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.
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
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
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.
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.
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
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
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
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
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.
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
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
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
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
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
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.
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
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
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
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
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
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.
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.
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.
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
I will begin with the vice chief and his involvement in the investigation
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
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
I am sorry for the length of my answer, but it is an interesting
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
Senator McIntyre: Some bills have died on the Order Paper, as you
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
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
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
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
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.
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?
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.
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
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?
Maj.-Gen. Cathcart: In general terms, it is the judge's discretion
because this is a formal restitution process following a court martial
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.
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
The Chair: I have no problem with that.
I want to thank our witnesses for their time and testimony. It is very
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
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.