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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 38 - Evidence for May 28, 2013


OTTAWA, Tuesday, May 28, 2013

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other acts, met this day at 3:06 p.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good afternoon, colleagues, invited guests and members of the public who are following the procedures of the Standing Senate Committee on Legal and Constitutional Affairs. Today, we are continuing our consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

This is our second meeting on Bill C-15, and as a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."

To begin our deliberations today, I am pleased to welcome back before the committee the Honourable Patrick J. LeSage, former Chief Justice of the Ontario Superior Court of Justice. Justice LeSage was appointed to be the second independent review authority by the Minister of National Defence, and, in December 2011, he completed his report. I understand Justice LeSage has a brief opening statement.

Hon. Patrick J. LeSage, former Chief Justice of the Ontario Superior Court of Justice, as an individual: Thank you very much, Mr. Chair.

Honourable senators, it is a great pleasure and honour to be invited to attend here today, but I must quickly dispel any doubts that you might have. I am not an expert in military justice. I had the great pleasure and privilege of preparing, being a second review authority, to review the justice provisions of the NDA, National Defence Act, but that was sort of my first substantive involvement with military justice. Most of what I know I learned from this gentleman who is behind me here, Colonel Gibson. He was my instructor, and he worked with me and taught me some of the basics. I had a wonderful experience, and I am delighted to be here.

In my report, which was delivered in December of 2011, prepared between October and December of 2011, after a review that began, I think, in May, I put a note at the beginning: Bill C-15 and Bill C-16 have recently received first reading in the House of Commons. I have chosen not to comment on these bills, as they are before Parliament at the present time. My report, although it was delivered after those bills had been tabled, makes no specific reference to those bills, so anything that I have written there was written before the bills were tabled. I made no specific reference in my report about the bills. Quite frankly, I thought it would be impertinent so to do. However, I do not consider it impertinent to be here as an invited guest. Thank you very much.

The Chair: Thank you. I am sure there are some questions for you. We will begin with the deputy chair of the committee, Senator Fraser.

Senator Fraser: I am scrambling frantically through my papers to find the specific recommendation I wanted to ask you about. Justice LeSage, thank you very much for being here. It is a treat for us, and very helpful in our work.

Recommendation 15 is as follows:

There ought to be a full review of the issue of criminal records flowing from convictions at summary trial. I also recommend review of the processes and procedures for entering information into CPIC and of the relevant NDA sections to avoid consequences disproportionate to the violation.

This bill, of course, does not address internal housekeeping procedures and administration of either the military or the civilian police, but to the extent that legislation is the appropriate vehicle to address these issues, do you think this bill does it?

Mr. LeSage: I think it does a very good job. I am not an expert on this bill. I have read it, but I have read it fairly superficially because I read it originally a year and a half ago and then I read it after I was contacted about attending here, but I did not have access to it initially. I do have a general idea about what it will achieve, and I think it goes a long way, if not all of the way, to cover my concerns.

Senator Fraser: Do you think the technique they chose of setting out a list of offences which, if punishable only in a sort of relatively minor way, would not give rise to a criminal record, is an effective way to go?

Mr. LeSage: I do not know if it is the most effective. I cannot think of one at the moment that would be more effective. When I started to delve into this issue, I was surprised how little I knew of it, notwithstanding I had spent most of well more than 40 years in the criminal justice system.

Senator Fraser: It is another world, is it not?

Mr. LeSage: Yes. It is not a clearly defined path to get you a criminal record, but the consequences and the ill-defined manner in which you can get there, and with the — I will not say trivial, but some of the really not-so-serious offences that could potentially have gotten you there under the previous provisions.

Senator Fraser: I think in your report you mentioned being late to work, which would not give most of us a criminal record.

Mr. LeSage: Exactly. Thank goodness. I have not attempted an in-depth analysis, which I would not even try to do without hearing both sides, but I think they have done a pretty good job.

Senator Fraser: Have you had a chance to turn your mind to the sentencing principles that are set out in this bill?

Mr. LeSage: Yes.

Senator Fraser: What do you think of them?

Mr. LeSage: I think they are good. I do not think you can ever have an exhaustive set of principles. It would not be helpful if you did. However, the broad principles I think are set out quite well.

Senator Fraser: There was one that really caught my eye, which comes at the very end of the list. Some of them are clearly unique to military circumstances. The one that caught my eye — and of course I cannot find it, but it is there; believe me — talks about indirect consequences, that the judge shall take into account indirect consequences of the sentence. That struck me as extremely unusual, and I hope I am not putting words into the mouth of the senior officer who explained it to me. He said, for example, an indirect consequence could be that this verdict on sentence would affect the member of the Armed Forces' career. I have been thinking about that ever since, because it seems to me that often civilian judges take into account — and say they are taking into account — the loss of reputation, of whatever, but it is not in the law as a sentencing principle. It is just part of what a judge can do. I wondered about the effect of writing that into the law.

Mr. LeSage: You are absolutely right. It is not spelled out in other areas, but bear in mind we did not have sentencing principles until, in my lifetime, fairly recently. In most of my career as a prosecutor and the first half of my career as a judge, there were no sentencing principles in the Criminal Code, other than in very vague terms. There was nothing that set out specifically sentencing principles. I think it is helpful to mention that, because we would, as a judge or as a prosecutor, refer to the inadvertent consequence that could flow from this conviction, both to the accused and maybe to others.

Senator White could better explain this than I, but a police officer could be convicted of a gun offence of not great magnitude but that required a prohibition against the accused having a gun. That is his career. I do not say every policeman carries a gun all the time, but most of them today do. The consequences there are so disproportionate to the intended sentence. I think it is a good thing to put in something like that.

There are more descriptors in this bill than there would be, for instance, in the Criminal Code. The Criminal Code has historically not had a lot of descriptors. I hope that has not been too watery an answer.

Senator Fraser: No. It was extremely interesting.

Senator White: The bill looks at a lot of flexibility in relation to sentencing options, adding additional sentencing options — for example, absolute discharges, intermittent sentences, restitution orders and such, adding to the tool kit for military judges. Can you give us your perspective on those, support, not support, whether or not you think they will assist in actually meting out justice within the military?

Mr. LeSage: I am fully supportive. I think those are matters that ought to be and will — not each and every one of those considerations will apply to every sentencing, but they may apply to many, and it is good to have them there. Again, forgive me for talking about the olden days, but when I was a prosecutor, there was no specific restitution provision in the Criminal Code, although they used to be crafted through suspended sentence and probation, but you could not craft one with a custodial sentence. Then it was put in. You could have a restitution and a custodial sentence, whereas before you could only do with it with a suspended sentence and probation with conditions. I think they are very good.

Senator Dallaire: Sir, it is a pleasure seeing you again. Although it is not in the mess, it is a worthy place to discuss. I am coming to you from the angle of the actual military justice system. It is a fundamental premise that armies in peacetime train for war and that in such conditions, you train and you prepare as close as you can to war conditions while you are in peace in order to be able to transition to the actual operational theatre with a minimum of time and be prepared. There are a variety of levels.

The military justice system, although in its essence is to ensure the discipline and the operational cohesion and effectiveness of the forces in operations, is also of course used in garrison and has ramifications in the training, particularly when we do live training and so on.

There are methods used with regard to penalties or punishments given that are often perceived far more severely than you would see on civvy street for an equivalent crime. However, in the analysis of the chain of command and to maintain discipline, such breaches even in training could have ramifications in the cohesiveness and even the security of the forces. Therefore, it is important that the system be effective and up to date.

I am looking at you, sir, who has done the work, I believe commenced in 2011.

Mr. LeSage: Yes.

Senator Dallaire: We have Chief Justice Antonio Lamer, whose report came out in 2003. We are now in 2013. Your report has not been responded to yet. We should have had at least another review at the five-year point.

As you have seen this legislation and with your work, are we potentially jumping the gun or going against possible situations you presented in your report that would warrant us to maybe take a step back — heaven forbid, delay it — and determine that we had better take a look at your stuff and incorporate it into the legislation versus going ahead with this one, which is already 15 years late?

Mr. LeSage: Far be it from me to comment on what Parliament should be doing. However, I would strongly encourage as much of it that can be passed be passed, in other words, the bill that is here. It is impertinent of me to speak to a group of lawmakers and say I think the bill should be passed.

Yes, there may be a few things that I might have added a little bit here or there or changed or tweaked a little bit, but I do not think there is anything here that is inconsistent with my report. A lot of it, in fact, not only fulfills what Chief Justice Lamer said in his report, but it actually goes a little bit further and encompasses some of the things that I have in my report, which of course, was later. I think it is all positive.

Senator Dallaire: Chief Justice Lamer takes the Somalia scenario, Bill C-25, looks at it and comes up with 89-odd recommendations to make it more effective for implementation, because Bill C-25 did not cover everything that the Somalia report had recommended to us, and then it goes through the different iterations. This bill is supposed to respond to the bulk of those recommendations but also some changes that have happened through a variety of other activities in the interim.

Am I to take, then, in needing this, that what has been on the books to be changed for all these years, which the forces have been working without but needed, is now covered, in your estimation, reasonably well in Bill C-15, and that what you are going to bring to the table might call for more legislation but will not in fact prejudice some of the stuff that we are presenting here in Bill C-15? Is that correct?

Mr. LeSage: Correct.

Senator Dallaire: There is no doubt in your military mind about that?

Mr. LeSage: I do not have a military mind. No, I would not say there is no doubt; I have doubts about everything I say or do. However, I do not see anything inconsistent in this. He recommended a seven-year period of review. I recommended a 10-year period of review, but seven years is better than five. I think it is definitely a move forward.

[Translation]

Senator Dagenais: Good afternoon, Mr. Justice. As you mentioned, you have 40 years of experience in criminal justice. I would like to hear what you have to say about the military justice system and its application.

[English]

Mr. LeSage: I was very impressed. This was my first real look, certainly in depth, at the military justice system. I was quite impressed and also somewhat surprised. When I say "surprised," at the end of the day, I was surprised that I would be supportive of the summary trial procedure because all of my background and my instincts would tell me that this does not measure up to what a justice system should be.

At the end of travelling across this country, visiting numerous bases, hearing from I cannot tell you how many dozens, perhaps even hundreds of military members, civilian members and experts in the field, I changed my view and believed that the summary trial provisions are perfectly acceptable and, with some changes that are made in this bill, some very important changes, it is a very fair and just system. As I say, that surprised me. I did not know much about the summary trial process. When I first saw it, I thought, this cannot be. Then I came to respect it, understand it and consider its very real value and that it does fit into the democratic values of Canada.

[Translation]

Senator Boisvenu: I will continue in the language of Molière. Mr. Justice, thank you very much for being here. I will also talk about what we call summary procedures, because I think the opposite is true in civilian courts: the procedures are too long and, as we saw in Quebec in 2012 during the biker trials, it was even one of the grounds raised by Justice Brunton to call off the legal proceedings and let the criminals go free. Therefore, it is still a matter of checks and balances, namely, what we can accept as "short" and what we can accept as "long."

You wrote in your review:

[English]

The summary trial system is vital to the maintenance of discipline at the unit level and therefore essential to the life and death work the military performs on a daily basis.

[Translation]

You said further on in your report — and here, I think you agree with Justice Dickson — "that the summary trial process is likely to survive a court challenge as to its constitutional validity."

Since a bill's constitutional validity is one of our concerns, I would like to hear what you have to say about this, namely, whether you have in fact explored the issue, whether there is a risk of a challenge and what your thinking is with respect to that.

[English]

Mr. LeSage: I do not profess to be a constitutional scholar. However, I do profess to be an unabashed hero- worshipper of Chief Justice Dickson, I think one of the greatest Canadian judges we have had. I was obviously influenced by Chief Justice Dickson's view — I think that is what he said — that it would probably withstand a constitutional challenge. Chief Justice Lamer said, directly or indirectly, the same thing.

I am not a constitutional scholar at the level they are, but I, in my humble view, believe it is constitutional. I do not say that it could not be challenged. I do not say that it is not possible that some of it could perhaps be overturned. I think it highly unlikely, and if it was, a lot of the changes that are in this bill I think make it a stronger constitutional document.

[Translation]

Senator Boisvenu: The credibility of a justice system is often based on public perception. We have seen it in recent years; often, decisions rendered by certain justices have affected the credibility of our justice system. Above all, I think our justice system must be about the credibility the population gives it.

You have observed the amendments made by this bill. For our military members who may be affected by this particular system every day, do you think this bill will improve their trust in the justice system, for which they are the main clients?

[English]

Mr. LeSage: My impression is that they will. It was interesting, and I do not want to digress, but in speaking to military bases across Canada, as I indicated earlier, many of which had been through the system and were quite straightforward in acknowledging they had been prosecuted in the system, very few of them had complaints about it. In fact, almost none of them had complaints about the system. They might have disagreed with some aspect of it but not the fundamental approach to it. Someone thought that there should be perhaps better training for those who are giving them advice. I am not a good person to judge this, but I think that this will at least continue the members' respect for the military justice system and probably enhance it. Particularly, one of the concerns was the criminal record that could potentially flow from a misdemeanor, just not following certain rules. That will be, I hope, covered and alleviated by this bill.

Senator Batters: Thank you very much for appearing before us today, Justice LeSage. I want to commend you on the flexible and pragmatic attitude you have taken on this particular bill, in light of the significant work you obviously put into your report.

Bill C-15 proposes to lengthen, as you referenced earlier, the period of the review cycle for independent reviews beyond the present five years to, instead, a seven-year time frame. Can you explain why, in your view, a longer period is desirable to provide a track record of experience?

Mr. LeSage: During my career in the civilian justice system — criminal, civil, family — I have worked extensively with the Criminal Code, the Narcotic Control Act, various acts like that, and there was not a major revision of the Criminal Code during my career time, over 50 years. I think the last major revision of the Criminal Code was in 1955. I may be out a year or two.

Amendments can be made, but to do a complete review of all the provisions is a major undertaking. I am not complaining, because I was the beneficiary of this, but it is very expensive, and I think that once every 10 years would be adequate. It gives you the chance to see what is really happening with the amendments made in the last bill. Are they working or are they not?

In the interim, with former Chief Justice Dickson's report following the Somalia events, a lot of specific changes have been made through individual bills. That is fine; there is nothing wrong with that. However, to do a comprehensive review is very time-consuming and costly, and you often do not have enough experience. I am speaking more from personal experience than anything.

Senator Batters: You have significant personal experience, so I appreciate that. Thank you very much.

Senator McIntyre: Congratulations, Mr. Justice LeSage, for your independent review of Canada's military justice. I note that both your review and Justice Lamer's in 2003 came to the conclusion that the Canadian military justice system is sound and constitutionally compliant. However, you both indicated that there was room for improvement.

As you know, since 1998 there has been no update to certain sections of the National Defence Act, especially those dealing with military justice and the grievance process. Bill C-15 is the Strengthening Military Justice in the Defence of Canada Bill. Are you satisfied that Bill C-15 will strengthen the military justice system in our country?

Mr. LeSage: I do not know if that is a political question or not. I grew up at a time when bills did not have names.

Senator McIntyre: The words "le sage" in French mean to be a wise man, so I will let you take it from there.

Mr. LeSage: I think the system will be a better system with the passage of Bill C-15.

Senator Fraser: If I can, I would like to question you on two points.

I must say that I congratulate you on your succinct answers, Justice LeSage. It allows us to get in more questions.

First, on the summary trial process, which you think works well, I find myself perturbed by the fact that an accused in this process does not have proper legal counsel and, perhaps more important, does not have a normal right of appeal in the sort of normal legal sense. We know that some summary matters can turn out to be surpassing the important. I think the example I quoted last week was the Forest case in Manitoba, which changed the landscape of this country from the basis of fighting a traffic ticket. Do you really think it is not necessary to have either of those protections?

Mr. LeSage: Senator Fraser, I think I have already said that I was surprised at the conclusion that I came to. All my instincts told me, when I first looked at the summary trial, that this cannot really be a good system. The more I looked at it, the more I heard from those who had been involved — and that included, as I indicated earlier, a number of persons who had been prosecuted — I looked at it not as what it really is, because the military context is quite a different context than almost any other, but their workplace safety and the generic safety of so many of the offences or terms. Yes, you could say they have inadequate legal counsel. They have no legal counsel. They do have legal advice. This would not require legislation, but the persons who are trained to give advice — I have forgotten what they are called — they could do with more training. I surprised myself by coming to the view that, notwithstanding they do not have legal counsel and notwithstanding there is a very limited right of appeal, it is a valid and workable system, and that to change it into a structure such as we have in the civilian world would bring it to a halt, almost.

Senator Fraser: I guess that is why I was thinking that if I had to pick, I would pick the right of appeal because if you want a quick and efficient process there may not be lawyers at camp whatever-it-is in Afghanistan.

Mr. LeSage: I totally understand your view.

Senator Fraser: You just concluded differently.

Mr. LeSage: Yes.

Senator Fraser: Over the years, in this committee, we have had a number of occasions when representatives of the military justice system and branches of it have appeared before us. I must say that I have always been extremely impressed by their professionalism and their obvious dedication. Anything I say here is not because I am viewing with deep suspicion. It is a matter of principles.

Again, we raised this last week, and I would like to ask you about it. It is about the provision that the Vice Chief of the Defence Staff may issue instructions or guidelines in respect of a particular investigation, so this is not general. It was explained to us that sometimes there are emergencies, for example bombs may be about to drop or whatever. In general, that seems to open to me an absolutely sweeping doorway to, at the very least, the appearance of intervention for the sake of cover-up or for whatever other reasons might exist.

Would you have preferred to see at least some limits placed around this, as, clearly, I would?

Mr. LeSage: That is such a good question. I do not have an answer to it. In part, it is how we look at our democracy, our accountability and our system of enforcement of law. Historically, law enforcement agencies have had a very high degree of independence, as well they should, but they have never had an absolute degree of independence. At some point, there has to be civilian control at the end of the day, as I would normally say. It is very difficult to know where that line should be drawn and how it should be drawn.

It is an area I have thought about, but I do not have an easy answer. It is one of those sorts of things that I think I have only come to the conclusion that I would like to hear two sides argue this issue and then ask, "Where should it be?" It is a matter that I can understand that people would say, "This is not right."

What is the degree of accountability? I think that is really the question. If the degree of accountability is that the instruction has to be in writing, the Provost Marshal has the right to disclose it, and I will not get into the military complaints process as to whether they would have the right to get into it or not — I had better stay away from that; it is complex.

Senator Fraser: Thank you.

Senator White: Thank you, again, justice, for being here today. I know some of the work you have done in the past reviewing investigations; in particular, you talked about accountability being extremely important and that it has shaped policing in Ontario. This has been a discussion between my friend and me around the point of accountability. In some of the stuff you have worked on, you actually identified the need for a point of accountability. To understand who it is that is responsible and accountable, would you not agree that having a point of accountability within the military would be important for justice?

Mr. LeSage: It is important that there be a point of accountability, absolutely important.

Senator White: Thank you.

Senator Dallaire: Sir, I am coming to the summary trial exercise, which is a fundamental tool used by commanding officers in units. If you remember the QR&Os, most of the summary trials were done in units, by either the commanding officer, a delegated officer or the company commander.

These summary trials are then reviewed by the next level of command, which is the brigade. The brigade commander has a review then. He is also advised by the Assistant Judge Advocate General delegated to his formation. There are checks and balances at that level where an officer may be awry and corrective actions may be taken. The chain has very strong legal advice to the command with regard to the use of summary trials.

An essential tool of a summary trial, in order that it be effective to ensuring the discipline and the cohesion of the units and that they be responsive, particularly in an operational theatre, to correcting and rectifying the problem, is the ability to send people to detention. There are some misdemeanors, come crimes, that receive the attention that I would say may be on the upper scale of whether or not it should be incarceration versus detention. There is a whole raft of other charges, such as the excuse of coming late. If someone comes late four times in my regiment, I would charge them, and we would take corrective actions if the individual could not understand other corrective actions.

This detention is a tool of discipline. Why is it even considered to be an element that could end up potentially on a criminal record when it is an instrument of ensuring good order and discipline in the organization?

Mr. LeSage: As I said, I do not know this bill. I am not very familiar with this bill. I read it a year and a half ago, when it was first tabled, and I read it very quickly in the last couple of days. I did not know that you would get a criminal record in that situation, but maybe you do. I am sorry; I do not know the answer to that.

However, your point is certainly one that would be well taken, namely, that it is a pure discipline matter and why should one have a criminal record for that.

Senator Dallaire: If someone does get incarcerated, one way or another, it is by the legal system of the nation in that even though it may not be presented to employers, the individual, to be ethical, may have to raise it, if he has not sought a pardon. It seems to me that that defeats the aim of commanding officers wanting to use that instrument in that disciplinary, training and progressive move. It is up in the air.

On my second point, I come to the Provost Marshal. I could not believe that the Provost Marshal was not even in the statutes before. That the person is there is an essential amendment.

The Provost Marshal is appointed by the Chief of the Defence Staff because the Provost Marshal is a military officer. Of course, that makes sense. The Provost Marshal may be removed from office for cause by the Chief of the Defence Staff on the recommendation of an inquiry committee.

Is there a problem in establishing an inquiry committee within the organization to do that assessment and then provide that response? I am going back to Somalia, and to even Dickson, let alone Antonio Lamer, and how all that got really messed up on what one would say was a particular occasion, but it was a particular occasion strong enough that it ultimately brought a regiment to its knees. We lost a Chief of the Defence Staff, and God knows what else happened, including a rogue regiment that needed to be reviewed.

Is there something there that may have to be tighter than what is being described?

Mr. LeSage: Let me start off by saying that I understand your concern and your comments about Somalia, but we have come so far since Somalia, with Dickson's reports, with Lamer's reports, with the QR&Os and with various pieces of legislation.

I am sorry, I do not remember the section, but my recollection is that the committee has either the defence counsel — I have forgotten what they are called — or an appointee of the defence counsel on that committee. The committee is a fairly broad committee that would have the authority to remove the Provost Marshal.

Senator Dallaire: That would be to recommend removal to the Chief of the Defence Staff.

Mr. LeSage: Yes. Again, I am sorry, I do not have a good recollection or knowledge of Bill C-15, but my recollection was that it was well along the way of establishing some independence in that committee, just as the independence in the committee for the chief prosecutor, the chief defence counsel, for the judges. They struck me as being pretty balanced committees.

Senator Rivest: I want to go back to the question of my colleague. Instruction in the military world could have a different meaning than in the civil world. Are you aware? The vice chief who gave the instructions, when it is in general terms, has to make it available to the public. "Instruction" in paragraph 3 says there is no need to make it available to the public. It is very strange.

Mr. LeSage: Again, I apologize; I do not have a good knowledge of the actual legislation. I thought Senator Fraser had described the issue and the reporting. The vice chief has to put it in writing and it is given to the Provost Marshal, and the Provost Marshal has the right to release it or not. Then, as I say, there is the other issue, the military complaints issue, but I do not know the answer to that.

The Chair: We have a few minutes left. I know Senator Dallaire has indicated interest in asking another question. Is there any other senator who would like to participate in a third round? Seeing none, we will proceed to Senator Dallaire.

[Translation]

Senator Dallaire: During our discussions, we understood that the vice-chief is the authority who can make a change in the investigation process for operational reasons, and that it was up to the provost marshal to decide whether it should be made public, or even to establish whether there is interference as opposed to a real operational need. We were told that the vice-chief is not the chief of Defence, and therefore the chief of National Defence has the freedom to respond; he is high enough in the process to have an overall view of operations.

I have argued that he was still a part of the chain of command, and I suggested the option of finding a solution outside the said chain of command to avoid any interference from them. Based on your review of the file, what do you think of that?

[English]

Mr. LeSage: It is a difficult area, and not one that there is a black or white answer to. I am not keen to analogize to the civilian system, but I am going to try. The military system is different, there is no question.

In police investigations in the civilian system, there is a solicitor general and/or an attorney general and they have the overriding responsibility to have some direction and control over those bodies, but they refrain from doing so. It is not the premier of the province, for instance, who gives the direction and maybe a direction to suspend or simply not to prosecute or not to investigate. That is very rare. An attorney general or a solicitor general probably has that authority, but it is not the premier.

It is not a very good analogy to say the Chief of the Defence Staff does not have it and it is delegated to the Vice Chief of the Defence Staff. My logic may well be faulty, I am not sure, but that would be my closest analogy, I guess.

No matter who has that authority, one must be very cognizant of the depth and the breadth of that authority, and there must be some accountability.

Senator Dallaire: It is not just the justice system but also the investigation system because that is part of the overall review of your report. Whoever is that point of contact who would have the authority to influence for appropriate reasons an investigation, knowing that material could be lost, et cetera, would you hold the position that it absolutely has to be someone in uniform?

Mr. LeSage: I would not say absolutely, but I would have to think about whether there would be an advantage to have someone not in uniform. I do not know.

Senator Dallaire: Your report did not say that.

Mr. LeSage: No. Absolutely not.

The Chair: Thank you, Justice LeSage, for appearing before the committee again. It is always helpful in our deliberations. That is why we keep calling on you.

Mr. LeSage: Thank you so much. It is always a pleasure to see the honourable senator from Leeds and Grenville, a long-time great Ontario public servant. It is a pleasure to be in your company.

The Chair: I appreciate your putting that on the record.

We can all hear the bells ringing. If senators are in agreement, we have certainly had an indication from the deputy chair from that side of the table that we can hopefully have the committee's questions responded to in a way that will complete this panel's presence and adequately address any issues that senators have. Are we in agreement with that approach?

Hon. Senators: Agreed.

The Chair: Our next panel is from the Royal Canadian Mounted Police, Chief Superintendent Paula Dionne, Director General, Canadian Police Information Centre; and Chief Superintendent Chuck Walker, Director General, Canadian Criminal Real Time Identification Services. Chief Superintendent, please proceed.

Chief Superintendent Chuck Walker, Director General, Canadian Criminal Real Time Identification Services, Royal Canadian Mounted Police: Good afternoon. Thank you for the opportunity to appear before this committee today.

[Translation]

Good afternoon. Thank you for the opportunity to appear before this committee today.

[English]

My name is Chief Superintendent Chuck Walker. I am the Director General of the Canadian Criminal Real Time Identification Services, also known as CCRTIS. CCRTIS is the custodian and steward of the National Repository of Criminal Records. I am joined by my colleague, Chief Superintendent Paula Dionne, Director General of the Canadian Police Information Centre, which oversees the management of the CPIC system.

I would like to start by providing an overview and clarification of the roles of the National Repository of Criminal Records and the CPIC system, as well as an explanation of how these information data banks, both which are national police services, support law enforcement, criminal justice and public safety in Canada.

The National Repository of Criminal Records is a centralized data bank of criminal record history information. Information contained in the repository is contributed to by Canadian police agencies who own the information. Generally, contributors have discretion as to whether the information will be provided to CCRTIS for inclusion in the repository or not.

The vast majority of criminal record history information in the national repository is lawfully obtained in accordance with the Identification of Criminals Act. It is collected using biometric identification — in this case, fingerprints — and indexed using the individual's name, date of birth and gender so that it can be searched using CPIC, which I will talk about shortly.

Fingerprints and criminal information may also be submitted to the national repository in accordance with the DNA Identification Act, the Youth Criminal Justice Act and the National Defence Act.

[Translation]

Criminal record history information in the national repository is available to law enforcement for investigative purposes and to the courts which may use criminal record history information for sentencing purposes. Where appropriate, this information can also be used to support civil purposes such as employment and volunteer screening.

[English]

I will now move on to a brief description of the CPIC system. CPIC is a law enforcement tool, an online information-sharing system, critical for officer and public safety, used for investigative purposes. CPIC is fully accessible by all Category 1 police agencies. Limited mandate-based access is provided, as appropriate, to Category 2 public safety agencies, which comprise those with limited law enforcement responsibilities, and Category 3 public safety partner agencies, which have no direct law enforcement authority but provide assistance to law enforcement agencies.

CPIC's function is broader than the National Repository of Criminal Records because it pulls information from a number of data banks, not just the National Repository of Criminal Records. Beyond signaling that an individual may have a criminal record, which is always subject to confirmation via lawfully obtained fingerprints, a CPIC name-based query can be used to determine if an individual is wanted by police, currently charged, on probation, released from custody with conditions or reported missing.

[Translation]

The national repository of criminal records and the CPIC system are both used to support law enforcement by providing authorities with criminal record history and public safety information.

[English]

Although I touched on this a few moments ago, I feel it is important to stress that the information in the National Repository of Criminal Records and in CPIC is contributed to at the discretion of the originating police agency, which ultimately owns and is responsible for the accuracy and completeness of that information, as national police services, CCRTIS and the CPI Centre are responsible for making the information available to those authorities, both by maintaining the integrity of the information and by providing access to the systems as appropriate.

Thank you for the opportunity to address you today.

[Translation]

Chief Superintendent Paula Dionne and I will be pleased to answer your questions about the national repository of criminal records and the CPIC system.

[English]

The Chair: Thank you.

Senator Fraser: I will try to be concise and I will ask you also to be concise.

As you know, this bill will segregate out certain offences, if the punishment is comparatively minor, and arrange for them not to have a criminal record so that someone convicted of being late to work this week would have a criminal record; someone convicted after this bill was passed would not.

Would you consider going back to expunge from the criminal records system reference to comparable offences to the ones that will now be excluded from criminal records? Do you ever expunge anything?

Mr. Walker: That is an excellent starting question. Yes, we do expunge things because there are requirements in law to do so. I will give you a quick example. We often expunge non-conviction information. If the disposition of a charge is, for instance, a stay of proceedings, we are still lawfully in possession of that information pursuant to the Identification of Criminals Act; however, we have a process in place whereby the contributing agency, on behalf of the affected individual, can request to have that non-conviction information removed from our systems. Last year, we actioned that process 12,000 times with respect to the national repository.

Senator Fraser: What about the comparable offences?

Mr. Walker: I am sorry?

Senator Fraser: The question I asked was about someone who, once this bill is passed, would not have a criminal record but who gets one right now. Would you be prepared to expunge those?

Mr. Walker: With the proper policy frameworks in place and legal authorities, absolutely, I would say we would provide the service as required.

Senator White: Is there anything in this legislation in relation to CPIC or criminal records that concerns you or your branch?

Mr. Walker: I went through the clause by clause. I saw nothing.

Senator Dallaire: A person who gets a pardon, their information is expunged, I suppose; is that correct?

Mr. Walker: It is sequestered. We have a process whereby we sequester the information and it can be reinstated in the case of a revocation. That is an instance that occurs.

Senator Dallaire: We have people doing minor offences who are getting detention and not incarceration; they request pardon in the formal process within National Defence and they get a pardon. That would still be somewhere in your files if National Defence actually sends that information to you, because you said it is the originating body that has to send it. Does National Defence send you that information now?

Mr. Walker: National Defence does send us information. There are instances of convictions pursuant to the National Defence Act in our repository. I do not have numbers for you today, but I can tell you that it does occur.

Senator Dallaire: Is detention part of that? I am talking about the difference between incarceration and detention.

Mr. Walker: In terms of how the disposition is expressed within the criminal history, I would have to dig into that, senator. I do not know.

Senator Dallaire: Would you mind, chair, if that could come back to us?

Mr. Walker: Certainly.

Senator Dallaire: It is a significant point in this legislation.

[Translation]

Senator Dagenais: I read your document, and I would imagine that military police have access to CPIC. What category do they fall under? Category 1, 2 or 3?

[English]

Chief Superintendent Paula Dionne, Director General, Canadian Police Information Centre (CPIC), Royal Canadian Mounted Police: The Canadian Forces Military Police and the Provost Marshal are a Category 1 agency, so they have full access, as does any other law enforcement agency in Canada.

Senator Fraser: In answer to my other question, you said you would need the proper legal authority. Does that mean legislation, or can it be to expunge a record? Can such authority be provided administratively?

Mr. Walker: I am not an expert in this regard. However, I can tell you, with respect to the non-conviction information, really what we are working with is a lengthy history of case law in this area.

For instance, the Identification of Criminals Act speaks to the conditions under which police can take fingerprints. However, it is silent on what we have to do with them in the event of a non-conviction. It gives no direction. What we rely on is a fairly robust collection of case law. Our policies are built specifically around one piece of case law called Doré, where it was determined that the individual has to actively assert their right to privacy. Our policies are built around that notion. In the interests of fair justice and civil liberties and all those things, we have what we feel is a very good policy in terms of that information. I do not know how that would transfer to this scenario, but I hold it out as an example of how we operate today.

Senator Dallaire: I sat on the national police services advisory board. I do not know if it still exists today. At the time, there was a debate of moving from the two-finger to the ten-finger fingerprinting. Is that now resolved? Are you now a ten-finger system?

Mr. Walker: There are a number of different ways in which we take prints for different purposes. For purposes of determining whether someone exists within our holdings, we can work with plain impressions, or what is known as slaps or flats, to certify whether or not that individual is in our holdings. The rolled impressions that are typically taken for criminal purposes are taken because of comparison to crime scene impressions and the fact that we have more real estate to work with. We use all fingers, and now we collect palm prints as well.

Senator Dallaire: National Defence does have fingerprinting of its personnel for a variety of reasons, security reasons and so on. Would that information be sent to you automatically or would they hold that, only to be sent if there is a criminal reason for it?

Mr. Walker: When that information is collected, it is for security purposes. The reason for which it is collected is to compare to the holdings in the national repository for criminality. We do not retain that information. It is used for that purpose only.

Senator Dallaire: They compare it with you?

Mr. Walker: They compare it to our holdings to see if there is a criminal history on the individual as part of the screening process. The one exception to that is the model the RCMP itself uses. We keep the prints of our employees.

Senator Dallaire: National Defence does the same?

Mr. Walker: They may, but not with us.

Senator Joyal: You mentioned on page 2 of your brief:

Criminal record history information in the national repository is available to law enforcement for investigative purposes and to the courts, which may use criminal record history information for sentencing purposes.

I would like to address the last part: ". . . the courts, which may use criminal record history information for sentencing purposes."

How often would the courts use the national repository to get additional information?

Mr. Walker: Almost always.

Senator Joyal: It would mean that the offences that we are excluding in that bill — and I think you know the section, section 75, and there is a whole list of them at sections 85, 86 and 87 of the National Defence Act — some of them, in my opinion, are serious because they involve violence against a person. Section 87, for instance, provides that: "Every person who (a) being concerned in a quarrel, fray or disorder . . . (b) strikes or uses or offers violence to any other person in whose custody he is placed, whether or not that other person is his superior officer . . ."

Someone who is violent, in other words.

Then there is another offence, 95: "Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him . . ."

Therefore, a person who uses violence, who has a temper that is easily violent, and who would be found guilty under the military justice system would not find himself or herself in your repository.

I will give you an example. The person goes back and is violent with his spouse, for instance. I think it would be important for the court to know that that person has a previous history of hitting a subordinate or resisting custody, because it is part of the overall picture that a court might want to take into account before sentencing that person.

The Chair: I will jump in.

Chief Superintendent, I would ask you to hold your response. I have a suggestion for the committee, and hopefully this does not conflict with your schedules. We do have an open opportunity tomorrow at five o'clock, and we could continue our discussion of this legislation with you. Does that fit into your schedules?

Mr. Walker: We are at your disposal.

The Chair: I think that is what we will do, because the bells are ringing specifically for a vote.

Mr. Walker: I have just conferred with my colleague. I would be happy to return. She would be happy to return as well, but unfortunately she has a conflict.

Ms. Dionne: I will be happy to return, except that tomorrow I have a conflict on the schedule for that time.

The Chair: Perhaps we will have to live with one chief superintendent. I know that certainly Senator Joyal would like to have his question responded to.

Thank you. We will adjourn.

(The committee adjourned.)