Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence, October 19, 2005
OTTAWA, Wednesday, October 19, 2005
The Standing Committee on Legal and Constitutional Affairs, to which Bill S-39, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act was referred, met this day at 4:10 p.m. to examine the bill.
Senator Bacon (Chairman) in the chair.
[Translation]
The Chairman: We have a few things to tell you. Senator Bryden is sitting in for Senator Mercer as a committee member.
[English]
We wanted to have a subcommittee on non-derogation clauses. There was discussion with members of the opposition who informed Senator Eyton about it. They will not support the creation of the subcommittee. I can appreciate that because of the limited number of people. They told me that they have informed you, Senator Eyton, so we will have to look for another way and find some time in the future to discuss this matter around the committee table. We have some bills coming soon from the other place, so we will try not to forget about that. It was very important for us to do it and go ahead with it. However, we cannot do that now. I will put it back on the floor later.
Senator Eyton: I would like to add that there were two constraints that apply. One was the lack of numbers and the difficulty we have in getting a full complement at committee meetings. The second was the subject itself. It was important and we thought it should be broadly and fairly discussed through the full committee.
The Chairman: As I said, we have Bill S-39 and other bills coming from the other place. As soon as we have time, we will deal with it.
Senator Bryden: Madam Chairman, I have a private bill before the committee, a Senate bill. Is there an approach to dealing with that? I believe it is the next private bill or Senate bill. It is not a government bill.
The Chairman: We have several private bills to deal with, Senator Bryden. We have a bill from Senator Hervieux- Payette. We started to deal with that. There is one bill from Senator Banks that is not finished. I am trying to remember the number of bills, but we have quite a few. We also have Senator Di Nino's bills to deal with, and those of both Senator Stratton and Senator Oliver.
Senator Bryden: Are they being dealt with chronologically, in the order in which the committee received them?
The Chairman: I will ask and tell you at the next meeting. You alerted me a few times, Senator Bryden.
Senator Bryden: It does not seem to do any good. I just wanted to indicate that it would be nice to have some idea.
The Chairman: Thank you.
We welcome the Minister of National Defence, the Honourable Bill Graham.
I know that you must leave at 5:30, Mr. Minister. Your officials will stay with us after that if we have more questions.
Welcome to our committee, Mr. Minister, and welcome to Major-General Jerry Pitzul, Judge Advocate General, JAG, from the Department of National Defence, and Mary Campbell, Director General, Corrections Policy, from Public Safety and Emergency Preparedness Canada.
Please proceed, Mr. Minister.
Hon. William Graham, Minister of National Defence: Thank you very much, Madam Chair and honourable senators. I am pleased to appear before your committee today to honour the commitment made by the Minister of Public Safety and Emergency Preparedness to the committee in March of last year to explain changes to the National Defence Act in Bill S-39, which amends the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act.
We are proposing these changes in order to bring the National Defence Act and the military justice system into harmony with Canadian legal norms and standards with regard to convicted sex offenders.
As I see it, honourable senators, the National Defence Act basically replicates the provisions of the Criminal Code but as a criminal justice system for our Canadian Forces, recognizing that under certain circumstances that system will be applied differently. There is a separate set of courts; there is a military justice system. Ultimately, the justice system of the military is designed to ensure not only that Criminal Code offences in Canada are applied to our serving members but also that they are applied in a way consistent with military discipline and the way in which the military has to operate.
The Criminal Code applies to the members of the Armed Forces, but it is applied through the National Defence Act rather than through the Criminal Code, and it is applied through our own military system. Ultimately, in terms of the sex offender registry, we are ensuring that the military justice system is brought into conformity with similar provisions in the Criminal Code. As in the Criminal Code, it is not intended that the sex offender registry be a form of punishment; rather, it is an important investigative tool that allows police investigating crimes of a sexual nature to quickly assess vital information about convicted sex offenders. Under the present system, people convicted of designated offences in a court martial cannot be ordered to participate in the registry. As a result, their information cannot be entered into the database, nor can it be made available to police investigators. The purpose of Bill S-39 is to require that this information be entered into that register and be available to criminal enforcement officials and others under exactly the same conditions that it would be available in the other case.
The difference between Bill S-39 and the other system is basically that there must be a recognition that the military operational environment is unique and that a certain amount of flexibility may be required in certain circumstances. I will give you two examples. For operational reasons it may not be possible for a convicted sex offender to meet the obligations under the Sex Offender Information Registration Act within the prescribed time limits. This may happen if, for example, the person is serving abroad and therefore is not near a registry. Therefore, the offender's legal obligations under the National Defence Act may conflict with legal obligations under the Sex Offender Information Registration Act. In other words, the person is under orders to be in a certain place and to defy those orders would be an offence under military law. However, if they do not register, that would be an offence under the act. This bill proposes enabling the Chief of the Defence Staff to provide a certain amount of time — but only time — to enable the convicted person to perform his obligations under the bill.
In very limited circumstances, it allows the Chief of the Defence Staff to temporarily suspend the requirement for Canadian Forces members to register with the national sex offender registry to eliminate discrepancies between that person's two legal obligations.
I want to insist that this is only a temporary measure and the person will have to register as soon as possible once that person's assignment is completed.
The second discrepancy between the normal system under the Criminal Code and the military system is that the Chief of the Defence Staff may suspend certain requirements of a registered person to provide certain information if that is deemed to be operationally sensitive. An example is if the person is on a mission the location of which we do not wish to disclose.
Those are the differences. They recognize the difference in the military justice system and the exigencies of military life.
The registration scheme provided under the Sex Offender Information Registration Act was developed in a manner that recognizes that the rights of an offender must be balanced with the interests of society to effectively investigate crimes. In that sense, Bill S-39 respects the same balance that was in the other bill.
For example, when deciding if an offender should be ordered to register, a court martial will consider the same factors that would be considered by a civilian court. Furthermore, just as in the civilian justice system, an offender ordered to register by a court martial will have a right to appeal. Finally, similar limitations on access to and use of information from the database as are used in the civilian justice system will be applied in the military justice system.
[Translation]
It is essential that the National Defence Act and the military justice system continue to reflect Canada's current legal standards. The amendments contained in Bill S-39 will allow us to accomplish that while taking into account the unique operational needs of the Canadian Forces. By registering the names of persons found guilty of a designated offence in martial court, as stipulated in the Sex Offender Information Registration Act, Bill S-39 would ensure that the same standards are applied to every sex offender, whether they are civilian or military.
Madam Chairman, if there are any technical questions, I would respectfully ask you to grant me the permission of consulting the two people who are with me.
The Chairman: In subsection 203.15 of Bill S-39, the Chief of Defence Staff is given the power to suspend the timelines contained in the bill ``for operational reasons.'' What exactly are ``operational reasons?'' I find this very open- ended and fairly vague, since a case may depend entirely on the enlightened judgement of the Chief of Defence Staff. Is the expertise of some sex offenders so vital that the Armed Forces cannot function without them?
Mr. Graham: As I said, it is very possible that there are cases involving people who were on a mission overseas.
There may also be situations in which the crime or the offence are of a disciplinary nature, and do not involve rape or a similar offence, but rather which involve a violation of the law, which would not justify a person being immediately sent back to Canada or even discharged from the Armed Forces.
It is possible that a person was on a mission and that the Chief of Defence Staff feels that this person should be allowed to stay on until the mission is completed before they are registered.
I imagine that this would not happen very often, but I think it is necessary for the legislation to provide for such a situation.
The Chairman: I think it might be a good thing for us to get a general idea of what the Armed Forces are doing to prevent sex offences. In a National Post article from October 11, 2005, it said that in 2003 and 2004, 13 members of the Armed Forces were found guilty of sex offences and of that number, only half were discharged for their crimes. I would like to know what the action plan of the Armed Forces is to prevent sex crimes and what is done with those who are found guilty. Can we really tolerate condemned sex offenders representing Canada's image on missions abroad? Is it so hard to recruit people that we have to keep them on?
Mr. Graham: The Armed Forces do not tolerate nor allow infringements of the law and I can assure you that I have conducted investigations. This is what I know: between 2000 and 2004, for instance, 17 members of the Armed Forces were found guilty of crimes under the law which, in similar cases, would have led to their registration.
Of those 17 people, nine were discharged from the Armed Forces. Six of them are still with the forces because their offences did not warrant discharging them, and two are still waiting for a file decision on their status. This can give you an idea of the situation the Armed Forces have to deal with.
According to General Pitzul, with whom I spoke yesterday, I believe that the proportion of Armed Forces members who have committed sex crimes is far lower than in civil society. You can provide the statistics.
Major-General Jerry Pitzul, Judge Advocate General, National Defence: This figure applies to people found guilty in Martial Court. The number of people found guilty in Martial Court is 6.2 per 100,000, and the average is 82 per 100,000. This does not mean it applies to everyone who was found guilty by the Canadian Armed Forces, since some Canadian Armed Forces members have been found guilty by civilian courts, but were not included in the statistics.
The Chairman: Do these people serve in the Armed Forces? For instance, were some members condemned for certain acts in Kabul but still serve in the Canadian forces?
MGen Pitzul: Yes, because you are dealing with two different issues. The first one concerns criminal or disciplinary behaviour, which is judged in Martial Court. Following sentences, there is the issue of whether a person should stay in the Canadian Armed Forces. This leads to another process which involves administrative and labour law, and anything which relates to this person's performance in the Canadian Armed Forces; it is just not limited to the offence itself.
For example, you have to look at the offence for which an individual was found guilty, the circumstances, the sentence handed down by the tribunal, the individual's service record over the years, whether the offence was a minor one when it was committed, or whether the person was intoxicated.
The Chairman: That is an aggravating factor.
MGen Pitzul: Perhaps, as far as the person's service record over the years is concerned. Does it mean a person must automatically be discharged from the forces? The matter should be examined by a review board which would assess the individual's employment record. This would determine whether the person should continue to serve in the Canadian Armed Forces or not. I imagine that it would be no different in the private sector when someone is found guilty, and the organization the person works for has to decide whether he or she should stay on the job or not.
The Chairman: If it happens in the private sector, everyone knows about it because it is made public.
MGen Pitzul: Well, the accused has to go to civilian court. That might happen in the forces as well. Our transcripts are made public. Court proceedings are open to the public.
Senator Rivest: Mr. Minister, I have an administrative question for you. On the Justice department's website, it says that Bill C-16 has not come into effect yet. Has an order been adopted?
[English]
Mary Campbell, Director General, Corrections Policy, Public Safety and Emergency Preparedness Canada: No, Bill C-16 is very much in force. It came into force December 15, 2004.
[Translation]
Senator Rivest: Mr. Minister, as you can see, as far as these issues are concerned, the Armed Forces are no different from the rest of society. We are talking about measures because these registration measures are to protect and help police forces protect society in the future. But, in discussing these issues, no where is there any mention of the victims of criminal sex acts, which does not mean that we do not care. They have no rights; they do not appear in the legislation, they do not exist. We are so concerned with preventing others from becoming victims, yet we do not even mention them.
You yourself, Mr. Minister, and this is not meant to be a criticism, did not talk about the victims in your presentation.
What happens in the Armed Forces is surely no different from what happens in society in general, and this is one area in which there are significant weaknesses in our criminal law system. I would like to know whether, in the Armed Forces, in cases involving criminal litigation, there are people who assist victims with their testimony. Are there any Armed Forces personnel there to help? It would most probably be women or young people who would appear in Martial Court.
Second question: It is all very well and good to register the names of offenders in order to help the police, and so on; it is something everyone agrees on. Do the Armed Forces also have a responsibility, since there are special tribunals to address issues arising out of their own operations, what measures have the Armed Forces taken to help victims of criminal acts? Do such measures exist? And if so, what are they?
Mr. Graham: I will ask General Pitzul to answer your question. He has more experience than I do with Martial Courts. I have no experience in this area.
All I can say is that this bill is more or less modelled on the Criminal Code. So there are the same considerations for victims as there are in the Criminal Code. A little earlier you talked about the practice of law before the courts. I will ask General Pitzul to respond.
Senator Rivest: Nevertheless, civil society — as far as violations to the Criminal Code are concerned — police forces, municipalities, governments, youth protection services, women's representatives, and Crown prosecutors have all begun to provide training and to take an interest in the people who witnessed these acts. This movement is just beginning to take shape in several Canadian provinces. Does this also exist in the Armed Forces? Afterwards, once the judicial process has run its course, there are still psychological repercussions, and there is no doubt that the Armed Forces have a certain moral responsibility to look after people who were victims of criminal acts which were unfortunately committed by the Armed Forces.
MGen Pitzul: It depends on the status of the victim. If the victim is a civilian, he or she has access to provincial victims' resources. People have access to these services and they do use them.
If the victim is a member of the Armed Forces, the victim's unit is the first place he or she can turn to for social services to help him or her deal with work-related issues or to testify. As well, the military police has a policy of helping victims of wrongdoing by the Canadian Armed Forces. Furthermore, our prosecutors follow the same training courses as civilian prosecutors as regard services for victims of criminal acts. The same system exists in every province, and people have access to those services.
Senator Rivest: So there are services available today within the Armed Forces. I understand why you made the distinction between whether a victim is a civilian or a member of the Armed Forces; obviously, they may be treated differently. But in both cases, irrespective of the status of the victim, the Armed Forces provide training for its personnel, looks after victims, and provides services which still fall far short of what is available in civilian society. But you are saying that the Armed Forces provide a very similar level of service internally to what exists in civilian society. As it now stands, when the victim is a civilian, he or she can always use the services available in civilian society.
MGen Pitzul: Policies are the responsibility of the Provost Marshall, not me. I can tell you that we try to provide the same type of service as those provided to civilian victims. There are civilian programs that military members do not have, for example compensation.
[English]
Victims of crime compensation is a provincial program. We do not have such a program in our system.
[Translation]
Senator Rivest: Why, it is not necessary?
MGen Pitzul: Because military victims are still employed, they are still receiving a salary.
Senator Rivest: However victims have suffered a trauma that requires compensation, whether they be a member of the Armed Forces or not.
MGen Pitzul: Yes, however civilian victims have access to provincial programs.
Senator Rivest: Yes, but what about military victims?
MGen Pitzul: They may try to access provincial services but the reply they will receive is that they are still receiving a salary.
Senator Rivest: But the trauma is a real one. Should the army not take responsibility for that salary?
MGen Pitzul: Yes, for military victims. We have doctors, we have medical services.
Senator Rivest: I think this is rather vague and it should be very simple for the army. You should even set an example for civilian society, given that you are dealing with fewer cases. You should affirm that the Canadian army will ensure that, first, there will be penalties for those who commit sexual offences and that, second, there is a preventative system, because that is what the registration procedure in the bill is, and that the army will give priority to victims in these cases. I do not think this only involves the army or the Ministry of Defence. All of civil society is involved. And the problem is being dealt with backwards. I understand that the criminal process has to proceed but in Canada victims have always come last and there have even been cases in civil society where victims had to establish their own foundations in order to fill the gap in civilian services. I would like our Canadian army to be able to say: When crimes are committed in the army, the army will give priority to sanctions but will also show leadership and assist the victims. I would like the minister to take that on.
Mr. Graham: I take note of your comments. We will send the committee our policy in this area. Furthermore, without quoting any specific cases, if a victim is hurt to the extent that it affects their well-being, there are supplementary benefits available. For members of the military, there is compensation for accidents, for post-traumatic stress syndrome resulting from experiences abroad. A member of the military who is injured can request compensation. A person can appear to be integrated in the system without there necessarily been a specific designation for victims of criminal offences.
MGen Pitzul: Regardless of the victim's origins, there are programs for members of the military.
Senator Rivest: Could you make a list for us in order to give us a more detailed picture of the situation?
Senator Joyal: Does the military ombudsman have the mandate to receive complaints from a victim of a sexual offence, given what Senator Rivest just asked?
Mr. Graham: If the victim is a member of the military, I believe so.
Senator Joyal: Can you check that?
Mr. Graham: Obviously that is not the case for a civilian victim. However if the victim is a member of the military, then the ombudsman has the right to investigate if that individual feels that they have been dealt with unfairly by their military services. The ombudsman has the right to report to me in order to find a solution to the problem.
Senator Joyal: Could you check whether or not the ombudsman has ever received these types of complaints?
Mr. Graham: Yes.
Senator Ringuette: I am not familiar with courts martial. However, I can imagine four possible situations that would require registering sex offenders under this legislation. A member of the Canadian military may be brought before civilian criminal court in Canada. In that case, Bill S-39 would cover registration.
I am wondering what the process would be for the three other situations, since you spoke about timelines. The first situation would be that of a Canadian Armed Forces court martial outside the country. What happens with the registration list?
In terms of the Canadian court martial, I do not understand the timeline; it should happen automatically and within the same time limits that civilian courts are subject to. The third scenario is that of a member of the Canadian military who is brought before a civilian criminal court but in another country: What happens then with the time limits and the registration process for the offender?
Mr. Graham: To take your last case, it is a little more complex. I will ask for my experts' advice while thinking about your question. What would be involved for a Canadian civilian brought before a foreign court and convicted of a sexual offence? Must that civilian be registered with our registry? The answer I am getting is no. Given that the military system copies the civilian system, we cannot make the members of our military subject to a different system from that of Canadians in general. If a Canadian is brought before a foreign court, they are judged according to that country's law and the registry does not apply in those situations. And it does not apply to a member of the military, if I understand the system.
Senator Ringuette: For example, if a member of the military was in Kabul and was charged under the civilian justice system of a sexual offence, that member of the military could, if a court martial was not involved, count on the support services of the Canadian Armed Forces based in Kabul. That is one example.
Mr. Graham: I believe you raised two situations that could possibility occur abroad. This is always very difficult. Cases abroad may fall under our military authorities if they involve a member of the military and a civilian who is a citizen of the country in question. There are two possibilities: that the person be brought before a military court martial or that the person be brought before the country in question's courts.
In cases where a member of the military is brought before a Canadian court martial, then the registry applies. That was your first case. In the case where an individual is brought before a foreign court and charged according to that country's law, by that country's court, then the registry does not apply and the situation is the same as that of a Canadian committing an offence in a foreign country, under their law, and being brought before their courts and charged by their courts. In that case, the registry, according to the Criminal Code which has no extraterritorial effect, cannot apply. I did not quite understand your second case. Did that involve a court martial in Canada and what was the scenario? You raised three possible cases.
Senator Ringuette: Yes, three cases. First, a member of the Canadian military brought before a civilian court in another country. You are saying that the registry would not apply, unless there were an international convention, if we ever get there. Then there were two situations, one involving a court martial in Canada and the other involving a court martial abroad. In the case of a court martial abroad, there are two possible situations, one involving the Canadian army's court martial and the other involving an allied army's court martial.
Mr. Graham: No. Abroad, if it is a member of our Armed Forces, it would be a Canadian court martial or the criminal court in the given country.
Senator Ringuette: At this point, how do you justify the timelines required by this bill? When you made your presentation, you mentioned delays because of a person being abroad, et cetera. But whether a person is court martialed abroad or in Canada, there should be no delays in registering the person.
Mr. Graham: There could quite possibly be no delay. Extensions are not provided automatically, but only in the case of operations where the Chief of Defence Staff is asking for a month to complete the mission and other formalities. We do not expect that the Chief of Defence Staff will ask for a delay in every case. That is not the point, if I have understood correctly; it would be an exceptional measure for the Chief of Defence Staff to ask for more time when there is an operational requirement to do so. I want to assure you that the legislation does not provide automatic delays. That would be exceptional. Needs must be met immediately as is the case in the civil system.
Senator Ringuette: To get back to my question on the support system for a member of the Armed Forces who would be court martialed abroad after having committed an offence abroad, what kind of support system is there in that case?
Mr. Graham: I would have to defer to the general, but you know, there are a variety of agreements with foreign countries. SOFA sets out the conditions, the relationships between courts martial and jurisdictions, the jurisdictions of the courts in the given country. So, it is possible that under the terms of each SOFA, the situation would be different in the various countries.
Senator Ringuette: I took for granted that the member of the Armed Forces was innocent until proven guilty. So there is a support system within the military.
Mr. Graham: A lawyer, that type of thing.
MGen Pitzul: That is correct; every time we go abroad, we try to negotiate an agreement with countries to determine the issue of jurisdiction over our soldiers. Normally, we try to maintain jurisdiction. It is not always possible. Sometimes, people are charged with crimes under local laws. They are brought before civil courts.
When we are aware of this, we offer to retain legal services. When our units are deployed, they are accompanied by a lawyer. The lawyer attempts to help the person communicate with the Crown to find out what will have to be done to get help in the given situation. But they are subject to local laws. Sometimes, they also receive local services. That does happen. We try to support our soldiers when they are either apprehended or detained in foreign countries. That is why during negotiations we push to maintain jurisdiction over our soldiers.
It should also be said that the onus is on the Crown to ask the court to register a given convicted individual. It is not up to the person to say ``I was convicted and I would like to be registered.'' That is not how the system works.
[English]
The convicted person or the prosecutor applies to the court for a court order that the individual would be registered.
Mr. Graham: As in the civil system.
MGen. Pitzul: As in the civil system.
Senator Milne: Mr. Minister, if I recall correctly, this is the third time that an issue of military justice has come before us. The first one was getting rid of the death penalty. The second one was straightening out the divisions within your command, Major-General Pitzul, as JAG, under the two hats that you wear, trying to put up a firewall between those two hats. We are back here again, and this is all just within a few years. Is this a divide-and-conquer exercise on behalf of the military justice system with you feeding us information in small, digestible chunks in order to keep us from looking at the whole picture, or are you approaching reforming the military justice system on a piecemeal basis?
Mr. Graham: Major-General Pitzul has been the Judge Advocate General for some time now. Perhaps he could provide you with more of a historical view. My experience is that the justice system of the military seeks to ensure that the standards and values that are laid out in our Criminal Code are respected within our military system, but it requires a whole system, an independent system, to apply that because of the needs of the military. They are often out of the country, along the examples that we have just gone through, and they have some operational considerations as well as the matter of good order and discipline of the military. Therefore, all militaries have their own judicial system. However, it does mean that when the criminal law is changed, we do have to change the Defence Act as well.
I suppose you could apply it grosso modo and just take it in automatically, but we do not do that. Therefore, we do have to amend the military justice system when there are amendments to the civil justice system or criminal justice system in our country. That is what is being attempted here. The establishment of the sexual offender registry obviously was a significant change to the civilian or the criminal justice system of the country, and the purpose here is to ensure that we are in conformity with that. Certainly on my part there is no suggestion that we were just trying to do things piecemeal. It was important for us to do that. I am not aware if there are other significant changes required to our justice system. Perhaps I could ask the general responsible for that to speak briefly to that matter.
Senator Milne: Perhaps he could comment briefly.
Mr. Graham: Major-General Pitzul has reminded me that Mr. Justice Lamer, the former Chief Justice of Canada, has been doing a review of the system. He has made recommendations and legislation is currently being drafted to reflect those changes, so we will probably be coming together again with you. I promise you it is not from a piecemeal point of view. I do not think we should leave this item of the sexual registry until we can do those other items. We should bring it forward and have it openly discussed which will enable us to modernize and bring our system up to date on this issue before we attempt to approach the recommendations of Mr. Justice Lamer. However, there will be other matters coming down.
MGen. Pitzul: In the 1998-99 time frame, the most significant amendments to the military justice system in 50 years were implemented. There is a statutory process of a five-year review of those changes, and that will be ongoing into the future. We will always be coming back with improvements to the military justice system.
Senator Milne: Has anything come out of that five-year review of those changes?
MGen. Pitzul: As the minister just indicated, we are in the throes of drafting the legislation.
In addition, the criminal law of the land changes on a regular basis, and in order not to wait another 50 years to improve the military justice system, we would like to keep pace, and that is why you see Bill S-39.
Senator Milne: Something you said, Minister Graham, brings me back to some of my concerns about definitions in this bill. On page 2 of the bill, a designated offence, part (b), includes the definition from subsection 490.011(1) of the Criminal Code. The offences, as I understand them, under that section are almost all sexual in nature. Then you go on in part (c) to add five more, none of which are sexual in nature. Is there some rationale behind putting what I consider two classes of offence under one area as a designated offence?
Mr. Graham: I will try to answer and Ms. Campbell will stop me if I am wrong. My understanding is that there are the clearly designated offences which are sexual in nature, whether it is rape or touching or some other form, which we all understand. For the five other offences referred to in subsection (c) — for instance, offence against a property or person or striking or offering violence to superior officers — if it is found as a matter of fact that, for example, an offence against a property or person was committed with an intent to commit a sexual offence, such as a breaking and entering which was designed to enable the person to commit a rape or a sexual offence, then, under those circumstances, if proved as a fact beyond a reasonable doubt, then that in itself becomes a sexual offence and would therefore allow the sexual registry to apply. Similarly, striking a superior officer is really an assault, but if it is an assault which is designed as a form of a sexual offence, then while it is an assault, it could also contain that other element, which would have to be proved as a separate fact. If that were proved, then at that point the provisions requiring the use of the registration would come in. That is the purpose of these five offences. It is separating direct offences from indirect offences, if we can categorize them that way.
Senator Bryden: Further on this issue, it does not say ``striking or offering violence to a superior officer to obtain some sexual purpose.'' It simply says ``striking or offering violence to a superior officer.'' It is bad enough to strike a superior officer. However, having been convicted of striking, to have your name registered as a sex offender could condemn the person for the rest of his life for striking a superior officer. If what you are saying is the case, that must be clearly specified in the act, because a judge will interpret the words that are before him.
The offences include striking or offering violence to a superior officer and, in section 95, abuse of subordinates. There is nothing to indicate that that is a sexual offence. It would be almost cruel and unusual punishment that someone who takes a shot at his commanding officer runs the risk of being registered as a sex offender for the next 20 years.
The Chairman: Section 203.01(2) covers what you were saying.
Mr. Graham: Yes. As I understand, senator, although this is military language, it is substantially no different from what is done in the Criminal Code where there are indirect offences, such as breaking and entering with intent to commit a sexual offence, and it is provided for in the law in the section to which Madam Chair referred.
Ms. Campbell: This exactly parallels the system that was in Bill C-16. We often hear from prosecutors that some offences appear to be non-sexual on the face but are very much with a sexual purpose. Therefore, there is a list in Bill C-16 and an analogous list in Bill S-39, but the prosecutor must prove the sexual intent beyond a reasonable doubt. It is not just the offence on the face of it that has to be proven.
Senator Bryden: I am still uncomfortable with that. With regard to related offences, breaking and entering with the intent to steal are two offences — there is breaking and entering and it is worse because there is an intent to steal. What you are saying here is that an offence against property, striking or offering violence to a superior officer with intent to commit a sexual offence, or to have sex, or something of that nature, parallels what we have just described, but that is not what this says.
Mr. Graham: Section 203.01(2) says ``...if the prosecutor establishes beyond a reasonable doubt that the person committed the offence,'' that is to say the striking, ``with the intent to commit an offence referred to in paragraph (a) or (d) of that definition,'' which is a sexual offence. It is a bit circular, but it is no different from what we provided for in the other law, and if the object of the military law is to replicate the system we put in the civilian criminal justice system, it was necessary to do this. If we had left this out, we would have left a huge hole in our system that would have made it different from the other system.
Senator Bryden: One of the basic problems with this type of approach and with the administration of justice, and criminal justice in particular, outside of our normal criminal system, is that it runs the risk of putting in the hands of people who are in charge of other people a possible threat — for example, ``You hit me and not only will I charge you with striking me under our law, but it is also my intention to attempt to prove that it was for sexual purposes.''
There has always been a delicate balance between protecting a person who may be abused and not putting people into a situation where someone uses this as a method of control.
Mr. Graham: I understand what you are saying, senator, but there are two elements of control over the abuse to which you refer. First, it is not up to the person who was hit to determine whether it was done with a sexual purpose. The prosecutor will determine whether to prosecute that offence, so the complainant will have to persuade the prosecutor to lay that additional charge and prosecute the offence. Prosecutors will not lay frivolous offences just to please someone, and they will have to prove the charge beyond a reasonable doubt in order to achieve their goal.
I understand your concern about a situation of double jeopardy, but there are checks and balances in the bill. We have to assume the prosecutorial corps are principled people who apply the law in a principled way and that the judges, in turn, will impose the burden of proof beyond a reasonable doubt in a strict way that would prevent an abuse of the nature to which you refer.
Senator Bryden: A criminal charge has to be proven beyond a reasonable doubt in any event. I have difficulty understanding why, if this is for striking with intent to commit a sexual offence, then that is not included there. They will have to prove it beyond a reasonable doubt. Why do we put the stipulation that it must be proven beyond a reasonable doubt in a separate area?
Mr. Graham: Senator, you are referring to something that mystifies many of us in this business about the drafting of legislation. I wish I knew the answer in relation to more than just this bill. It is a problem, but I am assured by the experts that this replicates what is in the Criminal Code provisions and that that is the intent of the bill.
Senator Milne: That brings me back to the next part of my question. If that question appears to be a form of double jeopardy, another section appears to be a form of retroactive punishment. I am referring to section 203.07 on page 9 of the bill. It reads:
The Provost Marshal may serve a person with a notice if, on the day on which this section comes into force, they are subject to a sentence for an offence referred to in paragraph (a) or (d) of the definition ``designated offence...''
In other words, if someone has already been found guilty and has not received an absolute discharge but is being held because of being found guilty, they will have to register.
Do you consider registration a punishment? If so, this is a retroactive punishment. There is a retroactive aspect to this with which I am uncomfortable.
Mr. Graham: First, registration is not intended to be a punishment. Registration was established under the changes to the Criminal Code of Canada and it includes balances that provide that it is not a punishment.
It is designed to enable the police to do their job to protect society so they can have access to information in circumstances specified in the law. That is my understanding of the purpose of the legislation, whether it is in the Criminal Code or in our situation. In the legislation we have replicated exactly what was done in the amendments to the Criminal Code. If you have a principled problem with that, you will have the same principled problem with this. As Minister of National Defence, my defence is that we believed it was important for our bill to replicate in every way accurately what the Criminal Code did so that we could say our system was brought into conformity with the Criminal Code.
My understanding is that it is only in the case of those offenders who have already been convicted by a court martial of a designated sexual offence and are still under sentence on the date the bill comes into force, in which case it will be registered so that if they were then released, that information would be there. There was an egregious case where someone was convicted of an offence, released into civil society and convicted another offence subsequently. Everyone asked, ``Why did we not know about this? Why did we not have access to that information?'' That is what this bill is designed to cover. It is not designed as punishment, but designed so that the authorities will have the full facts so they can manage a difficult situation.
Ms. Campbell: As the minister said, the objective here was really just to include military offenders into the existing scheme, which is still very young, recognizing that Parliament had decided it would like a two-year review of the sex offender registry. That is a very short period of time. The approach then was not to come back to Parliament with policy or significant changes at this point, but rather to roll the military in and come back to Parliament at the time it convenes the two-year review, which is now just a little over a year away. In support of what the minister has said, this parallels exactly what was put forward in Bill C-16. The retrospective scheme only applies to those offenders convicted of a primary offence or a clearly sexual offence and who were under sentence at the time of coming into force. The mechanics of that scheme are exactly the same as in Bill C-16 in terms of serving notice.
MGen. Pitzul: I will add that those folks to whom this may apply also have the opportunity to contest such applications.
Senator Joyal: I have some concerns about the constitutional meaning of Senate, which is a house of review. This bill is not essentially housekeeping. It has elements that change something important. It is not just a bill that adjusts the National Defence Act to the Criminal Code period. I will explain later.
The role of the Senate is to review after the other place has gone through the process. At times, the Senate deliberates first, but it is normally in areas that are technical in nature and do not involve issues that deal with justice, especially when human rights and the Criminal Code are at stake. I have reservations about this bill being introduced first in the Senate. It is an S bill, not a C bill. It is a government bill. My preference as a senator is to have the benefit of the testimony and debate in the other place, and then we can concentrate on aspects that appeal more to the Senate's role in terms of minorities, the Charter and so on, especially, as Senator Milne has said, when we have dealt with an issue before.
To illustrate my point, a question was raised by Senator Milne and Senator Bryden on the definition. There is a difference between the definition of section 490.011(1) of the Criminal Code and the way that section 203 redefines the Criminal Code, and I will point that out to you. I am referring here to page 2 and to the top of page 3, which refer to the definition of designated offence in the Criminal Code. I have the Criminal Code in front of me. The Criminal Code, in paragraphs (e) and (f) of the definition of designated offence, says ``an attempt or conspiracy to commit an offence referred to in any paragraph of (a), (c) and (d) or an attempt or conspiracy to commit an offence referred to in paragraph (b).'' In other words, all the paragraphs of the designated offence are covered.
If you look here at paragraph (d) and (e) on page 3, an attempt or conspiracy to commit an offence referred to in paragraph (a), and then (e), an attempt or conspiracy to commit an offence in paragraph (b) and (c), but of course not in (d). In other words, there are some exceptions to what is included in the attempt or conspiracy to commit an offence on (d), which is essentially sexual intercourse with a step-daughter, gross indecency, parent or guardian and so on. It seems to me a fish has gone through the holes in the net there unless there is a reason why those should not apply to the military generally. Can you tell me why the crime or the attempt or conspiracy to, (d), sexual intercourse with a female under age 14, sexual intercourse with a female between the ages of 14 and 16, sexual intercourse with a stepdaughter and so forth are not covered?
Mr. Graham: Going back to your preamble, senator, I can not answer that question. The house leader's decision was to introduce the bill here in terms of management of the house business, and I can not help you there.
I will undertake to get back to you in writing about this potential difference. I do not have a copy of the Criminal Code and, given the time we have left, I do not think it would help me if I had it. Would you allow us to get back to you in writing with an explanation?
Senator Joyal: Of course. The Criminal Code has probably 40 subparagraphs, and it is almost impossible for someone who is not an expert to understand it.
If you read article 203 on page 2, it says ``a designated offence means,'' and then (c) refers to an offence under paragraph 77(f), but which paragraph 77(f)? Which article? Is it the National Defence Act? It is not clear there. The definition should say 77(f) of National Defence Act. Previously, you referred to section 490.011 of the Criminal Code, so I thought that section 490.011 had a paragraph 77(f). I looked at the code, and of course of it not there. There is no such paragraph in the Criminal Code because you are referring to the National Defence Act. That should be made precise; otherwise, it is not understandable.
Mr. Graham: I will ask the legal experts to comment on either one of those two propositions.
Ms. Campbell: The senator has identified the complexity of the cross-references between the Criminal Code and the National Defence Act, and the complexity is heightened by the fact that we are now into an in depth sub-numbering system. I believe I understand what the senator is asking, and I think it is all right, but perhaps you would like to have a session with officials to work through some of the technical aspects.
Senator Milne: This section just amends the National Defence Act, so this is what we are talking about.
Ms. Campbell: That is right.
Senator Joyal: It should say ``paragraph 70 of the National Defence Act,'' because we are giving definition, and that illustrates my point that this bill is not simply making the National Defence Act parallel to the Criminal Code. This section clearly establishes that there is another offence, and I have a problem accepting your argument that those offences, that is, striking or offering violence to a superior officer, have to be linked to the commission of an offence of a sexual nature. I do not see how you link the two to establish a new sexual offence that is linked to striking or offering violence to a superior, cruel or disgraceful conduct, or abuse of subordinates. It is a little convoluted to say that if you abuse a subordinate, it must be with the objective of committing a sexual offence. If the person has committed the offence of abuse of subordinates, that is one crime. Then, if you are accused of committing this offence with a sexual purpose, that is another step. However, you seem to link the two while, as I understand the bill, they are not linked; they are different. They are two separate designated offences.
I would like to be convinced that your interpretation is the correct one.
I always prefer that the House of Commons study these bills first so they can find problems like this. When these bills come to us first, we must do that, which is not our role.
My next question is on operational exceptions, section 203.15. My principal approach to exceptions to the Criminal Code is that they must be limited and qualified. When we confirm an exception, it must be qualified. In other words, it is not open-ended such that if it is for operational reasons it is okay. Although I do not want to accuse anyone, I have seen in the past that when a higher level of the hierarchy is involved it is for operational reasons and when lower ranks are involved, operational reasons are not invoked. I believe that when it is for operational reasons it must be qualified.
I have read enough history about the military trying to cover actions of the top level that I want to be very sure that when the argument of operational reasons is used, someone checks the criteria of those reasons. The exceptions of national security, international relations and so forth are so open-ended that everything that deals with the army is a matter of national security, especially when linked to a group of the military that is engaged in some kind of an operation.
We will have to look at the concept of operational reasons to ensure that this is not open-ended abuse to cover up or to avoid the application of the Criminal Code. Do not forget that with this bill we are essentially suspending the Criminal Code for operational reasons, which is very serious. We do that when there is a greater good for society than the punishment to which an ordinary citizen would be submitted if he or she is found guilty of a similar crime. It is not enough to say that for operational reasons we suspend the code. I understand there are operational reasons and I am not against that concept, but I think that those reasons need to be circumscribed and qualified.
That argument has been made around this table on many occasions when we have been called upon to make an exception to the application of the Criminal Code. Operational reasons cover a lot, and the same concept holds true with lawful order. Lawful order is also an important concept in the bill in that it has the impact of suspending obligations, and that, too, must be well understood.
Those are the fundamental concepts of the bill. I am not opposed to the bill or to the idea of streamlining what applies to the army and what applies to ordinary civilians, but when we do something special, having recognized the need for it, we must delineate how it will be used rather than having it open-ended with the possibility of abuse.
Former Chief Justice Lamer stated some principles in his report about how the law should apply to the military. It is important that we satisfy ourselves that those principles found expression in this bill. You have asked us to do something that we are willing to consider, but we must satisfy ourselves that the principles Mr. Justice Lamer formulated after extensive investigation are satisfied with this bill.
Perhaps at our next meeting, Mr. Minister, we could address that aspect of Justice Lamer's report.
Mr. Graham: I would like to reiterate what I said at the beginning. Perhaps the best way that I as a minister can help is to assure you that the intent of the bill is to ensure that Canadian Forces members are treated the same way as civilians who are charged with a similar offence. As to whether the bill achieves that or goes elsewhere as we wander through the thicket of the draftman's language and reference to various numbers, I have to leave that to our experts. Otherwise, you and I would be like two lawyers arguing before a court and the Chair might decide to rule us both out of order and send us to another court. I recognize that Parliament is the high court of the land, but for legal reasons I have to leave that up to the experts.
I will reflect on the observation you made about the operational reasons for suspending for a period of time the application of the registry system. You said that an ordinary citizen would not have their punishment alleviated.
The purpose of this system in the Canadian Criminal Code is not punishment. It is to enable law enforcement authorities to do their job, to protect the Canadian public against offenders of this nature.
Now, take that in context and think, for example, of the Chief of the Defence Staff saying, ``We are on an operation in Afghanistan fighting the enemy, and so I will suspend this registration until this person gets home.'' If that is the purpose, the public is being protected. The person is deployed abroad. The purpose of the provision laid out in the Criminal Code is to protect the Canadian public so the person does not turn up on a downtown street of one of our cities without law enforcement officers there knowing what that offence is and giving them an opportunity and the tools to deal with it. This person is off somewhere with a gun fighting for his or her country on a foreign deployment. The circumstances are such that if you reflect on the nature of what we are trying to achieve here, it is consistent with the philosophical underpinnings of the Criminal Code provisions and the philosophical purposes of what we are trying to achieve in the justice system, which is to allow our authorities the information necessary to deal with this difficult situation.
As Ms. Campbell pointed out, we are struggling with this as a new and novel concept. Again, it provides for only a two-year application period. If we go back, Madam Chair, the provision of the terrorism-suppression legislation was a five-year period. This has a very short shelf life and will give us an opportunity to work on these complexities as we move ahead.
That is the only general reflection I can give you, but I concede, senator, that there may well be technical issues we should be looking at in detail. I assure you the officials will work with you on that.
Senator Bryden: We are always concerned that where someone is given almost absolute discretion, whether it is the Chief of the Defence Staff or whomever, that there should be oversight. This act also takes the Statutory Instruments Act out of play, so there is no review under that act that would lead to an interpretation of the Defence Act in this situation. If everyone acted perfectly and had perfect judgment in every situation we would not need the review. These are some of the things ordinarily done by the Senate. As Senator Joyal said, we have the benefit of having bills run through the committee system in the House of Commons, and therefore we can zero in on specific items.
Unfortunately, we are taking a first cut at this bill and may need to be pickier than normal. These proposals are significant to us as a review chamber, the fact that in implementation there be adequate oversight to protect the rights, Charter and otherwise, of all our citizens, including members of the Armed Forces.
Mr. Graham: As a minister, I totally respect what you are doing. I am not suggesting that you are not doing it in the right way. I completely agree. I am proposing that my own limitations are such that I can not delve too deeply into the technical weeds or I will not be helpful to you. I certainly agree with your approach and assure you that we will do our best to satisfy your requests. That will help us in the other place. If there are similar questions, then we can deal with them.
The only comment I would make about the specific problem of circumscribing the powers of the Chief of the Defence Staff — and I will ask MGen. Pitzul to speak to this — is that I understand there are legislative parameters. It is not an unlimited discretion. Also, I must say that in my experience as minister — I have only been minister for about a year and a half now — we do have a very effective civilian oversight of the defence process in our country. I have always found that the Chief of the Defence Staff is very much aware that ultimately he is responsible to the political will of the country for what he or she does in any circumstances, and is respectful of that. That is, if you like, a moral parameter within which they do operate.
[Translation]
Senator Rivest: Does the concept of military operations exist in other legislation...
MGen Pitzul: Not as far as I know.
Senator Rivest: ...where one would accept an obligation on the Armed Forces for certain reasons, is that the only case?
MGen Pitzul: There is no analogy, as far as we know.
[English]
Senator Joyal: The point I want to bring to your attention, Mr. Minister, is that when this committee was studying the registry, we were told that this was not a punishment. It was part of some measures that we cannot identify as being rehabilitation per se. It is an obligation that is put on the offender. Last year the Ontario court had to look into the registry of Ontario and came to the conclusion that the imposition of an obligation to register for 10 years to life, with no mechanism for termination of or exemption from that obligation, infringes on the rights, liberty and security according to section 7 of the Charter.
It is not you who will solve that problem because it applies to the general registry concept. However, it is not clear that the court will buy the argument that when you impose this obligation on someone for life, or for an unlimited period of time, that without review, this is not in the context of a punishment.
I do not ask you to pronounce on this point, Mr. Minister, but I think that we need to have it in mind as a possibility that the court has not yet decided on this. It is in the court. I remember that around this table that discussion was raised repeatedly with the Department of Justice at the time. At the end of the day, there was a kind of 50-50 interpretation because there was no capacity to review it at that time.
Mr. Minister, you are responsible for the anti-terrorism legislation, or part of it. It is always the same question. When we place an obligation on citizens that is not, in fact, a punishment, it has to be reviewed at some point, otherwise you change the nature of what you are doing.
I want to be sure that we understand that because that is part of what we are doing today.
Mr. Graham: I understand, senator. I understand from Ms. Campbell, and you may wish to ask her about this issue, that the Ontario registry is significantly different from the national registry. The national registry did contain a specific review provision precisely so that one could address what might be considered Charter and other considerations, which the Department of Justice is obviously concerned about in any bill of this nature.
The Chairman: Thank you, minister.
Mr. Graham: Thank you for your courtesy, Madam Chair.
Senator Joyal: The other concern I have is the impact of the registry on the military. The military is a special group of people. Once people are in the registry as a sex offender, what impact does that have on their career?
MGen. Pitzul: The registry is meant to be an investigative tool. If you are compelled to register, that is what the law provides. No one who would be assessing your career would have access to the information in the registry. Access to that information is limited to the provost marshal for the specific purpose of investigating offences of a sexual nature. This is not a registry to which a plethora of people would have access. In terms of an impact on one's career, it would be negligible in that sense because the person making the assessments would not necessarily have access to the registry. They would have access to the information that you have been convicted at court martial and a sentence has been imposed; the public has access to that.
There are a couple of points that I would like to raise. First, there are four parts to 203.15. Three of them are aimed at giving the Chief of the Defence Staff an ability to suspend time limits for the purposes of protecting the rights of the persons compelled to register or compelled to produce themselves. It is an operational reason, where the individuals are on operations and cannot comply with the time limits prescribed by SOIRA, and so the chief says, ``I will suspend it; here is the beginning date and here is the end date.'' The time limit then picks up at the end date. The individuals' ability to appeal, to argue against the fact that they have been required to register, is protected. The operational reason in three out of the four parts of 203.15 is aimed at assisting the person who has been compelled.
In respect of the application of the Statutory Instruments Act, it applies to all of the regulations. It does not apply to the CDS's decision simply because in one case where the CDS has the authority not to disclose the information because of national security concerns, you would have to declassify the information for the purposes of going through the Statutory Instruments Act process. In addition to that, the statutory instruments process is lengthy. Normally, we are talking about very short periods of time. Those are some of the explanations that I would give you in respect of some of the observations.
In respect of the initial observations by Senator Joyal, which I agree with, we would be more than delighted to assist in taking you through the way Bill S-39 is constructed in amending a variety of statutes. If you notice, on the very first page we start with the amendments to the National Defence Act. All subsequent comments in that section are references to the National Defence Act. I understand there are many subsections and that makes it somewhat difficult to follow, but in regard to the observations of Senator Joyal, I would ask him to consider that the (b) and (c) that he is referring to are the (b) and (c) in a particular amendment and not a (b) and (c) in the code. In respect of the National Defence Act not being specified in 77(f), it is because it is 77(f) of the NDA to which we are referring in that part.
I would offer those observations and be pleased to go through those with you and with my colleague.
Ms. Campbell: Returning to Senator Joyal's important point about the punishment issue, I recall we had a discussion with the committee on Bill C-16. Obviously, this is a central issue with sex offender registries in all jurisdictions. I do wish to highlight again that the Ontario registry that is the subject of that court judgment is quite different from the national sex offender registry in terms of procedural protections. Also, the issue of does this constitute punishment has been well litigated in the United States. We paid close attention to the results there. The U.S. Supreme Court had held that it did not constitute punishment. One might expect that this matter will be litigated in Canada as well. As you say, there are different points of view on this. Some of it will have to await the outcome in the courts. As officials, we do our best to provide the best advice that we can based on our knowledge and research. The assessment that we have made is that the bill and the scheme as a whole, given the procedural protections, will withstand the challenge that it constitutes punishment, but your point is central, senator.
Senator Bryden: There is a reference in here that the Chief of the Defence Staff may determine that a person is subject to the code of service discipline or is an officer or non-commissioned member; does that mean that an officer or non-commissioned member is not subject to the code of service discipline?
MGen. Pitzul: That brings up an issue that has yet to be raised. That is, the code of service discipline applies to a variety of people, including civilians who accompany us on operations overseas. For example, when we were in Lahr, Germany, all the school teachers and the health care workers, pursuant to the requests of their unions, were subject to the code of service discipline. There is a broader group than just Canadian Forces members.
If I think of the most egregious situation under which Bill S-39 would have a positive application, it would be the case in the mid-1970s whereby a dependent person who was the Scout master of his troop committed some acts of pedophilia. He was convicted at general court martial and awarded a sentence of seven years imprisonment. That individual then returned to Canada. A decade later he was accused and convicted by a civilian tribunal of a similar event. Had there been a registry, had the individual registered, the police investigating the Edmonton scenario would have known that this individual was in that area and could have proceeded with their investigation.
The groups of people to whom the code of service discipline applies are somewhat varied. There are two groups, first, Canadian Forces regular force members, and second, Canadian Forces reserve force members who are under section 60 of the National Defence Act involved in a military activity. What you see here is that they do not have to be performing that duty to be captured by the registry.
For example, for the code of service discipline to apply to reservists, they must be either in uniform or in a defence establishment. There are limitations under which reservists perform their service. If they are not subject to the code of service discipline, they commit an offence of a sexual nature, they would be dealt with; the civilian registry process would apply. Persons subject to the civilian code of service discipline include reserve force members who are not necessarily performing one of the activities under section 60. However, it is to capture them as a group.
Senator Bryden: The difficulty may be in the drafting. A person who is subject to the code of discipline or who is an officer or a non-commissioned member — and there is a comma there — of the reserve force is for operational reasons unable...the Chief of the Defence Staff can deal with those. What I hear you saying is that the code of service discipline applies to many people, including the regulars in uniform. Also, here it specifies an officer or non-commissioned member of the reserve; is that the way that reads?
MGen. Pitzul: They could take advantage of the NDA registry process.
Senator Bryden: It is not a separate category for officers who are in the regular service; is that correct?
MGen. Pitzul: No, it is not, it is to deal with the reservists, who can be in and out. Wednesday night they are in uniform parading at a defence establishment; Thursday morning they are not. It is to capture that group.
Senator Joyal: In regard to the 17 members of the forces who where the object of investigation, you said 9 were dismissed, 6 were found not guilty and 2 are awaiting their sentence.
[Translation]
MGen Pitzul: I am sorry, they were all convicted.
Senator Joyal: All?
MGen Pitzul: Yes, all 17 of them.
[English]
Senator Joyal: Is it possible to get the nature of the offence that was the object of the accusation and the rank? I am sure you could get that. I would like to have that in order to know the most frequently occurring offence of that type.
[Translation]
MGen Pitzul: The ranks, you have lieutenant, master corporal, captain, corporal, private.
[English]
...ordinary seaman, corporal, sergeant, private, master corporal, chief warrant officer, lieutenant.
[Translation]
Those are the ranks. The type of offence varies.
[English]
It varies. They include sections 153(1) and 271 of the Criminal Code.
[Translation]
I cannot recall the names. I could give you the titles. We can provide that for you.
[English]
We can provide that.
Senator Joyal: I know it is late and I could not do that unless I take note and study the code. We know essentially what we are dealing with as the subject of our discussion.
[Translation]
MGen Pitzul: We can provide you with the information.
Senator Rivest: I have a question that may seem a bit simple-minded. I am convinced that it is the same in every country. But why is it that when a criminal offence is committed by a military member it must go before a courts martial? Why not regular civil courts? That would free up courts martial to impose discipline when offences are committed in the course of military activity as such. It is a military matter. This may be a stupid question.
MGen Pitzul: The question is perfectly reasonable. The Supreme Court of Canada considered the issue twice in 1991, in R. versus Généreux. The court found that for disciplinary purposes, in the case of military force members, a military court had to hear the case.
Senator Rivest: Even if it is a criminal offence?
MGen Pitzul: Even then, do not forget military personnel are abroad and forced to be abroad. If they are forced to be abroad, the least we can do is allow them to bring their rights along with them when they commit offences.
Senator Rivest: Do NATO countries all have the same type of system?
MGen Pitzul: Each country acts according to its own national needs.
The Chairman: They all have a way to judge offences.
MGen Pitzul: Some use their civil system, namely those countries that have a civil law approach like Germany and France. The problem is that even though you may be in a civil community and carrying out operations or reconstruction work on local national institutions, you still want to demonstrate that in a democratic country, there is a military justice system to govern soldiers' conduct, especially when the offences are committed on citizens. So we invite them to come see how things are done in a court martial, and if ever you have the opportunity to attend a court martial, you will find the same type of procedure as is used in superior courts throughout Canada. It is practically the same procedure and the same formalities. So foreign citizens come before our courts to see whether justice is served, even when their citizens are victims and they know it. When you do not have the ability to bring your justice system abroad, to their country, and to remove the soldier who is charged with inappropriate conduct, you do not return him to his country of origin, what message are you sending the foreign country? That you are trying to hide something? So I think, in principle, given our Charter and our Constitution, it is positive to be bringing our laws abroad.
The Chairman: Several questions remain partly unanswered, and we would need additional information. Can you provide committee members with this information so we may continue our work?
[English]
Thank you for the time you have spent with us. It was quite interesting. We still have many questions, I am sure.
The committee adjourned.