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Gilles Létourneau
View Gilles Létourneau Profile
Gilles Létourneau
2013-02-11 16:58
You want a closing comment?
The Chair: Yes, please.
Mr. Gilles Létourneau: Okay.
At present in Canada a soldier is a soldier before being a Canadian citizen. Why? By prosecuting him before a court martial, the military justice system deprives the soldier of his fundamental and precious right to a jury trial. When he appears before a summary trial, he is deprived of a right to counsel as well as a right to have his verdict or sentence reviewed on appeal.
As a proud member of the Canadian society, a society devoted to the promotion of equality of all before the law, I would like to close by reiterating some of the proposals found in the book that I filed with you today. Foremost, I urge this committee to study the international trends towards the civilianization of military tribunals to promote equality of all before the law, which can be achieved only by conducting a fundamental structural and organizational revamping of the National Defence Act in order to enhance its access, consultation, and legibility as well as its structure, internal arrangement, and form; and on a substantive level, to correct the flaws in the National Defence Act resulting from an imperfect duplication of the Criminal Code provisions, by taking into consideration the charter and military needs and by reviewing the provisions that attract constitutional criticism.
We as a society have forgotten, with harsh consequences for the members of the armed forces, that a soldier is before all a Canadian citizen, a Canadian citizen in uniform. So is a police officer; he is a Canadian citizen in uniform, but he’s not deprived of his right to a jury trial. Is that what we mean by “equality of all before the law”? Is not the soldier who risks his life for us entitled to at least the same rights and equality before the law as his fellow citizens when he is facing criminal prosecutions? I make a distinction between “disciplinary proceedings” and “criminal prosecutions”.
Thank you, Mr. Chairman.
View John McKay Profile
Lib. (ON)
Thank you, Chair, and thank you to each one of you.
I thought Dean Holloway articulated very well the differentiation between a civilian system of justice and a military system of justice. I thought in that respect it was very helpful. In effect it sets up a test. The test is on these changes and any other legislative changes, either on the balance of probabilities or beyond a reasonable doubt. Whatever test you want to choose, what is the basis for the differentiation in the system? Much as Justice Lamer said, unless there's a very good reason to be different, it should be the same.
So applying that test, and I'll direct the question to Dean Holloway and to Mr. Dugas, with respect to the empanelment of a jury in a court martial, it seems to me that the government has sort of taken a half-pregnant approach. Either you go with only captains who can sit on jury trials for captains, or you say all ranks can sit on jury trials for any rank.
By dropping it to sergeant, you drop off a significant portion of your population. So, Dean Holloway, make the government's argument here.
Ian Holloway
View Ian Holloway Profile
Ian Holloway
2013-02-06 16:14
First of all, it's not a jury trial. The function of the members of a panel in a court martial is not to find facts like a jury does. It has a different role from a civilian jury. It may seem pedantic on my part, but it's critical to conceiving the way in which a court martial is meant to work. It's one of the challenges, too, by the way of comparing our system with the system as it operates in Great Britain or Australia. We may use the same titles, but they can mean different things. That's the first thing I'd say.
I'm not sure our system of civil juries in Canada today is particularly covered in glory. There's that old joke that the people who determine your guilt or innocence are the people who are too stupid to be able to evade jury service themselves.
View Tarik Brahmi Profile
NDP (QC)
View Tarik Brahmi Profile
2013-02-06 16:51
Thank you, Mr. Chair.
My first question is for Mr. Dugas.
When we discussed jury makeup and the selection process for court martials, I sensed some disagreement with your neighbour there. It had to do with the fact that jury makeup or selection for a military court is different from that of a criminal court in the civilian justice system. Since you didn't really get an opportunity to explain your point of view versus your neighbour's, you can do so now.
Jean-Marie Dugas
View Jean-Marie Dugas Profile
Jean-Marie Dugas
2013-02-06 16:51
I wasn't actually disagreeing with his comments on the makeup. My neighbour was saying that the role was different. As I see it, panel members have the exact same role as jury members do in criminal court. They show up, they sit down, they listen to the evidence and they deliberate on whether the person is guilty or not.
Jean-Marie Dugas
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Jean-Marie Dugas
2013-02-06 16:52
Yes, that is kind of what I was saying earlier. That is the big reason I have reservations about the current process, although I do agree it is an improvement over the previous one. This isn't the first time people have said it was impossible to do certain things in the Canadian Forces. But, ultimately, once they're done, they work quite well.
For example, there was discussion about the possibility of having a court martial in Afghanistan. One was held in a murder case. That shows that there is indeed room for improvement.
I quite appreciated another comment someone made earlier, one that supports my views on selection. Again, I am not questioning the court martial administrator's honesty, but the process isn't transparent. It's all done in his office or on his computer. Depending on the rank of the accused, the panel must include a general, a colonel or a lieutenant-colonel, and it can go to the rank of captain currently. But if you limit it to only soldiers, corporals, master corporals and even sergeants now, you exclude over half of Canadian Forces members.
The process is not about being judged by one's peers, although the principle should be the same. This is a slightly more British system where officers had oversight authority over just about everything that went on in their army corps. Today, we are a professional force, and as I said, I knew and still know people with master's degrees. Some have even gone after their Ph.D.'s, and yet they're corporals or master corporals by choice because they wanted a more stable position owing to their families.
View Chris Alexander Profile
CPC (ON)
Thank you, Chair.
I'd like to go back to this, seeing as how I didn't have a chance to put a question the first time. We've discussed in previous exchanges the difference between a civilian jury and a court martial panel, but I think it's particularly important for the committee and for Canadians to understand it. In fact, as one of my colleagues has already mentioned, the charter recognizes court martial panels at paragraph 11(f).
Building on your previous answers, I'm wondering if you could remind us of what the difference is between a civilian jury and a court martial panel and why that nuance—and there is a difference of principle as well—is of such fundamental importance to understanding the military justice system. It is protected by our charter and has been upheld by successive reviews so far, and actually by all the assessments that we heard, international and otherwise, as an exemplary system, albeit one that needs consistent, continuous updating.
Ian Holloway
View Ian Holloway Profile
Ian Holloway
2013-02-06 17:06
Thanks very much, Mr. Alexander.
You know, this language has been used several times by members of the committee, that is, sort of slipping from panel to jury, jury selection, and so on. We mightn't like what the Charter of Rights says, but it's the Charter of Rights we have. The Charter of Rights clearly enshrined as a constitutional principle the notion that a court martial is different from a civilian jury trial. So it would be wrong, and I say this with respect to all of you, to take a view that the job is to deform the constitution, the clear language used in section 11 of the charter.
It boils down to the premise upon which the system of military justice exists, and that is something other than just the maximization of individual liberty. That's what the purpose is of our civil society in Canada. The purpose of military society is to maintain unit cohesion, discipline, and the willingness of people to place themselves in harm's way, and that's just different from what we expect.
There are people who know much more about the mechanics of the court martial than I do. I would happily defer to them. But in terms of the premises of the system of courts martial, I think just saying that we really have to make sure they're just like juries, and in fact we'll even slip into that language, would be contrary to the constitutional principles on which our country is founded.
View Jack Harris Profile
NDP (NL)
Thank you, Chair.
To Dean Holloway, I'm not going to play lawyer with you, even though we're both lawyers and we both have Q.C.s, etc., but I will ask you to answer one question about the Charter of Rights, because you brought that up in the context of the issue of the right to trial by jury.
That's excluded in one part of section 11 of the Charter of Rights, only one section, where it says “except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury”. You don't have the benefit of trial by jury, but the implication—and this is a legal implication—is that all the other rights you have in section 11, or in any other part of the charter, are available to you.
Would you agree with that?
View Peter Braid Profile
CPC (ON)
Great.
Can you point to one or two examples of the U.S. framework that we definitely don't want to adopt, for which we just don't want to go there?
Richard Gold
View Richard Gold Profile
Richard Gold
2012-06-07 9:21
The jury trial is clearly one. I think it's bad for everyone. You could even see the courts pulling back.
I like the U.S. system. It's really well suited to the United States. But you have to remember that they do both the innovation in the United States, the research, and the selling in the United States. As Mr. Page mentioned, our markets are in the U.S., so the incentive is provided by U.S. patent law. The cost to the next generation of innovator is Canadian patent law.
You have to think about the Canadian patent system quite differently from that of the United States, because we're in the unique position whereby the incentive is not under our control; it's under someone else's control. Only the costs are in ours.
View Cheryl Gallant Profile
CPC (ON)
Thank you.
Mr. Gold, you mentioned and we had testimony before that there is a sort of blockage in the court system when different patent or IP challenges occur. We've heard that there's a shortage of lawyers. You mentioned yourself, as we've heard before, that there is a shortage of judges who understand patent law. Yet you suggested that maybe we should be contemplating trials by jury.
Richard Gold
View Richard Gold Profile
Richard Gold
2012-06-07 9:33
No, I said the opposite—no trials by jury.
View Dave MacKenzie Profile
CPC (ON)
View Dave MacKenzie Profile
2011-06-21 9:19
I call the second meeting of the justice committee of the 41st Parliament to order and welcome the Minister of Justice, Minister Nicholson, appearing before us today.
For the committee, this is a bit different, in that the bill got referred to us before the committee was constituted, as happened a few minutes ago, but we're pleased to be able to work with all sides of the House to move this along.
Minister Nicholson, if you would like to make an opening address to us, we would be more than happy.
My understanding is the minister is only here until 9:40.
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