| REPORT OF THE COMMITTEE | Wednesday, December 6, 2006 |
The Standing Senate Committee on Legal and Constitutional Affairs
has the honour to present its
FIFTH REPORT
Your Committee, to which was referred Bill S-3, An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, has, in obedience to the Order of Reference of Thursday, June 22, 2006, examined the said Bill and now reports the same without amendment but with observations, which are appended to this report.
Respectfully submitted,
DONALD H.
OLIVER
Chair
APPENDIX
Bill S-3, An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act.
Observations of the Standing Senate Committee on Legal and Constitutional Affairs
Providing police with the tools to investigate crimes of a sexual nature is a worthy objective. Your Committee therefore supports the overall goals and methods of Bill S-3. We do, however, have some concerns with several of its details.
We are concerned about the broad discretion afforded the Chief of the Defence Staff (CDS) to suspend temporarily an offender’s legal obligation to comply with the Sex Offender Information Registration Act for “operational reasons.” No criteria for the exercise of this discretion are provided, and there is no limit to the period during which “operational reasons” may apply. Although the CDS must report determinations to suspend rights and obligations under the registry to the Minister of National Defence, notification occurs after the fact and the approval of the Minister is not required.
We also wish to express our concern about the ability of the Chief of the Defence Staff to exempt an offender from complying with section 6 of the Sex Offender Information Registration Act, which requires notification to registry officials if an individual will be away from their usual place of residence for more than 14 days. The CDS may make a decision to exempt if the communication of information about that person’s whereabouts could jeopardize national security, international relations or the security of an operation. The question arises as to whether local authorities would ever learn of the presence in their jurisdiction of a sex offender, who may be posted to a number of different locations throughout their military career. If not, then the goal of a sex offender registry to afford local police an additional tool to investigate crimes of a sexual nature would be negated.
Although this matter is not dealt with in Bill S-3 itself, your Committee wishes to underscore the importance of giving consideration to the expulsion of members of the Canadian Forces (CF) convicted of serious sexual offences. Such consideration should be given, no matter how valuable their military contribution might have been. Your Committee seeks to avoid the situation in which a convicted sex offender returns to the very unit in which his victim continues to serve. We would remind the CDS that such a decision to expel should not be influenced by the self-induced intoxication of an offender, as this is no defence to any interference with another person’s bodily integrity. The Criminal Code is clear on that issue.
There seems to be a lack of clarity concerning when the operation of the sex offender registry is to be reviewed by Parliament. The review of the Sex Offender Information Registration Act is to commence by December 2006, while Bill S-3 indicates that parts of the bill, the National Defence Act, and the Criminal Code sections dealing with the sex offender registry are to be reviewed two years after the bill comes into force. There appears to be a duplication of effort or overlap here which could be eliminated by a single review of the entire sex offender registry, both civilian and military.
Finally, on a matter related to the general subject matter of the bill – the military justice system – although not directly to its terms, we wish to draw attention to three recent cases that raise serious concerns about important aspects of the current system. Your Committee believes that these cases should be considered by the Minister of National Defence for future action.
In the case of R. v. Nystrom (2005 CMAC 7), the Court Martial Appeal Court raised concerns about section 165.14 of the National Defence Act. This section states that, when the Director of Military Prosecutions prefers a charge, he or she shall also determine the type of court martial that is to try the accused person. Traditionally, members of the CF have enjoyed all the rights normally conferred on Canadian citizens who are criminally prosecuted. In the military context, however, the prosecution has the choice of mode of trial while, if a member of the CF were prosecuted before the civilian courts for the same offence, the choice of mode of trial would belong to him or her, not the prosecution. The right to choose the mode of trial is recognised as a principle of fundamental justice.
R. v. Parsons (2005 CM 16) is a decision of a Court Martial on an application by a member of the Canadian Forces who sought a declaration that certain aspects of the statutory and regulatory provisions that govern the Standing Court Martial created by the National Defence Act were unconstitutional. Specifically, Corporal Parsons argued that the legal framework relating to military judges who preside at standing courts martial fails to respect the principle of judicial independence and thus should be struck down for failing to comply with section 11(d) of the Canadian Charter of Rights and Freedoms. Section 11(d) states that every person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
The Court in Parsons accepted that in specific respects the provisions did not pass constitutional muster. Hence, it either struck down, or read down, certain aspects of the Queen’s Regulations and Orders (QR&O) on the basis that the provisions compromise the security of tenure of military judges.
The case of R. v. Joseph (2005 CM 41) (which was similar to three other applications) also involved a broad attack on the legal arrangements relating to military judges in which it was argued that section 11(d) of the Charter was contravened. The Court held that the five-year fixed term (renewable) provided for in the National Defence Act is not sufficient security of tenure so as to guarantee the independence and impartiality necessary for the modern, expanded judicial role of military judges and that these judges should hold office during good behaviour until retirement.
In both Parsons and Joseph, the Court also found that the power of military authorities to relieve a member of the CF from the performance of military duty applied to military judges and also affected their security of tenure in violation of the Charter. Both Courts held that that provision of the QR&O did not apply to military judges.
The cases outlined above refer to the Lamer Report (2003), which reviewed the operation of Bill C-25. This bill came into force in 1999 and dealt with many aspects of the military justice system. In his report, the former Chief Justice of Canada made many recommendations, including some regarding military judges. Among these recommendations were that military judges be awarded security of tenure until retirement from the CF and that the yearly salary of military judges be set out in the National Defence Act, along with a formula for the periodic adjustment and revision of salaries.
Your Committee has approved Bill S-3 but it does have some serious concerns about the operation of the military justice system. It recommends that the Minister of National Defence take on the recommendations made in the Lamer Report as a high priority.