Statement made on 06 May 2009 by Senator George Baker
Hon. George Baker:
Honourable senators, regarding this report, I will take four or five minutes to congratulate Senator Angus, Senator Campbell, Senator Dickson, Senator Fraser, Senator Joyal, Senator Milne, Senator Nolin, Senator Rivest, Senator Wallace, Senator Watt, Senator Bryden, as well as two extra members of the committee, Senator LeBreton and Senator Cowan.
Honourable senators, sometimes, perhaps, we should be a body that has press conferences and issues press releases for some of our committee reports. This one is such an instance. It is a matter of urgency that someone do something about what is suggested in this committee report.
I was a part of the government back in the late 1990s that passed a law that allowed court martial courts to extend their jurisdiction to matters concerning the Criminal Code. Prior to that time, court martial courts dealt with disciplinary measures within the Canadian Forces, but matters concerning the criminal law were dealt with in civilian courts. We brought in a new law, but of course we never are able to cover all the circumstances that may arise, and herein lies one of our big problems today with our soldiers in Afghanistan and returning home from Afghanistan.
When honourable senators look at the decisions of the courts martial over the past year, they will discover that the courts considered minor matters, summary matters. If a soldier did not get up at 7:30 in the morning and the soldier was supposed to be up, the soldier might end up before a court martial court. In committee, we heard of a case where someone did not buy a ticket to a mess dinner in Petawawa, and a year and a half later that person was charged before the court martial court and had to return from duty in Afghanistan.
In committee, we also heard from the lawyers in a case by the name of R v. Grant. This case went right to the Supreme Court. Corporal Grant served in Afghanistan. When he came back, the first night back there was a dinner at the base in Canada. Alcohol was consumed, but Corporal Grant did not drink any alcohol at all. At midnight, he found himself outside the establishment on the base. Someone else, who had consumed in excess of 12 bottles of beer and what they called six-shooters had gone outside of the dinner and had made a motion to Corporal Grant, questioning him, according to the facts that were agreed to in the case, and said, where did you get that jacket? The jacket was from Afghanistan. In the process, the individual hit Corporal Grant in the shoulder and the side of the face, to which Corporal Grant responded with his fist. He was left-handed. A minor altercation developed after that.
However, here are the consequences of our failure when we passed the bill back in 1997, as a Liberal government. If there is an infraction by a soldier of disciplinary conduct, a disciplinary committee must be organized by the base commander within one year to deal with that reported infraction. If the committee is not organized within the year, then it is automatically referred to the court martial court.
A year and a half later, Corporal Grant discovered, while he was overseas again, that he was charged under the court martial court with that altercation that was described, after an investigation, as assault and some bodily harm. Of course, he then was brought back and brought before the court. The judgment was against him.
The judge wanted to send it back and said, "Look, this case does not belong in a court martial court. It should have been dealt with within the military."
However, we did not allow for that possibility in our legislation. The court martial courts, as Professor Oliver will tell you, do not have inherent jurisdiction. In other words, they are restricted to what the law says they can do. We forgot to put that provision in the law.
It went to the Court of Appeal, and the Court of Appeal said, It is wrong to have our soldiers overseas all of a sudden confronted with a situation of being called back home to appear before a court martial court for some minor infraction, but the time had run out for the board to be held within the military. The Court of Appeal of Court Martials ruled that the matter should be sent back. Corporal Grant had his DNA sample extracted — because it is mandatory under our law for assault causing bodily harm or assault with a weapon, and DNA is taken automatically — and they ordered that DNA to be destroyed. However, they did not have the jurisdiction for that order. The case was taken to the Supreme Court of Canada. The Supreme Court of Canada did not grant leave to hear the case, with no reason. They never give reasons. They do not have to give reasons. They are the Supreme Court. We do not know why, but I suspect it was because the Court of Appeal did the right thing, although they did not have jurisdiction.
The committee has now made a recommendation to government to correct this problem in our legislation, and to allow two things in the first instance when the charge is laid. We incorporated the provision that a charge has to be laid within six months rather than assemble a board hearing within the military, and then the court martial court judge can accept a pre-trial argument to send it back to where it should have been in the first place.
Honourable senators, this matter is hugely important for our soldiers. When we look at the case law, it always says something like this wording from the Grant decision, paragraph 36 of the Court of Appeal: The charge was referred to the Court Martial because it was believed to be impossible to make the preparations for a summary trial before the limitation period ran out.
This wording is to correct hundreds of cases. Our soldiers serving overseas in Afghanistan are charged before a court martial court with a minor infraction. When we read some of the testimony, we see how they are affected by that situation — the great mental strain, their anxiety and their stress because they are charged.
Imagine a 20- or 21-year-old brought before a court martial, talking to their mother or father on the phone and having to tell them, "Yes, I am fighting over here in Afghanistan, but I now have to go before a court martial court." Many of them do not understand what that means.
This committee has performed a great service in making this recommendation, and the government should follow up this recommendation and change the law, as the committee has recommended. As well, honourable senators, as I said at the beginning, sometimes we should issue press releases or have press conferences so that not only is the government on the spot but the people of Canada would look at this and say, "Senate, you are absolutely correct; this case is one where sober second thought should be initiated immediately on behalf of our soldiers in Afghanistan."