Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for March 5, 2009
OTTAWA, Thursday, March 5, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:38 a.m. to study on the provisions and operation of An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act (S.C. 2008, c. 29).
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We continue our study on the provisions and operation of An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act (S.C. 2008, c. 29), which was passed in June 2008.
The background is that, thanks to court decisions in the Trépanier case, the system of courts martial had been ruled, as it then was, unconstitutional, and it was necessary to pass remedial legislation quickly. Parliament did so, but in exchange for the expedited passage of the bill, it was agreed between the Minister of National Defence and ourselves that this committee would complete a study of the implications of the changes to the court martial system. That is what we are now engaged upon.
[Translation]
It is a great pleasure to welcome our witness, Colonel Michel W. Drapeau, retired serviceman and expert in Canadian military law and access to information.
Many Canadians have seen you appear on television and elsewhere as you are a very well known commentator. We are very glad to have you here today and thank you for coming.
[English]
We will ask you to make an opening statement. We have copies of your brief. After your statement, we will ask you questions. The floor is yours.
Colonel (Ret'd) Michel W. Drapeau, O.M.M., C.D., as an individual: Let me open by thanking the members of the committee for permitting me to appear before you this morning to present a commentary on Bill C-60.
In preparation for my appearance, I have drafted a short commentary; I believe all members now have a copy. I would like to highlight some parts contained in it.
In my analysis, I made a brief summary of the Trépanier case by the Court Martial Appeal Court of Canada. That decision was issued on April 24, 2008. Briefly stated, the decision that the court made on that day declared unconstitutional the provision in the National Defence Act that gave the Crown, not the accused, the right to select the mode of trial at a court martial.
My analysis also points out that National Defence, should have anticipated that decision years ago. However, it did not. Instead, when the unanimous decision of the court was published, DND first filed an appeal before the Supreme Court of Canada contesting that decision and then tabled Bill C-60 to urgently make the required legislative changes.
[Translation]
The reason that should not surprise Department of Defence officials is that in 2003 the late Supreme Court of Canada Chief Justice, Antonio Lamer, having reviewed the National Defence Act, recommended that, just as in a criminal court, the power to choose the type of court martial be in the hands of the accused, and not the Crown.
Justice Lamer had also recommended a streamlining of the court martial system by simplifying it and reducing the number of court martials available, without however specifying what that number should be.
In 2005, two years later, the Court Martial Appeal Court also suggested to the Department of National Defence in Nystrom that the Director of Military Prosecutions' power to choose the type of court martial may violate the constitutional right of the accused to put forward an adequate defence, a right set out in section 7 and subsection 11(d) of the Canadian Charter of Rights and Freedoms.
It is with some surprise that I read the remarks made before your committee by the Minister of National Defence on June 17, 2008. He stated that Bill C-60 was necessary because of a deadlock created by the Appeals Court decision in Trépanier.
Allow me to briefly quote from some of the minister's comments.
This bill is necessary due to a deadlock created by the Court Martial Appeal Court decision in Trépanier. Until this legislation is enacted, it will be impossible to convene courts martials. As a result, serious crimes may go unpunished and the victims not see justice done.
As indicated in my text, those comments contradict the court's remarks, in its decision, setting out a straightforward and practical solution to deal with the deletion of the clause which impinged on the rights of the accused.
Having said that, on the positive side, the department took advantage of the opportunity Bill C-60 presented to reduce the number of courts martial. However, I am not sure that the number of courts martial reduced from four to two fully achieved that result.
Cpl. Lewyi's case, for which the hearing is about to take place before the Court Martial Appeal Court on March 13, 2009, is a good example. Before amendments were made to Bill C-60, the accused was subject to a trial because he was already accused, whereas now he has a choice.
In Cpl. Lewyi's case, he was accused of disobeying an order made by one of his superiors to check the condition of the brakes on his trailer. Presently, with the choice made available to him, he is subject to life imprisonment.
Now that is a bit much. Under the former system with the four courts, he would have been subject to a dismissal with disgrace. I am not saying that he will be charged and given as harsh a sentence as life imprisonment, but the bar is set very high now and with the changes brought forward under Bill C-60, his situation would only be made worse and not improved.
We will have to wait a few weeks to see what the Court Martial Appeal Court says about this decision, certainly with respect to its concrete applications, and perhaps even on the constitutionality of Bill C-60.
[English]
As an aside, I also noted in the analysis that I have given to you that the time has come to review the scale of punishments authorized under section 139 of the National Defence Act.
It is not covered directly in that section, but in a way it is because we have gone from four courts martial, one of which was dedicated to the trials of civilian accused. We have now collapsed those four into two courts martial. Both of these courts martial are now able to try civilian and military.
When it comes to civilians, the courts martial can only sanction a civilian to either a fine or imprisonment. There may be occasion where the evidence presented to these courts martial gives you no choice but to convict the individual. At the same time, if you want to give a beneficial sanction for whatever reason — it could be someone serving coffee in Afghanistan as we speak, who is subject to the code of service discipline and could be tried for whatever offence — then the court will have no choice but to provide either a fine or imprisonment. We have further reduced the flexibility.
I am saying that the National Defence Act currently, among other things, ignores a whole panoply of sentences that are available to civilian criminal courts. Therefore, a civilian tried by a court martial for an offence that could be identical to one being tried by his brother in a civilian criminal court would face a completely different and a very limited set of sentences. For instance, he would not be eligible for an absolute and conditional discharge. He would not be available or eligible for probation, restitution, conditional sentences or intermittent imprisonment, all of which are used, as we speak, in criminal courts across Canada.
At a minimum, these punishments ought to be available to the standing court martial first, whether or not the accused is military or a civilian. The matter is even more important if it is a civilian because the only possible sentence now that he or she could receive by a court martial is either imprisonment or a fine. This leaves little flexibility to the sentencing judge.
In closing, let me say that it was a real honour for me, both as a retired soldier and as a member of the legal profession, to play a part in your examination of this bill. I appreciate your attention, and I am now available for questions.
[Translation]
Senator Nolin: Col. Drapeau, thank you very much for having travelled here to take part in our deliberations. Am I correct in understanding that the last part of your presentation deals with Bill C-60?
Col. Drapeau: Bill C-60 does not deal with sentences. However, it reduces the amount of flexibility by cutting back the number of courts from four to two, that is an inevitable by-product.
Senator Nolin: So that comes as a result of Bill C-60?
Col. Drapeau: That is correct. And the result will be visible and the court is probably going to comment on the Lewyi case.
Senator Nolin: I do not think we should discuss that case. It is before the courts and I do not think it appropriate to discuss it.
Col. Drapeau: It is the first case which will go before the court in the wake of Bill C-60.
Senator Nolin: The accused military serviceman would be given the option as to which court he would appear before. . . I am having trouble following your reasoning. I would have to read your text, and I only just got it. Why does the accused now have options? It is a double-edged sword. Should he choose one particular type of court, he is subject to far harsher punishment than in a civilian context. Am I understanding you correctly?
Col. Drapeau: Yes, you are, and I will give you a practical example of this. That is why I chose a current example. In this case, if you want to give him a choice and that is the choice he makes, effectively the only choice he is able to make is a general court martial and not a standing one. And in so choosing, the sentence available to that court is life imprisonment.
Prior to this, there was some leeway, an incremental system when it came to the courts' authority to respond to varying circumstances, with their years of experience. This flexibility has been lost.
You quite simply cannot, by way of highly complex legislation, both from the reader's and the drafter's point of view, change the entire process of courts martial without expecting unforeseen consequences. And that is not a criticism.
Senator Nolin: You raise a point that was not addressed last June when we questioned the minister. And yet it is important. I am going to read your text very carefully because I make a distinction. I presume that the judge, presiding over a court martial, has the authority and latitude to determine the length of the sentence. I am not referring to a mandatory sentence.
Col. Drapeau: The sentencing options for the accused.
Senator Nolin: There is also the type of decision. You referred to suspended sentences, conditional sentences; there is a whole array of available sentences in civilian courts which, if I have understood your testimony, are not available and should be.
Col. Drapeau: The connection that I did not make in the text I gave you and that I am making now is that the Trépanier decision states, without saying so openly, that there should not be any distinction made between an accused person in a civilian court or a military court.
Senator Nolin: That is the argument you take away from the Trépanier decision.
Col. Drapeau: If it is the argument made in the Trépanier decision, and it is, in this instance, the accused must have a choice as to the type of trial, whether it be before a judge or a judge and jury, or what we call a committee in the armed forces. The same logic dictates the following: why would a civilian, who may be accused of theft in Ottawa, appear before a criminal court? He would have all manner of tools available to him at sentencing, whereas if he appeared before a court martial, there is only prison or a fine.
Once you start tinkering with the military law, you have thought a few steps ahead. Are there any other contradictions with the criminal court process? I am giving you one example.
The Chair: Just to clarify. Was this desirable array of sentencing options available before Bill C-60 when there were different types of courts martial?
Col. Drapeau: No, it was not. The law stated that in a standing court, it was already made clear in a regulation that the only punishments available were prison or a fine. If you turn to section 139 of the act you will see a list of all the punishments available to a judge, from minor punishments, loss of seniority, demotion, prison, and other various options. But the civilian aspects of a criminal court were still not included and that is still the case.
Senator Nolin: We were given a chart in both official languages. Is it part of the package of documents you submitted to us?
The Chair: Tables one and two.
Senator Nolin: Yes, you have raised this issue and it is important. Despite Bill C-60, this array of options was not available to the judiciary.
The Chair: Indeed.
Senator Nolin: That may come in a later reform.
Col. Drapeau: That is right.
Senator Nolin: We discussed this yesterday and we hope it will be brought forward before Parliament.
Col. Drapeau: And the point I am making is a logical next step.
Senator Nolin: Because the court's intention in the Trépanier decision is to seek to draw as perfect a parallel as possible between an accused civilian and an accused military serviceman.
Col. Drapeau: I will put on my academic or lawyer's gown for a moment and tell you that should you wish to get in ahead of a court martial case, an alert lawyer is going to say that any individual who has been subject to imprisonment or a fine in Afghanistan will question the constitutionality of essentially not having any choice. Should we expect the court to dictate this kind of thing?
Senator Nolin: Section 7 would be kind of demolished.
[English]
Senator Angus: Thank you for coming here this morning. I am pleased to note that you chose such a noble profession after your distinguished career.
Col. Drapeau: It took me a long time to get there.
Senator Angus: I see that you did get your LL.B. from the University of Ottawa and that you then articled in the Federal Court of Appeal.
Col. Drapeau: The Federal Court of Appeal, sir, yes.
Senator Angus: Were you assigned to a particular judge there?
Col. Drapeau: Yes, to Mr. Justice Létourneau.
Senator Angus: Did you then become a member of the Law Society of Upper Canada?
Col. Drapeau: Yes.
Senator Angus: Are you still a member in good standing?
Col. Drapeau: Yes, I am.
Senator Angus: I suggest that you add that to your CV under professional memberships.
Col. Drapeau: I probably took it for granted, but I thank you.
Senator Angus: I thought perhaps you were practising without being a member of the bar.
I was most interested in the allusion in your testimony to the fact that currently many civilians are in Afghanistan with our military contingent. I believe it flows from your testimony that those civilians, be they coffee servers, construction workers or truck drivers, are subject to the same regime of martial law. Is that correct?
Col. Drapeau: That is right.
Senator Angus: There is no choice?
Col. Drapeau: There is no choice.
Senator Angus: Is that because they are on a military base?
Col. Drapeau: Partly, yes, but partly because they are accompanying the forces. The law is quite clear. It applies to civilians accompanying a unit or attending an educational institution, such as the Canadian Forces Command and Staff College in Toronto. Contractors, be they mechanics, coffee servers or physicians, who are under the command and control of a military organization, be it aboard a ship or in Afghanistan, who are charged with a crime, be it punishable under the Criminal Code or a service offence, are subject to the law, and they will appear before a court martial.
Senator Angus: It was fascinating yesterday to hear a dissection of a case that went to many levels of the court. Senator Baker indicated that martial law offences include such things as not paying for your ticket to a mess dinner and other such trivial things. It was explained by the witnesses that this was necessary to maintain military discipline.
Does that same regime of offences apply to civilians on the same posting?
Col. Drapeau: That is correct, senator. It would depend on whether the charge would be preferred in this instance. However, if there is an interdiction to enter, if there is an obligation for one to wear a vest, for one not to use a radio under certain conditions — in other words, the regulations and the orders and directions given to all personnel within the encampment — he or she — whether in uniform or not — is subject to the same be directives. Should they breach those, the same accusation could be made against them.
Senator Angus: Following on Senator Nolin's line of questioning, there is, in your opinion — and it seems obvious, perhaps, to all of us on the committee — that there are vast lacunae in Bill C-60 in terms of either complying with the Trépanier decision in relation to establishing a parallel between the civil and the martial regimes on the one hand and having Bill C-60 complete the job on the other. I think you are aware that, at the time, there was urgency; there were many cases pending, and it all ground to a halt because of Trépanier. The wheels of justice needed to be greased, and the bill was passed on the understanding that we would have these hearings and that the minister — if still in office at the time — would entertain suggestions as to how we could improve that bill. That is what this is all about.
You are suggesting, I believe, that one area is in the sentencing area and having a whole inventory of sentences so that there is more than just life imprisonment or a fine?
Col. Drapeau: I do not agree. I have said that. It is my personal opinion, but I do not agree that there was such urgency to begin with. My authority for saying so is what the court said. The court anticipated a more banal, simple and practical type of step.
That was an understanding that the impugned provision was no longer constitutional. All the Canadian Forces had to do was ask the accused what his choice was. In some cases, the court says it is not a foregone conclusion that the accused would have elected a trial with panel.
Having said that, this is water under the bridge; we now have Bill C-60. I am not offended by Bill C-60. It is a good piece of legislation, but now that we have time to reflect on it, which is the purpose of your committee here, we need to go to the logical conclusion and further. That aspect of military discipline is so important. How it is seen and perceived, not only by the military, but people outside, such as yourselves and the general public, is important.
If the general public were to find out that one who failed to check the brakes on a trailer can be accused of an offence, which makes him punishable by life imprisonment, the level of confidence in the military justice system may not be as high as we all want it to be.
I am suggesting that reflectively we may want to push our analysis and the boundary a bit and ask if this is what we want. That includes punishment and the range of it.
Senator Angus: In your very articulate statement, you have said what you have said. Does it cover everything you feel should be done to improve Bill C-60, or do you have other ideas that could be implemented, or amendments to the bill?
Col. Drapeau: I am never short of ideas; at least that is what I am told. Yes, I have other ideas. I believe other aspects of the National Defence Act itself ought to be fine tuned. Some of these ideas were reflected in Bill C-45 of the previous Parliament, for instance. There are a couple more as well.
The National Defence Act must take a jump forward. Some stem from the recommendations made to Parliament by the late Justice Antonio Lamer. Not all of his recommendations were put into the legislation.
If I had one recommendation to make, it is to ensure there is an effort to have a full concordance, where possible, between the Criminal Code and the National Defence Act. At the moment there are several disconnects. The Criminal Code keeps up with societal changes. National defence, because of the conservative society it stems from — and I am still part of it — does not move at the same pace. There is a need to do this. If you wish, I could provide you with a table that shows how this could be done at no cost. It would improve its operation in this respect.
Senator Angus: That is a significant point the witness has made. I am suggesting to the chair that we might ask the witness to make the time, if he could, to give us a table, and furthermore ask him what he thinks about a possible review.
The Chair: Certainly, Colonel Drapeau, if you are willing to provide us with that input, it would be extremely interesting for all of us.
Col. Drapeau: It would be my pleasure.
Senator Milne: I have to say that, reading Colonel Drapeau's CV, I hesitate to ask him questions. It is so impressive, and I am certainly not a lawyer, so you will forgive me if I go back to the some of the politics of this, even though you say that it is water under the bridge.
On page 6 of your presentation, point 2, you essentially tell us that the overly speedy passage of Bill C-60, which we were convinced to do, was actually unnecessary because Trépanier was careful to provide the simple, practical interim solution that was available to the military and to courts martial.
Col. Drapeau: Let me answer that in this way: All Trépanier said is that the provision that gave the right to elect a court martial to the Crown was unconstitutional.
I can read the passage of the Trépanier decision, if you wish, that speaks to a simple solution. It says that a very simple, practical, solution is that one can just ask the accused to make the election; simple.
Meanwhile, the court also said that because of the recommendations made in 2003 by the late Justice Antonio Lamer, you may also wish to rationalize the court martial, but this may require some work and reflection. That could have come during the life of this Parliament. It did not need to be done in such an urgent fashion.
DND, for reasons perfectly understandable — though I may not agree with them —elected to address the unconstitutionality of a provision and the restructuring of a court martial and presented that on an urgent basis. Parliament respected it, and I accept that.
Senator Milne: You go on to say here that the ``structural change was done at the behest of the Department of National Defence and for reasons yet to be made public.'' You say that you understand them. Can you speculate as to what they were?
Col. Drapeau: I should say that I believe I have an understanding. What I do not understand and did raise before the House of Commons committee on the eve of its adoption is that the defence department was challenging that decision of Trépanier before the Supreme Court, and, at the same time, was asking Parliament to change the act. It was almost trying to get the best of both worlds. They needed to do something urgent, but they did not agree with the thrust of the decision. This is the way I read it. They did not agree with it, and that is why they went to the Supreme Court. However, if Parliament were to pass it, then DND would respectfully submit to its will as this would now be the law of the land.
As we found out in September 2008, I do not remember the exact date, the Supreme Court refused DND leave to appeal that decision.
It was almost as if it was the result of a bicephalous brain from DND. One part of the brain wanted to appeal the decision and the other part wanted to do something else, change the legislation. Why they wanted to make that wholesome change to it, to this day, I do not comprehend. It may be a tactical thing, but I do not comprehend the rationale.
Senator Milne: I am astounded at your knowledge of the entire system, and I stand in awe of it.
What do you feel would be the effect on civilians, particularly, being tried under the military system, under the courts martial, if these wider ranges of punishments or results were available to civilians? Could they be made available to civilians being tried under courts martial or would they have to be made broadly across the military? As we have been told many times, that will not work in the military system.
Col. Drapeau: In my opinion, it could be applied to both, though you may not want to. National Defence should be offering advice in the sense of whether it would negatively influence the application of discipline. I do not believe it would. However, if it does, I believe the court martial should be as benevolent as it needs to be and as harsh as it needs to be with civilians tried by a court martial.
I do not think a civilian should be penalized because in service to his or her country, the civilian may have breached a rule somewhere for which he or she stands accused. The punishment given to that civilian must not be harsher than what it would have been in the civilian court.
When there is a nexus to the military — I could be talking about something like someone waking up late one morning — what would happen to this person in a criminal court? If it would be a suspended sentence or an absolute discharge with no criminal record, why would not this tool be available to the court martial in question? Why would the court martial not be in tune with the Canadian criminal system? It also allows the accused who now stands sentenced, when he or she walks out, to know they have been treated fairly by a court martial as in a criminal court.
It only enhances the National Defence-Canadian Forces justice system. It does not detract from it but enhances it, at least through the eyes of the civilian who stands accused.
Senator Milne: Thank you very much for that. I hope that when you present how you feel the holes can be plugged in this act, you put in something about the disparity between the treatment of a civilian under civilian law and the treatment of a civilian under military law. There is a difference if you are late coming to work here in the Senate and being late to work in the mess hall over in Afghanistan.
Col. Drapeau: I am not minimizing the fact that, if you were late to work in a military setting where you were to repair a tank, the consequences may be very severe; it may affect the mission. Maybe the penalties would be higher; maybe they would not. However, at the very least, let the court have this range. The court can apply a just, fair and equitable sentence and not be forced to give a sentence that is restricted to only a fine or an imprisonment.
Imprisonment might be too harsh. What are you left with? You have a fine, which is inappropriate. If you fine a surgeon, how much would you fine them — perhaps $500 or $1,000? That may not be serving the deterrent or the sentencing principles outlined in either Canadian military law or Canadian criminal law.
Senator Milne: Thank you very much. That will help quite a bit.
[Translation]
Senator Joyal: Col. Drapeau, based on your experience at the Department of Defence, are the changes to the sentencing system the result of an oversight, an omission, or the result of a policy objective — a rational and deliberate choice?
Col. Drapeau: In my opinion, it was a deliberate choice. My opinion stems from the tremendous respect that I have for my colleagues and former colleagues knowing their professionalism. They are very diligent and take great care in studying these systems. I think this is the result of a deliberate decision and one made at various levels. It certainly is not the result of an oversight. For reasons that are theirs, it is a deliberate choice, I believe.
Senator Joyal: So, it is your contention that a number of sentencing options has been taken away for the purpose of imposing greater discipline within the armed forces — I am trying to get a handle on what their objective might be — so that the array of sentencing options will be so harsh or serious that the attendant effect would be to discourage any violation of the code of discipline or the disobeying of an order or regulation.
Col. Drapeau: I need to take a step back, Senator Joyal. In Bill C-60, the number of sentences has not been reduced, it has remained exactly as it was — what I am arguing for is a modest expansion and a greater array of options. The number of courts martial has been cut back from four to two. And the department certainly wants it to remain that way. The best example I can find to back up my argument — and I am repeating myself here — is that former Supreme Court of Canada Chief Justice Antonio Lamer made a whole slew of recommendations in 2003 — including the one we are discussing now — and that a blind eye was turned to these recommendations. The Department of Defence had decided to retain his services, but they also decided to turn a blind eye to some of his recommendations. This was not an oversight. For reasons that are the department's and the department's alone, the decision was made not to implement Justice Lamer's recommendation to give the accused the right to select a court rather than streamlining and simplifying the various trials by court martial.
And that is what they chose to do, probably because they wanted to act conservatively. There is no negative connotation to my comment, I am simply observing that the department often makes changes very slowly and only when pressured to do so or when faced with a fait accompli such as a court decision.
Senator Angus: This kind of conservatism is pervasive.
Senator Joyal: Based on the testimony we heard yesterday, I understand that by restructuring the four courts, one court has been eliminated, a court which offered sentencing options better suited to certain circumstances. But is that an unintended result? Basically, insufficient consideration was given to what used to be a variety of sentencing options available to the four courts or, perhaps, for reasons known to the military, it was simply decided that that court offered a broader array of sentencing options, particularly to civilian employees, and that that was a bad thing and that in future civilian employees should be subject to the fine or prison system, in the same way that servicemen and women are.
Col. Drapeau: Senator Joyal, this array of options did not previously exist but, quite simply, by having the number of courts martial reduced from four to two, Bill C-60 further underscored this lack of options and made it more acutely visible. And I believe the time has come to address this. The problem existed before Trépanier and the opportunity to broaden this array of options was there then. And right now, it has become even more evident, more necessary and, perhaps, even more urgent.
Senator Joyal: In your presentation, on page 9, you referred to a small table, of which I have the English version here.
[English]
Types of court martial pre-Bill C-60, post-Bill C-60. Underneath the types of court martial, you have disciplinary court martial: pre Bill C-60, dismissal with disgrace from Her Majesty's service; post Bill C-60 . . .
[Translation]
There is a shaded area. In other words, you seem to be saying based on this table that before Bill C-60 was passed the disciplinary court martial was able to issue a dismissal with disgrace to a serviceman or woman and that this possibility, if I have understood your presentation, no longer exists under Bill C-60.
Col. Drapeau: Under Bill C-60, we no longer have that that court. It has completely disappeared.
Senator Joyal: You understand my argument. By getting rid of the court, we have gotten rid of the sentence. That sentence was not added to the court that has taken over the functions of the disciplinary court martial.
Col. Drapeau: I would refer you to page 12, which describes the current situation. We now have two courts. The first, the general court martial, can go up to life imprisonment, and the second, the standing court martial, can impose dismissal with disgrace.
Senator Nolin: So that is still possible.
Col. Drapeau: It is still possible with that court.
Senator Nolin: Bill C-60 did not change the sentences but the people on whom they were imposed.
Senator Joyal: But it did not solve the other problem you mentioned, that is, that the sentences are different from those imposed by civilian courts.
Col. Drapeau: Yes, that is right.
Senator Joyal: In your opinion, would the increased choice resulting from your suggestions ensure that the discipline required for the forces to function properly would always be maintained, in light of your personal military experience?
Col. Drapeau: In light of my experience as a lawyer, practicing military law every day in my office, many members of the military come to consult me. I am first and foremost a military man. I wore the uniform for 34 years with a great deal of respect. My father and grandfather were in the military. I am someone who knows the military system and supports it. At the same time, that system must not violate people's constitutional rights and it must ensure that citizens who join the military retain their status as citizens and the rights conferred by that status.
Offering a broader range of sentencing possibilities has no downside as far as I am concerned. With a wider array of options under the law, a military judge who does not want to release an accused is not required to do so. But in certain trial circumstances, it would be useful for judges to have a provision enabling them to do that sort of thing.
Military judges do not have that option right now in sentencing either military members or civilians because section 139 limits their sentencing powers to a very limited list aimed primarily at military members. That is why the choice is imprisonment or fine, since the other options are serious reprimand, dismissal from the forces, imprisonment or reduction in rank, a range of punishments that are clearly intended for military members. The fact remains that, in the current war situation, we have an increasing number of civilians with us and they are covered by this law. Even people who are not charged with an offence realize that if they do something wrong and are found guilty, those are the punishments that will be imposed and are aware of the great discrepancy. If the civilian employees had a civilian criminal lawyer, they would see the discrepancy as well. They would wonder why someone accused of a crime does not have the same range of possible punishments that could be negotiated with or used by a judge in a criminal court. That discrepancy is obsolete in 2009 and it can be corrected easily without diminishing in any way the effectiveness of the military justice system. On the contrary, I believe that it would improve the quality of military justice and the respect that military members, civilians and the general public would have for it.
The Chair: Senator Joyal, I can put you down for the second round.
Senator Joyal: Of course.
[English]
Senator Dickson: What is the difference between the U.S. and Canada when it comes to civilians?
Col. Drapeau: One is called Obama; the other one is called Harper. The difference is immense. Although I have some knowledge, I have no qualifications to give you such a resumé at this table. I would have to look at the U.S. code of discipline, and the differences between the four services of the U.S. — the army, air force, marines and the navy.
Under their series of offences, an adulterous relationship is punishable under the code of service discipline. We had a case about a year ago where two general officers had a certain affection for one another and that was seen with much disapproval by their seniors. Their system is different from ours, but there are similarities.
Even if you had asked me about our system and the British system, more comparability can be found between the two, but they still have differences too. Some countries, such as Australia and New Zealand, are inspired by the Canadian military code of discipline, and we should all be proud of it. I am told Ireland is currently looking at making changes to their legislation, and they are having a favourable look at ours. My impression is that they will adopt it. That is a better comparison, rather than one between us and the Americans.
Senator Dickson: Coming back to the U.S., do they use sentencing similar to civil courts when it is a civilian that is on a base?
Col. Drapeau: The short answer is I do not know. I would have to check; it would take me time to check precisely. However, I have an opinion, although it is not based on the facts. I suspect it is reasonably close to our own system — whether or not they are inspired by it.
There is probably a good reason why the Judge Advocate General in Australia, New Zealand and the U.K. is not a military person but is a senior member of the bench. By virtue of his or her training, this is something that probably would hit the person automatically; he or she would find it odd between the two differences. That is one major difference that they have.
In our Anglo Saxon common law world, the Canadian military system has decided — for reasons I can go into — centuries ago to appoint a military officer as a Judge Advocate General. It does not have to be; it is not in every country.
Similarly, the director of military prosecution is a military person in our system. In Britain, they named a civilian barrister to that position. Hence the point — and this is where I believe in as much rapprochement as possible.
A person should not be penalized for giving loyal, brave service to his country. He or she should not have to endure the risk and the high level of obligations of military service, and then when it comes time to be penalized for something he or she may have done, to suffer a harsher punishment. That person could be our sons, daughters or anyone. If one has done something wrong, one must pay the price. If that price adds a nexus to the military infraction, that is fine.
It may be something like a domestic dispute. The military has jurisdiction to have a trial for a domestic dispute, something clear. Why, then, would that military person guilty of an offence be sentenced to something much harsher and end up with a criminal record, for instance, which would not be the case in the criminal court? If I am right to suggest that this might happen, then we should look at it out of respect and affection for our sons and daughters serving under the flag.
Senator Dickson: Thank you.
Senator Wallace: You are certainly well experienced and qualified to appear before us and comment on the effectiveness, as you see it, of Bill C-60. You have a combination of experience in the military and, since 2001, you are a lawyer. I see you have your own practice here in Ottawa. Is the defence of those accused in military proceedings a significant part of your practice, or does it form any part of your practice at all?
Col. Drapeau: I have elected not to do trials — maybe it is a question of age and a question of time available — and the Canadian Forces military who are accused of any infractions are well-served, as we speak, through defence lawyers in uniform so that they do not have to pay anything at all in order to be represented.
In my practice at the moment, we do one or two appeal cases per year. Our work is appellate in nature as opposed to trials. However, I do get involved in order to provide advice on a range of issues, including disciplinary issues, to members of the military who come to us.
Senator Wallace: I was wondering how much of your perspective on Bill C-60 has actually arisen looking at it from a defence appellate level.
Col. Drapeau: At the appellate level, yes.
Senator Wallace: That is helpful. Yesterday, we had Colonel Cathcart and Lieutenant-Colonel Wry appear before us. I asked them if, since the adoption of Bill C-60 and courts martial that have proceeded through the system — and I think there are some 39 in total at various stages of completion — any lessons or experiences have been learned from those cases with respect to the adoption of Bill C-60. I asked if anything has arisen from that experience that would allow them to believe that further amendments are required to the military justice system.
Not to put words in their mouths, but the impression I had was that there was very much a sense of satisfaction with the results of Bill C-60, and nothing in particular came to their minds. In contrast, you seem to be quite critical of Bill C-60 to the point that it makes me wonder if you feel there was any benefit in adopting Bill C-60.
What would your reaction be to that? Why is there such a difference in conclusions?
Col. Drapeau: If I have come across as being quite critical, I have overdone it; that was not my purpose.
Bill C-60 serves a purpose. It would not have been the chosen method I would have used to implement rapidly the direction of the court. The court itself offered a solution; come back when you get it done. Meanwhile, a bill could have been tabled in Parliament within weeks or months to include the restructuring of the court martial, including all of what the consequences were, part of a larger package that contains sentences and so on. It is an opinion more than a criticism.
Bill C-60 does the trick. It was DND's decision to do it this way. My criticism at the time was and remains this: Why did they elect in the first instance to appeal the decision to the Supreme Court of Canada, while at the same time try to convince parliamentarians that we need to make the changes and make the changes now? This contradiction I cannot comprehend. If there is criticism on my part, it is this.
The second aspect of it is that I did not see the urgency of it then, and I do not see it now. However, it is here before us, so it is a done deal.
Senator Wallace: Thank you.
Senator Angus: I will pick up where I left off. You were indicating how the common law on the civil side tends to evolve. It is an organic thing, whereas martial law is stuck in the statute books. Let me go to the Lamer report. Former Chief Justice Lamer was mandated by National Defence to undertake a review, was he not?
Col. Drapeau: Yes, he was.
Senator Angus: Was that pursuant to a review provision in the statute?
Col. Drapeau: I believe when the act was amended quite significantly in 1989, embedded in it — and I cannot tell you the precise disposition — was that there would be a five-year review, the consequence of which was Justice Lamer conducting this review.
Senator Angus: Right. That review provision is there now in the books, is it not?
Col. Drapeau: As far as I am concerned, yes.
Senator Nolin: That is so because of this committee.
Senator Angus: Right. Would it not be abrogated by Bill C-60?
Senator Nolin: No.
Senator Angus: In effect, a mechanism is in place for evolution and keeping up with the mores and the times. That is the only point I wanted to make at this stage.
[Translation]
Senator Nolin: Colonel Drapeau, I would like to come back to the issue of discipline. I found your preface very interesting.
Col. Drapeau: I am pleased to see you have the book.
Senator Nolin: I would be remiss if I did not mention to my colleagues that you had written this book with Mr. Justice Létourneau. In your preface, you put a great deal of emphasis on discipline under Canadian military law, and it is very interesting to understand the importance of that discipline. Chief Justice Lamer also had great respect for this concept of discipline.
Col. Drapeau: Absolutely.
Senator Nolin: I presume that Mr. Justice Létourneau wrote the decision in Trépanier. Was he the presiding judge?
Col. Drapeau: Yes.
Senator Nolin: He wrote about the importance of discipline with you. It is no secret that Mr. Justice Lamer and Mr. Justice Létourneau were very good friends. You and Mr. Justice Létourneau co-wrote this book. Today we are discussing the importance of discipline, which was raised as an issue by Senator Joyal concerning the deliberate decision by the state, the department, not to duplicate the range of sentencing options, despite the Lamer report recommending sentencing reform. In your opinion, did people in the department interpret Mr. Justice Lamer's decision as calling for a reform because the military operation involved regulars, reservists and civilians? Why not have a flexible sentencing regime that would apply to regular military members, military reservists and civilians as separate groups? After all, as you wrote in your 2006 book, discipline remains the cornerstone of this legal system, which needs to be different and has been recognized twice by the Supreme Court of Canada.
To follow up on Senator Joyal's question, did the state deliberately choose not to have parallel sentencing options? Mr. Justice Lamer recommended sentencing reform, but was it mainly based on the fact that there were civilians working within the forces?
Presumably it is important to maintain a criminal law system that is as close as possible to what civilians have outside the military, and that system would not apply to military members because of discipline.
Col. Drapeau: I do not believe that the cornerstone of the argument is that more options are needed for civilians. Even if civilians and military members were not both covered by the act, the same argument would apply. We want as many similarities as possible between sentences imposed on people tried in criminal courts and those tried in courts martial. There is one law for everyone, and military members should not be punished more harshly when it is not necessary. That is the thrust of the Trépanier ruling: why would a military member not have the same trial choices that he or she would have as a civilian? The same reasoning applies.
Senator Nolin: I understand the issue of choice, and I think the argument is unassailable. It is compatible with sections 7 and 11(d), which is fundamental. I do not question Mr. Justice Létourneau's reasoning in Trépanier regarding the issue of choice. But on sentencing, you take the reasons given in Trépanier and you say that if Mr. Justice Lamer's recommendation 52 is taken into account as well, the sentencing regime should be changed as well. I would like to read from Mr. Justice Lamer's report in English on page 65:
[English]
Because the military justice system has jurisdiction over members of the regular force, the reserve force and in certain cases, civilians, the range of punishments and sentences must be appropriate for all of these groups.
[Translation]
That is why I asked the question. Does this mean that there should be one system for everyone or a separate one for each group?
Col. Drapeau: I will give you the same answer as before. A military court judging a military member does not need to use any of these tools if they are not appropriate and it may not use them even once in 20 years.
Senator Nolin: — discipline.
Col. Drapeau: Where the emphasis is on maintaining discipline, a judge would not want to give a conditional discharge. But for a given case, whether the case is a civilian, a military member, a reservist or someone else, it may be useful to have that option available. The primary beneficiaries will be civilian accused because right now their punishment is automatically either imprisonment or a fine. And you have to agree that this is very little choice.
So it is not an issue of whether civilians have a right to this or that. This right should be available to everyone. The judge should decide on the sentence and be able to choose from a range of options. With their understanding of military culture, very few of them would go in the direction that you suggest by giving conditional sentences. Society will evolve. We will not always be in Afghanistan. Circumstances will change. Judges will have this possibility in their tool kit. We do not know where we will be in two, three or eight years. Right now, the primary beneficiaries are civilians.
I take a broader view, and my interpretation of Mr. Justice Lamer's comments encourages that broader vision. There should only be a discrepancy if it is essential, because it in no way reduces discipline. On the contrary, it might increase respect for the military justice system.
[English]
Senator Joyal: Let us take this a step further.
In the Trépanier case, the court stated the following at page 116:
Yet, Bill C-45 has been tabled before Parliament and it contains no remedial provision. The authorities have been given more than four and a half (4½) years to address the problem. The Bill already pending before Parliament can be used to quickly remedy the situation.
[Translation]
If we take Bill C-45 and look at the legislative summary —
Col. Drapeau: I do not have the bill with me. I am aware of it, but I do not have it here.
[English]
Senator Joyal: I will read it in English because my colleagues may not have the bill in their hands.
The summary of Bill C-45 states the following:
This enactment amends provisions of the National Defence Act governing the military justice system. The amendments, among other things,
(a) provide for security of tenure for military judges until their retirement;
(b) permit the appointment of part-time military judges;
(c) specify the purposes, objectives and principles of the sentencing process;
(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution; . . . . .
Clause 62 on page 32 of the bill adds a new division to National Defence called ``Sentencing.'' The first section is ``Interpretation.'' The second one, entitled ``Purposes and Principles of Sentencing by Service Tribunals,'' reads:
203.1 (1) The fundamental purposes of sentencing are
(a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and . . .
Proposed subsection (2) states:
The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives:
They then list the objectives, almost as many as are in the Criminal Code.
Senator Angus: Excuse me. From what are you reading?
The Chair: This is Bill C-45, which was brought in and did not pass because of an interruption of events. However, it does reflect, one assumes, the intentions of the minister and the department.
Senator Angus: However, it was not all incorporated into Bill C-60?
Senator Joyal: No, but follow my reasoning.
Proposed section 203.2 reads:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
That is the principle of the Criminal Code, verbatim.
Col. Drapeau: Yes, precisely.
Senator Joyal: If the court decided on the selection of the court in Trépanier based on the principle in Bill C-45, do you not think that when the court must look into sentencing, it would look in the same bill and say that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender?
The bill states it quite clearly, Lamer recommended it and it vindicates what you are telling us today, that sooner or later the court will strike down the present decision because it does not offer the option of sentences that this bill purported to achieve.
Col. Drapeau: Yes, exactly.
Senator Joyal: My question is, yes or no?
Col. Drapeau: Let me ponder that. Yes.
Senator Joyal: That is the gist of one of the recommendations of this committee. As you know, we are confronted with our terms of reference from the minister. I quote the letter from the minister as follows:
I would ask, however, that your Committee consider studying the provisions and operation of Bill C-60 and provide me with a report on your finding and any recommendations the Committee may choose to make, by December 31, 2008.
The committee has the terms of reference needed to include in our consideration the implications of the bill as it applies in relation to sentencing. In fact, if we would have had an opportunity to study the bill and make amendments at the time, we might have wanted to add to Bill C-60 those sections of Bill C-45 that were already scripted and accepted by DND. We are not imposing something on DND that they are not ready to do. This is DND policy as far as I can gather.
Col. Drapeau: To put it bluntly, given that National Defence used a rare opportunity to have an act passed in an almost unprecedented time frame, if these provisions had been inserted into Bill C-60, it would have received the same treatment as it did. You cannot argue against that. This is the law in progress, and this is the law that you are required to have if only to make it more equitable and fair to people serving in uniform. No one disagrees with it.
Senator Joyal: That is right.
The Chair: For the benefit of those who may be watching these proceedings on television, I will recall your attention to the fact that we are engaged in a study. A study cannot make or vote upon amendments to legislation. A study can, however, recommend all kinds of things. As Senator Joyal has reminded us, we are charged with examining the operations of those amendments that were made. It seems to see that operations do include consequences in any normal understanding of such a mandate.
Senator Joyal: However, I will read the rest of the paragraph that I quoted from the minister's letter:
The Government will review these recommendations and provide the Committee with a written response, that could include proposed amendments, within 90 calendar days.
It is not just ``consider the sex of angels, and we will listen to you.'' This is much more proactive and expedient. It says, ``within 90 days.'' In other words, if we produce our report in a reasonable time frame, and it includes recommendations of amendments, and if some of those amendments were contained in Bill C-45 —
Col. Drapeau: Undisputed.
Senator Joyal: Yes, undisputed. If the policies were well written and with the legal language National Defence is satisfied with, we could proceed with this. We would help to better the system.
Col. Drapeau: I agree.
The Chair: I was not arguing that we could not make the recommendation.
Senator Joyal: I know that. I am trying to understand what we are doing here.
[Translation]
Senator Nolin: Regarding your last answer, do you feel that Bill C-45 would have responded satisfactorily to the needs or recommendations expressed by Mr. Justice Lamer?
Col. Drapeau: On that point, I can answer unequivocally yes.
Senator Nolin: Thank you.
[English]
Senator Angus: I want to suggest that the clerk circulate Bill C-45 to us and the parliamentary library report, which has just been shown to me, because it is a new committee. That would be helpful. It sounds as though we are on the same wave length. The work is already done.
The Chair: That is why this committee is so interesting. It is just fascinating.
Senator Angus: I am delighted to be here.
Senator Joyal: I want to ask a question that I asked our witnesses yesterday, Colonel Cathcart, in particular. Bill C- 60 contains other provisions apart from the one of restructuring the military court system as far as the courts are concerned.
Do you have any other comments to offer us on other sections of the bill?
Col. Drapeau: None that come to mind, Senator Joyal.
Senator Joyal: In other words, nothing more in the bill should be of interest to us in the context of the recommendations that have been put forward.
Col. Drapeau: No, nothing that I can see. I took a very detailed and critical look when it first came to the House of Commons when I was asked to appear at that time. There was nothing I could see then. I did not pursue it since then, and I have absolutely no criticism — either positive or negative — toward any aspect of it.
The one exception, and it was a subject of discussion at the time, was the transitory provisions.
The Chair: That was fixed, however, was it not?
Col. Drapeau: That is right. I objected to that at the time. That is passé.
Senator Angus: Again, if he appeared at the House of Commons committee and gave detailed comments on Bill C- 45 at that time — if that is what I understand he was doing — that would be relevant. It is just that you do not recall, at this time, all the details that you went into, is that correct?
Col. Drapeau: I do not recall all the points, but I certainly recall that a fair proportion of the presentation on Bill C- 60 on June 17, if I remember correctly, dealt with the transitory provision. That was the only point that many members were interested in.
[Translation]
That was the only point that posed a problem for some members of the committee during their discussions.
Senator Angus: I misunderstood: I thought it was Bill C-45, but it is Bill C-60; excuse me.
The Chair: The committee was very wise and adopted Colonel Drapeau's recommendation. So that aspect was resolved.
[English]
Colleagues and Colonel Drapeau, thank you very much. You can see from the conversation that we take you very seriously indeed.
Col. Drapeau: I am honoured. Thank you.
The Chair: Our meeting will be in this room next week when the Senate rises or at 4 o'clock. The witness will be the Honourable Peter MacKay, Minister of National Defence.
(The committee adjourned.)