:
Thank you very much, Mr. Chair.
As you said, I am joined by Brigadier-General Blaise Cathcart, justice advocate general of the Canadian Forces.
Mr. Chair and colleagues, thank you for giving us the opportunity to present Bill .
[English]
I'm very pleased to be with you at the committee as you begin your examination of Bill . This legislation is specifically aimed at strengthening the Canadian military justice system.
Let me begin by stating how much I appreciate the support that has already been expressed by members of the committee, by members of the opposition in particular, for Bill , and the indication that has come from the committee regarding the willingness to consider this bill in a timely manner.
I say that because, as many of you will know, there is quite a history with this bill. It is coming back now for the third time, and this is a bill of some urgency and priority, I would suggest to you. The government's legislation is in response to the Lamer report. This is the third time, as I mentioned, the legislation has been introduced in response to that report. It was first introduced as Bill , in April 2006. It subsequently died on the order paper. It was back as Bill , a successor bill introduced in March 2008, which also died as a result of an election call. As members are now aware, this bill was introduced in June of 2010.
The Lamer report was tabled in Parliament in the year 2003 and followed an independent review of portions of the National Defence Act to be amended by Bill C-25. Chief Justice Lamer made numerous recommendations that were aimed at improving not only the military justice system but also the Canadian Forces grievance process as well as the military police complaints process.
He said, and I quote, “Canada has...a very sound and fair military justice framework in which Canadians can have trust and confidence”, and I believe this to be absolutely true. But of course that is not to say, as with any justice system, that it cannot be improved. The old adage about our justice system being a living tree equally applies to the military justice system. I see my friend from Beauséjour nodding in agreement. I'm sure that's an expression he heard at law school as well.
That's what the government is seeking to achieve with this legislation, Mr. Chair.
[Translation]
The bill reflects recent recommendations made by the Senate Committee on Legal and Constitutional Affairs after their study of Bill . Bill was required to respond to the judgment of the Court Martial Appeal Court in the case the Crown versus Trépanier.
As you consider Bill , I also believe it is important to keep in mind that the military justice system is a separate system of justice designed to promote the operational effectiveness of the Canadian Forces. This separate and distinct aspect was upheld by the Supreme Court of Canada in R. v. Généreux.
The military justice system contributes to the maintenance of discipline, efficiency and morale within our military. It reinforces the command structure of our military in support of both day-to-day and operational activities. Given the key role our military plays in protecting Canadians and advancing Canadian interests and values, ensuring that the National Defence Act keep pace with developments in the law and Canadian society is important.
[English]
Bill is a key step that is part of a process of continuous improvements—the classic living tree. And the bill has a number of key provisions that I'll touch on.
It will enhance the independence of military judges by providing them with security of tenure until the age of retirement. That is, of course, consistent with all members of the Canadian Forces. This is consistent with the tenure of judges in the Canadian civil justice system as well, Mr. Chair.
Bill also includes a statutory articulation of the principles of sentencing in the military justice system, which provides guidance in the sentencing process. This guidance parallels that provided in the Criminal Code, while taking into consideration the specifics of the military justice system.
One of the concerns expressed by some honourable members during the debate at second reading was that the sentencing of the military justice system might be unduly harsh in comparison to the civil system. It should be noted that Bill will provide statutory protection against undue harsh sentences being imposed by service tribunals. The bill in fact proposes that the principle of restraint will be followed in the sentencing system of the military justice system. This means that a determination should always be made as to what is the minimum sentence required to maintain discipline, efficiency, and morale within the military, and it requires that the sentence be imposed by the service tribunal.
This bill will also enhance the flexibility of sentencing by providing a greater ability to tailor a sentence to the particular circumstances of the offender and of the offence—also consistent with our civilian system—and by allowing for additional sentencing options, in effect modernizing the act in the form of absolute discharges, intermittent sentences, and restitution orders, all of which are now incorporated into the Criminal Code.
[Translation]
Bill also provides for the introduction of victim impact statements. This will permit individual victims of offences to more readily express themselves in the sentencing process at courts martial.
Together with enhanced provisions for restitution, Bill will therefore help ensure that victims of offences are not disadvantaged by having a particular case tried in the military justice system rather than in the civilian one.
[English]
I understand that during the debate at second reading there were also concerns raised regarding the fairness of the military justice system, particularly in relation to the summary trial system. In that regard, I would like to remind my colleagues that two of Canada's most eminent jurists, the late Chief Justice Brian Dickson and Antonio Lamer examined this system in significant detail. As you're aware, the Lamer report touches specifically on this. While making recommendations for refinement, both of these eminent jurists endorsed it, and they noted that the summary trial system strikes the necessary balance between meeting the unique disciplinary needs of the Canadian Forces and the needs to respect the rights of individual members of our military.
It should be noted, Mr. Chair, that Bill also includes provisions to improve the efficiency of the grievance and military police complaints process. For instance, it addresses the Canadian Forces grievance process with a view to making it more effective, transparent, and fair. The suggested amendments would require that grievances be treated as quickly as circumstances permit. They would also allow for a greater delegation of authority to the Chief of the Defence Staff in the treatment of grievances.
[Translation]
Finally, the bill will also establish the position of the Canadian Forces Provost Marshall in the National Defence Act, and specify the functions and responsibilities of the position , as well as make improvements to the fairness and efficiency of the military police complaints process.
[English]
In conclusion, Mr. Chair, just let me emphasize that a sound military justice system is absolutely key to our military, as it is in our society. It's key for the readiness, for the effectiveness, and it's key for the morale of the Canadian Forces themselves.
Our men and women in uniform, as you know, put their lives on the line in the service of our country. They need to know they can rely on a justice system that supports, protects, and enables them as they undertake the crucial tasks that we set forward. Canadians similarly need to know that their country's military system will treat those who serve fairly and in a way that corresponds to Canadian norms and values.
The proposed amendments ensure that the military justice system keeps pace with evolving legal standards in the Canadian criminal justice system and they reinforce the continued compliance of the military justice system with the Canadian Charter of Rights and Freedoms, while always preserving the system's capacity to meet essential military requirements.
Thank you very much, Mr. Chair and colleagues. I look forward to your questions.
[Translation]
Thank you.
:
Minister, we agree. I certainly agree with a great deal of what you've said. I think the history of this bill compels it towards a serious but expeditious, or not unduly lengthy, study if we can agree on a number of principles and see them translated into the clauses.
I have two specific questions, Minister, through the chair.
The first is about the issue of summary trials. I think you've made the point well with respect to the two former chief justices of Canada having reviewed this. My concern is not necessarily with the procedural protections in a summary trial. It's about the consequences in terms of a criminal record.
Perhaps you could just assure us. I think it is the case, but I'd like to hear it from you, on the record, that if, for example, a summary trial were held for an offence that may not be in the Criminal Code of Canada, such as, for example, disobedience.... Maybe when you were prosecuting cases in the provincial court in Stellarton you would have liked to prosecute somebody for disobedience, but it doesn't exist in the civil criminal justice system. I wouldn't want to see somebody go through a summary trial, be found guilty of an offence for which there's no equivalent in the Criminal Code, and somehow end up with the equivalent of a criminal record or some ongoing thing that would perhaps follow that person into civilian life once he or she finished with the forces.
I'll just give you the second question, Minister, because it's also fairly straightforward.
It's about the evidence a court martial would use in determining the appropriate sentence. I agree with you on the sentencing principles. I think you're absolutely right about modernizing them and bringing them into line with Criminal Code sentencing principles. But I wanted to make sure that I didn't misunderstand the necessary evidentiary requirement for certain facts to be considered. At one point, I think it's in section 203.5, it talks about the court martial having to “be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence”. Then later on it talks about “beyond a reasonable doubt” as the obvious criminal standard. I just want to make sure that those standards aren't conflicting. I want to understand how they might work together.
:
Thank you very much, Monsieur LeBlanc.
[Translation]
Thank you for your question and your comments.
[English]
To answer your questions in sequence, you're right in terms of the intention that the summary offences that would be set out in a code of disciplinary matters for the military would not have application when it comes to a criminal record, if you will, outside of a military record. There are many codes of discipline that a Canadian soldier could potentially face that would never be found in a Criminal Code--for example, leaving their post, or being late, or having a uniform that was perhaps not seen to be in compliance. All of those things, while perhaps seen as mundane or perhaps not in need of discipline--although some parents, I'm sure, would take issue with my saying that--are in fact very important when it comes to the proper maintenance of discipline and order within the military. There is a litany of other examples I could give.
But clearly, being in violation of some of those summary offences under military law would in no way, shape, or form find its way into a person's criminal record, which could be later disclosed. There is an effort clearly in the legislation to delineate that which would be seen as a strictly military disciplinary-type summary offence as opposed to what might make its way into the more traditional system and result in a summary offence.
Coming from that point to your next question, with respect to how the evidentiary requirements would apply, the intention here again is to mirror the criminal justice system where appropriate, the standard of justice being proved beyond a reasonable doubt in these hearings depending on how the offender, if you will, elects to be tried. The evidentiary requirements are very much in keeping with the civilian system; that is to say there must be proof beyond a reasonable doubt, the evidentiary burden is borne by the crown--by the accuser, in traditional parlance--and similarly, the standard that must be met in order for it to get before a criminal tribunal is that balance of probabilities, and the other phrase, which I'm sure you're familiar with, is it in the public interest that these charges proceed? That standard also finds its way into consideration. Is there a public interest in pursuit?
Under the military standard it may be different, but it is given the same level of consideration in terms of pursuit of certain charges, whether they be summary or hybrid offences or whether they be more serious offences. It is not meant to be out of step, except where there are those specific military offences that wouldn't be found in the Canadian Criminal Code.
I believe that answers your question.
I would like to welcome the minister and the JAG.
I have done a lot of reading on the discussion before us. We have a lot of questions to ask the minister and the JAG. I do not want to go into too many details with the minister, because I think that it is more important to touch on the general issues instead. One fact remains: more and more people believe that there is a large gap between military law and civilian law.
The Bloc Québécois truly understands that it is important that a code of discipline allow the military to have its own judges, its own lawyers, and so on. But an increasing number of people are saying that it would be wise to bring military law and civil law a little closer together. In that respect, in England, the European Court of Human Rights just put English military law in its place, saying that there was too much distance between military law and civil law. In our discussions and in what we have read, a number of examples show this great difference.
Does the minister feel that we should try to bring military law and civil law closer together? Does he think that military law is still compatible with the Canadian Charter of Rights and Freedoms and with the values of Canadians and Quebeckers, who approach this matter from a distance and don't understand why military law and civil law are different. There is a purpose to justice, but it isn't applied in the same way.
Could the minister please answer these two questions?
:
Thank you, Mr. Bachand.
You're right. We always need to keep the justice system up to date, not only for civil law, but for military law, as well. That is exactly the reasoning behind this bill. It's an opportunity to look at the application of the charter, for example, and make certain pragmatic changes to improve our justice system.
[English]
The use of victim impact statements was being brought to bear at a time when I was still practising law as a crown prosecutor in Nova Scotia, and I remember the profound impact this had on family members and victims themselves. This is a very profound example of where the military justice system can be improved by the application of that change, and there are other examples that, in very practical ways, I think, will improve the military justice system and put it more in line, as you suggested, with the civil system, to bring it into the new era and to ensure that some of these important modernizations that have already occurred in our criminal justice system will be equally applicable for those in the military and for those affected by military service.
Having said that we need to make these specific changes--the majority of which, I believe, are incorporated here, if memory serves me--we have accepted 94% of the recommendations of the Lamer report, or 83 of the 88 recommendations that were laid out in some detail, in whole or in part. But we still come back to the fundamental necessity of having a separate justice system for our military personnel, and those reasons that were set out by Justice Lamer as well as Justice Dickson speak to the operational effectiveness of the military.
They speak to the necessity for protecting a culture that is still very important when it comes to the discipline of our men and women in uniform--discipline, efficiency, morale, and respect for the rule of law within the military. Men like Laurie Hawn, who have served in uniform, will tell you that knowing those rules and regulations are set out in very clear terms is extremely important to the efficiency and the effectiveness of our men and women.
It also meets those disciplinary needs that are outside the current Criminal Code, outside the current disciplinary system, if you will, that applies for civilians like you and me. Military personnel live by a different standard, that is, they are expected, in many cases--to be very frank and blunt--to put their lives on the line and to do so in circumstances that have very high stakes for our country and for them personally, for their families, for their comrades in arms. This added responsibility of risk requires a certain cohesiveness. It requires a specific application of military justice.
All of this is incorporated in the reasons that were set out by Justice Lamer in the Généreux case, and it also speaks of the armed forces need for a system that can try offences both in the ordinary law and within their disciplinary code. It has that flexibility as well, as you're aware, where it can have application in the civil system.
I hope I have addressed your question. I know it was a two- or three-part question, but the short answer is yes, it's compatible with what we're seeing happening in the evolution of our civil system, but it's necessary, I would suggest now, for this legislation to proceed so that we can bring some of those modernizations into the military system as well.
Thank you, Minister, for joining us today.
I have to agree with you that there are some very positive aspects to this new bill, particularly ensuring that there's independence of the judiciary and the military, as there is in civilian life, the new sentencing opportunities to provide the same sorts of conditional and intermittent sentences that apply, and a whole series of welcome changes.
The thing that bothers me--and you did refer to it, and I'm sure you probably read or were told about the comments I made in my speech in the House--is the summary trial process. Notwithstanding the absence of serious comment by Justices Lamer and Dickson about these matters, it is pretty clear that in terms of the process, at least, the summary trials don't meet the test of the Charter of Rights and Freedoms in that there is a lack of rules of evidence, there is a lack of an independent tribunal--the commanding officer knows the accused and probably knows all of the witnesses--there's no transcript, and there's no real appeal, though there's a review process.
I frankly don't have a serious objection to that in the context of a military discipline. I think we accept the notion that in the military you have to maintain morale and discipline to have a cohesive fighting force for all the right reasons.
The problem I have when it comes to the fact of a criminal record...now some changes have been made here. The changes seem to be dependent upon the sentence. I know, and we all know, what the consequences of a criminal record can be to any individual, whether in civilian life or in trying to cross the border--and that is getting more and more problematic as time goes on. I think that's something I would want to avoid while you do have a procedure that doesn't meet the full test.
We've invited witnesses, or consideration of this legislation by people outside of this committee, with legal backgrounds and experience in defending people in court, bar associations and so on, and civil liberty associations to come to the committee and talk about this issue.
I guess I'm going to ask you this. Are you prepared to maintain an open mind with respect to that issue, notwithstanding, as I said, that Justice Dickson didn't raise it as a major issue? Are you prepared to consider what evidence we may hear and what recommendations we may make as a committee to perhaps insulate, if you will, our men and women in uniform from the consequences that shouldn't be there if their rights aren't fully respected under the Charter of Rights and Freedoms?
Mr. Chair, through you, the short answer is, yes, of course. The primary purpose of this legislation is to ensure fairness, first and foremost, and to not disproportionately have sentences affect military in a way that would be disproportionate to our criminal justice system.
Having said that, there is, as you've noted and others have acknowledged, a distinct code of discipline here that takes us outside of the norm in which normal criminal justice would have application because of this necessity, and expectation from soldiers. I'm given some comfort in this legislation wherein we have included language that speaks of ensuring that breaches of military discipline be dealt with in a speedy manner, and also that we've included language aimed at ensuring that the sentences that apply are not unduly harsh, that they do not have a disproportionate effect.
Mr. Harris, you made reference to the necessity for soldiers to travel, and I know that is of particular concern. If there is anything on their criminal record that would prevent them from deploying, this would have a severe impact on their career. So striking that balance is what we seek to do.
I am encouraged, as was noted, that we will hear from other members of bar associations, those within the military...and I know that the Judge Advocate General can speak to this as well in greater detail, as to how we walk that fine line when we are trying to have these sentencing principles apply, when we're trying to strike that important and necessary code of discipline and standards that are expected of the military above and beyond what would apply in our civilian system.
You know, the purpose and the principles of sentencing also have an aspect of general and specific deterrence, of which I know that you, having practised criminal law, are also aware. That accounts for some of the necessity with regard to transparency around these trials and disciplinary hearings. It also, of course, is based in the long-held traditions of the chain of command.
I am concerned about a previous reference that was made by my friend to a choice of counsel. Depending on the charge and the seriousness of the charge, I would suggest that there is still room for choice of counsel. In fact, some involved in the more serious charges choose to seek counsel outside of the military system. That has been the case in a number of recent matters that have been before the courts and before military tribunals.
I am open to the recommendations of this committee, of course, and I am open to further amendments, should you choose to bring them forward, as they pertain to this and other provisions of Bill .
:
I think I have room for one more short question.
You indicated that almost all of the recommendations of Lamer have been accepted. I think that's probably true, that they've been accepted in principle, but of course many of them have not been implemented. One of them is that the Chief of the Defence Staff be given the necessary financial authority to settle financial claims and grievances.
The grievances have been a particularly thorny issue in the military. The grievance procedure itself has been a source of great grievance for a lot of people, both the legal people trying to assist people and people trying to resolve grievances.
That hasn't been implemented. It's pretty important that somebody be able to say, “Okay, look, we'll settle this, we'll resolve this, we'll fix it”, and yet that authority hasn't been given.
Is there some reason why these things are being delayed? I know it does take time to do things, but these recommendations have been out since 2003.
:
Thank you for the question and your work in this regard.
I think the best description of the necessity for these two parallel systems, with the ability to overlap and the flexibility to incorporate the best of both, is found in the decision that Mr. Justice Lamer has handed down in the Généreux case and that gave rise to some of the changes we're now contemplating. It really is rooted in the important matters of discipline, culture, efficiency, and contributing to the sense of morale, which is very important to military members and their families, and also in some of the fundamental principles of justice around fairness, around confidence that the justice system is working for members of the military.
Having that separate and distinct system I think reinforces that formula, if you will, that necessity for discipline, efficiency, and morale, but at the same time is taking the best of the existing criminal justice system and some of these important changes that we've talked about: the victim impact statements, the tenure of judges, and the modernization, if you will, of how the law is now applied and how it works in a courtroom or tribunal. This contributes to very fundamental and important issues of readiness and of the ability for the force to do what's expected of them.
To give them their separate system also allows for the continuation of these very distinct matters of discipline that apply to everything about military life: from the way they dress to the way they conduct themselves and to the way they interact with one another, the way they train, and the way they prepare. Readiness is a very important issue for our military, as we've seen, given the high tempo of operations in recent years, the expectation of what they do both at home and abroad, and how they conduct themselves while deployed.
All of this plays into and, I strongly suggest, reinforces the need for this separate military justice system that applies to them in their life, in their work, and in their daily interaction with others.
:
Let's never forget how judges get appointed. It's that awful business of politics and decision-making by ministers that results in judges becoming appointed. So I take your point that in this instance it may appear redundant, but there can be circumstances that arise where a minister I think should and could have the authority to have an investigation into a judge. I think it would be a rare occasion.
I think you'll find within this bill, Madam, that the powers of the Minister of National Defence are actually diminished. There are a number of clauses here that are aimed at curtailing, if not eliminating, the power of the minister within the justice system—appropriately so. But the power to order an investigation I don't see as interference. I see this as a rare opportunity where a minister might determine that something within the Department of National Defence, and within the justice system within the military, might merit an investigation. That's not to interfere in the outcome. It's not to interfere in the way in which the investigation were to occur. It would simply be to order an investigation. That would be my personal reflection on the matter.
With respect to clause 20 and clause 40, I think perhaps what I would suggest is that I can respond in more detail to the member's question, but clause 20, again, comes back to the issues of necessity for discipline, necessity for, in some cases, rehabilitation around the member in question. The ability to summons or to order attendance is not to necessitate testimony but to have the individual present in the court. This is also, I would suggest, similar to the powers that exist in our current Criminal Code to have an individual present and in the courtroom, and then the discretion exists to call that individual to give testimony, to provide testimony or evidence to the court, should the court decide so. But to have the ability to summons somebody is simply to have them attend. That is my interpretation.
:
Thank you, Mr. Chair and Monsieur Bachand.
[Translation]
Thank you for your questions.
[English]
With respect to the grievance process and the amendments that are made as they pertain to certain grievances, again I would suggest that the chain of command operates quite differently when it comes to a comparable system, if you will, of justice. One analysis might be that it's similar to having prosecutors and junior prosecutors and people who work within the system where certain authorities can be delegated. That is very consistent with military life, military doctrine. You have ranks. You have authority that is sometimes delegated to junior officers and further through the chain.
I don't agree with your assessment that because this delegation might occur, somebody would be out of the loop or they wouldn't be aware of what was happening on the ground. I would suggest that most military, throughout the ranks, are very fastidious in ensuring they communicate clear instruction, that there is a clear expectation of what is to occur. Again, that is part of military life. This doctrine of delegated authority is found throughout the military, and the military justice system is no exception.
When it comes to future cases around grievance and the process of those grievances, some of what you have outlined in your question is found in specific amendments here. Others have been delayed, in large part because--again, for emphasis--we did not want to be seen to be imposing changes to the grievance process or the military police complaints process while certain important and sensitive cases were being considered. That isn't to say those changes will not be implemented in the future; it is not to suggest that they are not legitimate amendments to be considered.
I guess the short answer is that in due process, in due time, we'll move on some of these other recommendations and some of these other necessary amendments. We hope to be able to do this in addition to, not separate from, or in any way in parallel to.... We hope to be able to do these without any perception, real or otherwise, that we were trying to interfere with those ongoing deliberations.
On the subject of neutrality of judges, I couldn't agree more. This is an extremely important issue. The neutrality of judges, in any system, is one of those sacrosanct matters when it comes to the integrity of the process. Suggestions that may come from this committee, further amendments around the insulation, if you will, of the neutrality of judges, are very important to the overall functioning of the system. I look forward to those recommendations, and I look forward to the testimony of others who will be coming before this committee and who can comment further on that subject.
:
Obviously, Mr. Chair, there are a lot of nuances in the act.
[English]
As you know, Mr. Bachand, from previous iterations on the summary trial process, I really urge the committee, and in fact all members of the public, to understand that there is a fundamental difference in the approach to justice from a military's perspective, and obviously not in consideration of things like rights and charter applications, where we're as vigilant as the civilian system. But in our own system, the fundamental purpose, the objective, is always to maintain discipline, both in times of peace and in times of war, so that soldiers, airmen, sailors always have that obedience to command. Within that structure we have the two systems, as you well know: summary trial and court martial system. The summary trial, by far, historically, even today is the most used of the systems, and I think that reflects many positive things.
Number one, it's a system that the chain of command and the troops, in fact, are most comfortable with. They understand it conceptually. They understand the reason for it and the consequences that flow out of that process, and because of that it has to be a system that is obviously fair, but efficient and operationally relevant. If we decide just to turn it into, as some jurisdictions do, for their own philosophical reasons, essentially another type of full-blown trial with all the same rights of having a judge, a prosecutor, a defending counsel, all those things, then I think at the end of the day you're not going to achieve that right balance between having a system that results in the troops understanding what discipline is about, but at the same time not hindering their rights or the fairness.
The minister has talked about the right to counsel. In fact, they are permitted to have counsel. It's a request; it's not automatic. And indeed if the counsel shows up, I've had experiences myself where if the counsel wishes to make complex legal arguments, without hesitation, I'm sure, a commanding officer, a presiding officer, at summary trial will push it up to a court martial, which is the proper forum for having legal arguments based on charter rights, etc.
Pat's in good shape, so he's a supporter.
Obviously, I think the rationale lies again in that distinct aspect of being in the military. Military judges are still members of the military and as such are still required to meet all standards, fitness ones included, in terms of the ability to serve.
One of the comments you may have heard, Mr. Chair, not only in the context of military justice but also in administrative law, is something called the “universality of service principle”, which basically means that every member of the Canadian Forces--us included, judges--has to be fit to meet minimum standards so that if they're in scenarios where they would have to perhaps lift heavy items, carry people on stretchers, they'd meet those standards.
If a judge for some reason didn't meet that, I think it would be difficult for the system to treat it the way it would with any other soldier and simply say, “Get in shape or you're gone.” I think this provides an avenue where, if that were the case--and I'm speculating at the end of the day on how realistic that scenario would be--it would provide a mechanism by which the judge's fitness, which in this case could be the physical fitness, could be examined without the chain of command having direct interference and then the perception of infringing upon independence.
:
Thank you for that question, Mr. Harris. It's a great question, underlining again the uniqueness of the Canadian military justice system and the players within that system. I'd like to assist the committee and in fact the public in their general understanding.
The provost marshal and the military police are unique in Canadian society. You will find no other police force in Canada like the military police. The prime reason for that is they have two distinct roles that are often interlaced, but they are distinct roles.
One is they support the operational chain of command in matters like detainee handling, traffic control points, and other aspects, such as security, both at home in Canada and abroad on missions such as in Afghanistan.
The other major role, which their name implies, is that they are police. A big chunk of what they do is they conduct investigations, both the military police and the national investigation service. I'm sure committee members are aware of those.
I think it's fundamental to understand that. If you don't understand the context that they are, to use a good Latin term, sui generis, a unique organization, the concept of saying that they're only a police force and the concept of police independence and then potential interference, and you compare it to the RCMP or Ottawa police or Victoria police, or any other police force in Canada, it would not, in my opinion, be an accurate comparative. It is because of those very operational roles that the chain of command must play a role in the conduct of the provost marshal and, by extension, the MP's business.
What this particular new proposal is designed to do is actually to protect both the chain of command and the provost marshal in a very transparent way in those rare occasions where the chain of command, as represented solely, and I underline solely, by the Vice Chief of the Defence Staff, can issue directions in a specific investigation and can also issue general guidance. That's the first part of that new section. Frankly, those mirror my own roles and responsibilities, where I can give specific direction as well to the director of military prosecutions. The whole scheme is designed to make that process transparent so that there are no concerns from the public, members of the military, or the provost marshal himself that there is confusion about what he can do.
I can't speak for the vice chief, of course; they are their operators, but I could see an example where you might have, as in Afghanistan, an offence being committed and the provost marshal feeling obligated by law to investigate it. He would require the logistical assistance of the task force commander to get his investigators into the theatre of operation in order to conduct an investigation. At the same time, the chain of command is fighting a war in the very area where the NIS or the MP may wish to travel. In that case it would actually help the provost marshal publicly to say to the vice chief that he needs to go there and can he support it. The vice chief may, in looking at all the circumstances, say, “Sorry, not right at the moment. It's too dangerous. We're fighting a war.” It gives both sides the full opportunity to look at the issue. Then if the vice chief does issue a specific instruction not to go, it's up to the provost marshal whether that direction is made public or not, as outlined. It is in the control of the provost marshal.
Frankly, in that scenario, it actually gives the provost marshal a fairly strong defence if he was criticized by tribunals or other sources to say he has a duty to do this. He can say that he is unique and that he has an operational responsibility because they are a police force that regrettably has to do investigations in war zones, for example.
One last aspect, because you mentioned the word “interference”, is not to forget that at the end of the day, if the provost marshal or any one of his folks under command feel they are actually being interfered with, they always have the option of going to the Military Police Complaints Commission and laying an interference complaint. That is another mechanism to hold everybody accountable, and it's transparent.
:
Thank you for that question.
Yes, Mr. Chair, there are changes in this bill to the court martial panel structure.
Essentially, for a quick walk-through of what will happen here, the first change the bill will provide for is a reduction in the rank of the senior member at court martial, currently at the colonel rank level, to lieutenant-colonel, as long as the accused is no higher in rank than a lieutenant-colonel.
That change is being proposed simply because of the resource implications imposed on the Canadian Forces in engaging colonels in every general court martial that is convened. When a general court martial is convened under the current scheme, a colonel needs to sit as the senior member of the panel. This will reduce the burden on the Canadian Forces and simply reflect the fact that a lot of these matters really don't need somebody at the colonel rank level to sit on them. It's a resourcing decision that is consistent with the interests of justice. That is what is going on there.
The other major change that is provided for in this piece of legislation is to essentially provide for a greater number of Canadian Forces members the opportunity to sit on the panel. We used to have a rank-based restriction with respect to panel membership. Nobody below the rank of captain could sit on a panel. At the NCM level, it was warrant officers and above who could sit. This bill will essentially allow anybody with three years' service in the military to sit on a panel, so long as they are not junior in rank to the accused person, the individual being tried by the court martial.
Again, that is responding to a recommendation that came out of the Senate, actually, in the context of a review they did, which was suggesting that we reduce rank distinctions in the panel context. We've looked at that and we think this is an appropriate way to try to address that issue while at the same time maintaining the integrity of the panel, which is there to perform a significantly different role from what you see in a jury downtown. We are not creating a panel of peers in the court martial system. We are creating a panel that has an understanding of military discipline and essentially is responsible for the maintenance of enforcement of discipline in the military.
Like everything else we do in this system, we try to strike that fine balance between making sure that the military interests are not undermined while at the same time we look at means to ensure the system is as fair as it possibly can be for the people who are subject to it.
:
Thank you, Mr. Hawn, for that question.
Through the chair, absolutely. Once again, I can't emphasize enough the heart of military justice, which is the maintenance of discipline that keeps the CF running. You need a system that is fair but also efficient, and I'll use the term “quick”, but people don't want to misconstrue that to mean that rights are being trampled upon in any way, shape, or form. I know you don't mean that, Mr. Hawn, but people do get that impression sometimes.
You need a system that is quick, not only in terms of activities in Canada. We're a big force spread across the country, and we have a very mobile force. A lot of it is engaged in training activities. For instance, you can have people going to Gagetown in the summer or to Petawawa in the summer to do training for a matter of weeks, and if a breach of discipline occurs there, you want to be able to deal with it while the individual is still on the ground, for the individual's sake and also so the rest of the unit can see that justice is being done.
Similarly, it has to be portable and transportable, so that you can take it around the world, because our code of discipline follows our troops anywhere in the world. You need a system that will be efficient and quick so that, as you indicate, folks get their day. They get their say and then a decision is made, but at the end of the day, it's not designed to tie individuals up because we ultimately need them to do the support, the trades, and also, ultimately, the fighting in that regard.
You can't lose sight of the fairness piece in any of that. You don't want to overlook it just for the sole goal of being quick and efficient, but you find, as we said throughout this—we sound like broken records to some degree—that you are struggling to find that right balance. If you make it too much heavy on rights and bog it down with process and procedures, you'll never have many of the troops out available to do training and conducting operations.
:
Yes, we've obviously heard that expressed by some in the public, some commentators. I think it's a bit of a misunderstanding. I don't want to speak for the commentators--they can defend themselves--but my perception is that they were perhaps equating it with kind of a jury, that only those who had fought the fights or were in those tough scenarios could truly sit in judgment.
Well, first of all, if you do compare it to a jury...which, as Colonel Gleeson has outlined, is not the exact same. The military panel is different. Even in a jury, when you say “peers”, it's not a reflection; if someone who's on trial is a doctor, the jury isn't all about doctors in order to understand the full context.
I think what's key, underlying the panel philosophy, is an understanding of discipline. Whether it's army, navy, or air force is in many ways irrelevant, because the code of service discipline applies across the board. When you have individuals who may not have seen combat in a particular scenario.... They may have been captain of a ship, for instance, and seen combat in a naval context but not in an army. I think it would be, in my humble opinion, quite a stretch to simply say they're not competent to sit in judgment of someone who fought in a land war, for instance.
As long as they understand, at heart, what discipline really means, and understand the elements of the offence as explained by the trained judge who sits with them, then I think that is more than sufficient to give confidence that the system is working well.
:
Thanks. That's another very good question.
Yet again this underlines the uniqueness of military justice. As you're aware, our current judges.... We have four military judges who are appointed for tenure, or hopefully will be with the passing of this; right now they're appointed for five-year periods.
If for some reason the force suddenly expanded to, say, double its current size, or we were engaged in a much broader global campaign and we needed more judges to sit in courts martial, the only other solution would be simply to appoint more judges.
Then, when that “surge”, if I can use that term, were over, you might have expanded from four judges up to, say, 20 or 25 judges. Now you would have a lot of judges with not a lot more work to do.
The theory is that we would have the ability, through appointing reserve judges on a panel if required, to handle a surge when necessary. It would give an extra built-in judging capability. If we didn't need it, then of course those judges would still remain in their civilian capacity, working as judges. But if there were that surge, we could then turn them into military judges without then having to maintain them for the rest of their careers. In some cases, it could be many years, regrettably, when they wouldn't be that busy.