Canadian soldiers are entitled to the rights and freedoms they fight to uphold.
This report is a critical analysis Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts,1 prepared by the British Columbia Civil Liberties Association (the “BCCLA”) for the House of Commons Standing Committee on National Defence. The BCCLA is a non-profit, non-partisan public interest organization committed to the protection of civil liberties and human rights throughout Canada. This report outlines the civil liberties concerns arising from procedures existing under the current National Defence Act,2 (the “Act”) and what the BCCLA perceives to be the strengths and shortcomings of Bill C-41.
BCCLA believes that the summary trial process, which is used to try individuals for offences under the Act in an expedited manner, fails to meet minimum standards for procedural fairness. Despite the potential for significant criminal penalties, including imprisonment and stigmatizing criminal records,3 the summary process deprives Canadian soldiers of basic standards of fundamental justice, including the right to legal representation, the right to be tried according to the standard of guilt beyond reasonable doubt, the presumption of innocence, and the right to an impartial adjudication of one‟s case. Weak trial procedures and limited mandatory training for decision makers tend to induce poor quality adjudication, false convictions and wrongful imprisonment. During deployment or active combat there may be sufficient reason to justify a departure from basic standards of procedural fairness, but absent such urgency and necessity, the rule of law and the principles of fundamental justice demand more for our soldiers.