Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence for November 22, 2006
OTTAWA, Wednesday, November 22, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, met this day at 4:30 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I to call this meeting order. This is our first meeting in relation to Bill S-3. The bill is designed to amend the National Defence Act to require offenders who have committed offences of a sexual nature to provide information in a national database under the Sex Offender Information Registration Act.
This scheme parallels the one found in the Criminal Code and the Sex Offender Information Registration Act. The scheme to register civilian sex offenders was proclaimed in force on December 15, 2004.
To commence our study of this bill, I am pleased to welcome the Minister of National Defence, the Honourable Gordon O'Connor, who was appointed to cabinet in February 2006. Mr. O'Connor was first elected to the House of Commons in 2004 and re-elected in 2006 in the riding of Carleton—Mississippi Mills in Ontario.
Before being elected to Parliament, Mr. O'Connor had several careers in the private and public sectors. Most notably, he served Canada as a military officer for over 30 years, joining the Regular Army as a Second Lieutenant in the Armour Branch and retiring at the rank of Brigadier-General.
He is joined today by Brigadier-General Kenneth Watkin, Judge Advocate General of the Canadian Forces, who has served as a Canadian Forces legal officer for 24 years in a variety of positions within the Office of the Judge Advocate General, in the operational law, military justice and general legal services fields.
We thank you both for being here today. Welcome to you both.
Hon. Gordon O'Connor, P.C., M.P., Minister of National Defence: Thank you, Mr. Chairman.
Honourable senators, I am very pleased to join you today to discuss the enhancement of a very important crime investigation tool, namely, the Sex Offender Registry.
Bill S-3 will amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act to bring the military justice system into harmony with Canadian legal norms and standards regarding the registration of convicted sex offenders.
Before I go any further, I would like to introduce the person at the table with me today, Brigadier-General Kenneth Watkin. He will be able to answer the legal and technical questions with respect to this bill.
[Translation]
We would be happy to answer your questions in a moment, but first, I would like to say a few words about Bill S-3.
As you know, the Sex Offender Registry is a national database that gives civilian police officers rapid access to specific and current information about convicted sex offenders.
This registry came into force in December 2004, following extensive consultations with the provinces and territories.
[English]
I would like to emphasize that the obligation to comply with the registration scheme and the Sex Offender Information Registration Act is not meant to be an additional punishment for the offender. The sole purpose of the database is to provide police with an up-to-date investigative tool, and to this end, the legislation limits who may access the information and for what purposes.
The database is not accessible to the public and it is an offence for anyone who is not specifically authorized to access information from the database. It is also an offence to use the information for purposes other than those set out in the legislation.
As you know, the original legislation that created the Sex Offender Registry did not include the necessary amendments to the National Defence Act to apply the Sex Offender Information Registration Act to the military justice system. As a result, under the current system, no one convicted of a designated offence under the National Defence Act can be ordered to register in the Sex Offender Registry. Accordingly, their information would not be available on a database for future investigation of sexual offences.
Bill S-3 will close this gap by making all convicted sex offenders eligible for inclusion in the database.
[Translation]
The amendments to the National Defence Act contained in this bill will allow courts martial to order individuals convicted of designated sexual offences to register in the national database.
The content of Bill S-3 is not new to this committee, as this is largely a reintroduction of a bill that was introduced in the Senate and examined by this committee during the last session of Parliament.
[English]
The contents of the bill have been changed slightly from the earlier version, with the most notable changes being made to address two major concerns that this committee raised last fall. First, the committee raised concern over the proposed addition of five National Defence Act offences to the definition of designated offences. We considered the concern you raised and decided to remove the five offences from the current bill. Second, this committee also raised concerns about the authorities proposed for the Chief of Defence Staff and the fact that an earlier bill did not contain an oversight provision. Based on these concerns, a provision has been added to the current bill that requires the Chief of Defence Staff to notify the Minister of National Defence whenever he exercises one of these authorities.
In addition to the proposed amendments to the National Defence Act, this bill also contains a number of amendments to the Criminal Code and the Sex Offender Information Registration Act. While many of these amendments are consequential to those of the National Defence Act, some are being proposed to improve the administration and enforcement of the registration scheme. For example, the bill will provide more flexibility as to when an offender is authorized to report.
[Translation]
I would like to emphasize that the amendments being proposed are not an indication that we anticipate many members of the Canadian Forces to be prosecuted for designated offences. In fact, during the six and a half-year period from January 2000 to June 2006, there were only 20 convictions at court martial for designated offences.
The proposed amendments are rather designed to harmonize the military justice system with the civilian criminal justice system.
[English]
Having said that, the amendments to the National Defence Act contained in Bill S-3 are not an exact copy of the provisions of the Criminal Code. Bill S-3 recognizes that the military operational environment is unique and that a certain amount of flexibility is needed. This uniqueness is reflected in several ways. For one, the bill provides authority to the Governor-in-Council to establish registration centres for the Canadian Forces that can be located both inside and outside of Canada. As well, the bill gives the Chief of Defence Staff the authority to make two types of determinations that will allow for the requirements of the Sex Offender Information Registration Act to be met while at the same time taking operational requirements into consideration.
First, when the Chief of Defence Staff determines that an offender's operational obligations will prevent that offender from exercising certain rights or fulfilling certain reporting requirements established in the legislation, the time limits for the offender to do so will be temporarily suspended until the operational obligations have ended.
Second, the bill provides the Chief of Defence Staff with the authority to limit certain operational information from being placed on the database when he determines that the information could jeopardize national security, international relations or certain types of operations.
[Translation]
The registration scheme provided under the Sexual Offender Investigation Registration Act was developed in a manner that recognizes that the rights of an offender must be balanced with the interest of society to effectively investigate crimes.
Bill S-3 respects this balance. For instance, when deciding if an offender should be ordered to be registered, a court martial will consider the same factors that would be examined by a civilian criminal court.
[English]
Just as in the civilian justice system, an offender ordered to register by a court martial will have the right to appeal. As well, similar limitations on the access to, and the use of, information from the database for the civilian justice system will exist for the military justice system.
The amendments introduced in Bill S-3 will bring the National Defence Act into line with the Criminal Code regarding the registration of convicted sex offenders, while taking into consideration the unique operational requirements of the Canadian Forces. By extending the application scheme of the proposed Sex Offender Information Registration Act to individuals convicted of sexual offences under the National Defence Act, Bill S-3 ensures that the military justice system will continue to reflect the same legal norms that exist within the civilian justice system.
Senator Jaffer: Thank you very much minister, for coming here today. First, I want you to convey to the men and women that you work with that I had the opportunity to be at Wainwright, and two weeks ago at Halifax, to help with recruiting. I can say with great pride that you work with amazing men and women. I congratulate the men and women who are doing a great job for our country.
I was the chair of the Canadian Committee on Women, Peace and Security and while I travelled across the world, I learned of one of the challenges that women face. Women told me that battles are carried out in their communities. Women and children are most affected by operations that are carried out abroad.
This is a very important piece of legislation and I have a number of questions. First, some have suggested that convicted offenders, even if they are convicted of minor sexual offences, should not go on operations; they should be ejected from the ranks so that they would not bring disrepute to our Canadian Forces. No member should be considered so valuable, or their skills so indispensable, that they should be retained.
How would you respond to the argument that the honour of the Canadian Forces requires that sex offenders be expelled from the ranks?
Mr. O'Connor: When I was in opposition, I made a very similar comment. What I did not know at that time was that the military maintains a more rigorous standard than the practice in civilian courts. Where some offences fall within the character of sexual offences, civilian courts may not process or prosecute, but the military will. The military has zero tolerance for sexual offences.
When I think of sexual offences, right away, I think of heinous offences like rape, but there are some offences where someone inappropriately touches someone or something like that. In the military, if that is reported, the person is found guilty of a sexual offence. It may be of a nature where it is the judgment of the court or other people that this is not likely to happen again, and it is not on the scale of what the typical person thinks of as sexual offences.
I have come to realize that there may be people who are captured within this list of sexual offences that probably would not commit that act again. On the higher scale, on the more heinous acts, no one would be kept in the Armed Forces.
Senator Jaffer: What steps are currently being taken to monitor the people who are within the operations? I am talking about policy.
Mr. O'Connor: As I understand it, in the last five or six years, there have been 20 individuals who would be considered justifiably on our sex offender list. I think the great majority of them are gone from the Canadian Forces, but I think there are still a few remaining.
Brigadier-General Ken Watkin, Judge Advocate General of the Canadian Forces, National Defence: I would like to start off by saying this is my first appearance before the Senate committee as Judge Advocate General and it is a distinct honour and a pleasure to be here. Hopefully, I can assist you in your deliberations.
In terms of what you have said concerning monitoring, I would like to address both these issues together. Much as the minister has indicated, we live in a communal lifestyle in the military, particularly in operations, and quite often the nature of sexual offences will be wide-ranging. While courts use the term that it is lower on the scale or higher on the scale, and the legislation itself will give a lesser punishment or a higher punishment, we certainly view all sexual offences as serious. It is a question of the degree of seriousness.
Certainly, the factual circumstances for cases are obviously going to be different. To give you an example of a case, there was an individual on an operation in a smoking tent, men and women together, and they had been drinking alcohol. In this case, the individual involved grabbed the woman in the groin area for about two seconds and said, ``You are not a man,'' as sort of a joke. He was dealt with by our justice system. He was charged with sexual assault and received a punishment of a reprimand and a $2,000 fine. He subsequently was put on administrative counselling and probation, but he was retained in the Canadian Forces. The court viewed the alcohol nature, and the social setting in which the offence occurred. It was not in an isolated, private circumstance; it was in a group setting.
In another, similar type of case, an individual who had no recollection because of alcohol was dealt with seriously by the system. It resulted in a conviction. It resulted in administrative action, and a counselling and probation period in terms of continual monitoring; but it did not result in the release of this individual from the Canadian Forces. That is the nature of the level of offence at the serious, but lower level. It has been dealt with seriously by the system.
Clearly, we could think of other more serious offences in terms of that happening. It would be on the individual's record. The counselling and probation, for instance, would run for a period of time, during which he or she would be monitored — in most cases, it is a ``he.'' It depends on the nature of the sexual assault. There is that aspect to it.
Senator Jaffer: That is very useful. At the moment — and I am sure it has happened for many years — we go to different parts of the world with different kinds of value systems and different norms. What type of training is given to the men and women in the Canadian Forces as to what is appropriate around this issue of sexual assault? Is there ongoing training?
Mr. O'Connor: Before we dispatch troops — I will use the general term ``troops'' but it could be sailors — on a mission to some other country, we try to give them sensitivity training about the culture — the norms of the culture, et cetera. However, I think if you are guilty of a sexual offence in Canada, you will surely be guilty of a sexual offence somewhere else. I do not think those norms change. Inappropriate behaviour is inappropriate behaviour.
Our soldiers, male and female, know the rules, but they also get sensitivity training in the cultures — not in sexual terms but in other terms, what is appropriate and not appropriate in another culture.
The Chairman: Honourable senators, we have 40 minutes before the minister has to go and I want to ensure that all honourable senators have an opportunity to put their question to the minister.
Senator Baker: Will the Judge Advocate General be staying after the minister leaves or will the committee meeting terminate?
The Chairman: I do not know the answer to that question.
Mr. O'Connor: The general could stay behind.
Senator Baker: Most of my questions are of a general or technical nature, so perhaps other members might want to ask questions of the minister before he leaves.
Senator Zimmer: Welcome, minister; general. Thank you for your presentation. First, as Senator Jaffer mentioned, I had the good fortune to be at the Grey Cup this weekend and General Hillier was there. There was a theme about the Armed Forces; in fact, they brought the Grey Cup in by helicopter. He gave an inspirational speech at the commissioner's brunch. It inspired all of us, minister. We are very proud of the men and women that work in your department. It was a proud moment and I can tell you that the applause was long and loud.
Having said that, throughout this bill there is reference made to the Code of Service Discipline. I understand that different procedures are put in place if someone is subject to this code. For example, an application for an exemption order shall be made to the chief military judge if the applicant is subject to the Code of Service Discipline or is an officer or a non-commissioned member of the primary reserve at the time. In any other case, the application is to be made to the court under the Criminal Code.
Is the Code of Service Discipline a replacement for, or a supplement to the Criminal Code?
BGen. Watkin: It is neither, senator. It is a constitutionally recognized criminal justice system for regulating the discipline within the Canadian Forces. A large part of the National Defence Act is the Code of Service Discipline. It has offences which are unique to military life in the sense of striking superiors, AWOL, desertion. It also incorporates the federal criminal statutes of Canada, and it incorporates the provisions of the Criminal Code as well.
If you were to go to a court martial, you would see a court system that is very similar to a criminal justice system, with judges appointed by Governor-in-Council and with lawyers, both prosecuting and defending, who are members of their respective law societies. Periodically, civilian defence counsels appear before our courts as well.
Senator Zimmer: A good example was the movie with Jack Nicholson. A Few Good Men probably describes the scenario clearly.
BGen. Watkin: Certainly in terms of an optic, right.
Senator Zimmer: Are those prosecuted under the Code of Service Discipline entitled to the rights and legal protections afforded to those prosecuted under the Criminal Code?
BGen. Watkin: The accused is accorded all the rights available to Canadian citizens in terms of the Canadian Charter of Rights and Freedoms. The rules of evidence are the rules of evidence of criminal law in Canada and the accused is defended either by military lawyers called to the bar of a province in Canada, or by a lawyer of his or her choice from the civilian bar.
Senator Milne: Minister, I think I heard you say that if a person commits an offence for which he or she is found guilty under this code, he or she might not be designated because it might affect international relations.
Does that mean, then, that if a soldier rapes a woman in Afghanistan he might not be designated because that might jeopardize our international relations with Afghanistan?
Mr. O'Connor: If an offence is committed, an individual goes through a trial. If that trial finds the person guilty of a sexual offence that will be appropriate to be recorded here in the Sex Offender Registry, then the judgment of the court is that it will be recorded in the registry.
There are provisions in this bill that gives the CDS in certain rare circumstances — and it is rare; I do not think it would be in the case you just gave — the choice to suspend for some time the registration of an individual. Courts have ordered that the individual be registered, so he must be registered. However, he may be able to suspend it for some time if he is on an operation. When a person is registered the registry states the location of the offender. If that person moves, it must be put in the registry again. In theory, if that person was in an operational unit that we were moving for good military reasons, we may not want this unit tracked. Theoretically, someone only needs to follow the sex registry and know the location of the unit. We are talking about a very rare case.
I will turn this over to the Brigadier-General, but we are talking about situations probably of a minor nature. I cannot imagine that you will find a provision in there where the minister gets involved. I cannot imagine that in the case you just mentioned, if someone were found guilty of rape, they would be staying around; they would probably have a prison sentence.
BGen. Watkin: This will partly be a response to what Senator Jaffer mentioned as well in terms of the international operations aspect. You have set the situation forward of a sexual assault in Afghanistan.
One of the aspects of our military justice system is that we have worldwide jurisdiction. There has been a lot in the media the last few years with respect to people in some operations in the world committing crimes against women, abusing authority, and not being subject to the jurisdiction of their domestic courts. That is not an issue with the Canadian Forces because we incorporate the criminal laws of Canada as well as the unique military offences, and they operate worldwide. We have a portable court martial and justice system which is capable of reacting world round and it has done so in the past.
In the scenario you put forward, the Canadian Forces National Investigation Service would likely investigate that case. The determination would be made with respect to charges and it would be brought to the Director of Military Prosecutions in terms of screening charges. If a charge was laid, the case could be dealt with either in Afghanistan or back in Canada, depending upon the scenario, the witnesses, et cetera.
It is important to separate what this act involves and the operation of the criminal justice system itself. This legislation is not a punishment; its purpose is not to deal with offenders in that context. That is why we have the military justice system and the Code of Service Discipline. In the same way, we have the civilian system and the criminal justice system, which deals with individuals before a court of law. If the determination is made of guilt, an appropriate sentence will be awarded.
The purpose of this legislation is much narrower. Its purpose is to obtain data on people who have been convicted or have been found criminally responsible, so that their location can be tracked for investigatory purposes. If a police officer is doing an investigation, the officer would be able to contact this individual and either screen him in or screen him out in terms of an ongoing investigation. I think it is important because it is not for employment purposes to decide people can become part of or not continue to be part of the Canadian Forces. It is not a determination of whether he can or should go on operations. It is very narrowly focused in terms of feeding a database for the public policy purpose of investigating sexual offences.
Senator Milne: I am not sure to which one of you I should address this next question, but it is my understanding that this bill will create a mechanism so that those convicted of a designated offence at court martial could be ordered to register with the national sex offender database. I want to make absolutely sure that there is no choice here on the part of the individual; is there?
Mr. O'Connor: There is no choice, but you can say it in nicer words.
Senator Milne: I do not particularly want nice words. I want to know whether or not there is choice.
BGen. Watkin: No, there is no choice.
Senator Milne: If there is a choice and they simply choose not to register, then this whole system is worthless.
Mr. O'Connor: When the court makes a determination that it is appropriate to register someone in this registry that is the court's decision and no one in DND can overturn that decision.
Senator Milne: That is good. We have been through this bill before. As I go through the new version of it, I see there are quite a few changes, more than just what you mentioned, from the last time around.
It really does go beyond mere housekeeping. It affords new discretionary powers to the Chief of Defence Staff and adds offences to the Criminal Code, such as the new offence of knowingly providing false or misleading information.
In the normal course of things, a bill that brings in new things like this to the Criminal Code comes from the Commons to the Senate.
Why was this bill introduced in the Senate? Was it because we had had problems with it before in this committee?
Mr. O'Connor: No. I am not the House leader. My guess is it is just the amount of legislation that is in Parliament at this time. It seemed appropriate that the Senate would start some legislation and the House would start others. There is quite a bit of legislation moving through Parliament right now.
Senator Milne: Most of it will come here.
Mr. O'Connor: I know. Perhaps you can send some our way. I think it was to try to balance off the workload; that is all.
Senator Joyal: Minister O'Connor, when you were the defence critic last year, which is not a long time ago, you stated, ``Offenders convicted of all but the most minor sexual offences should be ejected from the ranks as a matter of course. Military people who are found guilty of this are out. I do not care if it is war or peace.''
You stated that after having spent 32 years in the Canadian Forces. You know the army very well. You ended up with the highest distinction, Brigadier-General. You also said, ``No one is that valuable. The military is set up so that everyone can be replaced in every operation.''
What has made you change your mind now that you are head of the department after having spent 32 years in the Canadian Forces?
Mr. O'Connor: I have not changed my mind much. When you talk to me about sexual offences, I think about things like rape, child pornography or things like that. What was explained to me is that the Department of National Defence will prosecute anyone for anything remotely related to sex. As I said, we may have a case where someone touched someone on the bottom or whatever and that person will be prosecuted. If he or she is found guilty, his or her name will be posted on the sex register.
I am not a lawyer; however, I do not put that one event on the same scale as raping someone. As to serious sexual offences, if they are committed, I do not think anyone should be maintained in the Canadian Forces. No one is that valuable and should be gone. However, there may be justification for people who did what you would call offences on the much lower scale, inappropriate behaviour because of drunkenness or whatever. I have concluded that if the courts and the military look at this individual and say that he or she not likely to do that offensive behaviour again, then he or she can be retained. However, anyone found guilty of any serious offence, from my point of view, should be out.
Senator Joyal: Are you ready, then, to change the regulation that applies to the army so that the department defines the level of seriousness of the offence? Accordingly, a person who goes beyond the threshold of what would be, as you stated, a minor offence, is that person then automatically discharged from the army?
Mr. O'Connor: That is just internal administration, senator. That does not require legislation. That is internal administrative policies of the department.
I would imagine if we run a check of the 20 people who have been found guilty of sexual offences that justify being on this register, I would be pretty darn certain that anyone who had committed a serious offence is gone or in prison.
Yes, I could look at the internal administration department to ensure that is so. As I said, my understanding of what sexual offences were has been broadened by talking to the lawyers in our department.
Senator Joyal: I understand that when you talk to lawyers you might learn something. On the other hand, all the studies that have been conducted on the conditions of women who are the objects of sexual offences or harassment conclude, ``There was interference from superiors and military police investigators into sexual assault. As well, there were attempts by superiors to keep sexual assault charges out of civilian courts. There was quiet removal of perpetrators from the base where the assault took place. As well, there were pressures on victims to remain silent.''
Those are compelling conclusions. I expect that if we give special treatment to a person found guilty of a sexual offence that we should take some ``administrative measures'' to combat that kind of chauvinistic attitude in the army. That attitude does not create environment that appeals to female recruits. One objective of the army is to recruit women. I refer to the recruitment drive to which my colleague Senator Jaffer has just referred.
It seems to me if you want to convince youngsters, be they female or male, to enter the army, it has to be a safe environment. A safe environment includes drastic measures to fight sexual harassment and male chauvinistic attitudes toward women in the army because they work in a man's world.
Mr. O'Connor: Senator, I do not know what report you are referring to.
Senator Joyal: It is an article written by Marcia Kovitz found in the book entitled Canadian Woman Studies: Women in Conflict Zones. The title of the article is ``The Enemy Within: Female Soldiers in the Canadian Armed Forces.'' I could give you a copy.
Mr. O'Connor: I would not mind receiving a copy.
Our military has a zero tolerance for sexual harassment both ways. No system is perfect and from time to time, someone gets away with an inappropriate act. However, I am pretty confident that in the great majority of cases when someone commits something that we would consider inappropriate in a sexual way, they will be charged and found guilty. There is no favouritism.
We encourage women to join the Canadian Forces. We want to have a representation of our society as it is as closely as possible. I think we have come a long way. National Defence has come a long way in encouraging women to be there. We have moved women along in the command chain. There are now three or four female generals and there will probably be more into the future. The women are moving through all the ranks. They have all the commands that everyone else has. The military is encouraging women. There is no conscious attempt to suppress women's rights or anything like that.
I am willing to read the report, but I do not know if it represents the reality of 2006.
Senator Joyal: The other point that has been of concern is the fact that the victims of sexual offences in the army are not compensated, while police officers who are victimized in the course of their duties can apply for compensation. I do not understand why women in the army who are the victims of sexual offences would not be compensated properly and receive the proper support, while those in police force receive such support.
Mr. O'Connor: I understand that you may be talking about provincial compensation, where victims receive compensation at the provincial level.
Senator Joyal: The problem is that women in the Canadian army fall into the provincial so-called status; some provinces have compensation systems, others do not. The question is that they work for the Canadian government, the Canadian people; they do not work for the provincial government. I cannot understand that the Canadian Armed Forces in 2006 cannot put together a program of compensation for its own people.
BGen. Watkin: There is no specific scheme for the Canadian Forces or the Department of National Defence in terms of providing compensation for victims of crimes. We fall within the available provincial schemes, which would be available depending upon what is available for the citizens of that province.
A letter was provided to the Senate committee on November 3, 2005, which set out what the military justice system does in terms of police and dealing with victims. As well, there was a letter of November 21, 2005 that focused on compensation of victims of crime. One availability would be to sue or another involves a possible pension scheme that would allow that as well in terms of making a claim. That is what we have in place right now.
The question, with respect to this legislation, of course, is that is much removed from the purpose and scope of this legislation.
Senator Joyal: I understand that, but you are asking us to create a special system to give way to the special conditions in which the Canadian Armed Forces performs its duty and we have the greatest respect for that. You ask us to give the Chief of the Defence Staff power to suspend the inscription in the registry for the reasons that are stated at section 227.16, first paragraph, and then paragraph 2 and so on.
I think it is only fair that if we are to create a special system, we have to understand the condition in which the victims of those offences find themselves. The whole idea of the operation is not to oppose what you ask us to legislate — I totally agree with the principle of the bill — the only thing is to establish the balance between a person who is a victim who happens to be a woman.
Women are, in a way, disadvantaged in the army because there are fewer of them and traditionally they have been discriminated against. They are more often harassed by their male counterpart and will more often be the victims. This is illustrated in the list of 20 offenders to which the minister referred.
The important thing is to ensure that the system, by allowing and recognizing the particular condition in which the army performs its international operation and related to the security and defence, can compensate and can take care of the victims because they are trying, to the best of their knowledge and training, to perform the duty they have been charged with.
BGen. Watkin: I think it is important to put into context what this legislation proposes to do. For example, it provides authority to set up special registration centres, which would extend to international operations or to operations within Canada, an ability to register that, for instance, would not apply to a citizen of Canada under the civilian part of the system that goes overseas. In other words, a special registration centre could be set up in the deployed theatre of operations so that the reporting obligations would continue even though the Canadian Forces member has left the country. Under the civilian scheme, the citizen would give notification that he is leaving the country within 15 days and give notification as to his return. We have done that because the laws of Canada go with us when we go overseas and so that capacity to get that data would be in addition. We would in fact be providing data even though he is outside the country.
There are conceptually two different ways the CDS exercises his discretion. The legislation would give him the authority to temporarily suspend time limits. One part, in terms of suspending time limits, would be for members of the Canadian Forces who are convicted of sexual offences and want to exercise their rights before the courts of Canada. It would have their time limits extended so they could do that when they return to the country or they finish the operation in an isolated part of Canada where there is no access to the courts so they could exercise their rights.
The second part of the temporary suspension would be not saying that you are not going to be part of the scheme, but it would be in those isolated cases. I think it is important to put these isolated cases into context and when they would delay being registered in the scheme. They have already been dealt with by the justice system, been convicted and received their sentence.
If I could clarify, the second part of that scheme relates to national security, international relations and the designated operations. That is simply not to disclose certain information. It is not to be part of the system and be registered, but the concern is certain information would be of a nature that it would impinge on the operational security and that could mean risk to the Canadian soldiers if it was known where the group was deploying.
The CDS, in this context, is managing two obligations: the obligation to serve the country and the obligation to report under the scheme.
Senator Rivest: This is not only a matter of compensation; victims need help. Does the army have any kind of program to help victims of sexual offenders as we have in the civilian world?
Mr. O'Connor: I do not have that information in detail, but the Defence Department has its own medical system and we look after our soldiers no matter whether they have physical wounds or psychological wounds. We look after them in a complete sense. We have about five psychological clinics across the country to look after people who either would be victims of a sexual act or post-traumatic stress.
We have a very thorough system of taking care of people with psychological problems, but I do not have details at this moment.
Senator Rivest: There is a program?
Mr. O'Connor: There is program.
Senator Rivest: Is it only for members of the Armed Forces or victims?
Mr. O'Connor: No, it is only for the members of the Canadian Forces.
Senator Rivest: And what about the victims?
Mr. O'Connor: Assuming we are in Canada, the victim would have to access the provincial programs.
Senator Joyal brought up a topic about compensating victims. I am not a lawyer, so I will try to use common sense. I do not know all the legalities; however, a victim should access provincial compensation whenever possible.
In my own department we have had rare cases where people cannot access provincial compensation for various reasons. Perhaps we should have some kind of system for that type of rarity. So, quite separate of this law, I will take a look at that.
Senator Andreychuk: Minister, this committee had many concerns when the bill was before us, but one of the concerns that occupied my attention was the issue of sexual offences. I wanted to be sure that a Canadian is a Canadian is a Canadian or an offence is an offence is an offence. Whether you commit the offence within the military confines or on the streets of Canada, we are saying it is an intolerable act. We want the standards to be the same and the difference of charges that troubled us.
I think there is an understanding that the military theatre is different. Compelling cases were made for that. We will struggle through the act to see if our concerns have been addressed.
The registry is an alert to ensure that this does not happen again. My concern is if there are disclaimers or an ability by the Canadian Forces to withhold the information because of national interest or theatres of engagement, we will have to see whether you have struck the right balance on that issue.
Even if the bill has struck that balance, when you are out performing a job, will you be thinking about a successful operation or thinking about whether you are defending someone who might be a sexual victim? Will there be training and protocols available to provide the signal alerts that this is a serious matter? These issues must be considered with great thought for the possible victims of the future.
Mr. O'Connor: As I said earlier, we take all sexual offences seriously. We prosecute as soon as it is known. There may be some cases — Senator Joyal brought up cases from a study — that theoretically were not known. However, if they are known, we prosecute them. We go through the normal legal system. Judgments are made, and if someone is guilty of a sexual offence that is appropriate to be on the register, the courts declare them to appear on the register.
This bill is talking about the possibility that there may be an essentially short period where they the name does not appear on the register. The other problem is, from time to time if someone is on the register and they were found guilty of sexual violations the lower scale, they may be retained in the Armed Forces. The Canadian Forces do not want the units tracked by the register. That is why they were looking at these possible cases.
Once their courts, either military or civilian, say that an individual must appear on the sex registry, the person will appear on the registry. It is only a matter of temporary suspensions for short periods of time. We cannot get around a court's ruling.
Senator Andreychuk: Will there be protocols and manuals for interpretation available? Obviously, there will be discussion at the beginning when the bill has passed. However, five years down the line, the tendency is to forget some of this. We were trying to make the point that it should be front and centre all the time. You can only do that within your system by having protocols, manuals or directives available.
Mr. O'Connor: I will ask the Brigadier-General to answer that question.
In our records at the moment, we have had 20 cases in five and a half years. That is an average of three and a half cases per year. We are also talking theoretically about a CDS who might take these actions. These actions are probably very rare. Of the 20 cases — by the way, most of them are gone now — it will be very rare for anyone to use this capability. We are asking to put it in the bill so it will not impede operations. It will be a very rare event.
BGen. Watkin: The question in terms of policies relating to how these cases will be handled, and the bill provides the marshal with certain responsibilities. The registration will certainly be there. There is also a provision in the bill that the commanding officer and the Chief of the Defence Staff will have access for the purposes of administering the registry. Clearly, there will have to be some form of policy put in place with respect to the actual way that the registry is administered within the Canadian Forces.
I have already mentioned the provision to set up a special registration centre, for instance, overseas or elsewhere as required, and clearly, that will need a framework.
To the question of individual cases and the discretion that might be applied, as the minister has indicated, it is anticipated this will so rarely be used it would have to be looked at in terms of what policy framework might be needed to deal with that. Clearly, there would be an ability to rely on advisors and legal advice, in terms of how the discretion might be exercised.
That is how I see it unfolding in terms of the actual mechanics of running the system.
Senator Andreychuk: It should be under the backdrop that the concern is not just the sexual registry. The concern is for fair treatment. No improper behaviour, legal or otherwise, should be tolerated. I think this is creating a culture that it is unacceptable.
I do not measure by the number of cases charged. I measure by the comfort level, anecdotal or otherwise, that you hear from the forces: How comfortable are people in expressing themselves openly if the situation arises, or are they living in some fear or intimidation? I think that was a problem highlighted in the 1990s more than it is now and perhaps needs revisiting.
Senator Nolin: I want to clarify this exception of schemes that the CDS can use.
First, minister, in your preliminary remarks you mentioned that a new feature of the bill is that the CDS would report to you the application of those exceptions. Is that right?
Mr. O'Connor: Yes.
Senator Nolin: That means you would be, as a minister, informed as soon as the CDS decides to set those exceptions in motion?
Mr. O'Connor: In fact, from my point of view, he could not make the decision before he told the minister.
Senator Nolin: You just added another important element. When you mentioned a short period, is it true we are talking about days and not months or years? Are we talking about specific suspensions? Maybe the Brigadier-General could answer this question.
BGen. Watkin: To give you an example, let us say we had a forest fire in British Columbia where we had a large number of troops deployed to a remote area fighting a fire for a two-month period. If in the context of those two months, we have someone who is on the registry and one of the requirements for reporting is that you have to report in the twelfth month, between the eleventh month and the end of the year. That individual may not be in a position where he or she can do that report. The operation may end a month after the reporting period. Therefore, the chief would be in a scenario where he could make a decision for a temporary suspension until he or she is back in the thirteenth month, at which time he or she would be able to make the report.
The length of time is dependent upon the nature of the operation. Some operations are six months, but some are much shorter than that. It is a factually dependent scenario in terms of that suspension.
Senator Nolin: I was talking about days because new proposed section 227.15 is talking about the 45-day system. That is why I raised question. How do we calculate those 45 days?
BGen. Watkin: That would be in terms of the extension of the time periods in which the individual has returned from the operation. The individual has 45 days with which to exercise his or her rights. Therefore, if he or she wants to put in an appeal but was away on an operation, when he or she returns, the time period might have run out. That would make the individual unable to appeal or apply for a termination order, and this would allow them to do that. That is when this time period would begin.
The Chairman: Minister, your time is up.
Mr. O'Connor: I would like to say just say a couple of words, in conclusion before I leave. When I was in opposition, I had difficulties with the bill, and I have explained one of them.
We are talking about a theoretical CDS and a theoretical minister into the future. A CDS would have the power to suspend the registration. I think he had some other right there. That is why I wanted some kind of accountability so that the CDS would have to go to the minister. The minister does not have access to the registry, by the way. The minister does not know that it is Corporal Jones and he did X,Y, Z.
The Chairman: That is the way it should be.
Mr. O'Connor: The CDS would have to come to the minister and say, ``I have an individual who was found guilty of X, Y, or Z.'' He or she would have to explain why they intend to do this. The CDS has to make the argument to the political authority. That is an appropriate measure to put some control on it.
Again, I think it will be very rare that it will ever happen, but even for those rare events, because we are fiddling with the justice system, I want to ensure that the political authority is involved.
The Chairman: Minister, on behalf of the committee, I want to thank you very much for coming here and giving us your time. I know you have other commitments, but it means a lot to us that you came here and gave us the overview that you did of this important piece of legislation. I also understand that Brigadier-General Watkin can stay. I have a long list of senators with questions for him.
Minister, thank you very much.
Mr. O'Connor: Thank you very much, senators.
Senator Baker: I would like to welcome the judge to this committee. He said it is his first appearance before the committee; however, it is not his first appearance before public committees. Some of them have not possessed the sober second thought that this particular committee possesses. To my right is a former judge and the chairman is a former professor of law. You are on the other side. You were on the Somalia panel, for the inquiry, were you not?
BGen. Watkin: I was the legal adviser on that panel.
Senator Baker: You recognize the name Joyal, then, the federal court judge who made the ruling concerning the inquiry. You are on that side.
My question is a bit technical. It concerns what appear to be many rulings by your judges of constitutional infringements by certain sections of the act. I notice, for example, that within the past year, your appeal court declared in a sexual assault case that the provision regarding mode of trial was perhaps unconstitutional. Do you recall that case about the mode of trial, in which the prosecutor decides the mode of trial? It was a unanimous decision of your appeal court and it came out of the blue.
First, they retried the charge, which you do not normally see; it was a sexual assault charge. For your benefit, it was R. v. Nystrom, and it was heard within the past year. The judge then embarked on a critique, introducing it this way, at paragraph 64, where he said, ``Although it is not necessary to discuss the constitutionality of section 165.14 of the act, I am unable to overlook the deep concern this provision raises, particularly in view of the recent expansionist context of the military criminal justice system.''
He then outlined the section in which your prosecutor decides the mode of trial, whereas in civilian courts that is not the case; it is the person charged. He then embarked, agreed to by the other judges, on an analysis of a violation of the Charter of Rights and Freedoms.
As if that were not enough, a couple of months ago, there was another case in which one of your judges, Lamont, in R. v. Parsons — do you know of that case?
BGen. Watkin: I know of that case.
Senator Baker: I imagine you would, because he struck down four of your regulations under the National Defence Act as being contrary to the Charter, unconstitutional. This affects all cases. If you have a case that comes up before your court and the question becomes a constitutional issue that gets rid of the charge before the court, then perhaps we should be addressing the constitutional issue.
I do not know if this is a fair question, but have you suggested to the minister that perhaps the tenure of your judges should change from five years to a longer period of time, and that perhaps they need more pay, and that they need a better retirement program?
Senator Nolin: We had this discussion in the past, remember?
Senator Baker: This judgment was made just a couple of months ago. A lot of us read case law and we see all these cases. The one position I would not want to have is your position, because the constitutional issues have turned around to what Chief Justice Lamer said two years ago when he reviewed your act. You could not prosecute sexual assault charges prior to 1998, I think. Under the great reorganization of your justice system that we did when I was a member of the government in 1998, which has led to all these problems, none of Justice Lamer's suggestions of change have been instituted. They are now cropping up in all of these judgments by your judges, as introduced, quite properly, by the defence as violations of the Charter.
Do you have any general comments to make on those issues? By the way, we are dealing with the same thing: tenure of office. The government wants ours to be eight years. Yours is five years. Every five years, your judge loses his or her job and must apply to a panel of three people, two of whom are appointed by the minister.
Do you have anything to say about that or are you able to say anything about those issues?
BGen. Watkin: I will certainly address a number of the issues that I can and certainly undertake to do my best.
What you have set out in terms of the constitutional arguments made before the court and the decisions of the courts themselves, whether it is at the trial level or at the court martial appeal court level — and, courts consist of judges of the federal court or the superior courts of the provinces — is an example of how vibrant our system is. It is a prime example that the Charter applies within the military justice system. Just like the civilian justice system, our system should be subject to challenge. It is another example of our defending officers, officers in uniform, when they are tasked to look after the rights of the accused that they have been assigned to defend, they do so rigorously. I see that as a very healthy example and set out of the Canadian military justice system. In terms of the decisions of the court, those are analyzed and reactions are made just like in the civilian justice system, where every day there are constitutional challenges. Some of those constitutional challenges affect the structure of the system and some are rights challenges under the Canadian Charter of Rights and Freedoms. I see that as a positive outline of the story.
I cannot comment on the particular judges, nor would I, because they are independent, which is another example of the constitutional aspect. The issues that you have primarily raised go to the questions of the aspect of their independence. Of course, that has been litigated before. If I went to the Supreme Court of Canada, there is Généreux v. The Queen in 1992. The system was changed as a result in terms of changes to the National Defence Act and there is before Parliament Bill C-7, which proposes some issues with respect to tenure of the judges. That is another example of the vibrancy of the system and the reaction of the system.
The five-year reviews, as you made reference to with former Chief Justice Lamer, again this legislated requirement to go back and look at the military justice system will help keep it in touch with changing norms in society and with the criminal justice system.
Senator Baker: I go back a long way in the House of Commons with legislation as an ordinary member of Parliament, and I recall a judgment of the Supreme Court of Canada in 1980 that is still being used by your judges, and that is R. v. MacKay, I think; is that correct?
BGen. Watkin: That is correct, senator.
Senator Baker: In that judgment, still good law, it points out that in your system of justice, for example, there is no choice for preliminary inquiry. The principle of autrefois acquit does not apply. That is in MacKay. Perhaps the judge can verify that if someone is convicted in a court martial, as Justice Dixon in 1980 pointed out — which is being repeated in Parsons in January of this year — that person could then also be charged before a civilian court with the same offence, whereas the opposite is not true, to reverse the process.
When you have such differences between the systems and you are dealing with the Criminal Code, is it inevitable, then? It is very unusual, Judge, for us to have so many Charter challenges in your recent judgments in your courts.
Is it just that the system is unworkable, what we have asked you to do? It is our fault; we are the politicians. We are the ones who expanded the role of your courts. Is it a question of being just unworkable when it comes to a completely different system being judged by the same standards of review under the Charter?
BGen. Watkin: I should clarify. My title is Judge Advocate General, but in fact I am not a judge. For those judges or ex-judges around the table, I certainly want to clarify.
Senator Baker: So you do not have five-year tenure.
BGen. Watkin: I have a four-year appointment.
Senator Baker: Who reappoints you? Is it the Governor-in-Council?
BGen. Watkin: I was appointed by the Governor-in-Council, so there is certainly provision in the act for reappointment, but I have three and a half years to go.
In terms of the process itself, there is autrefois acquit and autrefois convict.
Senator Baker: I am referring to MacKay. I am referring to the judgment by Chief Justice Dixon.
BGen. Watkin: It is, of course, a 1980 decision and we are now in 2006. I forget the exact date. In fact, I would say just the opposite. As was established by the amendments to the act in the late 1990s and the continuing requirement for a five-year review, it was clear that there is a requirement for a military justice system that is able to deal with discipline in the Canadian Forces, and not only within Canada but outside of Canada, reflective of the type of operations in which we become engaged.
In terms of being a robust justice system, it should be subject to those Charter challenges that I mentioned before. When I put on my uniform, I take on the obligations of service to the country and I also have the rights of an ordinary citizen in terms of being protected by the Charter.
Senator Baker: What happens after one of your judges makes this decision? This is paragraph 131 of Parsons 2006, 3029, Carswell National:
There will therefore be a declaration that QR&O 101.15(2), 101.15(3), 101.17(2) are inconsistent with section 11(d) and therefore of no force or effect.
Then the judge says this in the judgment, paragraph 138:
The Respondent on this application asks the court to suspend any declaration of invalidity it may make if as a result of such declaration military judges lose jurisdiction to preside at courts martial.
Then the judge says further down at paragraph 141:
In my view the suspension of the declarations I have made in this case is not justified.
When you have judgments like that striking down regulations, what would be the procedure at this point? Obviously, further prosecutions under those regulations would not be possible. Stare decisis; you cannot do something at the same level of court that someone else did.
BGen. Watkin: I am somewhat leery in terms of responding to that in the sense that the case may be under appeal.
Senator Baker: This is January 31.
BGen. Watkin: I would like to confirm that first before I respond to it. I am just not certain, senator.
Senator Baker: The very questions I am asking are on cases that involve the particular subject matter of the bill that is before the committee. I hate correcting the judge. It has never happened before. I have corrected the professor, but not the judge.
A Court of Appeal decision which was not appealed, Nystrom, in which the legislators have been told that this section, 165.14 of the act, choice of mode of trial, is unconstitutional. What do you do now in that particular case? Is the order of the day that the Department of Justice takes note of this or do you take note of this and perhaps, through the minister's office, find a solution to this problem?
BGen. Watkin: Of course I would take note of that because I am the superintendent of the military justice system. My title is Judge Advocate General. In fact, the closest analogy would be an attorney general-like function in terms of what I carry out. It would be obviously a review of the Nystrom decision, a determination whether those were the facts that were before the court or it was indicated by the judge that they were obiter.
Senator Baker: Court of Appeal.
BGen. Watkin: Court of Appeal, yes. Second, the question would be what options are available to deal with that. Certainly, I can come back to this committee, to provide the Director of Military Prosecutions policy with respect to how they are handling determinations on type of trial, if that would assist the committee.
The Chairman: We have 11 minutes left in this session.
Senator Jaffer: I did not want to ask the minister this because it is a little technical. I have a bit of a concern. The minister said we did not want to register because we did not want to track where the people were or where the operations were. As far as I understand the registration, the only people who have access to that are the RCMP, so I am a little confused as to the challenge. Could you clarify that?
BGen. Watkin: The database is administered by the RCMP, but from my understanding, it is estimated some 60,000 police officers will have access to the database. In fact, the vast majority of the offences are investigated at the provincial level. I will give an example. Let us say there is an operation overseas where they are deploying. What you do not want to provide is the time and date of return with respect to the type of operation. That is the information that would not be provided, the time and date of return for overseas operations.
Within Canada, let us say you are having a world conference and it is a question of a close protection issue. You do not want to provide the time and date of return or the address — where they might be — because that obviously will give away operational information of where the unit would be. It is that information that would not be provided. It is quite limited in scope.
When the question is with respect to operations, it is information that could be used by people who otherwise would not have a right to have it. It would be outside the control of the department, obviously, at that point — of where military units might be located.
Senator Jaffer: I did not want to leave the impression that anyone is allowed access to this information. There are only a select few — 60,000 — but they are people in authority. It is not open to anyone to access this information.
BGen. Watkin: On top of that, they have to have a reason to access, which is related to a sexual offence. Even though you are a police officer, it does not mean you have the right to access the information.
Senator Jaffer: My concern is there is protection. I am not too comfortable with that answer.
I have real trouble with the answers that were given on the issue of the number of people who have been convicted. We all know that not all cases are reported.
In my other life, I worked with General de Chastelain and I know that it is even more difficult, if you want a career in the army, to report these cases. This is not trying to make any political statement. That is just life in the army.
I am very concerned. The reason I raise it with you is to find out what kind of environment you are creating within the Canadian Forces so that people can report these things. My experience, when I was with the panel of Violence against Women, is that women in the army told me if they report such a crime, their career is over.
I want to know what kind of an environment you are creating to ensure that people can report and are still able to advance within the army. When I say army, I mean the Canadian Forces.
BGen. Watkin: It may be of help to have officials come forward who are involved in the administration of dealing with harassment and issues like that.
In terms of responding, it is clear — we were around in the 1990s — there were issues with respect to abuse and not just sexual abuse, but abuse and harassment in the Armed Forces. We have taken significant strides in dealing with this issue. When we are talking about the military justice system, we are talking about criminal acts because they attract penalties of imprisonment or detention or such. However, the notions of harassment are much broader than that.
Our goal is to have a harassment-free workplace, particularly concerning sexual harassment — not only because of the nature of sexual harassment. We are a hierarchical organization, so the chance to abuse authority comes by the nature of the organization itself.
There is, in the department, a scheme for dealing with harassment that is geared to the nature of the problem. We have harassment advisers in the units, where women or men can go to. If it is sexual harassment, statistically it would be mainly women dealing with that issue. The creation of the ombudsman's office and other offices like that, where there is a problem with the chain of command, are a way of dealing with that scenario.
Sometimes the harassment will be dealt with at a low level, with the agreement of both parties. Sometimes it will be dealt with on a more formal level. We have in place personnel policies to deal with sexual harassment that has not reached the criminal level. As has been indicated, we deal with issues of sexual assault, because we are mindful that we live in a communal environment that is a different to our fellow citizens and there is this concern over abuse of authority.
The NIS will investigate; the chain of command will deal with it. It is not a perfect system. Any of our systems can be made better. However, when I look at my service — it has been longer than 24 years, but I have been a lawyer for 24 years — certainly, there has been a significant effort to deal with this issue and put in place policies and procedures to deal with these types of problems.
Senator Jaffer: I have concerns when you say ``communal environment.'' We all live in communal environments. We work in workplaces of communal environments. I would prefer that we find another way, because we all live in communal environments. That is a challenge.
There are two challenges that I have had today. One is that we only have a few cases; but anyone who has worked on this issue knows a lot more cases go unreported — not just in the army, everywhere. The fact that there are not many cases does not mean there are not more cases happening. The second is we all live in communal environments, so I have challenges with those two concepts.
BGen. Watkin: When we are talking about a few cases, we are talking about where there have been convictions at court martials, not whether there are issues of sexual harassment or harassment. On the communal environment, I agree with you 100 per cent; but there are unique aspects of service in the military.
Senator Milne: My concern is this new business about unauthorized consultation and disclosure. It is a new offence. I believe this bill will allow for charges to be laid if there is unauthorized consultation or disclosure of information contained in the national sex offender database.
Will members of the Armed Forces have recourse to the services of the ombudsman if they feel that there has been unauthorized consultation or disclosure? Also, what will happen with former members of the Armed Forces? Are they just cut off? Will they have recourse if there has been unauthorized disclosure?
BGen. Watkin: My understanding is that this is not a new offence. This may be a matter for the Department of Justice to deal with, as opposed to me in particular, with respect to the status of the offence itself.
In terms of an ability to lay a complaint about the unauthorized disclosure, there are any numbers of avenues available for that. They could complain within their chain of command; they could complain directly to the military police; they could lay a complaint with the ombudsman.
It is a broad range in a normal offence that we have in the Canadian Forces. There is an obligation under the regulations to deal with complaints when someone complains to you; so that could result in an investigation, which could conceivably result in charges if it is a breach of the section.
Senator Milne: If a person has been charged, put on the registry, and is no longer in the Armed Forces, what sort of recourse would that person have if he or she feels that there has been this unauthorized consultation or disclosure? Does the person have any recourse within your system, or is the person completely in the civilian system?
BGen. Watkin: If someone subject to the Code of Service Discipline made the unauthorized disclosure, then the person could complain to the military police or the system, and that could result in an investigation. The person might complain to the civilian authorities and the civilian authorities might refer it over to investigation by the military police; or it might be done in cooperation with, say, the RCMP, because the individual was out of the Canadian Forces.
That is a question of how the police do their investigations in terms of allegations. However, there certainly would be, in the ordinary course, avenues available for individuals to register their concerns and lay their complaints.
[Translation]
Senator Nolin: I want to be certain that our listeners are not left with the impression that a member of Canadian Forces or a civilian already convicted or acquitted of an offence can be prosecuted and convicted a second time in a jurisdiction other than a military jurisdiction. Senator Baker did not make that quite clear and I feel it is important to clarify this point. Because there are two justice systems — one for civilians and one for Canadian Forces personnel — the same individual cannot be prosecuted and convicted twice on the same evidence.
[English]
Senator Nolin: I just want to make sure we hear from you that it is not because there are two criminal systems in Canada — that one can be charged or acquitted for the same facts, the same events twice.
BGen. Watkin: You can plead autrefois acquit before either court. You can certainly plead it twice, yes.
Senator Nolin: Thank you very much.
Senator Baker: In MacKay, a big deal was made of this in that no, if you are convicted in a civilian court, you cannot be retried in a military court. However, if you were convicted in a military court, you could then face charges in a civilian court for the same offence, with the provision that the judgment that was made in the military court shall be taken into consideration. Does that ring a bell with you at all?
BGen. Watkin: I am afraid I will have to go back and reread MacKay.
Senator Baker: I wonder if you could get your legal people to send us a letter, to the chair of the committee, to explain when that provision was changed.
BGen. Watkin: I will do so, and explain the autrefois acquit situation.
Senator Baker: On that particular case, that particular instance.
The Chairman: Thank you very much, Brigadier-General.
Honourable senators, this brings this session of our hearing on Bill S-3 to an end. The committee will now be adjourned until tomorrow morning, when hearings on this bill will be resumed.
The committee adjourned.