:
Thank you very much, Mr. Chair.
Perhaps I'll start by introducing myself and my colleague. My name's Michael Spratt. I'm a criminal lawyer and a director with the Criminal Lawyers' Association. To my right is Constance Baran-Gerez. She is also a criminal lawyer, a member of the Criminal Lawyers' Association, and certified by the Law Society of Upper Canada as a specialist in the practice of criminal law.
As I said, we're here representing the Criminal Lawyers' Association, or the CLA. The CLA is a non-profit organization of over 1,000 members from Ontario and across Canada. Our mandate is to educate, promote, and represent our membership on issues relating to criminal and constitutional law. The CLA is routinely consulted by parliamentary committees, such as this honourable committee, to share our views on new legislation, and we're pleased to be here doing that today.
The CLA is in favour of legislation that strengthens recognition of charter values and procedural fairness. As I said, we're here to present our perspective on this bill today. What we're going to be presenting is the perspective of criminal lawyers. I haven't been in the military and I don't do much military work. I expect the committee will hear from members with that perspective.
To put our comments into perspective, there may be different considerations in criminal courts than in the military context, but I can start off by saying that I'm pleased to say that in general the CLA is very pleased by the language and the new clauses in this bill. They seem to strengthen procedural fairness and adopt many of the recommendations in the Lamer report. I'm going to leave it to Constance to tell the committee all the good things that you're doing, and at the end of Constance telling you everything that we like about the bill, I'll end on the very pleasant note of telling you a few things that perhaps from our perspective could be strengthened in the bill.
Having said that, I'll turn the floor over to Constance, and she'll use the majority of the time to tell you what we think is positive here.
:
On behalf of the Criminal Lawyers' Association, Mr. Spratt and I are pleased to urge support for the amendments to this legislation in the bill. There are a number of amendments that promote an expeditious and fair response to service offences, all the while respecting the Canadian Charter of Rights and Freedoms, and I'd like to draw the committee's attention to certain of those.
Clause 41, in particular, dealing with the independence of military judiciary, as evidenced by the security of tenure until retirement or removal for cause, is seen as a positive step.
Clauses 35 and 36, on the introduction of a six-month limitation period for the laying of a charge to be tried by summary trial, is an improvement over the existing legislation, which did not have a six-month limitation period. That new amendment mirrors subsection 786(2) of the Criminal Code of Canada, and is one that we support.
The CLA is supportive of clauses 27 and 28, which, for the first time, limit the powers of arrest in matters deemed not to be serious offences. We also support clause 32 of the bill, an important clarification of the conditions necessary to warrant pretrial detention.
The CLA supports the addition of members of the military police as persons who are prohibited from serving as a member of a panel of a general court martial as found in clause 48, as justice must not only be done, but be seen to be done.
There is the introduction of a mechanism for resolving disputed facts that are relevant to the determination of a fair sentence. That mirrors the procedure found in criminal courts since the decision in 1982 by the Supreme Court of Canada in R. v. Gardiner that aggravating facts have to be proven beyond a reasonable doubt. That’s found in the bill.
The introduction of a statement of purposes and principles of sentencing is something new to the National Defence Act. Clause 62 and following reflects, in the CLA's estimation, not only the unique purposes of promoting operational effectiveness of the CF, but also the values found in sections 718, 718.01, and 718.2 of the Criminal Code of Canada.
Finally, those amendments to which the CLA can lend its support include clauses 24, 64, and 65, which deal with additional penalties providing a more flexible range of punishments, including absolute discharges, intermittent sentences, the suspension of the passing of a sentence of custody, and restitution orders.
Those are the areas in the bill that the CLA can support. Mr. Spratt can now deal with some matters of concern.
:
The primary area of concern that the CLA has with the bill, and with the National Defence Act in particular, is the lack of consideration this bill gives to summary trials as they exist in the military.
Quite frankly, the summary trial regime, if it were in the criminal courts.... I'm fully cognizant of the fact that we're dealing with a very different system and a very different implementation of those rules, but from the criminal perspective, summary trials don't meet charter standards.
The commanding officer who presides over a summary trial is not a trained lawyer.
We have evidentiary concerns about the use of hearsay in admissible evidence.
One always has to remember that the penalties imposed for summary trials can be in the minor end, but can include a period of up to 30 days in custody and a deprivation of liberty.
The disclosure standards that exist in the current summary trial regime fall short of Stinchcombe and those that we see in the criminal court, leading to questions about full answer and defence.
Also, the right to counsel does not meet current charter standards.
The focus of summary trials on an expeditious hearing may be advantageous--and I'm sure the committee will hear evidence from the military perspective about why that may be--in the military, but it has to be recognized that it comes at the expense of procedural fairness.
It should be said that the reduction of the limitation period to six months is a step in the right direction as it comes to summary trials, and this bill could do a better job of embracing those sorts of positive steps.
In general, the appeal rights and the problems with records being kept--transcripts and a proper evidentiary record--are also problematic in regard to procedural fairness.
Clause 54 of this bill, dealing with trials in the absence of the accused, also presents a problem from the criminal perspective, and in our criminal courts would not meet the standards as set out by the charter. This is especially true when there's a period of custody or there can be a deprivation of liberty.
When I was thinking about it last night, I was thinking that for a traffic ticket when you have a fine, you have a right to be present. Those trials can proceed without an accused, but of course a $65 traffic ticket is much different from the deprivation of liberty. When we're dealing with potential consequences such as that, there should be a better record kept, and the charter would suggest that there should be a right of an accused to be present for the entirety of that hearing.
Those represent the major concerns. Some of them are maybe beyond the scope of this bill, but they are important considerations.
Overall, I think, when we look at this bill, we see that the majority of the Lamer recommendations are being implemented, which is a very positive step, and this is a step in the right direction. Perhaps, from our perspective, the step could be slightly greater.
Thank you.
:
Merci, monsieur le président, and thank you very much to both of you for coming this afternoon and for your comments.
Mr. Spratt, you did it well. You talked about the things you like, and then you left some rather compelling and I think informative concerns to the end. You finished with a number of questions that would cause us to reflect.
The purpose of modernizing, after many years, the justice provisions around the National Defence Act has as one of its objectives, as I think everybody agrees, bringing it more into line with modern charter decisions, with Supreme Court precedents, and with the work of the late Chief Justice Lamer. We all, I think, share the view that this is the objective, and you've identified a number of areas where perhaps we've fallen a bit short of where we might want to go.
This is dangerous, because I don't want to speak for the people who run the military justice system. I think they do a very good job with the instruments and the context that they're given, which is often a difficult context, such as an operational context in Afghanistan.
You said at the beginning that you recognize military justice has some different aspects from a typical criminal justice context in a civilian proceeding. That doesn't mean the rights of an accused person should be less respected. I wouldn't suggest that at all, and you certainly didn't, but how do you balance out what I think military commanders or those in an operation overseas, for example, would say is the necessity to maintain the cohesion of a unit, discipline, in a particular theatre, and requires this expeditious summary process for the less serious offences? How do you balance that with the right to make a full answer in defence and the right to counsel, all of which are very basic elementary principles of a criminal justice system in a civilian context?
In your view, can some amendments be made that would bring this legislation up to a higher standard, to which we might aspire, without compromising the clear need of the military to have that flexibility? Frankly, you've identified some troubling elements. If we want to try to amend this bill--and the minister and others were certainly open to thoughtful amendments that preserve the integrity of the bill--do you have any suggestions of how we could do that? I don't think it's realistic to import into the summary context the full protection that you have in a criminal proceeding for an indictable offence in a civilian context. That's not realistic. At the same time, it doesn't mean we should compromise procedural fairness and actual justice rights, let alone the charter rights, of somebody facing a serious sanction.
:
I would have two suggestions to put to the committee on that point.
The first is recognizing that the application of the National Defence Act can have a very wide scope. It can apply in various operational theatres but also on home soil during training. There might be room to treat those two different locales differently. For example, in an operational theatre it might be more justifiable to have more expeditious resolution to those summary complaints, whereas when one has the luxury of facilities at home and of being on Canadian soil, maybe different standards could be imposed. Certainly that's something that might be considered under section 1 when we're looking at whether there are charter violations and if they are indeed saved by section 1. That's something that can perhaps be recognized.
If there are going to be laxer standards--that may be loose language--in terms of the procedural fairness, one good way, in my opinion, to guard against that would be to strengthen the rights of appeal, to make sure there's a proper record, to make sure that if, because of that procedural unfairness, there is a breach of charter standards and an injustice done, that there's at least a record and a mechanism that, when time allows, would allow that mistake to be corrected.
:
Thank you, Chair, and I thank the witnesses for joining us today.
I'm glad to have a fresh set of eyes look at this legislation, and the fact that you haven't been military lawyers may be of assistance--to me, at least. One of my concerns is to try to ensure that people who serve in our military are not treated less fairly under a system of justice than those in civilian life, because those in the military are not going to be in the military forever. Even the Parliamentary Secretary to the Minister of Defence, who sits with us, was in the military for a while. He's not now, and many military people leave after a short number of years. Some have a full career there.
I'm very interested in the criminal record, for one. I see the relationship between that, perhaps, and the summary process we have. I'm not sure if you're familiar with the notion that military justice is different because it requires discipline and speed and morale and maintaining the cohesiveness of a fighting force. Some of the elements of a “fair trial” under our charter I don't think you can eliminate. You might have a transcript, but you're not going to stop the commanding officer from being the commanding officer, and you're not going to make them all have law degrees, etc.
One suggestion has been made that in the area of the criminal record you can withstand a system that's less fair in terms of procedural fairness if the consequences to a military person are not as consequential, shall we say. The military can try you for possession of marijuana or offences that would perhaps give you a difficult time in civilian life. In modern times, with CPIC and crossing borders--and God knows what other countries may think of convictions--the criminal record is still there.
By the way, 90% of all offences in the military are tried under the same procedure that you've criticized. Do you see any merit in having some circumstance whereby any summary trial could not lead to a conviction within the meaning of the Criminal Records Act? Clause 75 has a reference to minor punishments, and they're defined, and regulations could change. I'm not even sure what they are right now. Is there any merit in having a blanket prohibition of a criminal records offence if you're using a procedure that might serve the purpose of the military in maintaining discipline and order but does not serve the rights of an accused person for their future?
:
Thank you, Mr. Chairman.
Earlier, Mr. Spratt, I talked to you about judges' compensation. I don't want to resume the discussion on that topic, but I simply want to point out to you that this concerns section 165.38. If possible, could you send me your opinion on this matter in writing?
Today, I instead want to talk to you about the possibility for a judge to file a grievance. I would like to talk to you about the concept of judicial deference. I find it curious that a judge can file a grievance directly with the Chief of the Defence Staff. I consider that a breach of judicial deference. I'm talking about section 29.101.
For example, what do you think of a judge who, in order to complain, would complete a grievance form and file it with the Chief of the Defence Staff? It seems to me that, in that case, that constitutes a breach of judicial deference.
:
Thank you, Mr. Chairman.
I am indeed here with Mary McFadyen, general counsel. I would like to begin by thanking the committee for inviting me to testify this afternoon regarding an obvious unfairness in the military redress of grievance process. It is an unfairness that was recognized and criticized by the former Chief Justice of the Supreme Court of Canada, the Right Honourable Antonio Lamer.
[English]
Following our investigation into the Canadian Forces redress of grievance process in May 2010, I issued a report entitled, “The Canadian Forces Grievance Process: Making it Right for Those Who Serve”, which highlighted deficiencies in the grievance process that are causing further hardship for Canadian Forces members who have already been wronged.
As a result of our investigation, we found that the redress of grievance process, which is supposed to provide soldiers, sailors, airmen, and airwomen with a quick and informal mechanism to challenge Canadian Forces actions and resolve matters without the need for the courts or other processes, is flawed and unfair. Specifically, we determined that the Chief of the Defence Staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness.
[Translation]
I'll say it again. Specifically, we determined that the Chief of the Defence Staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness.
Instead, when a claim for compensation arising from a grievance is made, it is a government lawyer, not the Chief of the Defence Staff, who determines if compensation should be paid to the Canadian Forces member.
[English]
In my view, Mr. Chair, it simply defies logic that the Chief of the Defence Staff, who is charged with the control and administration of the Canadian Forces, is not given the authority to pay out a $50 claim.
It also seems unreasonable to our office that a government lawyer, whose role is to provide advice, has more decision-making authority regarding compensation than the Chief of the Defence Staff. As a result of our investigation, we have also found that government lawyers often deny financial compensation requests.
Moreover, when claims are rejected, Canadian Forces members are informed that they must initiate legal action against the Government of Canada in order to obtain compensation. However, unbeknownst to most men and women in uniform, legal action will rarely be heard by a court, because previous courts have ruled that there is no legally enforceable employment contract between the crown and Canadian Forces members.
At it currently stands, there is no real last resort for a Canadian Forces member to receive financial compensation, even when the Canadian Forces admits that the member has been treated wrongly or unfairly.
[Translation]
As a result of the investigation, I concluded that it is necessary for the Chief of the Defence Staff to be able to grant financial compensation for the simple reason that, in certain circumstances, fairness cannot be achieved by any other means.
[English]
As I mentioned earlier, our office is not the first to recognize this problem, nor is it the first to make recommendations that it be fixed. Indeed, after an external independent review in 2003, the former Chief Justice Lamer recommended that the Chief of the Defence Staff be given authority to settle financial claims and grievances.
[Translation]
In his report, the former Chief Justice stated,
Soldiers are not second-class citizens. They are entitled to be treated with respect, and in the case of the grievance process, in a procedurally fair manner.
This is a fundamental principle that must not be lost in a bureaucratic process, even a military one.
Ultimately, a proper grievance process must be able to determine whether someone was treated fairly as well as to correct any unfair or improper treatment.
[English]
We must give the chain of command the tools and authority to take care of its people, and Canadian Forces members must have confidence that their chain of command will take care of them. This is a leadership and a morale issue. How can any military leader tell his or her troops, “I agree that you have been treated unfairly, but there is nothing I can do for you. I would ask you to continue to believe that I care about your situation.”
The Minister of National Defence has informed us that our recommendations are still being considered. However, given that eight years have elapsed without a resolution to this unfairness, from a sound public policy point of view I believe it is time to make the legislative change necessary to clarify and ensure that the Chief of the Defence Staff has the authority to provide financial compensation to fully resolve unfairness and to ensure that the grievance system can actually serve the men and women in the Canadian Forces as it was intended to do.
Former Chief Justice Lamer was right: our military members are not second-class citizens, and they deserve to be treated fairly. I am pleased that this committee has turned its attention to addressing this challenge.
At this time we stand ready to provide any assistance that we can to the committee.
[Translation]
So I am pleased that this committee has turned its attention to redressing this challenge, and we stand ready to assist you.
Before concluding, I would nevertheless like to add that I find it somewhat unfortunate that we have to debate a question whose purpose is merely to obtain justice and fairness for the members of the Canadian Forces.
[English]
Rightly so. Nobody is questioning former Chief Justice Lamer's recommendations.
I agree with the Minister of National Defence when he wrote back to me on this issue and said:
As you have rightly identified, this is not the first time this recommendation has been made, and the time has come to bring closure to it one way or the other.
Mr. Chair, I think the time is now.
:
Thank you, Mr. Chairman.
I want to welcome General Daigle, who moreover is an eminent citizen of Saint-Jean-sur-Richelieu. It's always a pleasure to see our fellow citizens here.
Mr. Daigle, you provide a very interesting viewpoint, and I would like to pursue the example you cited of the reservist who was suspended from his duties without pay and who went all the way up the chain of command to the Chief of the Defence Staff, who told him: "You're right; you shouldn't have been suspended from your duties; so I'm going to correct that." He probably erased the remarks on the subject from his file, but he could do nothing about repaying him all the money he had lost.
However, I want to address another stage because you didn't refer to it. That's the one I want to hear you talk about. We see that the Chief of the Defence Staff referred the case, at that point, to the director of claims and civil litigation. Could you explain that director's duties to me?
:
The director of claims and civil litigation is a lawyer who reports to the deputy minister of Justice. He is outside the chain of command and provides support to the Department of National Defence. So he is not part of the grievance process.
Since the Chief of the Defence Staff at National Defence has no authority in this regard, the case is submitted to that lawyer. All that lawyer can tell the individual is that, if you believe there has been an unfairness, you can file a claim against the crown. It may have been agreed before the courts that
[English]
there is no enforceable contract with the crown.
[Translation]
Even if you submit your claim,
[English]
there is no liability by the crown, so you're not going to get your claim.
[Translation]
At that point, the individual's last resort is to go to Federal Court, but it has also held that, since the matter falls within the Canadian Forces' grievance system, there's nothing to do.
So a member of the Canadian Forces who files a grievance in a system that is established to provide a mechanism to solve internal problems, that is outside the legal system and the courts, finds that, if there is a resolution that merits financial compensation, it's as though he were dealing with three systems. Not only did they want to ensure that the system is more efficient, but if the CDS cannot solve his problem, he has to turn to a Department of Justice lawyer at National Defence, who, if there is no liability against the crown, will not submit his claim. He recommends that he go to court, which will dismiss his application because he has no contract.
So it's recommended that the soldier institute proceedings, knowing in advance that that will not solve his problem.
:
So it's a dead end wherever he turns.
I'd like us to talk for a few minutes about the civil courts. In fact, it states here that the civil courts have stated that there is no employment contract between Her Majesty and members of the Canadian Forces and that a person who enrols in the military does so at the pleasure of the crown and that such relations between Her Majesty and her military members do not give rise to remedies in the civil courts.
I understand that they're not given access to the civil courts, but even if there were recourse, the court would probably dismiss the claim very quickly, stating that they cannot sue the Queen.
When you know that there is no employment contract, it seems to me that, when a soldier enrols in the armed forces, he signs a contract for a number of years. So there is an employment contract. Is there a legal void that precludes pursuing his claims right to the end?
:
Thanks, Mr. Chair, and thank you both for being here.
First, let me thank you for your attention to duty, both in uniform and since then.
A lot of this doesn't relate to Bill , but it's an important topic to discuss nevertheless. One of the problems here is that we're mixing the Financial Administration Act and the National Defence Act, I think.
You note in your report, “The Canadian Forces Grievance Process: Making It Right for Those Who Serve”, that you recommend the Chief of the Defence Staff be given the authority to settle financial claims and so on. That was recommended by Chief Justice Lamer. That principle has been accepted by governments of both stripes. Obviously it's been a long time. Apparently it's not as easy to resolve as might be suggested.
You note in your special report that the Financial Administration Act provides Treasury Board with the responsibility over the financial management of the federal government and that Treasury Board delegates certain powers to ministers and deputy heads of departments. In turn, the deputy minister is the chief accounting officer for the Department of National Defence. He is the financial authority.
Do you believe that Treasury Board would have to be involved in delegating powers to anyone other than the minister or the deputy minister? Do you know if the Financial Administration Act would have to be amended to allow this to happen?
:
My point here is that in 2003 former Chief Justice Lamer was still the Supreme Court's chief justice. He said that it was not acceptable and should be done within DND and the CF.
What I'm saying is that financial delegation authority exists right now, and the DM uses that. The DM gives financial delegation authority to a captain, a lawyer captain, who can spend $10,000 on a farmer in Afghanistan, but does not give to the Chief of the Defence Staff, who is the head of the whole Canadian Forces, the authority to spend $100 on someone who lost something on duty.
I support the Minister of National Defence. Mr. Chair, I really do appreciate that I was invited here on very short notice, but when I followed this up recently, I saw that the Minister of National Defence said in front of this committee that Bill includes provisions to improve efficiency of the grievance process with a view to making it more effective, transparent, and fair. I am saying if you don't give the Chief of the Defence Staff that authority, you're not going to make it transparent, fair, and effective.
Nobody's arguing that.... Justice Lamer recommended was that we find a way to do this, but it has been through two governments, so I'm suggesting that maybe it's not that easy. There's nobody operating the system in bad faith or bad will. I just don't believe that.
You served as a major general. Obviously we never worked together, but I'm sure that you did operate with goodwill towards the troops and the troops' welfare and so on, as I think anybody in command does. However, in a letter to the committee you say you “believe there is an issue related to the military redress of grievance process that should be included in the draft legislation and would serve to address a significant unfairness that currently exists”. That's what we've just been talking about. Then, in a letter to the Minister of National Defence recently, you said that “amendments to legislation may not be necessary and a solution may not be that complicated”.
I'm not pointing that out as some big contradiction, but there's a variance of opinion, I think, in your own mind as to whether we need legislation. Can it be done through regulation? What mechanism would you suggest specifically to disburse funds employed by that position, by the CDS?