Mr. Chair, thank you very much. Members of the committee, good afternoon.
Thank you very much for this opportunity to speak to you today, albeit it was a little late. I've scrambled to put notes together, which the clerk has, and which I'm not going to get through in the 10 minutes. The clerk has kindly indicated that he will have them translated and distributed so that you might at some point see all of my thoughts, and I appreciate that.
I'm very appreciative of participating in this process concerning a very important matter regarding the military justice system. As the chair has indicated, I come at this not just based on being the former chair of the Military Police Complaints Commission but having a career-long history in military justice, first as a military police officer, then as a military lawyer, and subsequently, both nationally and internationally, in matters of police management and governance.
I'm going to focus the few minutes I have with respect to one small provision of Bill , namely subclause 18.5(3). I will proceed on the assumption that the contents of that proposed subclause are well known to the members of the committee. It is specifically with respect to the new-found statutory authority for the Vice Chief of the Defence Staff to direct the Canadian Forces provost marshal in respect of specific military police investigations.
Proposed subsection 18.5(3), as I've indicated, is very small, but in my view it is very large in terms of its negative impact on both the independence of the police, both real and perceived, and the oversight mechanisms, specifically the oversight mechanism in the military police commission oriented toward the prohibition of interference with police investigations.
It's my respectful submission that if realized, this small provision could be a retrogressive step and serve as the single most significant contribution to Bill C-15's short title of strengthening the military justice system.
The strengthening of the military justice system, of which the military police are a critical component, has been an evolutionary process since the Somalia commission of inquiry report in 1997 and the subsequent passing of Bill C-25 in 1998. Prior to that, Canada's military justice system, as embodied in the National Defence Act, had remained largely stagnant and largely unchanged for half a century, from the mid-1950s, when the first National Defence Act was passed, until 1998.
In fact, in 1992 there was a collective sigh of relief when the military justice system survived its first significant challenge under the Canadian Charter of Rights and Freedoms when the Supreme Court of Canada found the centrepiece of the system, trial by court martial, to be charter-compliant as a result of regulatory changes that were made, such as tribunal independence.
What could not be foreseen was that just over the horizon events occurring in Somalia in 1992 and 1993 would result in the Canadian Forces, including the military justice system, being subjected to public scrutiny, the likes of which had never been experienced before. Notwithstanding that the conduct of the Canadian Forces members in Somalia was investigated by the military police and charges were laid, including those of murder and torture, and notwithstanding that trials by court martial took place and that appeals were made to the Court Martial Appeal Court as well as to the Supreme Court of Canada without judicial criticism of the process, the court of public opinion was not so satisfied.
I appreciate that the committee has already heard extensively about this evolutionary process, but in that so much reliance seems to be placed on the very worthy opinions of former chief justices of Canada in respect of issues of constitutionality, I want to invite your attention very briefly to their specific and equally worthy advice in respect of matters of police independence and oversight.
First, the Somalia commission examined in detail the institutional response to the events in Somalia, including that of the military police. In so doing, it was particularly critical of the positioning of the military police within the military hierarchy and the influence of commanding officers as well as the chain of command over police operations, which vitiated any notion of independence and gave rise to the potential for the perception of improper influence being exercised. Accordingly, one significant recommendation was that the head of the military police be responsible to the Chief of the Defence Staff for all purposes except for the investigation of major disciplinary or criminal conduct.
Bill was also significantly informed by the 1997 report of a special advisory group, called the SAG on military justice and military police investigation services, chaired by the late Right Honourable Brian Dickson.
Concerning the military police, the SAG report dealt with many of the same themes as those probed by the Somalia commission, including the competing or conflicting imperatives of command and control for the military police role in support of military operations and those for the purely police investigative function.
In order to meet the requirements of both roles, the Dickson SAG report recommended a bifurcation of the process, with military commanders retaining command and control over military police personnel employed in operational support or intelligence roles, while all others would be under the direct command and control of the head of the military police. In the latter regard, the report stressed at length the importance of the independence of policing to ensure the integrity of the justice system.
An additional significant feature of the SAG report was that in the vein of ensuring confidence and respect for the military justice system, it recommended the establishment of an independent office for complaint review and oversight of the military police consistent with the established norms for the civilian police.
The subsequent Dickson report, the report of the military police services review group, received in 1998, found that the accountability framework signed by the VCDS and the provost marshal in 1998 conformed with the recommendations of the SAG report in respect of the independence of the policing function. A key feature of the accountability framework was that the VCDS would have no direct involvement in ongoing investigations and would not direct the CFPM with respect to operational decisions of an investigative nature.
As you're well aware, the first statutorily mandated review of the NDA was completed by the late Right Honourable Antonio Lamer in 2003. Of particular note, regarding the highly connected matters of military police independence and oversight, were two significant observations made in the report.
One was in respect of the role of the provost marshal, where Justice Lamer observed that it
||...is largely governed by the Accountability Framework that was developed in 1998 to ensure both the independence of the Provost Marshal as well as a professional and effective military police service...
“This legislative omission”, he then observed, was in an accountability framework, like a memorandum of understanding, but was not within a statutory framework as existed for those such as military judges, the JAG, the director of military prosecutions, etc.
He went on to say that
||Support has been given to the military police through the creation of the MPCC, a quasi-judicial civilian oversight body and operating independently of the Department...and the Canadian Forces. The MPCC was established to make the handling of complaints involving the military police more transparent and accessible
—and most specifically—
||to discourage interference with military police investigations....
My submission is that Bill does comply with Lamer's recommendation to fill the legislative void concerning the responsibilities of the CFPM by proposing they be codified in the NDA. However, in so doing, and notwithstanding the consistent recommendations of the Somalia commission, the Dickson report, and Lamer in respect of the necessary independence of the military police from the chain of command in respect of police operational decisions and investigations—as well, it is in stark contrast to the accountability framework—it includes a provision that specifically authorizes the VCDS to
|| issue instructions or guidelines in writing in respect of a particular investigation.
Justice systems must continuously evolve to meet the ongoing changing circumstances, standards, and expectations of the societies that they are intended to serve. The military justice system has experienced a long overdue and rapid period of evolution over the last two decades, including recognition that the military police are a Canadian police service—in fact, the seventh-largest in Canada—with a public expectation that they will enforce Canadian law at home and abroad at the highest standards.
Bill is part of that continuing process. What is under discussion here is whether a significant part of that evolutionary process and the consistent recommendations in terms of the key issues of police independence and the associated matter of effective oversight of military policing will be inexplicably disregarded and the clock, in fact, turned back.
My very brief summary submission is that if Bill is passed into law in its present form, inclusive of the new subsection 18.5(3) authorizing the VCDS to interfere with police operations and investigations, it will be inconsistent with the principles of police independence as recognized by the Supreme Court of Canada at late as 1999 as underpinning the rule of law, as well as run counter to the norms of police-government relations, certainly in Canada, and I can tell you internationally in developed countries, which recognize the importance of police independence and prohibit police service boards or similar executive bodies from giving directions regarding specific police operations.
It would also effectively contradict, even repudiate, the notion of improper interference by the chain of command as established in the oversight jurisdiction of the Military Police Complaints Commission and thereby effectively eliminate oversight by statutory authorization of such interference by the VCDS, a person not subject to the jurisdiction of the complaints commission.
I'm here to answer your questions as you may have them, but I leave off by asking you one: why?
Thank you, Mr. Chair, and I would like to thank the committee for the opportunity for us to appear before you today on this important piece of legislation on behalf of the Criminal Lawyers' Association.
The Criminal Lawyers' Association is an association of criminal law professionals. We're here as part of our mandate, which includes running representations on issues relating to criminal and constitutional law and civil liberties more generally.
We want to be up front about the fact that neither Ms. Weinstein nor I am a practitioner in the military justice system. We're not military law experts. Some members of our association do practise in the area; we do not, but we're here on behalf of our association more generally on issues relating to provisions of Bill in which there are parallels between the civilian criminal justice system and the military justice system. We're offering our insights into the possible charter and civil liberties implications of those particular provisions of the bill.
I'm going to start by offering a few brief comments on a few of the provisions of this legislation that the CLA is supportive of and that in our view are steps that strengthen the procedural fairness of the act and implement charter values within the act. Following that, Ms. Weinstein is going to add some brief comments on one particular area of the legislation where, in our view, the legislation doesn't go far enough. This is essentially the interaction between the summary trial process and the lack of procedural protections that particular process offers, balanced against the consequences that can arise from that process. This effectively can be consequences identical to what you would see in the civilian justice system, in particular the imposition of a criminal record.
I will start briefly with some of the provisions of this legislation that the CLA is very supportive of.
The first are clauses 24 and 62, which are the two clauses particularly dealing with modernizing the sentencing provisions of the act. Certainly we're quite supportive of those, as they add additional procedural protections into the sentencing regime, in particular the introduction of a number of statements of principles of sentencing that are to be followed in the military justice system. This brings it more in line with the principles we have under the Criminal Code for the civilian system, and we'll likely be able to borrow from some of the case law that's developed in common law and civilian justice to help animate those principles as they're introduced within the military justice system.
As well, there is the notion that what we call aggravating facts, which are more serious facts that are particular to a case and can be used against somebody on sentencing, need to proved beyond a reasonable doubt. That requirement is an important procedural safeguard, because obviously the more serious the facts, the more serious the appropriate sentence. We're in favour of that particular introduction into the sentencing regime.
As well there is the introduction of additional sentencing options, including the absolute discharge, which means there won't be a criminal record imposed in some of the offences that are dealt with at the low end of the spectrum. We think that's an important sentencing option so that, as is the case in the civilian system, the punishment can be more precisely tailored to the circumstances of the offence and the realities of the offender.
The introduction of intermittent sentencing as an option is also important. Certainly the unavailability of an intermittent sentence was an issue that had been highlighted by Chief Justice Lamer, particularly with respect to sentencing of those who were in the reserve forces or of civilians under the act when there could be serious concerns that a jail sentence could be imposed. A jail sentence would have to be served consecutively, and it could cause serious prejudice in terms of possible loss of employment for individuals who were being sentenced in that manner.
I note, however, that in what is being proposed there is a limit of 14 days placed on intermittent sentences. Under the Criminal Code in the civilian system, the limit is 90 days; any sentence of 90 days or less is up to the discretion of the judge in the civilian system to impose intermittently. We would certainly encourage a longer period of sentence be eligible for an intermittent sentence.
In particular, under the summary trial regime a sentence of up to 30 days in prison can be imposed, which is supposedly for a less serious matter. It would be beneficial if that sentence was an option for a judge as a sentence to be served intermittently.
Those were the areas I was going to focus on in terms of the areas we support. Certainly there are many others in our brief.
I'll turn it over to Ms. Weinstein to address the particular area of concern.
Thank you, committee members, for having us here today. It is my first time appearing here, and it is a distinct pleasure.
I have provided notes as well. Unfortunately they were prepared at the last minute. They will be translated and made available to you at a later time.
My concern this afternoon is ensuring that members of our Canadian Forces, who, it is recognized, make great personal sacrifices on behalf of all Canadians, are not afforded lesser constitutional protections than other Canadian citizens.
It's recognized, of course, that the purpose of military law is to ensure discipline is maintained in order to ensure the defence of our country remains strong. We know from the Somalian report that habits of obedience are critical when soldiers are deployed to areas of the world where law has broken down.
However, as General Westmoreland once said in another context:
||A military trial should not have a dual function as an instrument of discipline and as an instrument of justice. It should be an instrument of justice and in fulfilling this function, it will promote discipline.
Former Justice Lamer confirmed for us in his report that while a separate form of justice is necessary in a military context because of its unique purpose in our society, every effort should be made to ensure that constitutional values are protected and members of our Canadian Forces are not deprived of the protection that the rest of us enjoy.
We know, for example, that judicial independence as articulated by paragraph 11(d) of our charter is a constitutional principle that has been upheld by our Supreme Court and that was decided in the case of Regina v. Généreux. It was to this end that Chief Justice Lamer recommended the creation of a permanent military court as a means of reinforcing the ideal of an independent tribunal of military judges, which he said would be consistent with charter values.
It is understood that summary trials are meant to deal with matters that are of the least significance—minor offences and that type of thing—but the primary concern of the Criminal Lawyers' Association in particular is that an individual who is undergoing a summary trial procedure can be subject to the stigma and the long-lasting effect of a criminal record that may follow that individual outside of their life in the service, affecting their mobility, their ability to travel, and their employment, when the procedural safeguards that a person accused in the civil system would normally enjoy are not in place.
Some of those concerns are that a person who is in a summary trial and who could receive a criminal conviction at the end of it does not have the right to counsel; they have an assisting officer, who does not have formal legal training. The trial is presided over by a commanding officer, and the assisting officer is the subordinate of the commanding officer. That, in my respectful submission, could create a possible appearance of the apprehension of potential unfairness towards an accused person in those circumstances.
Despite the need for summary trials as a mode of ensuring discipline, the imposition of a criminal record when the commanding officer acts as the trier of fact—the prosecutor—and has been briefed prior to actually hearing the facts in the trial himself or herself by a sergeant major gives rise to the possibility that the trier may not be perceived as being free of the potential for bias because of the circumstances of his or her position. The commanding officer also has a competing interest in promoting the efficiency of the unit, in addition to making sure the trial is a fair one. In my respectful submission, these are competing ideals that may give rise to the appearance of potential tainting.
While it's perhaps arguable that this practice is saved by section 1 of the charter for offences that do not attract a criminal conviction, it is my respectful submission that where a criminal conviction can flow, this is not constitutionally sustainable.
In just some of the brief research I did prior to attending here today—and as Mr. Granger said, I'm not a military law expert—I did note that in a JAG annual report from 2008 to 2009, there were strong feelings expressed by members of the Canadian Forces in a survey that the outcome of summary trials is predetermined and the chain of command maintains influence over the process.
If that is the case, if that is how Canadian Forces members are feeling, and there is a potential for a criminal conviction and the stigma associated with that at the end of the trial, that is not acceptable constitutionally, in my respectful view.
It is of concern as well that the training course to be a presiding officer at a summary trial is just two days in length. By any measure, this is rudimentary training, but it is of particular concern if that individual can then impose a criminal conviction that may end up being a wrongful conviction in law.
Justice must not only be done, but it also must be seen to be done. It's recognized that the Queen's Regulations and Orders recognize that a summary trial procedure is meant to promote prompt but fair justice in respect of minor service offences.
Our recommendation would be that if these trial procedures are not in place, then criminal convictions should not ensue no stigma should associated with a finding of guilt as long as the normal procedural safeguards are not in place.
In making these comments, I'm echoing the submissions that Justice LeSage made in recommendation 15 of his report.
Subject to any questions you have, those are my submissions. Thank you.
I want to thank you all for coming today. I realize sometimes we have people coming on short notice.
Mr. Tinsley, your opening remarks reminded me of a speech-maker who said, “I have a long speech; I didn't have enough time to write a short one. If I had more time, I would have given a shorter one.”
You did a very good job, I must say, in outlining a strong argument against what you call turning back the clock, based on the submissions we've had from Chief Justice Lamer and Chief Justice Dickson and what was put into an agreement, a practice, that was given high regard by Mr. Justice Lamer when he talked about it.
This has been dismissed as just a policy, but it seems to me to be much stronger than that, particularly since Mr. Justice Lamer said it should be put in legislation.
Can you suggest circumstances under which this should be allowed to be interfered with? It's not as if this couldn't happen. When I was in Afghanistan a couple of years ago, while our defence committee was actually there, the commanding officer of all of our forces in Afghanistan was actually removed, sent home, and charged for conduct prejudicial to good order and discipline. Presumably that involved the military police and an investigation, which in theory under this legislation could have been halted, or stopped, or directed some other way. Do you find that possibility disturbing?
Mr. Harris, I hope my comments make it clear that I find it not only disturbing but somewhat frightening that we would take that step back. The independence of the police, to me, is the same in the civilian context, where the Supreme Court, in the Campbell decision, found it was an underpinning of the rule of law.
We've come a long way in the military police context. At one point the function of the police in the military context was often largely a matter of force of personality.
I'm going to share with you one anecdote. When, as a lieutenant, I was first made the officer in charge of the military police unit at CFB Kingston, within my first couple of days I was taken aside by a senior officer in the administration and informed that the local base custom was that if an officer was stopped, having been drinking and driving, he was to be driven home. He was not to be run for impaired driving. That was for officers, not non-commissioned officers.
I couldn't live with that. Thankfully, I had a base commander who was brand new to this base, and when I went to see him in what could have been a career-stopping move, I asked whether this was his custom. I said it wasn't mine and I couldn't work with it. It was not career-stopping, because he agreed with me.
On the Somalia cases themselves, when the death of a 16-year-old boy occurred in Somalia, there were only two military policemen in that Canadian Forces contingent, the sergeant and a very young corporal. The sergeant was out on R and R. The corporal didn't know what to do. The commanding officer started a summary investigation of a death by torture. The sergeant came back. He was older and more experienced and had a very forceful personality. He put his hand up and said, “Something's wrong here. This is a criminal offence. This is a police matter.” He had what's referred to often in the military as “the brass” to communicate directly back to NDHQ, to military police headquarters. Then what sealed the deal was that when one of the perpetrators attempted suicide the following day, there was a kerfuffle in terms of administering medical aid, and there just happened to be a contingent of visiting press on scene. The cat was out of the bag.
Yes. As I said, I don't see a distinction. If there isn't that independence, there is a risk that the police are going to be used for improper purposes.
We can look at Canadian examples, such as the public's criticism of the Ontario government's actions in directing the Ontario Provincial Police in 1995 in dealing with the Ipperwash situation. There were improper purposes and some attributed political motives, etc. Unless there is an insulation of the police to ensure that they are working independently, there is a very real risk that sort of thing will occur.
I'm currently working in countries in transition, as you'll see from my resume—in Brazil, in Uganda, and, I might mention, in the former Yugoslavia. In the war crimes cases that I prosecuted, a surprising number of them involved military police units because, with a misguided logic, the military police units of the Serbian army were often used to run the camps. They were, in fact, concentration camps. It was done, as I say, in a perverted view that this was law enforcement, so we used the police, and the police were directed to do it.
I did see in one of the hearing transcripts a suggestion that the VCDS might need this power in order to stop military policemen, as I understood it, from killing themselves by going to crime scenes to investigate in operational circumstances that did not permit that kind of investigation. Through the years, I've noticed that there are some common personality traits among police officers and military police personnel, but believe me, suicide has never been one of them.
First of all, I just want to address something: nobody is frogmarched. The characterization is insulting to soldiers and also to those who preside at summary trials and courts martial. Troops are not humiliated. If they're charged for an offence, they're charged for an offence. Nobody's humiliated by going to court, depending on what they've done, and nobody is certainly made to be humiliated at a summary trial. That's a false characterization and one that, on behalf of soldiers, I'm offended by.
I'll address Mr. Granger and Ms. Weinstein. In the summary trial itself, an accused, by the way, does have an option to hire a civilian lawyer. That can be allowed as a possibility in a summary trial. As an assisting officer—and I've been an assisting officer—you familiarize yourself with the charges and all the relevant sections in the QR and Os, and you advise the accused of what his or her options and rights are.
As an assisting officer, if you do find there's some sort of conflict over those presiding, then the fellow presiding—the delegated officer or the CO—could recuse himself in favour of somebody more impartial. There is a lot of common sense built into that system. I just wanted to put that on the record.
We have learned that, of course, as we're talking about summary trials, which are the most commonly used form of service tribunal, that they are a very prompt way of dealing with those minor offences to instill discipline, because it is a society within a military. Conduct that prejudices good order and discipline is something that is foremost in their minds. Because of what soldiers do and are asked to do sometimes, in the most extreme cases, it's required.
Could you please comment on the assessment made by Chief Justice Dickson, and seconded by Chief Justice LeSage, that the summary trial process is likely to survive a court challenge as to its constitutional validity? If you disagree with that, can you specify what particular element of the charter analysis you disagree with?
I would like to thank the honourable members of this committee for this opportunity to appear before you today to speak to Bill
As Deputy Judge Advocate General for military justice, I, together with my team, have a played a significant role in the preparation of this legislation. I am very glad to have the opportunity to appear today to assist the members of the committee in their consideration of the bill, for two reasons.
The first is that we are lawyers and members of the Canadian Forces. The system we assist in constructing and that we endorse is one that applies to ourselves. We live it every day.
My 32 years of service in the Canadian Armed Forces have taken me to over 60 countries around the world. Between us, Lieutenant Colonel Strickey, Lieutenant Colonel Dufour, and I have multiple operational deployments, including to Bosnia, Afghanistan, Congo, and Sudan. We thus understand first-hand how the military justice system must possess certain functional attributes, including portability, in order to fulfill its purpose. We are fully committed to both the effectiveness and the charter compliance of the military justice system.
The Canadian military justice system has two fundamental purposes: to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency, and morale, and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It thus serves the ends of both discipline and justice. These purposes are stated in the statutory articulation of purposes, principles, and objectives of sentencing in the military justice system set out at clause 62 of Bill .
Simply put, an effective military justice system, guided by the correct principles, is a prerequisite for the effective functioning of the armed forces of a modem democratic state governed by the rule of law. It is also key to ensuring the compliance of states and their armed forces with the normative requirements of international human rights law and of international humanitarian law.
The second reason is that having listened carefully to the testimony of the witnesses who have appeared before you, there is a concern that there may be some misapprehensions about some of the provisions of this bill. I would like to briefly address two of them now.
The first relates to clause 75, concerning the creation of records within the meaning of the Criminal Records Act arising from conviction for minor service offences.
The origin of clause 75 was our concern that although it is necessary to maintain stringent discipline in the Canadian Forces and that this may require trying persons for what could be seen as relatively minor offences, it was not necessary for the maintenance of discipline to have the collateral effect of creating a record within the meaning of the Criminal Records Act to achieve this purpose.
This could have an adverse impact on service members seeking other employment following their release from the Canadian armed forces and, as you've heard in some detail, other consequences as well. In order to relieve what could be seen as the potential for an unintended and unnecessary harshness, we adapted the scheme that Parliament has already put in place in the Contraventions Act.
The effect of clause 75 would be, employing certain thresholds relating to both the objective and subjective gravity of the enumerated offences, to preclude the creation of a record for conviction of the enumerated offences, under the threshold of the specified punishments, and thus obviate the requirement for Canadian armed forces members to have to later apply for a record suspension.
The minister has undertaken that an amendment will be introduced matching the provisions of the one adopted by this committee during its consideration of Bill .
In order to assess the impact of this proposed version in terms of dealing with convictions at summary trial, we conducted a detailed statistical analysis using statistics from the JAG annual report for 2009-10 as a representative sample. This assessment indicates that if the provisions of the amended version of clause 75 are applied for that year, 94% of the offences tried at summary trial would not have resulted in the creation of a record.
Taken together with the introduction in Bill of absolute discharges as a sentencing option, we would thus predict that approximately 95% of cases tried at summary trial would not result in the creation of a record under the proposed provisions. The remaining cases would be largely made up of the eight Criminal Code offences triable by summary trial. This version of clause 75 should thus be highly effective in achieving the desired policy intent.
The second issue relates to summary trials.
The purpose of summary trials is to provide prompt but fair justice in respect of minor service offences. Summary trials are also intended to contribute to the maintenance of military efficiency and discipline, in Canada and abroad, in times of peace or armed conflict.
Summary trials are vitally important to the operational effectiveness of the Canadian Forces. They are the workhorse of the military justice system, consistently trying about 96% to 97% of cases. They exemplify the attributes of promptness, portability, and flexibility.
It must be pointed out that some of the most eminent constitutional jurists of the charter era in Canada, former Supreme Court of Canada Chief Justices Brian Dickson and Antonio Lamer, and former Chief Justice of the Ontario Superior Court Patrick LeSage, have conducted independent reviews of the military justice system and have supported the importance and constitutionality of the summary trial system.
The portrayal of summary trials that has recently been advanced by some is, at best, a very partial depiction of the full picture that must be taken into account in making a responsible and accurate assessment of the fairness and constitutionality of the summary trial system.
I would be glad to amplify later on other factors that should be taken into account. It does bear repeating at this point, however, that no Canadian court has in fact ruled that summary trials are unfair or unconstitutional.
A major reason that there are not a large number of amendments concerning summary trials proposed in Bill is that Chief Justice Lamer, having reviewed them, did not identify a significant number of problems and did not recommend any changes.
Legislative reform of the military justice system involves a process of continuous improvement over time, just as is the case with the civilian Criminal Code. Bill provides important updates as well as a statutorily mandated regular independent review to help ensure that this is accomplished.
Bill will not be the last word on military justice. To borrow a phrase famous in legal circles, the military justice system is a living tree. Further legislation will be necessary in the future to respond to the recommendations of the LeSage report and to other issues, but this overdue Lamer response bill needs to be passed in order to get on with addressing the next series of improvements.
To coin a metaphor, Mr. Chair, it is necessary to move the Lamer response train out of the station so that we can bring the LeSage response train in, load that one up, and deal with the next set of improvements.
Thank you, Mr. Chairman. l would be pleased to assist the members of the committee by answering your questions.
Thank you, Chair, and thank you, Colonel, for your presentation.
We'll have to leave the disagreement about the effect of the charter challenge to the evidence that we have before us from both yourself and the others.
I will repeat, first of all, what I said the other day, which is the fact that there are strong opinions in favour of the constitutionality of the military justice system by the Judge Advocate General and the lawyers, but that doesn't stop the charter challenges from being successful in specific individual circumstances. We've had that opinion from some of the legal experts who testified the other day.
I'd rather get to some of the technicalities here because what I'm concerned about is that with the proposed amendment.... I can't avoid saying that we did amend this the last time. We did have the assistance of the JAG. We did have an amendment accepted by this committee, and yet when it came before the House, it was gone. We were back to square one. It's only because of persistent argument in the House of Commons that we did get a commitment to put it back.
You say the only thing remaining are the eight Criminal Code offences that are still there, but that doesn't seem to jibe with leaving out a charge under section 83, for example, or section 85—sorry, section 85 is there, but section 83, for example, is basically disobedience of a lawful command.
That is not a criminal law offence. It's probably a serious offence within the military, or it could be. It might be minor or it might be serious, but in any event it's not a criminal law offence. I wonder why that's been left out. Is there a rationale for that?
I'm glad you asked that question because, as someone who participates in policy analysis and in the drafting of legislation, I'm often surprised by some of the interpretations that people can seem to give to what is intended. Let me give you what our interpretation of the intent of that provision is, where it came from, and what it's meant to accomplish.
As has been briefly alluded to before, one of Chief Justice Lamer's recommendations was to put in the act the duties and responsibilities of the Canadian Forces provost marshal.
It's currently somewhat anomalous that after Bill C-25, part IV of the act actually mentions the provost marshal and specifies what his or her duties are in respect to the military police complaints scheme, but the act as it stands doesn't actually create the position, or mention what its responsibilities are or what its relationship is to the chain of command.
The provisions from proposed section 18.2 on are in response to the Lamer recommendation. In particular, you'll see set out in proposed section 18.4 the duties and responsibilities of the provost marshal position.
Of course, it's necessary to specify what the relationship of the provost marshal is to the chain of command and how he or she should interact with it. That is the intent of proposed section 18.5 and its proposed subsections. Proposed subsection 18.5(2) says that the VCDS may give general instructions or guidelines in respect of responsibilities described in the proposed section 18.4.
Then what seems to be under a little bit of discussion, or I would respectfully suggest misapprehension, are the provisions of proposed subsection 18.5(3), which provide that the vice chief may issue instructions or guidelines in writing in respect of a particular investigation. What's this about?
It's not intended to have a sinister effect. Without the transparency protections in the subsequent sections, I agree that one would definitely have a concern about investigative independence, but the actual intent here is to buttress independence of military police. With all due respect to those who've taken the contrary view, they simply have, as the British would say, the wrong end of the stick in terms of interpreting what this section is about.
It's intended to do three things. It recognizes the fact that in the unique circumstances of the Canadian Forces military police, they may operate in operational environments in which there is active potential for them to be required to conduct investigations in a zone of armed conflict. Everybody recognizes the possibility, and in fact the requirement, potentially arising for instruction or direction from the chain of command to the military police saying that, “No, you can't go and investigate that particular incident because there's going to be a fire mission put in there in 10 minutes. You just can't do it.”
What this is intended to do is specify, first of all, that there will be one point of contact, so you won't have various commanders in the field telling the local provost marshal, “You can't do that.” You'll have one point of contact—one dog to kick, one could say—who is the vice chief.
The second point is that he or she has to give that instruction in writing. Third, there's the very important transparency provision set out at proposed sections 18.4 and 18.5, which says that the default position is that the instruction must be made public. It gives the discretion ultimately to whether or not to release that, having regard to the impact on a particular investigation, to the provost marshal. So the provost marshal has the hammer if he or she is concerned about this, and it's transparent.
We think that if this is likely to happen in any event, it is far better to prescribe it in statute—to specify there's one person and one person only who can do it, and that it has to be transparent.
If there is a legitimate concern about investigative interference, then, of course, that is one of the provisions in part IV of the NDA, and that is one of the functions of the Military Police Complaints Commission. If the provost marshal or one of his subordinate investigators honestly felt that the instruction from the VCDS, which is transparent, was in fact improper interference, they could make an interference complaint to the Military Police Complaints Commission.
I've heard some people from the MPCC say, “Well, if it's prescribed in statute by default, we would never find improper interference.” I don't agree with that assessment. It's entirely possible for a legitimate statutory authority to be abused. In fact, courts and tribunals spend a fair bit of their time actually trying cases in which exactly that has happened.
The point is that if there was a concern about improper interference, an interference complaint could be made to the MPCC, and then they would have to do their job. They would have to apply the facts and the law, exercise their discretion, and make a finding and recommendations in respect of that.
To summarize, we consider that it's important to have one authority and for it to be transparent, and also to recognize that there is in fact a statutorily prescribed ability, in the event there was a legitimate concern about improper interference, for a complaint to be made and an investigation to be conducted in a transparent form.
That's an excellent question, Ms. Gallant. Thank you.
First of all, generally speaking, we do consider that it is fair, or we wouldn't endorse it. We're not in the business of running an unconstitutional justice system. It's not why we're here. We're lawyers for members of the Canadian Forces, and we have placed great weight in the independent assessment of the three very august external reviewers who have looked at the system and concluded that on balance, it is fair and constitutional.
How did they come to that conclusion? That's the part, having listened very carefully to what's going on before the committee, that has been largely absent. Of course they engaged in a section 1 charter analysis. I have to say that, unfortunately, if one is going to conduct a measured, balanced, and sophisticated assessment of this issue, you have to engage in a section 1 analysis. Having done that, they concluded that although there were certainly concerns about limitations on some charter rights, that on balance those limitations are justified by section 1, having regard to the pressing and substantial nature of the concerns that then animate the system.
There are a couple of really important things to note. Nobody is subject to what's called a true penal consequence, following the definition given by the Supreme Court of Canada in the Wigglesworth case of 1988. Nobody's subject to a true penal consequence, detention, reduction of rank, or significant fine unless they have first been offered the election between the summary trial and court martial and they've elected to be tried by summary trial.
The effect of that election is a waiver of certain constitutional rights. The Supreme Court of Canada has said that one can waive constitutional rights, in the Korponay case of 1982. Chief Justice LeSage in his review specifically alluded to that. To be effective, that waiver has to be fully informed and has to have the benefit of advice. In fact, there is a right under the QR and O article 108.18, and also a duty on the director of defence counsel services under article 101.20 to provide legal advice to the accused and his or her assisting officer in respect of that election.
One of the really key elements in ensuring that the election is properly informed is to have a competent and active assisting officer. This was one of the recommendations in the LeSage review for which we were particularly grateful: that he recognized and recommended that we have to up our game in terms of the quality and performance of assisting officers to perform that vital function.
To answer the question about what improvements are contemplated in response to the LeSage recommendation, which in fact we recommended to him, there has to be an improvement in training for assisting officers in order to ensure that they perform that very essential part of their function—that is, ensuring that the rights of the accused are protected before summary trial.
There is much more I could say, but the bottom line is that yes, we do assess that the summary trial system is currently constitutional, but of course we're continuing to look at that. We're grateful to receive recommendations, and there are things that can be done.
Thank you, Colonel Gibson, and thanks to your team, for your testimony today and for your support for the committee's work throughout.
In looking back at today's earlier testimony and testimony we've had from those who see problems with the amendments to Bill , it becomes clear that many of them just don't want a separate military justice system. They either question its constitutionality or would like to see the system civilianized.
It strikes me, as one observer, that they haven't fully accepted the principle on which our military justice system is based, which is that there are two objectives that need to be balanced and protected, one of which is pursuit of justice, and the other operational effectiveness in the field: discipline, morale, cohesion. That second objective doesn't exist for arbitrary reasons; it exists because our armed forces do things in the field that actually are at the foundation of our civil liberties and have been for decades and indeed centuries. This balancing act is something that we have built up over a long time, and it is fundamental.
To be fair, Mr. Ruby and the Criminal Lawyers' Association did admit that they had limited experience in the military justice system, so perhaps we simply need to take their testimony with a grain of salt.
However, I drew a contrast with the approach that Mr. Tinsley was taking, because he had claimed that when he launched his investigation back in 2007, with which we're all very familiar, it was to ensure continued public confidence in the military and the military police. In my view, those hearings and that very lengthy investigation did not serve to increase public confidence. It didn't find wrongdoing, it created doubt, and it didn't help discipline, whereas all the evidence we've had, I think from credible witnesses, shows that our military justice system by and large is functioning well, although in need of modernization and in need of continuous review.
Could you tell us how those reviews will work after the amendments take place? Because this is ultimately one of the greatest safeguards of the integrity of the system, of giving us an assurance that it will keep pace with the times and developments on the civilian side, what is proposed? How will this benefit military law and members of the Canadian armed forces with regard to reviews?
Thank you, Mr. Alexander.
The relevant provision of the bill—if I can very quickly turn to it—is clause 101, which will put into the National Defence Act the statutory requirement for an independent review. Now, as you're aware, two statutorily mandated independent reviews have occurred to date: the first by Antonio Lamer, the second by Patrick LeSage.
Bill C-25, passed by Parliament in 1998, contained in section 96 a statutory requirement to conduct periodic independent reviews, but that obligation doesn't actually exist in the National Defence Act at present; it's in Bill C-25, which was passed by Parliament as Statutes of Canada, 1998, chapter 35.
One of the primary recommendations of Justice Lamer that will be accomplished by clause 101 is to put into the National Defence Act a statutory obligation to conduct a periodic independent review of certain specified provisions of the act. The benefit of that will be, first of all, to have an independent review, because it's extremely useful and extremely important to have a forum for identifying issues and to have a mandated vehicle that you know is going to occur to identify needed improvements. Having such a mechanism for legislative reforms is one of the great engines of policy improvement.
In that sense, of course, having that ability available to the Canadian Forces, to the military justice system, and ultimately to Parliament would provide a great benefit, both to Parliament—by ensuring it is able to fulfill its function of ensuring that the law is kept up to date—and to the members of the Canadian Forces, because they are the ones who benefit most directly from having a military justice system that is current and compliant with charter norms and with the evolution of the law.
One last effect of the proposed provision is that it would extend the period of the review cycle. One of the problems that has occurred to date, especially given the protracted time it's taken to actually have Parliament pass this Lamer-response bill, is that you need to have provisions in place so that you can generate a track record of practice if you're going to have a meaningful review. As Justice LeSage noted, you need to have a sufficient length of time to generate that track record of practice to have a useful and meaningful review.
Clause 101 of the bill is intended to accomplish those things, in terms of actually putting that obligation into the act and specifying with precision what needs to be reviewed.
I have just one last point on that point. Perhaps given the slightly contentious nature of proposed subsection 18.5(3), those particular provisions are specified in that review provision so that Parliament would actually have the benefit of an independent review of the operation of that provision when it comes time for the next cycle of legislative reform.
Time has expired and bells will start going off in a matter of seconds here. It is 5:30. I know that the clock is running a bit slow, but based on the actual time, it is 5:30 now, so there's no use starting another round of questions.
I want to remind members before we adjourn that I've asked members to be considerate by submitting their amendments to the bill this week. We've had only two come in so far. To be respectful to our colleagues as well as to our table staff, our clerk, our legislative clerk who will be assisting us, and our analysts, it would be very helpful if we could have the amendments submitted by week's end so that we can start putting together the packages and circulating them so people have a chance to look at them before we move to clause-by-clause study.
I want to thank Colonel Gibson, Lieutenant-Colonel Dufour, and Lieutenant-Colonel Strickey for joining us today and for providing their input and expertise.
With that, I'll entertain a motion to adjourn.
Mr. Corneliu Chisu (Pickering--Scarborough East, Liberal): So moved.
The Chair: We're out of here.
The meeting is adjourned.