Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence for November 23, 2006
OTTAWA, Thursday, November 23, 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 10:50 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I would like to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. This is our second meeting in relation to Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act. The bill is designed to amend the National Defence Act to require offenders, who have committed offences of a sexual nature, to provide information for registration 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.
Today, I am very pleased to welcome Karen D. Davis, Defence Scientist at the Canadian Forces Leadership Institute. Ms. Davis has had a distinguished career, which has included 15 years of applied research and policy analysis, and 22 years of service with the Canadian Forces. She is well-known for writings on the military and, of importance to this study, on gender and diversity issues related to the Canadian Forces.
Joining her this morning is Dr. Marcia Kovitz, professor and chair of the Department of Sociology and Anthropology at John Abbott College, an affiliate of the McGill Centre for Research and Teaching on Women through which she conducts her research. She is the author of The Roots of Military Masculinity in Military Masculinities: Identity and the State and of the forthcoming book, Into Harm's Way to be published by McGill- Queen's University Press.
We thank you both for being here today. Before I give you the floor, I would like to turn to Senator Baker, who has a point of order that he would like to briefly bring before us.
Senator Baker: Mr. Chairman, this will take just two minutes to do. It is a point of order relating to the testimony yesterday with the Judge Advocate General and the minister. It pertains to the cases that were brought up during the testimony relating to sexual assault cases that are heard by the Court Martial Appeal Court, and not just the courts martial. I circulated to members the cases that I wish to draw to their attention, and perhaps it could form an observation to the committee when it makes its report after it deals with this bill.
First, I circulated the case of this past year, Nystrom, in the appeal court. At paragraph 64 of that case, they question the constitutionality of section 165.14 of the National Defence Act. Then, Mr. Chairman, at paragraph 65, they make reference to something that Senator Nolin questioned yesterday, with respect to the military courts and the problem of ``autrefois acquit.'' In paragraph 65, reference is made to the Supreme Court of Canada decision in which the following words occur:
His right to rely upon the special pleas of ``autrefois convict'' or ``autrefois acquit'' is altered for, while if convicted of an offence in a civil court he may not be tried again for the same offence in a military court, his conviction in a military court does not bar a second prosecution in a civil court.
It was in the context of not civil and criminal proceedings and parallel proceedings in both those jurisdictions, but a civilian court versus a military court.
Then, at paragraph 68 — and it was in that context that I raised the question — it says that because of the 1998 amendments to the act, which we made, it expanded the jurisdiction of the military courts by allowing them to try sexual offences, until then tried only by civilian courts. Then it goes on to make a judgment, which questions the constitutionality — and this is the Court Martial Appeal Court — of the mode of trial in these cases.
The other two brief cases that I have here are the striking down of the regulations in the Canada courts martial decisions of this year, one being R. v. Parsons.
The Chairman: Could you read the citation into the record so we have that?
Senator Baker: Yes, I think that would be very useful. Paragraph 129 says:
There will therefore be a declaration that QR&O article 19.75 does not apply in respect of a military judge.
Then paragraph 131:
There will therefore be a declaration that QR&O 101.15(2) and 101.15(3) and 101.17(2) are inconsistent with section 11(d) and therefore of no force and effect.
All of these cases have to do with section 11(d) of the Constitution Act, which, as everyone knows, says:
Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
These court judgments that are being judged this year are saying that this is not an independent and impartial tribunal.
Finally, I have another case of January of this year, R. v. Joseph, and in this, the Canada courts martial judge is making a judgment ``on behalf of'' and I have four cases. I reference paragraph 1, in which it says:
This application is one of three similar applications argued before standing courts martial presided by this military judge. The other cases are the Standing Court Martial concerning Corporal H.P. Nguyen that commenced on 12 October 2005 in Sherbrooke, Québec, and the Standing Court Martial concerning Ex- Leading Seaman LaSalle that commenced in Gatineau, Québec, on 1 November 2005.
Mr. Chairman, on page 44 of that judgment the judge strikes down five sections of the National Defence Act and their regulations.
Could I put on the record those simple references?
The Chairman: Do they relate to this bill?
Senator Baker: Yes, because in these cases of sexual assault, the Court Martial Appeal Court declared the accused innocent although the courts martial had declared the accused guilty. The accused was acquitted of all charges and a consideration given during that judgment was the constitutionality of a section of the National Defence Act.
Very briefly, section 165.21(2) of the National Defence Act where it uses the words ``for the term of five years'' contravenes section 11(d) of the Constitution Act. This infringement has not been demonstrably justified as a reasonable limit pursuant to section 1 of the Constitution Act.
In each of these cases, the judge takes five different regulations and sections of the National Defence Act and tests them against section 1 of the Constitution Act, which was his duty to do, and found them wanting in all cases and declared them of no force and effect.
The Judge Advocate General appeared before the committee yesterday and although he did not express ignorance of some of these cases, he expressed the opinion that they would have to reread the cases. After my checking this morning, I discovered there were not just two cases, but six cases in 2006 judged in the court. It strikes me as strange that the Judge Advocate General would not have known these cases were striking down sections of the act. Perhaps he did know and in his excellent manner, in giving testimony before the committee, perhaps the Judge Advocate would not have said what the Judge Advocate General said in those circumstances. I am not questioning his remarks before the committee, but it strikes me as unusual that he would not have known about these cases.
In conclusion, I believe it goes back to reference made in these cases of the review of Mr. Justice Lamer of what we passed in 1988, which came into effect in 1999. Justice Lamer said it does not meet the standard of the Canadian Charter of Rights and Freedoms, and the appointment of judges and term of tenure is an important matter.
I feel, Mr. Chairman, that perhaps we could make it an observation at the end and make reference to it in some way; therefore, examination could be done of these cases.
Senator Milne: On this point, I was going to ask our Library of Parliament analyst, are these sections of the act that Senator Baker has cited opened by this bill?
Margaret Young, Researcher, Library of Parliament: I do not believe so.
Senator Milne: I am agreeing with you that they are worth observation, but we cannot do anything about them in this bill.
Senator Baker: No.
The Chairman: Thank you both very much. Ms. Davis and Ms. Kovitz, I apologize, but it was important to get this on the record. You now have the floor.
Karen D. Davis, Defence Scientist, Section Head, Professional Concepts, CF Leadership Institute, National Defence, as an individual: Honourable senators, esteemed colleagues and visitors, good morning. Thank you for the opportunity to address the Senate of Canada on an issue that is important to the Canadian Forces and, thus, the people of Canada. I am a defence scientist and member of Defence Research and Development Canada's Centre for Operational Research and Analysis. My current assignment is with the Canadian Forces Leadership Institute in Kingston, Ontario. Until November 2000, I was a personnel selection officer in the Canadian Armed Forces.
Today, I am presenting my interpretation on the position of women in the Canadian Forces and the relevance to proposed amendments under the Bill S-3. I will rely on my research and other data that I have available to me; however, the interpretation and views that I present are my responsibility and do not necessarily reflect the position of the Department of National Defence.
It is important to acknowledge at the outset that most women in the Canadian Forces experience a fair and equitable environment and enjoy support from leaders and male team members, often in isolated and demanding environments. In ensuring that this continues to be the case, my position is that it is essential to ensure open and transparent civilian oversight of issues of sexual assault that take place within a military context. If military cases are handled differently in any way from a civilian case, perceptions of fairness and equality toward women in the Canadian Forces will be jeopardized.
The research that I conducted placed a particular focus on the experiences of women who left the Canadian Forces from 1990 to 1993 and prior to completing significant phases of their training or an employment engagement. As a result, my findings cannot be generalized to the experience of all women serving in the Canadian Forces today. Many are choosing to stay and complete full and successful careers in a range of environments and roles. However, the research that I conducted clearly demonstrated that members of the Canadian Forces, and women who were in isolated and operational employment and training environments in particular, were vulnerable to harassment, assault and sexual assault. In addition, once an incident or series of incidents had occurred, the nature of that isolation and the overriding culture of the military created significant barriers for women in seeking justice.
There are indications that women have become less likely to experience harassment in the military since 1993. Comparative analysis of harassment survey data collected across the Canadian Forces in 1992 and 1998, for example, indicates that while women remain much more likely than their male counterparts to report experiences of sexual harassment, the reported rate of sexual harassment among servicewomen did drop from 26.2 per cent in 1992 to 14 per cent in 1998.
In spite of the progress of women in the Canadian Forces and the substantial contribution they make to defence and Canada today, military culture is predicated on masculine values and women are a minority in the Canadian Forces. Today, women comprise approximately 13 per cent of the regular force and over 20 per cent of reserve members. In terms of leadership, women comprise 9.5 per cent of senior non-commissioned members and 9.3 per cent of senior officers. They comprise, however, less than 4 per cent of pilots, combat arms officers and soldiers and non- commissioned members in naval maintenance and engineering related trades.
In some of these areas in which women have the lowest representation, they are very likely to be in situations where they are the only woman, or one of a very few women, on a training course or similarly isolated in an operational environment. In addition, in occupational domains such as the combat arms, where the representation of women is low, most, if not all, of these women will be junior non-commissioned members or junior officers. The vulnerability of these small numbers of women is heightened by the socially gendered and geographic isolation of their employment, as well as the scarcity, if not complete absence, of female leaders in that environment.
Although the experiences that I analyzed took place over 10 years ago, and numerous initiatives have been put in place to increase awareness and accountability of leaders in the Canadian Forces in mixed gender and diverse environments, in my opinion, it would be quite naive to assume that incidents of harassment and assault have disappeared.
In summary, I submit that proposed new section 227.15(2) within Bill S-3 threatens perceptions of fairness in bringing a process that, in all likelihood, has already been long and difficult to final justice. Proposed new section 227.15(2) is not sufficiently precise in identifying what constitutes ``operational reasons,'' is not sufficiently precise in determining the overall or maximum length of time that operational reasons can be applied and delay a process, and allows for the potential employment of an offender in an environment that presents real or perceived risk to Canadian Forces members. It is essential that Canadian Forces members and Canadian society are confident that these processes are fully transparent, fair and equitable.
The Chairman: Before I turn to Ms. Kovitz and before you leave, can you tell us what you feel should constitute operational reasons? Do you have something specific for us?
Ms. Davis: I do not have anything specific, but I would submit that it would have to be something in the line of a national emergency. I do not think a routine operational deployment, for example, could constitute an operational reason.
The Chairman: I am sure this will come up during questioning. Thank you for that.
Dr. Marcia Kovitz, Professor, John Abbott College, as an individual: First, I want to thank Ms. Davis for her comments. I have always been an admirer of hers. I also would like to thank you for the privilege of being invited to address you.
My arguments are far more theoretical, although I do have substantial data from interviews that I have conducted with military officers of the Canadian Forces. If you are interested, I would be prepared to cite a few of them.
I believe that the issues are both cultural and structural — setting a particular environment that is inimical to the fair treatment of women who are assaulted, or anyone who happens to face a problem of sexual assault.
In the brief time allotted for this presentation, I will direct my comments to that part of Bill S-3 that would grant to the Chief of the Defence Staff the right to exempt a convicted military sex offender from the act's provisions for operational reasons and for reasons of national security and international relations.
This aspect of the amendment would, effectively, give precedence to requirements of military operations, and, under the aforementioned conditions, would keep sex offenders off the National Sex Offender Registry, thereby excluding them from civilian oversight.
The question becomes, if the reason for the establishment of the registry is the protection of public safety, does this include the safety of military members who, themselves, may be at risk of being sexually assaulted? Would the military be the best party to oversee sex offenders in cases where these offenders are exempted from the registry?
One basis for evaluating whether the military would be the best party to oversee convicted sex offenders is to consider the risks that female military members now face of being sexually assaulted. One must keep in mind that most sexual assaults and sexual harassment victims fail to report their victimization. There is a tremendous amount of data on this.
There is considerable evidence that female soldiers may be more at risk inside the military than without. We should remember that within the general population, roughly one in four women faces a real prospect of being raped in her lifetime.
This evidence also suggests that the sexual abuse of women in the military is far from incidental, that it runs the full spectrum from harassment to violent sexual assault, and is especially severe in hostile environments such as war zones. How do we explain this, especially since the military environment is a highly supervised one in which leaders are expected to know and to closely monitor their subordinates in ways that would not be tolerated in civilian life?
The answer is twofold. It can be found in military culture, as well as in the organizational structure. These have definite effects on how sex offences are perceived and addressed. It does not mean that most women in the military face these experiences, but those who do face them face a certain kind of response from the leadership.
The military is masculine in at least three ways: the predominance of men — and since most soldiers are men, this does not need much elaboration; the dominance of a masculine value and symbolic system; and the male dominance of the chain of command. Thus, the problem is both cultural and structural.
What do we know about the military's masculine culture? The military's institutional culture privileges hyper- masculinity, which is an extreme form of masculinity that fuses virility, strength and aggression. Masculinity remains a measure of successful soldiering and of leadership characteristics, even on the part of women. The dominant military paradigm continues to be that of the combat-masculine-warrior, because training for and fighting wars remains the primary role of armed forces. Militaries use gender to generate and sustain combativeness in soldiers. The meaning system that informs the combat-masculine-warrior culture is founded on a series of corresponding oppositions that include: friend versus enemy, good versus bad, defender versus defended, protector versus protected, strong versus weak, operational effectiveness versus ineffectiveness and masculinity versus femininity. These are dichotomous.
As one military sociologist put it, the socializing process in the army aims to teach toughness and masculinity and to eliminate what is regarded as effeminate.
Thus, as far as women are associated with femininity — and there are multiple military femininities and masculinities — they will represent those characteristics that the soldier needs to overcome, particularly weakness and operational ineffectiveness. In this, women, as the embodiment of these aspects of femininity, represent the ``Enemy.''
Together, these cultural characteristics would explain any expressed hostility toward women in the form of sexual harassment or assault. If leaders share these values, and I argue elsewhere that they actually inculcate them in basic training — I am not the only one who argues this — this would affect how these leaders perceive and act on cases of sexual assault or abuse.
I was just discussing military culture. I will move on to military organizational structure.
As well as having a masculine culture, the military is masculine in its organizational structure and priorities. The military hierarchy is dominated by men, with few women at the upper echelons. Public space — for example, pornography, et cetera — and interaction are constructed as masculine, as is public discourse: Remarks that are sexist would be normalized as part of the working environment.
The military prioritizes operational effectiveness, which serves as a prism for evaluation. For example, one of the officers I interviewed said he was lamenting that a particular warrant officer had been discharged. He said this man had served in the military for 25 years and he had been wonderful.
This warrant officer was convicted of sexually abusing his young daughter; he was convicted of incest. The basis of the dismay expressed by the officer I interviewed, the commissioned officer, was the warrant officer's effectiveness as a soldier. He felt the warrant officer's military performance, his outstanding military career, should be taken into account when judging him for incest.
The command structure lends itself to the potential of abuse. Here again, I interviewed a senior military officer of the Canadian Forces, who expressed it in this way. If you want me to, I could cite the actual quotation. This was candidly acknowledged by one of the senior officers as being a serious problem with the military judicial system, particularly where there are officers of one gender, who are supervising subordinates of another gender.
Finally, there is also the question of commanders' disciplinary discretion. I checked with a member of the Judge Advocate General, so I will withdraw these remarks because, apparently, it does not apply to Canada. Whether there is any leeway on the part of a commander to apply non-judicial types of punishments for sex offences is apparently not the case, but I will get more information. My position is similar to that of Ms. Davis in that I believe there should be civilian oversight of sex offences and that people should be included in the registry.
The Chairman: Thank you. In the course of your presentation, you said that you have to keep in mind that most sexual assault and sexual harassment victims fail to report their victimization. As well, you told this committee that there is lots of data on that. Have you done that research?
Ms. Kovitz: No, I do not do research on sexual assault, but if you want to do that research, I can send you something.
The Chairman: You said there is lots of data on it. Do you have the data here?
Ms. Kovitz: I do not do research on sexual assault or harassment.
The Chairman: I asked if you had the data here.
Ms. Kovitz: No.
The Chairman: That is fine.
Senator Jaffer: Thank you both for your presentations. They were useful. I worked with the military in the 1990s on the issue of sexual assault. It is my impression that that was not a good time in the military for many women; it was a difficult time. I know that changes have been implemented. Are you happy with the changes that were implemented, and how has the environment changed?
Ms. Davis: The changes represent significant improvement in the environment for women in the Canadian Forces. I was involved as a policy officer in the development of the new harassment policy, for example. In preparing to come today, I learned that Chief Review Services has just conducted an evaluation of our harassment complaint process and the alternative dispute resolution process. It seems to be working well for the majority of people. The problem identified is that we have not continued to track our progress in this area in a systematic and comparable way. For example, when I talked about the decrease in rates of reported harassment from 1992 to 1998, we had no data beyond 1998 to actually say that reported rates of harassment and, therefore, overall experience of harassment, has gone down.
I believe that things have improved, but I am not satisfied with the overall feeling that is fairly prevalent in the military. We did gender integration from 1989 to 1999 and it is no longer an issue. We are a gender neutral organization, but there is danger in being too complacent about the issue and not continuing to measure what is truly happening.
At the leadership institute we talk about the effectiveness of the Canadian Forces. We have developed a competing values model. We talk about mission success as the overriding goal of the military, but the importance of member well- being, external adaptability, Canadian values, internal integration and team cohesion needs to be ongoing. If we do not continue to monitor what is happening, we cannot balance those values in the right way with military ethos as the glue in the middle holding it together. We are not well enough informed on how all of those dynamics are working together toward mission success. The well-being of every member contributes to the success of the mission.
Senator Jaffer: When I worked with people in the armed forces, especially the women, they said that they would not report because it would harm their career. Yesterday, when the minister was here, one of the things he said, which caused me concern, is that they are looking at the convictions. Anyone that works on this issue knows that only the tip of the iceberg goes as far as a conviction. Many cases are not reported for all kinds of reasons. Certainly, in the army, it can be for promotion reasons. There is not the environment to report.
Do you know of any cases where women have not advanced, having made such a report? It is difficult, because it is subjective.
Ms. Davis: When the research was published in 1997 and 1998, to which I referred, I became known as someone that people could talk to about issues. They are not cases that I could talk about here, because of second- and third-hand information. However, people come to me and talk about times when they would try to help someone and were told to make this go away. It was basically people wanting to tell me that they had tried to do the best thing, but often it is difficult. That is the general, overall theme.
In terms of military women, at the leadership institute, we have held two women in leadership symposiums. We are trying to get some of our senior women to come forward and talk about what their 20-year or 30-year career has been like and what lessons they have learned that could be useful in helping others. Many of them are saying that they set aside the fact that they were women, because they had to succeed. They hope that they have created an environment where women will feel freer to come forward.
Myself included, many of us knew that, and especially officers. There is a sense of professionalism and you do not complain about things like that. Non-commissioned members, NCMs, are much more likely to come forward on a complaint.
Senator Jaffer: My last question is on another organization in uniform: the firefighters in Richmond, British Columbia, where there is an issue around this. We could learn lessons from the reporting that is going on in B.C.
I appreciated your report. In the summary, could we say that the Chief of the Defence Staff has to sufficiently identify in a policy what are operational reasons for suspension? As well, when he does not suspend a person, he would inform the Minister of Defence of the reasons for that action. Would that go toward helping?
Ms. Kovitz: Are you asking if that would keep the person off the registry?
Senator Jaffer: Yes.
Ms. Davis: For an extended period of time?
Senator Jaffer: For the operational time.
Ms. Kovitz: I would be against keeping a person off the registry under any circumstances.
The Chairman: Ms. Davis, because you are the person who made the recommendation near the end of your report, I would like to hear your response to Senator Jaffer's question.
Ms. Davis: In my written submission, I included that I felt the suspension of time was unwarranted in addition to the vagueness of the criteria. I would have to see the criteria, but, overall, I am not convinced that it would be warranted, except in very exceptional circumstances. From what I do understand, and I am not a legal expert, there would be a strong onus on the Chief of the Defence Staff to demonstrate that that was a bona fide reason. I do not know enough about the process to know how much scope the organization would have, but it would be under very limited circumstances that I would see it as necessary.
Senator Ringuette: On that comment, from your knowledge of the process within, do you believe that it is transparent enough to avoid abuse by the current culture and structure?
Ms. Davis: I am not confident that, universally, it would be transparent enough. I would agree with Dr. Kovitz that in some circumstances the culture is very strong. In some of the cases of women that I interviewed, by the time the case got to a high enough level to be addressed, they did not even recognize the incident that was described.
I am an applied researcher, and I have felt stymied by my ability to explain how these processes change and shape what actually becomes the official truth. There is a very strong culture that can have an impact on how matters are interpreted and understood.
Ms. Kovitz: I have interviewed military officers in Australia and Germany as a member of the International Sociological Association Research Committee on Armed Forces and Society, and this culture is very consistent. The masculine culture is consistent if you are talking about the West. In non-western cultures, it is probably even more extreme. It is very entrenched. It includes a notion that operational effectiveness supersedes everything.
Ms. Davis: This was not part of my submission either, but I do work at the leadership institute, and we do talk about the culture and leadership and how it is related. Our goal is to strengthen leadership to deal with the challenges of today and the future.
The other factor that possibly comes into it, and I cannot base this on research, is that leaders do not want to have their record marred. If a person is at a senior leadership level and being considered for a promotion, our culture is risk averse, so if a leader is seen to have something like this happen on one of their operational deployments, there can possibly be career repercussions for that leader. Part of it is getting rid of that risk aversion and allowing leaders to openly deal with issues without it having a negative impact on their careers as well. Leaders are expected to develop good and strong teams. We want them to do duty with honour. If something happens under their command, then that could be a problem.
Senator Ringuette: If I understand correctly, the leader, although not directly involved in the offence, would somehow feel their career opportunities are threatened?
Ms. Davis: They may not want to be associated with a negative incident under their command. It may be a case of being overwhelmed and not sure how to deal with it, or it may be a career situation.
Senator Ringuette: Would that somewhat include a leader, in such an event, trying to use gentle persuasion to not put forth court action, a military court action of that event?
Ms. Davis: It could, I believe, based on some of the experiences. Again, this was the early 1990s, but in one case someone was told to ``make this go away.'' Again, I have to keep saying it was over 10 years ago, and I do feel we have come a long way. I do not, by any means, believe that the majority of leaders would do that, but it is a difficult issue with which to deal.
Senator Ringuette: Deeper into the structure, the hierarchy of the military, is probably more where this type of situation, the wanting it to disappear, happens.
Ms. Davis: What are the career implications for leaders when such an event is known to have taken place?
Senator Zimmer: Ms. Davis, you indicated in your submission to this committee that since your research was conducted, ``the Canadian Forces have developed and implemented numerous and improved mechanisms of voice, allowing members to seek fair treatment in cases of grievance and harassment.'' You also said that when Canadian Forces members and, in particular, women in isolated situations, face such challenges, policy can become irrelevant.
I have two questions in that area. First, what kind of mechanisms have the Canadian Forces implemented in recent years?
Ms. Davis: One of the key improvements that happened is that we have a new harassment policy and, along with that policy, every military unit is supposed to have a harassment advisor that an individual can go to and perhaps discuss the situation before they go forward. Previously, the onus was on the individual to manage this administrative complaint process. They could get an assisting officer, but it was much more difficult, and assisting officers did not always have good knowledge around these processes. Harassment advisors are trained and in place to help people, and they provide them with a range of options. One of the options is to go to alternative dispute resolution. That is one area that has improved definitely.
Senator Zimmer: Second, presumably truly meaningful mechanisms are, at best, intended to eradicate sexual harassment by fostering a culture of equality of gender, race and other distinguishing characteristics. Failing that goal, when breaches do occur, such mechanisms should provide swift and commensurate recourse for the victim and discipline for the offenders. With respect to your reference to policy becoming irrelevant in situations involving isolation, are you implying that the Canadian Forces' mechanisms are ineffective or inadequate?
Ms. Davis: I am implying that policies and procedures are not consistently applied across the organization. For example, if people are on a training course, in the field and on an exercise, they do not have the same support in place. Maybe there is not a harassment advisor in the field. The operations and their assessment on the course will take precedence. By the time they get back to a garrison setting, situations may have happened, and they may not be able to access the policy in the same way. In fact, when I was trying to follow up in the last couple of days to find out what has happened, I was told that it is interesting I should bring this up, because they are just starting to ask the question: How effective are our policies in an operational setting? They may be designed to be more effective in a garrison type setting with all of the supports in place.
Senator Zimmer: Dr. Kovitz, yesterday Honourable Gordon O'Connor indicated that he was unfamiliar with your report entitled, The Enemy Within: Female Soldiers in the Canadian Armed Forces. I believe Senator Joyal was to provide him with a copy of that report. Based on Senator Joyal's allusions to your findings on the way female victims of sexual assault are dealt with within the Canadian Forces, Mr. O'Connor questioned whether it really represents the reality of 2006. Can you comment on the timeliness of your findings in that report?
Ms. Kovitz: As I mentioned, I have done research. It is structural. We have an organization that has certain kinds of priorities and has to, in some way, inculcate in these young — mostly men — a sense that they have to go out and fight and kill, none of which is natural. The notion that masculine aggression is a result of testosterone has been put to rest. I can provide you with information from biologists who have done specific research in that area. It is inculcated in very specific ways through basic training and so on, and then it is sustained. As a result, I believe there are too many vested interests in maintaining a particular kind of approach if the decision is to have a war-fighting organization. I would not say that it is automatic, but it can be seen across various militaries. If comparative research was done, the results would show that it is not isolated. It cannot just be found in Canada, the United States and Israel, for example. It is generalized.
Senator Zimmer: I know it is a sensitive issue, but I appreciate your candour and your answers. Thank you.
Senator Joyal: I am happy to have this opportunity to meet you in person. When I was preparing for Bill S-39, which is the previous draft of the bill we now have in front of us, I was trying to understand the reality of sexual offences in the army, dealing essentially with women, through a report that we got from a decision of the military court.
I came to the conclusion that there was very little research made in that area, and that is how I came to your two reports and studies; particularly Ms. Davis', because you have published more extensively, I should say, and especially considering the role that you perform in the leadership of the army— it is not a reproach to Dr. Kovitz. I attach great credibility to your study, being in the reality of the compounds of the Armed Forces.
I have read your reports and quoted from them. When I try to understand the phenomenon, one fact that really bothers me is that we put women in a man's world, as you have said yourself, describing it in broader terms, but essentially this is what it is. The army has functioned for centuries with men, essentially. The women were in the back room, the nurses, the food services, the entertainment and so forth, and not really on the combat field. The moment that we try to integrate the army, we have to make sure that the system will not operate to put the women and the men on the same footing, because the system does not function on those grounds.
Of course, there were many arguments against bringing women into the army, because it would distract the attention of the men on the very mission of combating, aggression, as you said, strength and discipline, and leave aside all the qualities that, traditionally, our Western culture has associated with women.
When we put women into the military system and in the context of an offence that essentially is attached to their being women, we must ensure that the system functions properly. Otherwise, we may imbalance a system that has worked in the past with a type of attitude that did not involve women at all. It seems to me that even though there has been a lot of progress made, there is still a lot of progress to be made.
I was reading the report of the National Defence and Canadian Armed Forces Ombudsman. Here are his comments on page 11, paragraph 76:
One of the first cases investigated by the Office came about as a result of a complainant who claimed to be the victim of a sexual assault. The complainant said that the National Investigation Service was taking too long to investigate her allegations, and not keeping her informed of their investigation. Of note, the MPCC was not yet operational at that time. The Ombudsman investigated, and reported to the Minister of National Defence. The report recommended a number of improvements to the way in which victims are treated during criminal investigation. The report was not made public, due to the sensitive issues involved. However, all the recommendations were accepted.
This is a report of last year. It is not a report 10 years back, old statistics. This is the way the system functions today.
It seems to me, therefore, that there is still a need to express a great awareness and sensitivity as we have not achieved the balance of systems that we would like to have. Section 227.16(1) and (2) has been improved to a point. As you know, before, in S-39, the Chief of the Defence Staff did not have to notify the minister. Now, at least, he must notify the minister, but I do not feel it is enough.
The system has to be balanced in the context of the doubt that still exists that the system does not work to maintain the rights of the victim at par with the rights of another victim of another crime that could happen in the military.
How can we address this, or how can we satisfy ourselves that the special regime we are establishing in this bill will not exaggerate that imbalance, but will attempt to re-establish the parties at par level? That is the systemic question that we must address with those two sections of the bill.
Ms. Davis: Essentially, we are trying to balance the rights of the convicted and the victim in a way that works within the military; is that the challenge?
Senator Joyal: That is it.
Ms. Davis: It is a difficult balance, but based on the experiences that I have had with women who do find themselves in these situations, I feel there already is a power imbalance. In my view, this bill has to look out for the best interests of those who have the least power in the organization, and that is why I would really question why a convicted offender in the military would be given more time, a suspension of time, when already it would have been a difficult process. I believe civilian oversight is what is required in this context.
Senator Joyal: Allow me to make a suggestion. Proposed new section 227.16(2) of the bill reads:
The Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.
In other words, the minister is informed ex post facto, after the decision has been made. The minister does not have to approve or express concurrence. The minister is notified after the Chief of the Defence Staff has decided that the person's name should not be on the registry because of, as you said, operational reasons.
Would it not re-establish a balance to have the Chief of the Defence Staff inform the minister before that determination is finally made, so if there are additional questions to be asked, they will be asked before the determination and not after? If questions are asked after, it seems to me it is more a matter of registering the decision.
Ms. Kovitz: Would the government then have the right to actually veto the determination?
Senator Joyal: Not the way I see it.
Ms. Kovitz: Then I believe we are in agreement that there should be no determination, that an offender should be an offender regardless of whether that offender is a military member or a civilian. Offenders should all be treated equally under the law.
To add another point, Ms. Davis had mentioned the notion that the Canadian Forces is a gender-neutral organization. I do not want to dispute her conclusions except to say that the conclusion of retired Lieutenant-Colonel Franklin Pinch, who was commissioned by the Canadian Forces Leadership Institute to write a report about gender integration in the Canadian Forces, is that integration has not been achieved. His conclusion is quite the contrary. He says it is still in progress.
There are other researchers, for example, Gwyn Harries-Jenkins. In fact, Franklin Pinch's report appeared in the publication by Harries-Jenkins. He takes the even stronger position that women are marginalized. They are token members in militaries all over the world, including the United States, which has a much larger representation than Canada.
The reason why I am making this point is to emphasize the recent point that Ms. Davis has made, namely, that women are already in a power imbalance. They are at the bottom of the totem pole. They are not in a position of powerlessness, but they do not have the same amount of power as men. Women are outnumbered, outweighed, out- voiced and outranked; so why exacerbate this kind of situation?
The Chairman: What was the date of the Pinch report?
Ms. Kovitz: 2002. However, I doubt if, in four years, there have been tremendous changes to this institution.
Senator Joyal: In the summary paragraph of the document that was circulated, you suggest a limit to the definition of operational reasons. You say your position, in reference to proposed section 227.15 of the amendment under the auspices of Bill S-3, is that proposed section 227.15(2) provides unwarranted suspension, ``is not sufficiently precise in identifying what constitutes `operational reasons,' is not sufficiently precise in determining the overall/maximum length of time that `operational reasons' can be applied'' — because that is something that we have noticed in the bill. It is operational reason open-ended. You say it ``allows for the potential employment of an offender in an environment that presents real or perceived risks to Canadian Forces members'' and also that it ``threatens perception of fairness in bringing a process that, in all likelihood, has already been long and difficult to final justice.''
In other words, you are suggesting we qualify ``operational reasons'' as the most extreme national emergency or cataclysm or a context that is not business as usual. In fact, national security could be an operational reason in Canada. I could think of all kinds of situations. Proposed section 227.16(1) includes the phrase `` international relations'' — which is so vague it could encompass anything, for example, Canada's national and international reputation vis-à-vis Somalia. The proposed section then goes on to say ``. . .or the security of an operation that is within a class of operations designated by a regulation made under paragraph 22.2(b)'' — which, again, encompasses almost everything.
In other words, you suggest, first, that we should qualify the operational reasons, and second, we should limit the time. In other words, it should not be an open-ended free registry inscription. Third, you suggest it should allow for the removal of the offender from where he is as a potential risk to other colleagues that could be the victim of such a person.
The there is proposed section 227.16(2) that would command that the minister be informed before the determination becomes final, so that civilian oversight is maintained over the decision to give someone an open-ended free reign as long as he is in the army.
Would that in summary give you solace that this bill would re-establish the balance?
Ms. Davis: In the first place, it is not clear enough to me what the bona fide reason is for giving the Chief of the Defence Staff this scope. If, in fact, there are reasons important enough to override the normal procedure of justice, then they should be clearly identified.
Senator Joyal: The reasons should be clearly stated in the bill then?
Ms. Davis: Yes. When I look at the bill, I do not understand why it is even required. In my determination, when I look at the research I have and such, I question whether it is even warranted. If I am wrong and there are justifiable reasons that it is warranted, then I feel they need to be more clearly identified.
The Chairman: That would include an extreme national emergency.
Senator Jaffer: My understanding is that when they register they have to let the registry know where they are. From what I understood — and I am just wanting clarification — the reason they may want an exemption is because they do not want to give the exact location of this particular person. They are asking for an exemption for operational reasons. Am I mistaken?
Ms. Davis: If someone has been convicted of such an offence — I still do not quite understand — there must be other ways that they could do it without letting the location of the individual be known. I do not know. It does not make sense to me.
Senator Joyal: On the issue of the notification of the minister, Dr. Kovitz, do you have any additional comments? The civilian oversight on the army should be stronger in this case, because this is an exception to the criminal law system, which provides that when someone is found guilty of a sexual offence, his or her name is in a sexual offence registry. That is the norm in Canada now. If we are to make an exception, there must be a civilian oversight capacity on the army to make sure this is not abused and that the victims are properly protected.
Would you have any suggestion to make to us, even though, as I understand, you are totally against the idea that there will be a determination for operational reasons to avoid serving the objective of the registry?
Ms. Kovitz: We have heard about the capacity of the military to actually police these individuals and to supervise them, aside from the value system, which I would not say condones this kind of behaviour, but seems to be prepared to sweep it under the carpet in a way, for operational reasons. Ultimately, at this point, the military is on the point of expansion. They are trying to recruit as many people as possible. They are having difficulty. They are digging deeper. If a person ends up breaking the law for whatever reason — and I do not want to make a blanket statement — the priority is not having choirboys. The priority is having people who are prepared to fulfill certain missions and practices. If they engage in criminal behaviour, will that take precedence over their suitability for operations, in a context in which the military is already very stretched? That is why I would hold to my view.
Senator Baker: I have one general question. I listened very carefully to both presenters and I want to congratulate them on the substance of their presentations.
It has only been since 1998 that sexual offences have been tried by military courts. Is there much literature regarding the actual trying of these cases of sexual assault before a court that does not have a jury trial? Is there any analysis done, in the context of your presentation, of being tried by people in the Armed Forces — and of varying ranks — who are given a position for five years to be judges, and thereby are at a higher rate of pay for that period than their position prior to their elevation, or their demotion, thereby affecting their pensions and so on?
Have any analyses been done, to your knowledge, on the difference between trying an indictable offence, namely, sexual assault, in a civilian court versus a military court, given that we are now at the early stages of analyzing the effects of having persons charged with an indictable offence? As you know, in our Canadian system, if you are charged with a serious offence such as first degree murder, you have no choice. It has to be a jury trial. The jury is made up of citizens who judge someone, and not someone who has any connection at all with the prosecutor, or who depends on the prosecutor for extension of his or her job beyond five years.
Has there been anything in writing in any nation that you know of regarding these indictable offences of sexual assault?
Ms. Davis: I cannot comment on that. I am not aware of anything, and I have never been involved in any research in that domain.
Senator Baker: That strikes me as being amazing. We are talking about a registry. Before a person gets to the registry, there has to be a conviction. You talk about the problems in the military establishment of women, their position in the military and the ongoing attitudes of where they are, yet when examining the process of trying someone for an offence, there is such a difference between the civilian process and the military process. It is a huge difference, yet nobody has written anything concerning that.
Ms. Davis: I am not aware of anything. Maybe someone has, but I do not know.
Senator Baker: That strikes me as being absolutely incredible.
Ms. Davis: It is very interesting.
Senator Baker: It is not only interesting, but it is determinative of the question, I would say.
Ms. Davis: I might have a Ph.D. dissertation there.
Senator Baker: By the way, with respect to the jury trials, I recall a justice who analyzed the number of prosecutions for sexual assault being tried in a military court since the bill passed in 1998 and became effective in 1999. In that there are five different courts martial in the military, the choice of whether it will be judge alone or a panel of three has to be made by the prosecutor, and the choice invariably is judge alone. To stretch a panel of three to the position of a jury in our civilian system would be impossible, because it is always by judge alone. If you decide to pursue it further, I will give you that report.
Senator Milne: I am also concerned about proposed section 227.15(2) where you say, Ms. Davis, in your summary, that it is not sufficiently precise in determining the overall and maximum length of time that ``operational reasons'' can be applied. It allows for the potential employment of an offender in an environment that presents real or perceived risk to other armed force members.
It seems to me that it could also potentially allow a convicted offender to continue on for operational reasons in the same operation in which his victim is continuing to be forced to work. There is a real problem here of a potential double jeopardy for that person, because first, she complained, and second, he was found guilty.
We absolutely must have an observation on our concerns about this matter, because it is a very serious matter. I tend to agree with Dr. Kovitz, that there should be zero tolerance. Anyone who is convicted in a court martial of committing one of these crimes should be taken immediately out of a condition where they are out on an operation. No matter how good a soldier they are or what their commanding officers have said about them in the past, they should be removed from the situation and put on the registry.
If a court martial takes place, is it common knowledge within the unit in which they are serving? Have the results of the courts martial been common knowledge? Would their commanding officer be aware of what had happened?
Ms. Davis: I do not believe so. I am not sure.
Senator Milne: Do you believe that the courts martial takes place in secrecy?
Ms. Davis: At the Royal Military College with cadets and the disciplinary system, it is a public system when they are convicted in a court martial, but it is usually offences such as being drunk in a public place. They are not sexual assault type offences. I do not believe I have ever seen information publicly available on any other type of court martial in the military, but I do not know what the policy is.
Senator Milne: The army is, after all, like a small village where everyone knows what goes on; is it not?
Senator Baker: The reported judgments of courts martial are carried under the heading of ``Federal Judgments'' in Quicklaw, Westlaw, Carswell and all reporting agencies. This year, especially, an incredible number are reported each month that are available to the public.
Senator Milne: Senator Baker, you read Quicklaw; I do not. I am not too sure that many people serving in the Armed Forces do.
Senator Baker: I do not believe many other people do. I am strange that way.
Senator Milne: They could potentially be in a situation where, first, they have been found guilty at a court martial; second, they are back serving with the individual whom they offended against; or, third, they could be serving with someone else and since they have already been found guilty, what the heck, they might as well do it again.
Ms. Davis: I do not know if there is a policy to make sure that would not happen. I hope it would not, but it is possible, I suppose.
Senator Milne: I would be concerned that it might happen again. These people, who have been trained in the military manner to be aggressive, would continue to be aggressive, because they have already lost everything they might have had in the military. Eventually, they will end up on the register.
How would you suggest we tighten up this rather indeterminate time frame that you are concerned about, that they can be out on these operations? Have you anything specific to suggest to us?
Ms. Davis: When I did get some legal advice from within the military before I came, the assumption underlying that is that it probably would not exceed a normal length of an operational tour. I do not know. It might be possible to state that the length is not to exceed a certain amount of time, perhaps, for example, six months, based on normal operation requirements.
Senator Milne: You mention proposed section 227.15(2), which indicates suspension ``from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply.''
That extends the period beyond the operational reasons time. It seems to me that zero tolerance is the best policy on this.
Ms. Kovitz: Are you suggesting it should be omitted from the amendment?
Senator Milne: I am not suggesting making an amendment, because we have not had anything specific before us to be able to make an amendment on. I am concerned about this particular provision. We must make strong observations on this particular item.
Senator Bryden: Is there anything in the bill with respect to the areas we are considering that improves the situation for female members of the Canadian Forces in regard to sexual offences?
Ms. Davis: There is nothing in that regard that I can identify in the amendments before us.
Senator Bryden: Both of you are shaking your heads.
Ms. Davis: I cannot comment on that.
Senator Bryden: Would you lose anything if we simply refused to pass these proposed sections, as far as the female members of the Armed Forces?
Ms. Kovitz: Nothing is gained.
Senator Bryden: I ask that question because, while it is true we have full legislative authority, the same as the other place, we can rewrite all of this. On the other hand, we are not really competent to do that.
We can also simply not pass the proposed sections as that would delay the process. We can also veto it.
I believe there must be improvements made to something, not necessarily in relation to sexual offences. There must be some reason, a value presumably, that the Department of National Defence has brought Bill S-39 and now Bill S-3 before Parliament.
Are you aware of critical aspects that would be lost if this bill was simply suspended until these issues have been fixed?
Ms. Kovitz: My understanding is, at the moment, there is no requirement for the military to advise. People are tried separately, and they are totally excluded from the registry.
I believe the idea is that we would want to put military members on the same footing as civilians. That is the proposal I am making, and I believe Ms. Davis concurs. I do not believe we can be anymore clear than that.
Senator Bryden: Do you mean to say, treat all sexual offenders in the military in exactly the same way as they would be treated as a civilian, with no delays or exceptions for whatever reason?
Ms. Davis: That is right.
The Chairman: The amendments in the National Defence Act are made to mirror the model that presently exists under the Criminal Code in order to allow the National Defence Act and the military justice system to continue to reflect current Canadian legal norms and standards as they are set forth in our major criminal structure for Canada, which is the Criminal Code. That is the principal reason.
Senator Bryden: I want to ensure I am clear on this. Under the Criminal Code, there is not a 45-day delay to register for any reason that I am aware of, is there?
The Chairman: They are not identical. However, the norms and principles in the Criminal Code, since there is a separate justice system set up in the National Defence Act, they wanted it to mirror a number of areas available in the Criminal Code. That was the principal reason for this bill, as I understand it.
Senator Bryden: It appears what is happening is it is not just a mirror; it is a mirror with a lot of cracks in it.
The Chairman: It is a mirror with differences.
Senator Milne: I suggest it is a mirror with some distortions. I agree with both senators here. I do not want to see this delayed, that sexual offenders within the military be entered into the registry of sexual offenders. I feel this part of the civilian law regime must happen.
However, I do have some grave concerns about being able to suspend the whole process for operational reasons. As Senator Bryden has suggested, we are not competent to rewrite an entire bill. We can amend it, but I still have not found in the act where that is outlined and how easily it could be amended.
Senator Bryden: For us to take the safeguards out of the command system, the fail-safe positions they have added, and say to them that this is what they must do if they want to mirror the civil system. I believe we could do that. We are taking out, as opposed to adding anything in. We are suggesting leaving in all aspects about the requirement to register, but the part that allows the commander to make decisions on the field could come out.
One of the concerns I have with doing that is — I retire in about five years — I can see us five years from now having this bill in front of us again in another attempt to get what the military will describe — in their opinion — as the necessary balance for them to carry out their operations and comply with the Criminal Code. That is the risk we take.
We should send it back to them and inform them that we want the registry to apply to the criminal justice system in the military, but without the safeguards built into it. We could report that back to the chamber. It would then have to go back to the House of Commons. That would be a lot of fun.
However, that is the risk taken, that it is gone again for another five years; and, therefore, there is no registry at all, whether it gets delayed for 45 days or not.
The Chairman: Ms. Davis, do you want to respond?
Ms. Davis: I do not feel I can respond. It is a valid concern. We end up with a substantial compromise. Within the effectiveness model, which I talked about, have we effectively balanced our member commitment and well-being against the imperative of mission success?
Senator Ringuette: In French, we have a saying ``même le pape peut être remplacé,'' meaning even the Pope can be replaced. I cannot imagine that with Armed Forces personnel numbering 70,000, that we cannot replace a sex offender in operations. That boggles my mind.
I have a question in regard to an issue you brought forward relating to the harassment counsellor or officer.
Ms. Davis: Adviser, we call it.
Senator Ringuette: Okay. You mention an alternative dispute resolution in regard to — probably in similar cases — sexual harassment?
Ms. Davis: Yes, but it would not be a sexual assault; it would be within the definition of harassment.
Senator Ringuette: It would be, what they call, a minor offence. Would minor offences be directed toward an alternative dispute resolution?
Ms. Davis: Yes.
Senator Ringuette: Sexual harassment would not come under official offence. Therefore, an official offence would only be those major ones, and we have had 20 in the last five years if the numbers are correct.
From the testimony we heard yesterday in this committee, I was inclined to have the military perspective: the operations, the need to protect Canada and all of that. However, I want to thank you for being here today, because you have really shown me the other side of the coin on this bill. I commend the military for coming forth with a bill to try to mirror our Criminal Code, but it is not a real mirror and it is our duty to make it so.
Senator Jaffer: I have been grappling with this challenge, especially since getting ready for you today, because there was a perception that there were different rules and if a person was in the army, he or she did not have to register, right? Now we are trying to fix that. However, if we fix it, there are still exemptions, so are we any further ahead? Obviously, it is an exemption for operational reasons, but that is not defined, that is not clear, so those are challenges.
The one area we have not spoken about much with you, and Ms. Davis — you have said it better than I ever could — is about being within the Armed Forces environment. I used to be chair of Women, Peace and Security and we know operations are not carried out in a remote area away from the communities. One question is: Are we going to be seen in Canada as a nation that would send someone like this into an area of international operations where there are women and children. What does that mean? As my colleague Senator Ringuette asked, is anyone that irreplaceable that we would take the risk of sending that individual into an area where there are very vulnerable women and children?
If you can comment on that I would appreciate it.
Ms. Davis: I would, again, rely upon our effectiveness model that we have developed. It is presented in Duty with Honour: the Profession of Arms in Canada. We have the four quadrants I talked about with the military ethos, but then, as a secondary outcome, we talk about duty with honour; which is the importance of the military being considered legitimate and credible within Canada and within the international domain. This comes out of a situation such as Somalia where many believe soldiers did a very good job, but if one thing goes wrong, the entire reputation of the organization has been lost.
We are talking about the vulnerability and the protection of individuals, but I see it as a risk for the organization as well. It is a good organization, and I would hate to see the reputation ruined again in the way it was in the 1990s because we did not take the right precautions.
Senator Zimmer: Senator Joyal stated in his preamble, quite eloquently, that this has been a very male-dominated culture for many years. In your experiences, do you know of or have you heard of any occasions — looking at the other end of the culvert — where the reverse has been true: a female superior officer has harassed a male junior officer?
Ms. Davis: Between 1992 and 1996, the reports of sexual harassment went up by 1 per cent among male personnel; 2 per cent of those surveyed in 1992 reported an experience of sexual harassment; in 1998 it was 3 per cent. In terms of statistical measurement, is that 1 per cent a valid increase? Certainly, men can be sexually harassed in the environmental as well, but not necessarily by women either. Heterosexuality is one of those other very strong characteristics of the organization, and there can be other gender issues. People of a homosexual orientation can have difficulties as well.
The Chairman: Honourable senators, if there are no further questions of these witnesses, I would like to thank Ms. Davis and Dr. Kovitz on behalf of the committee for coming here today and answering a variety of questions, and not just on Bill S-3, but on a number of other matters in relation to harassment of women. Both of you are researchers and your knowledge obtained as researchers has certainly helped the committee in understanding some of the strengths and some of the weaknesses of this particular bill and we thank you for doing that.
The committee adjourned.