and that we have identified the issues yet to be resolved. I think there is a general sense within government that these issues need to be addressed and resolved going forward. I hope that answers your question.

Senator Batters: It does.

Senator Dallaire: If I may, I would like to come to the matter of summary trials and sentences, particularly detention versus actual imprisonment or jail.

The instrument of the summary trial but more specifically the sentence of detention has always been perceived as an instrument of disciplining, of corrective measures, of in fact reforming members in certain cases so that they can continue to serve but having been cleansed, maybe, of their ill ways. Certainly the detention barracks that the forces run are far more demanding than anything else on civvy street; it is sort of on steroids, really.

I do not understand, and I must say Colonel Gibson and his team gave an outstanding briefing. He also produced a first-class article in the Canadian Military Journal, spring 2012, on our military justice system, which is well worth the read; it is in English and French.

I am getting to the specifics. I do not see how making detention a potential to be held on a criminal record or if a person wants to be transparent, that if he does get detention and even though it is not on the criminal record, would have to report that because it is being held under an act.

We never perceived it as being that. It was on your conduct sheet and when you left, that was it; it was cleared. This is not cleaning that up totally, is it?

Vice-Admiral Donaldson: I will start and then turn the technical aspects over to the JAG.

I have seen many successful rehabilitations through the use of detention, as I am sure, senator, you have seen. It is an excellent tool for discipline, but it is a tool for discipline in areas that we may wish people to carry with them, depending upon why it is that detention was selected. I think Canadians would expect, in some cases, to know that someone had received a punishment of detention. We wish to retain some ability to make that decision.

Senator Dallaire: Before the general speaks, I heard the arguments presented by Senator Joyal and that whole exercise. They were constructed for minor offences within the military system, which often gives punishment far beyond what you find on civvy street. Individuals would prefer at times going to civvy street than military.

What I find unacceptable is that detention is now being held accountable for beyond the military milieu on if not a criminal record at least a record that, if the individual wants to be fully truthful, would have to indicate that they had detention and they have to get a pardon to get it expunged. I do not want the Canadian people not to get their fair shake. I feel that the military system of justice is now being drawn into an exercise for which summary trial and detention were not created.

Vice-Admiral Donaldson: My response to that would be that detention focuses primarily on rehabilitation within the Canadian Forces. If we sentence someone to imprisonment, generally speaking, they are released from the Canadian Forces. There could well be charges for which we would expect a record to be attached where we would not wish to release someone from the Canadian Forces because of the potential for rehabilitation. However, we are trying to ensure that we have captured that notwithstanding the rehabilitation, as is the case in civil life, there has been a record of behaviour that should be accounted for by the individual moving into civil life, and there is a way for the individual to petition to have that record removed, just as there is in civilian life.

Maj.-Gen. Cathcart: It is a great question because we know the primary purpose for detention. Nonetheless, there are some fundamental aspects. This is a process in which the civilian system had changed with the Criminal Records Act and the Contraventions Act, and we had to do the best to match our system and the types of offences and punishments to it.

One of the aspects about detention, and it goes to points raised by Senators Joyal and Baker earlier, is about the Charter of Rights. Detention for us is largely rehabilitative, but at the end of the day it is still a deprivation of someone's liberty. That is a key driver as to the seriousness of the punishment. Again, that scale of punishment, as all the senators know, was given to the Canadian Forces by Parliament, not by ourselves, so we have to live within that scale of punishment and do our best to balance military life versus civilian life, the Criminal Records Act versus our system and come to what we believe is a balance between those things. I know from your great experience and background that you know very well the purpose of detention. Objectively, particularly to civilians or to civilian judges, they see it primarily as a deprivation of liberty; hence, the seriousness that could attract a criminal record.

Senator Dallaire: That may be from not comprehending the aim of the exercise, the principle by which we created the summary trial system and detention, because of the operational requirement of expeditious and exemplary use of a judicial system to maintain discipline, because without that, people may not even accept the order to go and get themselves potentially killed; so we are in a whole different world than we see in the civilian world.

My last point is that charges that bring detention that are not criminal or perceived to be criminal are still there for an individual to have to expunge if they want to be completely truthful, transparent and ethical within civilian society. Is that not correct?

Vice-Admiral Donaldson: In terms of a record, if it meets the threshold of the type of charge and the severity of the sentence.

Senator Dallaire: Below that.

Vice-Admiral Donaldson: They are on the conduct sheet.

Senator Dallaire: That is not used on civvy street. The individual does not have to explain it.

Vice-Admiral Donaldson: No.

Senator Fraser: More of the same. I do not have a military background so if I am coming back over old ground, forgive me.

It seems to me that in this list of offences that do not go into CPIC, the limiting control here is the sentence. Basically, if you get a very severe or comparatively severe sentence you will be in CPIC. If you do not, you will not.

Given that one of the principles of sentencing that I asked you about earlier refers to indirect consequences — and the explanation was that it might affect your career — would that not be a bit of an incentive to go easy on people? Say, we do not want the poor chap or girl to have a criminal record when they get out, so we will give them a light sentence.

Vice-Admiral Donaldson: That sounds more like a question for the chain of command than for the JAG. My view of it —

Senator Fraser: Who makes the sentence?

Vice-Admiral Donaldson: At least in the summary trial, it would be the chain of command. I would say that commanders in discharging their responsibilities, presiding officers at summary trial, weigh a number of factors in sentencing. One of them would be the long-term effect of the sentence not just on the individual but on the unit and the Canadian Forces.

The training that we give our presiding officers and the responsibilities that they take to heart for the institution, the unit and the individual balance these issues out. There could well be a view by a presiding officer that the circumstances of the case do not warrant a criminal record going forward, notwithstanding that you may be tempted just to push that envelope. However, it may well be that a presiding officer feels this is serious enough, notwithstanding how it has been presented, that in fact it warrants something that would follow someone. We empower these officers to make these judgments. There is a review mechanism if the accused disagrees with the finding and the accused can specifically say that they do not think this warrants the severity of punishment.

Senator Fraser: I have not often heard of an accused seeking a heavier sentence, which is what I was trying to get at here.

What is a minor punishment? The list here is severe reprimand, reprimand, fine not exceeding basic pay for one month, or a minor punishment. What is a minor punishment?

Maj.-Gen. Cathcart: These are punishments outlined in the Code of Service Discipline in the punishment section. There are types they would be familiar with, including extra work and drill, confined to barracks, these types of more remedial punishments.

Vice-Admiral Donaldson: If I may, the sentencing is prescribed, essentially, so that there is a limit of punishment that can be awarded.

Senator Fraser: I should know this but I do not. Is there a category labelled "minor punishment"?

Vice-Admiral Donaldson: Yes, there is.

Senator White: Earlier, the minister raised the increased expertise of military police. I want to mention that in the last five years, military police in Canada can be lateral entry directly into just about any police service in Canada. This shows we have seen a real improvement not only in the training and education, but in the quality of people.

The second thing I want to speak about is CPIC, because it was raised. CPIC used to report to me when I was in the RCMP.

It is no different in the civil justice system in the fact that judges today make decisions on punishment, find them guilty of an indictable offence — in the case of dual procedure — and that would put them into CPIC or not. Therefore, it is not much different than our mainstream justice system. Am I correct?

Vice-Admiral Donaldson: Yes, although there may be some technical differences.

Maj.-Gen. Cathcart: There are differences and that is a great point because when talking about criminal records, that does not automatically translate into CPIC. CPIC can also be entered through Identification of Criminals Act with fingerprinting. We tried to design the system so that the majority of convictions and punishments in the summary trial system would not result in a criminal record and would never be entered into CPIC.

If it goes more senior, particularly in the courts martial system, there is the possibility for both of these things to happen, criminal record and CPIC entry.

Generally speaking — and the Provost Marshal can answer that on the technical side — it would be in the minority that the records or information would be entered into CPIC.

Senator White: In fact, CPIC is not about criminal records. We have persons of interest in there who have never been charged and are trackable as well. Referring to CPIC as criminal records is a moot point.

Senator Baker: You have about three other sources of information similar to CPIC that you use. You had your own, chief.

Let me get back for a moment — you might call this a hobby horse here — because my understanding of the present rules on the appointment of judges in the military is that there is a requirement that they belong to a bar for 10 years. That is, for example, the only requirement for justices of the Supreme Court of Canada. It is the only requirement in law. I thought that the present rule was that you had to be an officer and 10 years as a member of the bar. Am I wrong on that or am I right?

Maj.-Gen. Cathcart: You are right.

Senator Baker: This is what I put to you before.

Maj.-Gen. Cathcart: I misunderstood.

Senator Baker: Now you need to be an officer for 10 years. You also must be a member of a bar for 10 years, good standing. That is 20 years.

Maj.-Gen. Cathcart: They can be together.

Senator Baker: They could be together.

Maj.-Gen. Cathcart: They often are.

Senator Baker: However, the point is that they may not be. If it takes someone until the age of 25 to get through law school and then work their way up to become an officer, he or she could be 59 years of age. There is a major change being made here, in my view.

Are there some people in the military that are beyond the age of 60, some positions? There is absolutely no way anybody can be beyond the age of 60 and still be in the military?

Vice-Admiral Donaldson: Not in the regular force.

Senator Baker: How can they be, then, in the not regular force?

Vice-Admiral Donaldson: There are components of the Canadian Armed Forces like the Cadet Instructors Cadre where you are not age limited the same way you are in the primary reserves or the regular force. There is a supplementary reserve as well, but in general the retirement age in the Canadian Armed Forces is 55 years of age and an extension can be requested to 60 years if there is a position.

For example, I turn 55 in June.

Senator Baker: You do not look it.

Vice-Admiral Donaldson: Thank you very much. I feel it, senator. I feel like I am ready to retire from the Senate, in fact.

Senator Baker: The final question is this: I still believe there is a problem with this and it has not been tested. These are new rules. This is 10 plus 10 and with mandatory retirement at age 60 put in law, and there could possibly be a challenge before the courts. However, as you have said before, these challenges come, and whether or not it is saved by section 1 of the Charter would then turn out to be the question.

Vice-Admiral Donaldson: It is also an institutional question because we have mandatory retirement ages in the Canadian Forces.

Senator Baker: Judges are beyond the institution.

Vice-Admiral Donaldson: Perhaps the Chief of the Defence Staff should be beyond the institution as well, but he or she is not. Perhaps other officers or senior NCOs should be considered as exceptions, but they are not. In our institution we have established age as a limit so as not to have to define in other ways what the limitations are. It is a mutually convenient way of agreeing to when service in uniform should end. However, it does not preclude someone from taking their expertise and employing it other aspects of Canadian society, including in the law.

Senator Baker: Tenure and pay.

The Chair: I am sorry, but I will have to jump in, Senator Baker.

Senator Baker: I was going to ask how much they get paid.

The Chair: It may be an argument for extension of the age limit in the Senate; I am not sure where we are going here.

I have three senators remaining on the list and we are really pushing the clock here, so I would ask you all to be as concise as possible, including the responses.

Senator Batters: My question is very short and it concerns part-time military judges. Could you please tell us why you believe that is an important component of this legislation?

Maj.-Gen. Cathcart: As I mentioned earlier, that is a very important component. That is a great question. It is really designed the give greater flexibility to our system. We are talking about military judges and we are concerned about heightened scenarios of operation tempo. It has been our experience that there is a general rise in disciplinary matters. We want flexibility to have enough judges sit if there are many courts martial, for example. In the current system the only option would be to keep appointing permanent judges to the tenure of age 60. If we had a surge and let us say we retained another 10 judges and they were gainfully employed for a while but then we went to more of a peacetime footing, probably half of them would not be required at that point. The reserve force gives us that option to be able to increase or decrease, and from a Judge Advocate General's perspective as a superintendent of the system, it gives us the ability to also show the integrated nature not only of the regular force but we have reserve force judges as well.

Senator Joyal: I want to come back to what my friend Senator Baker would call his hobby horse, which is the list of offences that would now be void from being in the criminal records. I want to give an example of offence number 95, which reads:

Every person who strikes or otherwise ill-treats any person by reason of rank or appointment is subordinate to him . . . .

"Strike" means physical violence. I do not understand. If I strike someone who is subordinate to me in civil life it is a very serious offence. You may be in a position of authority, of dominance and so on. I do not need to explain to you the reasons.

I then compare that to subsection 116(c), which states that it is an offence to sell, pawn or otherwise dispose of any cross, medals and insignia. I have medals. If I destroy or sell them it is not in the criminal record. Maybe I can understand that medals are important in the military system and I respect that very deeply, but you understand that the two offences are very different. One implies physical violence against someone on someone I have dominance over, and the other one is not the same level.

I fail to understand your rationale on the whole list, and I have gone through the list. In order to advance the understanding of that clause of the bill, which is new, would it be possible for you to provide the rationale under each of those offences that you want to take out of the criminal record, to do the exercise of reflecting on why this section 95 is taken out of the criminal record, why 116 is, why 187 is and why 122 and so on? Could you provide that to the committee?

Maj.-Gen. Cathcart: When officials appear again before the committee for clause-by-clause consideration, there will be an opportunity to explain the offences in more detail.

In general terms, it is really a process of looking at what has Parliament prescribed as the maximum punishment for section 95. That then ties into the Criminal Records Act and the Contraventions Act. It is really the two years less a day as a standard. If you are looking at that as a level of punishment and we do it as a comparison, then that is our starting point that Parliament has prescribed. It is not just the physical act involved; it is also the punishment that Parliament has prescribed both under the Criminal Code and under our system of military justice. We have to do, again, a comparison and a balance of the two.

Vice-Admiral Donaldson: In the case of the physical altercation, in our system, if two friends were sharing a beer after a long, difficult day, their nerves were frayed and one of them decided to take exception and hit the other one, in civil society they would not even press charges or do anything about it. In our system, if it happens in a military context, they do not have the choice of saying this is not important; if they are of different rank and they offer violence, then that is just the way it is.

The test is different. This is an example of where we may not wish that to have long-term consequences because it is a temporary error in judgment, but we cannot afford not to pursue the charges because of the context within which people are operating. It is a different context that requires a different level of judgment and the different application of behavioral standards, which is why we need to balance this off.

Senator Joyal: We will come back to it later on.

Senator Dallaire: I was very surprised to find out that we had not sorted out the chain of command, and the investigative and judicial processes, that is to say, the responsibility of the chain of command. I thought Bill C-25 had done that, but obviously it has not.

Introducing the vice chief as a single point that in fact can make decisions in relation to investigations evolving, slowing down and the risk of losing incriminating information is certainly a great step forward from every other Tom, Dick or Harry trying to do it for a variety of reasons, be they in garrison or operations. That is very positive. The question, however, is why bring it to the chain of command still. You are Provost Marshal, so to be Provost Marshal you have to be operationally qualified and capable of understanding. You take all the same courses as other operational leaders in the forces in order to achieve your rank, correct?

Col. Grubb: That is right.

Senator Dallaire: You have operational background, and we have indicated that the whole Provost Marshal system has been upgraded and enhanced significantly. I am surprised it was not done earlier on, but I gather over the past years it has been even more so. We have a different body politic working in the whole investigation process. We also have a very solid complaints system backing that up. Is that correct?

Col. Grubb: That is correct.

Senator Dallaire: With all of that there, you are under the administrative command of the vice chief for administration but not for operations or investigations. However, if there is friction between an operational requirement and an investigation requirement, the vice chief can give you directions regarding pursuing investigations; is that correct?

Col. Grubb: Yes, senator.

Senator Dallaire: Why do we want the chain of command engaged in doing that specifically when the whole aim of the exercise was to take the chain of command out of that process and find a different instrument — if it is not the minister, another instrument — that would not engage the chain of command in that investigation? This is justice and not operations. This is applying justice to a context that may be operational.

Col. Grubb: Senator Dallaire, I think the question is really about the balance between the operational imperatives in a major theatre of operation, for example, along with my responsibility as a police officer to conduct an investigation. You have rightly identified that there are many checks and balances to ensure, for example, the interference complaint process through the Military Police Complaints Commission. I could launch a complaint if I felt that the chain of command was interfering. However, at the same time it is about identifying a process where there is an impasse on a particular issue, where I am very much focused on the policing aspect of what is going on and the operational imperatives in the theatre. There must be some form of adjudication. In an open and transparent fashion it has been identified where it is very clear and in writing. I ultimately have the authority to publish it or not, to allow the court of public opinion to look at it, or in fact to proceed in another manner. I could launch an interference complaint.

It is about clarity. I am very happy to see this coming forward because for the first time in law the Provost Marshal will actually be described. What powers do I have?

Senator Dallaire: I cannot believe we did not have that described historically either.

The Chair: I will have to jump in here. We have run over time.

Senator Fraser: Chair, can I make a small request?

The Chair: Please proceed.

Senator Fraser: My request would be that the witnesses forward to us a list of any recommendations from the Lamer report, or indeed the LeSage report, that are not covered in this bill and a brief explanation of why not.

The Chair: I have no problem with that.

I want to thank our witnesses for their time and testimony. It is very much appreciated.

I advise senators that the steering committee has asked for additional sitting time to deal with this legislation and we will have that decision later today. If it is approved, we will be sitting next Tuesday from 3 to 5 and Wednesday from 3 to 6:30. Thursday will be at our regular sitting time, so we have additional time and hopefully we will be able to complete the hearings process on this important piece of legislation.

We will now move to clause-by-clause consideration of Bill C-299. We have officials from Justice Canada in the room should any member have technical questions regarding the bill.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person)?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1 carry?

Senator Fraser: On division.

Some Hon. Senators: Agreed.

The Chair: Carried, on division.

Shall the title carry?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the bill carry?

Senator Fraser: On division.

Some Hon. Senators: Agreed.

The Chair: Carried, on division.

Is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: Agreed.

Is there any other business that members wish to raise at this time? Seeing none, this meeting is adjourned.

(The committee adjourned.)