THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
OTTAWA, Monday, May 27, 2019
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, met this day at 11 a.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
The Chair: I ask senators to introduce themselves.
Senator Dagenais: Jean-Guy Dagenais from Quebec.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator Richards: Dave Richards, New Brunswick.
Senator McIntyre: Paul McIntyre, New Brunswick.
Senator Oh: Victor Oh, Ontario.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Gold: Marc Gold, Quebec.
Senator Pratte: André Pratte from Quebec.
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator Boniface: Gwen Boniface, your chair.
Today, we continue studying Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.
We will begin with our first panel. Professor Christian Leuprecht, Department of Political Science and Economics, Royal Military College of Canada, joins us by video conference; Lieutenant-Colonel (Ret’d) Jean-Guy Perron; and Lieutenant-Colonel (Ret’d) Rory Fowler.
Professor Leuprecht, you have the floor.
Christian Leuprecht, Professor, Department of Political Science and Economics, Royal Military College of Canada, as an individual: Thanks for the opportunity to appear on this important bill.
I would be pleased to answer your questions in both official languages.
Most of the people who are appearing here are lawyers by training, but I don’t think military law should ever be the exclusive purview of military lawyers or lawyers per se, so allow me to offer a bit of sociology of the law when it comes to the military justice system since I’ve had at least some opportunity to observe it in practice at the Royal Military College and elsewhere. I would like to make a couple of umbrella comments and then four specific points with regard to the bill.
One is the temptation within the chain of command to sometimes resort to corrective or punitive administrative measures that may not be of optimal merit, at least judged by some of us on the outside. I point this out because any changes to military justice ultimately need to enjoy the confidence of the chain of command. If they do not, or if it appears that it may be eroding that confidence, there is perhaps a risk of uptake in these types of measures. Inherently there’s a trade-off any time we make changes to the military justice system.
At the same time, some of the changes here will further constrain the chain of command, which is what may possibly erode some of that confidence. In particular, you may have seen this with regard to Op HONOUR and other measures with regard to sexual harassment in terms of how the chain of command sometimes feels constrained and has removed some of the discretion in the way these matters are handled and operationalized. I am just flagging those trade-offs.
Many things in this bill are long overdue to make the military justice system more relevant to the modern world. A flag here is that creating the ability to issue an order to abstain from communicating with a victim was long overdue.
At the same time, I point out that some of the remedies this bill introduces are already effectively used in practice. I point out the reference to invoking section 276 of the Criminal Code. In effect, victims in the military justice system already enjoy in practice the same protections as victims in civilian court. Victim impact statements are another example.
In terms of the four specific issues with regard to this bill, since you can join the Canadian Armed Forces at age 16 and most of my first-year cadets would not be of age of majority, I am concerned that this bill provides for criminal conviction of specific measures that can only be perpetrated in the military: insubordinate behaviour, quarrels and disturbances, absence without leave, drunkenness, and conduct prejudicial to good order and discipline.
First, these are not measures for which a 16-year-old or a 17-year-old could end up with a criminal conviction in regular civilian life for the same types of offences. This is why there needs to be a provision to invoke the Youth Criminal Justice Act for individuals who have not yet reached the age of majority but may be subject to these penalties, even though the number of people affected would be small.
Second, a number of deterrents are already in place in particular issues of compulsory release. Anybody who would be released under item 1, misconduct, or under item 2, unsatisfactory service, would have that with them already. If we then compound that with a criminal conviction for someone 16 or 17 who may have made an imprudent choice, it would be perhaps even cruel and unusual punishment for them to be burdened with that type of conviction.
The civilian justice system deals with offences of a purely criminal nature. The victim does not get to dictate how the prosecution proceeds. The actions of law enforcement and prosecutors are distinct from that of the employer, but the Code of Service Discipline can potentially proscribe conduct that falls short of criminal behaviour. In the military’s closed system, the chain of command thus has greater breadth of tools available to address perceived misconduct.
While I know this will be controversial as a proposition, one way to genuinely empower victims is to give them the latitude not to have the military justice system pursue charges in Code of Service Discipline cases that fall short of criminal behaviour. If the chain of command feels that it needs to proceed and the victim opts not to proceed, then the chain of command would have to prosecute under a court martial as its last resort since, in that case, the victim would not have input as to whether to proceed. This might strike an interesting and novel balance between the interests of the institution and the victim in a context where the duty to report can often leave victims in circumstances where they have very little control over the process. This is something I have witnessed myself.
Third, I echo concerns raised previously with regard to possible Charter challenges associated with accused who now potentially face more severe punishment under a lower threshold of conviction from summary trial to summary conviction and from beyond a reasonable doubt to balance of probabilities.
My fourth point is with regard to two sections that are not currently in this bill but something the committee ought to consider. They both concern malingering, subsection 98(c) and section 126. One is with regard to self-harm and the other is with regard to refusing immunization.
One of the challenges is that issues of mental health, self-harm and suicidal ideation are essentially afflictions that should be treated and should not be punished. The challenge is being able to discern intent. We have to rely on human judgment as to whether individuals intended to harm themselves simply for the sake of avoiding deployment or being able to avoid a particular order.
I would suggest that in most cases this is not the main reason for mental health, self-harm or other types of afflictions. The risk is that any investigator in the military will start a conversation with perhaps the assumption of intent precisely because of these sections.
There are already other ways for the military to remedy these types of issues. Removing these sections is something the military may want to genuinely consider if it is looking at people currently being treated as perpetrators who should perhaps be treated more broadly as victims, in particular in the context of the government’s agenda with regard to mental health and well-being in the Canadian Armed Forces.
Thank you for your attention.
Lieutenant-Colonel (Ret’d) Rory Fowler, as an individual: Madam Chair, honourable members of the committee, I am thankful for the opportunity to come before you to discuss this important legislation.
In my opening remarks I wish to focus on three particular issues: first, the definition of military justice offered in Bill C-77, second, the development of summary hearings, and third, the potential impact of the recent Stillman and Beaudry joint appeals that were heard before the Supreme Court of Canada.
First, the definition of military justice is relevant to the role of the Judge Advocate General, or JAG, as the superintendent of the administration of military justice in the Canadian Forces by virtue of subsection 9.2(1) of the National Defence Act.
The current received wisdom is that military justice is either limited to or synonymous with the Code of Service Discipline. This would exclude important issues of justice such as grievances and other significant statutory administrative decision making from the superintendence exercised by the JAG.
To me, this has never made sense. Decision making concerning grievances, remedial measures and other administrative decisions can have equal or greater impact on the career and life of a CF member. This is particularly true where such administrative decisions appear increasingly to be used instead of the Code of Service Discipline.
I would suggest that is precisely what is happening under Op HONOUR. Under the current National Defence Act, equating military justice solely to the Code of Service Discipline is both incorrect and artificially narrows the JAG’s responsibilities to the detriment of true appreciation for military justice. Enshrining the current interpretation through Bill C-77 would be equally problematic.
Instead, I suggest that the superintendence of military justice actually empowers the JAG to ensure that the rule of law is observed in the broader administration of the affairs of the Canadian Forces, including the Code of Service Discipline but also extending beyond this subject.
The current application of policies under Op HONOUR provides a useful litmus test to establish whether the JAG is truly superintending military justice in this broader sense.
The definition of military justice proposed under Bill C-77 would define military justice as:
. . . all aspects of the application of the Code of Service Discipline . . . .
It would essentially equate military justice, which is one term of legal art under the National Defence Act, to the Code of Service Discipline, a distinct and different term of legal art under the National Defence Act. It would limit the role of the JAG to ensure respect for the rule of law in statutory decision making in the Canadian Forces.
Upon reading the proposed amendment to the National Defence Act, my immediate reaction was why. Why finally define this term of art after 20 years? I remind the senators that the role of superintendence of military justice was introduced in the 1998 amendments to the National Defence Act. Why define it essentially by using a different and distinct term under the National Defence Act?
It strikes me as being a little disingenuous. It also has the appearance of attempting to retroactively fix a consistently problematic interpretation of the National Defence Act.
It would not be a conceptual stretch to suggest that military justice is to the military what justice is to the broader society. Compare section 9.2 of the National Defence Act to paragraph 4 of the Department of Justice Act which states:
The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall . . .
(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
I return to my previous question. Wouldn’t it be simpler to simply amend subsection 9.2(1) of the NDA to read, “The Judge Advocate General has the superintendence of all administration of all aspects of the Code of Service Discipline in the Canadian Forces?”
Why would Parliament not wish the JAG and her legal advisers to superintend all aspects of military justice rather than simply the Code of Service Discipline?
Ultimately, this issue concerns the extent to which Parliament intends the Canadian Forces as the big stick of government to be governed consistent with the rule of law rather arbitrariness, impunity and caprice.
I now turn to the proposed summary hearing process. I was surprised to hear certain vocal critics of the summary trials commend the proposed summary hearing process. In my view, the proposed summary hearing process is fundamentally problematic and more so than summary trials.
I wish to highlight something that is consistently omitted from certain critiques of the summary trial process. No reasonable legal scholar or practitioner would suggest that the summary trial process under the Code of Service Discipline has all the hallmarks of fairness that arise in a civilian court of criminal jurisdiction. I certainly wouldn’t.
There is no right to counsel, although there is no prohibition against it. The rules of evidence are considerably relaxed. There is no formal transcript. Perhaps, most importantly, the presiding officer who is both trier of fact and the person controlling the process is not constitutionally independent and, barring rare exceptions, is not extensively trained in law.
While there are rules for disclosure, procedural fairness and a criminal burden of proof in a summary trial, these are not the factors that make the process Charter compliant. I cannot stress enough that the saving grace of the summary trial process is the right of the accused to elect court martial and thereby benefit from all the safeguards commensurate with full answer and defence; representation by qualified legal counsel, which is free of charge I might add; full answer and defence to a constitutionally independent judge; and clear rules of evidence.
If there is a shortcoming in the summary trial process, and I suggest that there is, it is with the five offences under Queen’s regulation and order 108.17 in certain circumstances that do not carry the presumptive right of election to court martial. In my respectful view, this is what needs to be changed.
Let’s consider, then, what the summary hearing process offers. Unlike the offences under the summary trial process, infractions are not established under statute. They will be established, or so we are told, under as yet unknown regulations. The entire process will be established under regulations, and presumably the summary hearing process will not have any greater safeguards than the summary trial process.
Additionally, the burden of proof will be reduced from the criminal standard to the civil standard. Perhaps most perplexing of all, the accused will not have a right to elect court martial instead. If the chain of command wishes to use this far less rigorous process to punish the accused — and mark my words, senators, it is punishment — then the accused has no say in the matter, none whatsoever in the process that is used.
I could describe the various factors that support the conclusion that the summary hearing process remains a penal or punitive process. However, I cannot materially improve upon the extensive and comprehensive examination offered by my colleague Lieutenant-Colonel (Ret’d) Perron.
I commend that examination to the committee, and I commend the review offered by the Barreau du Québec, which was chaired by my colleague and friend Dr. Pascal Lévesque.
What I will say about the summary hearing process and its reduced burden of proof is that senior decision makers in the Canadian Forces have already demonstrated that they do not possess a coherent understanding of how the civil burden of proof should be applied in a coercive public law regime.
As the report of the Barreau du Québec explains, the evidentiary basis of this burden still requires clear, convincing and cogent evidence. We are told that the proposed summary hearing process represents an administrative professional regulatory regime similar to what provincial regulators use.
Let’s look at what the unanimous Supreme Court of Canada said in F.H. v. McDougall from 2008. The judgment, authored by Justice Rothstein, a noted jurist when it comes to administrative law, highlighted:
In Ontario professional discipline cases, the balance of probabilities requires that proof be clear and convincing based upon cogent evidence.
Yet many significant decisions are made in the administration of the affairs of the Canadian Forces based upon this standard of proof, far more than are made under the Code of Service Discipline. Statutory CF decision makers consistently fail to apply the standard diligently, and in particular under Op HONOUR.
I suggest that the administrative decision making in relation to Op HONOUR must necessarily be of concern to this committee. Even based upon the statistics presented by the Chief of the Defence Staff, the administrative response to Op HONOUR tends to outweigh the disciplinary response. Yet Bill C-77 would exclude such administrative decision making from the JAG’s superintendence of the rule of law.
The flawed concept of the summary hearing process is justification alone for Parliament to decline to enact those portions of Bill C-77. However, current uncertainty about the jurisdiction of the Code of Service Discipline over serious criminal offences is another compelling reason to refrain from doing so.
On March 26 of this year, the Supreme Court heard the joint appeals of Beaudry and Stillman. These concern the jurisdiction of the Code of Service Discipline, specifically courts martial, to preside over prosecutions for serious criminal offences other than those that are already statutorily excluded.
The judgment has not yet been handed down. While I would not wish to speculate on the outcome, I would not be surprised by a judgment that is not unanimous. Based upon my own personal observation of the hearing held before the apex court, it may even result in a plurality decision rather than a majority. Frankly, my greatest concern is an imprecise decision from the Supreme Court in Stillman and Beaudry.
The Chair: I am wondering if you could wrap up. We’re slightly over time.
Lt.-Col. Fowler: This judgment could have very profound effects on the Code of Service Discipline. Instead of what is proposed in Bill C-77, it would be far more useful for Parliament to make the much simpler correction to the summary trial process and ensure that the right to elect court martial is applied to all service offences.
I can also answer questions in French.
The Chair: Thank you.
Lieutenant-Colonel (Ret’d) Jean-Guy Perron, as an individual: Good morning, honourable senators. I began my military career as an infantry officer with the Royal 22e Régiment and the first commando of the Canadian Airborne Regiment. I studied law and then started my career as a legal officer. I had the honour of commanding the Canadian Forces National Counter-Intelligence Unit, and was appointed a military judge in 2006. I left the Canadian Armed Forces in 2014.
I will focus my comments on summary hearings and the related provisions of Bill C-77. I have provided you documentation containing my analysis of the bill and some annexes to help you in understanding certain summary military justice data.
As I have indicated in the documentation, a reduction in rank and a deprivation of pay and of any allowance represent a true penal consequence. Confinement to ship or barracks, because of its highly restrictive effect on an offender’s liberty, is also a true penal consequence.
Under the present summary trial process an accused may not elect to be tried by court martial for five minor offences if the presiding officer determines he or she will not impose a punishment of detention, a reduction in rank or a fine in excess of 25 per cent of basic monthly pay.
Assuming that service infractions as indicated in Bill C-77 could be quite similar to these five minor offences, Bill C-77 now allows a summary hearing presiding officer to impose a reduction in rank or a deprivation of pay and allowances for up to 18 days. His or her finding would be made on a balance of probabilities.
Thus, should the service infractions be identical or similar to the minor service offences, an accused could be awarded a more severe punishment based on a lower threshold of conviction without having the opportunity to choose to be tried by a court martial. Bill C-77 strips the accused of protections that are presently available to him or to her.
Over the 10-year period of 2008-2009 to 2017-2018, approximately 70 per cent of summary trials occurred without an offer or an election to court martial. Over that same 10-year period, the five minor offences and disobedience of a lawful command represent approximately 94 per cent of the charges tried by summary trial.
The punishment, in order of the ones awarded most often, was a fine, approximately 60 per cent, or a confinement to barracks, approximately 24 per cent. Detention was only awarded approximately 2 per cent of the time, and a reduction in rank less than 1 per cent.
Based on these statistics, why is there a need to create new summary infractions and a new disciplinary process to assist the CO in enforcing discipline within his or her unit?
A person found guilty of a purely military offence may have a criminal record. The consequences of having a criminal record are significant. Do we truly wish to burden a veteran with a criminal record when he or she has committed a service offence which may have no equivalent in our criminal justice system or in Canadian society?
A thorough and comprehensive study of the Canadian military justice system is definitely required. Any discussion of the subject of discipline and military justice must start with a basic understanding of the uniqueness of the Canadian Armed Forces and of its specific role in Canadian society.
Military justice is but one facet of discipline. It is actually the means of last resort when all other aspects of discipline have failed. The military justice system is not synonymous with military discipline. Any major reform of the military justice system must be discussed in a public forum. A parliamentary committee could listen to citizens, academics, lawyers and members of the Canadian Armed Forces and would have the independence and the necessary resources for a thorough review and the creation of a modern system of military justice that will effectively balance the needs of discipline with the rights protected by the Canadian Charter of Rights and Freedoms.
The Chair: We will now move to questions.
Senator Dagenais: I thank our guests. My questions are for Mr. Leuprecht.
Mr. Leuprecht, many victims are women. They can join the Canadian Armed Forces at the age of 16. Does a victim of this age have the knowledge and experience to request the services of a liaison officer on their own?
Should a liaison officer be available for the victim? Should the services of a liaison officer be available upon request?
Mr. Leuprecht: With your permission, I will answer in English, so that I can be more precise.
This is something, of course, as a professor and with my students that we actually live first-hand. As we know, teenagers are not usually particularly aware of all their rights, duties and privileges. Especially in a hierarchical environment, coupled with a deep and tight institutional culture, there may be a temptation to withhold certain types of information or not volunteer certain types of information that may be to the benefit of either the victim or the accused.
Any provision that affords maximum visibility, in particular for individuals of the age that you mentioned, will go a long way to ensure that individuals have full information on the options available to them as well as the consequences of those options.
Senator Dagenais: Mr. Leuprecht, could you talk to us about the dynamics of the pressures that the chain of command tends to exert? Wouldn’t the victim liaison officers, who would be appointed by the chain of command, be under the influence of the commander, who would decide who the victim’s officer would be?
Mr. Leuprecht: I believe that there is a real effort on the part of the chain of command to do its best to treat the victim with the greatest possible respect. Nevertheless, we are talking about a profession and an institution where institutional culture and cohesion are usually placed before the individual, regardless of whether it is the victim or the accused. So the risk you mention still exists in terms of institutional culture and the importance of cohesion. Similarly, there is a risk with respect to the current situation in some cases, for example, sexual harassment, where there may be an overemphasis on the victim at the expense of the consequences for the accused. So perhaps we should aim for a better balance to ensure fairness and justice in the context you are discussing.
Senator Dagenais: Am I to understand that, despite all the good will that exists, the institution will always be considered before the victims?
Mr. Leuprecht: I believe that the chain of command can at present find it difficult in some circumstances to strike a balance between individuals and institutional cohesion. There are certainly individuals for whom career or loyalty to the institution comes before those who serve the institution, so I believe that the risk you are talking about exists, despite the best intentions of the majority of the members of the chain of command.
This risk you mention, which implies a focus on institution and cohesion, certainly exists among some officers. From my personal observation, this type of pressure appears from time to time, and not everyone necessarily demonstrates the most equitable judgment possible with respect to this balance.
The Chair: Senators, just a reminder that we have six senators and 25 minutes. I ask you to keep your questions brief and the same for witnesses.
Senator McIntyre: Thank you, gentlemen, for your presentations. Mr. Perron, in the documentation you provided us, you refer to the Australian model. How does Canada compare to other countries such as the United Kingdom, France and the United States in terms of recognizing the rights of victims of military offences?
Lt.-Col. Perron: I can’t really answer you. I haven’t really studied the victims’ rights aspect.
Senator McIntyre: Can you tell us a little bit about the Australian model?
Lt.-Col. Perron: In Australia, there is a military justice system similar to the Canadian system in that it provides the equivalent of our summary trials by courts martial. What the Australians have done is that they have also introduced in their legislation a process that could be described as administrative, whereby the law clearly indicates which offences are targeted and which penalties can be imposed. Very minor offences are targeted because the sentences are relatively light compared to those imposed at summary trials.
This system has been legislated; it is all in the law, not in the regulations. The issue is legislated by Parliament, to enable the adoption of a lighter, faster disciplinary system, which does not have criminal consequences such as a criminal record or a record in the military system. The British also have an administrative system that is different, but which has a similar process and purpose.
Senator McIntyre: I understand that, in your opinion, Bill C-77 does not go far enough in reforming summary trials. So how do we explain the elimination of summary trials and their replacement by summary hearings in the case of minor military breaches?
In other words, what is the rationale for the proposed replacement of summary trials with summary hearings?
Lt.-Col. Perron: When the bill was presented in the House of Commons, I heard that it was to give the chain of command, the COs, a faster and better way of treating disciplinary issues within their units.
That being said, I don’t understand what the problem is. The statistics I have taken from the annual reports of the Judge Advocate General clearly indicate that minor offences are mainly dealt with within the units. If you look at the statistics, it is the officers who are at the rank of major, which is the lowest level in our system of military discipline, who have judged about 80 per cent of the cases in the unit, and they have imposed relatively minor sentences; we are talking about fines and confinement to barracks, not detention, depending on the percentages. Personally, I do not understand the need to change the system. Second, changing the system with what is proposed in Bill C-77 reduces the threshold of guilt to a preponderance of evidence, while retaining the same penalties as those we had in a system that was, above a certain level, a criminal system. I don’t understand it at all. To me, this is completely unfair to our soldiers.
Senator McIntyre: Lt.-Col. Fowler, briefly, do you care to comment?
Lt.-Col. Fowler: I will be blunt, senator. The new system will make it easier to convict people of infractions. We already see that the chain of command, when presented with making decisions on a balance of probabilities, does not interpret that as an evidentiary platform with clear, convincing and cogent evidence, but as “I have the flexibility to conclude that the individual is guilty because I don’t have to go as high as beyond a reasonable doubt.”
I would suggest, senators, that the objective of the legislation is to make it easier to convict people because of the troubling requirement for the criminal burden of proof.
Senator Boisvenu: Welcome to our witnesses. Last week, the Armed Forces released a report on victimization in its ranks. The situation is not improving at all; in some respects, it has even declined. I was with the military on the weekend and asked them if the charter would have an impact on the number of victims in the military system. They replied that it would not, unanimously.
I will discuss things with the minister this afternoon, because there are elements in this bill that seem relatively weak to me.
Mr. Leuprecht, with regard to the appointment of liaison officers who will be at the centre of victims’ relations with the Armed Forces when these victims are ready to report, there are two elements that concern me. First, the appointment of officers, and the requirement for victims to work with a liaison officer. Does the process for appointing liaison officers seem to you to be independent enough so that the chain of command does not have an influence on this choice and on the professional work that will be done afterwards? Second, does the relationship between the victims and the liaison officer seem to you to be independent enough to make the victim feel comfortable dealing with a liaison officer if they want to report, rather than with a person who does not belong to the Armed Forces? I would like to hear your comments on this.
Mr. Leuprecht: Procedural, administrative and also cost trade-off processes are well intentioned, but there are the consequences of getting it wrong or having victims finding themselves in a situation where they would have perhaps preferred not to find themselves had they had different types of advice.
You have flagged two issues.
The Chair: I am sorry to interrupt you. My sincere apologies. There is a hissing sound on your end, so we have to halt the connection to try to make it better for you.
I ask the senators to ask questions of the other two witnesses at the moment.
Senator Pratte: You have criticized the proposed process of summary hearings. Some of the witnesses we heard from were very critical of summary trials. I am thinking, for instance, of Joshua Juneau who works with Michel Drapeau. He stated that right now with summary trials members may lose their liberty and receive a criminal record without any rights to legal counsel, without the usual rules of hearsay and with no transcript of the proceedings.
Isn’t that a problem with current summary trials? Aren’t summary hearings, maybe with some changes, a way to solve these problems?
Lt.-Col. Fowler: I agree that summary trials don’t have those safeguards. As I mentioned in my presentation, a soldier or a member of the Canadian Forces charged with a code of service offence, except in five cases which should be remedied, can elect trial by court martial.
There is no prohibition against seeking counsel. In fact, I regularly have clients that seek my counsel on matters of summary trials. I agree the summary trial does not have all of the safeguards of a criminal process. As I said before, the saving grace is the opportunity to elect trial by court martial, which is left to the member. Never in a summary system will you get all the safeguards a judge would have.
When my colleague, Lieutenant-Colonel Perron, was a military judge, he was constitutionally independent. You’re not going to get that and you certainly don’t get that with the summary hearing process. You have a lower burden of proof with what is still a penal and punitive system.
The ultimate safeguard for the summary trial system is that right to elect court martial. As my colleague has already pointed out, many of the offences charged are those where there is no right to elect court martial. That is what should be corrected, I would suggest.
Lt.-Col. Perron: The answer to your question would take more than 15 or 20 minutes. However, we must begin with a good starting point, which is as follows: who are the Canadian Armed Forces and what tools do they need to accomplish this task for the Canadian population?
When it comes to military discipline and justice, our military justice system includes summary trials and courts martial. We need to understand why there are summary trials. In a purely civilian context, here in Ottawa, at the courthouse, it makes no sense, but summary trials exist in Africa and in any operation where we must ensure that the chain of command has all the necessary tools to maintain discipline, since it is a key element in the success of our operations. That’s where the conversation begins; it’s not enough to say that the current system doesn’t work, because it’s not like a civilian trial. You really need to understand the context to discuss the situation.
Senator Pratte: Mr. Fowler, you mentioned in your presentation that the chain of command already uses administrative processes and administrative sanctions rather than the military justice system to “punish” members of the forces.
I am not sure if I got this correct. Could you elaborate? Is it sort of a parallel process? Is that what you’re talking about?
Lt.-Col. Fowler: That’s essentially it. Perhaps you could look at the statistics that have been gathered under Op HONOUR. There haven’t been any lessons learned under Op HONOUR but there are some statistics. The number of administrative decisions, such as compulsory release under a punitive release item, far outweigh the number of Code of Service Discipline proceedings that have been held for Op HONOUR related infractions. That’s from the Chief of the Defence Staff’s own statistics.
In the first couple of years of Op HONOUR, approximately five times as many significant administrative decisions were made on counselling, probation and compulsory release, compared to the number of charges that proceeded by summary trial and court martial combined. Under those administrative processes the burden of proof was a balance of probabilities. The same is proposed for summary hearings.
Based upon my experience both in uniform and now representing members of the Canadian Forces, the way that burden is applied by the chain of command is grossly deficient. I will give you a very brief example.
When decisions are made by the Director of Military Careers Administration for compulsory release, they are often made based upon not an entire military police report but by a five-page summary that is heavily redacted, including redacting the names of witnesses. This is treated as evidence, even though the military police report has actual statements from people. It is used to justify compulsory release in a process where there is not an opportunity to make full answer and defence.
That is what we can anticipate under the summary hearing process.
Senator Gold: Professor Leuprecht, many of the interesting and valuable points you raised were somewhat outside the scope of Bill C-77 but, no doubt, will be helpful to us as we reflect upon it.
My questions are largely for Mr. Perron and Mr. Fowler. As you know, we had witnesses who spoke rather passionately about why replacing summary trials with summary hearings would be a step in the right direction. My colleague quoted from them so I won’t.
I know you disagree, but they also underlined that the bill itself says that these are not penal proceedings, that there is no criminal record and that the sanctions will actually be less than currently available for service offences for those things under the summary trial process. In fact, 90 per cent of service offences are dealt with by summary trials and only 10 per cent in court martials.
Understanding your position that the bill shouldn’t pass, at least with the summary trial provisions or hearings in place, it may very well pass. It includes the victims bill of rights or declaration of rights, which died on the Order Paper in the last Parliament and which some consider to be a step in the right direction.
If it does pass, perhaps you could help us understand what improvements you might suggest be made in the regulatory process because much of it, as you pointed out, will be in regulations, such as the definition of which infractions are included as minor infractions and what the range of sanctions might be.
We know we’ll have military justice lawyers trained in law and trained in the Charter looking carefully at that and looking at the Charter compliance of the regime. What advice would you give them to ensure that the procedures, assuming the bill does pass, is fair in the summary hearing process?
Lt.-Col. Perron: The penalties are almost the same as what we have now. We’re eliminating detention. As we can see now, there are 2 per cent of the cases that lead to detention in summary trials. Detention is therefore not really used. It is an important tool, however. The fines are being increased. They are no longer called “fines”, but I forget the term in French. Why are they being increased? Currently, a fine is calculated on the monthly salary. The fines are increased by adding the monthly pay and the allowances received. Therefore, the severity of the sentence is increased by a fine. I presided over summary trials and was charged, so I went to summary trial when I was an officer. I have lived within the system. It is a disciplinary system, yes, but the Canadian Armed Forces cannot be compared to the Canadian Bar Association or to police forces. It’s totally different.
I mention confinement to barracks in my document; if we keep the same standards, there would be a potential of 21 days, or 21 days when we are confined to a base and cannot go home to see our families, which is not very different from detention. For someone who is subject to a conditional sentence and lives at home, we are still talking about detention, which is indeed imprisonment under Canadian law. Being consigned to barracks means you can’t even go home. There is a debate around this provision to determine whether it is a criminal sanction. My opinion is that this is indeed a criminal matter, based on our case law.
Senator Gold: It is not clear to what extent the violations will result in administrative sanctions. There are lawyers who will work on this within the system to create regulations. Do you have any recommendations that will ensure that consignment to barracks, and I agree that —
— it’s a restriction on liberty. That attracts the Charter. Would you recommend that the regulations make clear certain sanctions are not available in the summary hearing process precisely because of Charter considerations or other due process considerations?
You may say that there is nothing we can do to improve it, but I was asking for your help because the regulations are still to be created. How can we make sure that the administrative hearings for legitimate disciplinary purposes are fair?
Lt.-Col. Perron: They can’t change it through regulations. It’s in the law.
Senator Gold: The law sets out the maximum possible sanction but the regulations will set out the process and will put all the flesh on the bones, will they not?
Lt.-Col. Fowler: Senator Gold, two things are set out in the proposed statute: the burden of proof and the lack of an election to court martial. You cannot fix those by regulation. Those are two of the fundamental problems.
I don’t think it can be fixed, and I don’t think it will be fixed. I will be blunt. The way this is going to be fixed is: If this legislation passes in its current form, there will be successful Charter challenges. I heard the committee’s concerns about victims. This committee is very concerned about victims and understandably so. If this legislation passes in its current form, I would suggest that victims are going to be disappointed because there will be successful Charter challenges to the summary hearing process and the court will strike it down.
Senator Richards: My question has been answered. I was worried about summary hearings and summary trials. They have been talked about by Lieutenant-Colonel Perron and Lieutenant-Colonel Fowler, so I will allow Senator McPhedran to go ahead.
Senator McPhedran: We have a handout from Professor Leuprecht.
Mr. Leuprecht: I just wanted to weigh in on Senator Gold’s remarks. I think sociology is important.
The Chair: Professor, we’re running into the same difficulty. For whatever reason, as soon as you start to speak, it drowns you out. I am going to have to move to Senator McPhedran. I apologize.
Senator McPhedran: Thank you to all of the witnesses. I think your answers to Senator Gold also addressed my question.
I will just ask you to bear with me while I confirm my understanding of your answers. From your perspective, there aren’t minimum requirements that could be put into the regulations to cure the deficiencies you’ve identified for the new proposed summary hearings process.
Lt.-Col. Fowler: That’s correct, senator.
Lt.-Col. Perron: Correct.
Senator McPhedran: Professor Leuprecht?
The Chair: We’re still having difficulty. Can you hear us, professor?
Mr. Leuprecht: Yes.
The Chair: Did you hear Senator McPhedran’s question?
Mr. Leuprecht: I did not. I apologize. We were not connected.
Senator McPhedran: I asked for confirmation that I correctly understood the overall concerns about the new summary hearings. There’s a conclusion on the part of the witnesses on this panel, including yourself, that there really isn’t a way to cure the deficiencies in the summary hearings through regulations.
Mr. Leuprecht: I can’t comment on the legal dimensions. In response to Senator Gold’s remark and given the demographic structure of the Canadian Armed Forces and how it draws disproportionately on younger people in the population, I would point out that inherently these are the people who would be more prone to making mistakes. They have less experience in life and have poor judgment with regard to whether or not somebody is advising them on their independence in the context of the chain of command. They are more manipulable and perhaps have a greater influence in the context of a tight institutional culture.
The remarks of my colleagues on the panel are extremely important. They affect disproportionately people who have a poorer understanding than perhaps the general more mature Canadian public that might be a bit older and have more life experience with regard to the judgments they make in the difficult circumstances in which they might themselves, whether as a victim or as an accused.
The Chair: You’ll have difficulty because he is getting drowned out. The interpreters can’t hear him now. He is actually overseas. We welcome the opportunity to have heard from him when we did.
To all the witnesses and on behalf of all senators, let me express our thanks to you for being here and for spending the hour with us. It’s greatly appreciated. Your perspective is an important one for us to hear.
We are now honoured to have with us Harjit S. Sajjan, P.C., M.P., Minister of National Defence. The minister is accompanied by Commodore Geneviève Bernatchez, Judge Advocate General, Department of National Defence and the Canadian Armed Forces; Lieutenant-General Charles Lamarre, Commander, Military Personnel Command, Department of National Defence and the Canadian Armed Forces; Commodore Rebecca Patterson, Director General, Canadian Armed Forces Strategic Response Team - Sexual Misconduct; and Denise Preston, Executive Director, Sexual Misconduct Response Centre.
Minister, I understand you’re with us for about an hour, and then officials will stay to answer further questions. The floor is yours.
Hon. Harjit S. Sajjan, P.C., M.P., Minister of National Defence: Honourable senators, I am glad to be here with all of you all. As stated, I am here with our Judge Advocate General and other members of our defence team to discuss Bill C-77 and the important changes that we are proposing to the National Defence Act. I am pleased that the bill received unanimous support when brought before the House of Commons.
Bill C-77 proposes a number of changes to the National Defence Act. Similar legislation was introduced at the end of the Forty-first Parliament but it did not make it through because the election was called.
Our government’s bill, first introduced in May 2018, goes further in strengthening our military justice system and in ensuring that it is in line with the values of fairness and equality.
Our people are at the heart of these changes. The women and men of our Canadian Armed Forces make great sacrifices every single day in service of our country. We have a responsibility to ensure the rules that guide their conduct are transparent, equitable and fair.
They deserve a military justice system that is victim centric, ensures that victims receive the support they need, promotes a culture of leadership, respect and honour, reflects the current times, and is aligned with Canadian values and the civilian criminal justice system.
Much of what is in Bill C-77 is an extension of work our government is already doing to ensure a more victim-centric approach to justice and to build on Bill C-65, our legislation against workplace harassment which received Royal Assent last October.
This bill will strengthen truth and reconciliation with Indigenous peoples living in Canada, change the military culture and ensure that the Canadian Armed Forces is a respectful workplace for all Canadians.
Bill C-77 will give victims a stronger voice and it will change our National Defence Act in four important ways. First, like the civilian criminal justice system, it will enshrine important rights for victims, with the addition of the proposed declaration of victims’ rights. The declaration mirrors the Canadian Victims Bill of Rights, which strengthens and guides how we support victims in the civilian criminal justice system.
Simply put, the legislation creates and extends rights for victims in four specific areas: the right to information, the right to protection, the right to participation, and the right to restitution.
To ensure victims are able to exercise these rights, they will be entitled to the support of a victim liaison officer. The victim liaison officer will coordinate with case managers from our Sexual Misconduct Response Centre to provide comprehensive service and support.
They will be able to guide the victim through this process. They will be able to explain how service offences are charged, addressed and tried under the Code of Service Discipline. They will help victims access information they have requested and to which they are entitled. They will remain available to assist victims throughout their experience.
These new changes will also entitle victims to security and privacy at all times in the military justice system, to the right to present a victim impact statement and to share their views about decisions that affect their rights. Ultimately, this provision will ensure that victims fully understand each stage of the process and receive support navigating the military justice system.
The second significant change brought by this legislation is how we will address service offences and infractions grounded in gender-based prejudice and hatred. The bill lays out similar provisions to the Criminal Code by proposing harsher punishments for service offences and more serious sanctions for service infractions that are motivated by bias, prejudice or hate or based on gender expression or identity.
We have a responsibility to make sure that all Canadian Armed Forces members feel welcome and accepted. We know that we have not always supported our LGBTQ2 members as well as they have deserved. This amendment reflects our commitment and will help the forces continue to make progress in promoting inclusivity.
Since our Prime Minister’s formal apology to the LGBTQ2 federal public servants, RCMP and Canadian Armed Forces members for the decades of institutional discrimination and harassment, we have taken steps to compensate those affected to acknowledge historic injustices and commemorate their resilience, bravery and sacrifice.
The Canadian Armed Forces have zero tolerance for discrimination of any kind. Our women and men in uniform and those who work and live alongside them must feel welcomed and respected at all times.
Next, I would like to focus on how our proposed amendments to the military justice system will better reflect the realities of historic injustices inflicted upon Indigenous peoples. As our Prime Minister has said on many occasions, no relationship is more important to our government and to Canada than the one we have with the Indigenous peoples.
In the civilian criminal justice system, the Criminal Code mandates that judges pay particular attention to the circumstances of Indigenous offenders during the sentencing phase of their trial. Bill C-77 would enshrine those same principles in the military justice system. The proposed legislation would expand on the principle that in all cases a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
The last significant change brought about by this legislation is the reform of the summary trial process. This will enhance the ability of the Canadian Armed Forces to maintain fast, fair and effective discipline. Our proposed legislation will implement a non-penal, non-criminal summary hearing process to replace the summary trial system. This will ensure that minor breaches of military discipline are addressed efficiently, while maintaining the fairness of the overall system.
More serious breaches of military discipline will continue to be processed through the court martial system. These changes are important in modernizing the military justice system and maintaining its responsiveness toward breaches of military discipline.
Our Prime Minister gave me a mandate to establish and maintain a workplace free from harassment and discrimination. That is why I am extremely proud to be speaking to you about Bill C-77 today.
Bill C-77 will ensure that our Canadian Armed Forces members are protected by a military justice system that keeps pace with the Canadian concept of justice and will make sure that victims are heard.
Before I wrap up, I would like to take a moment to address the Statistics Canada report on sexual misconduct in our Canadian Armed Forces that was released last week. I am extremely disappointed to see that progress on this important priority has been slow. While the numbers are alarming, I can assure you that I am committed to making sure the Canadian Armed Forces have a safe environment for all its members. We have zero tolerance for sexual misconduct of any kind in the Canadian Armed Forces, but words mean very little without results.
I can assure you we are result focused. Dr. Preston will talk to you about their work and the work the Sexual Misconduct Response Centre has been doing. I commend all of you for the report you tabled recently on sexual misconduct in our military. I’ve read the report and my department will be thoroughly reviewing it to ensure it receives the careful consideration it deserves.
Bill C-77 is just one part of our plan to address sexual misconduct in the Canadian Armed Forces. Working alongside members of the defence team, we are taking action in other ways as well. They include, as I mentioned, the Sexual Misconduct Response Centre or the SMRC, which is available 24-7, and the Sexual Assault Review Program open and transparent case reviews of sexual assault investigations that were previously misidentified as unfounded.
This spring the SMRC will begin providing case management to our Canadian Armed Forces members who have experienced sexual misconduct. Above all, the team is putting its focus on support for people affected by sexual misconduct. I thank Dr. Preston, the head of the SMRC, for her exceptional work and the exceptional work of her team.
We understand the challenges we face eliminating sexual misconduct in our Canadian Armed Forces. We know we must do more, and we will do more.
I look forward to the committee’s full review and analysis of Bill C-77. These changes to the National Defence Act are critical for amplifying the voices of victims whose voices must be heard. This will strengthen our military justice system.
Thank you very much.
The Chair: Thank you, minister.
Senator Dagenais: Thank you, minister.
The content of this bill on the rights and protection of victims of military offences in the Armed Forces was already in Bill C-71 in 2015. I’m going to deviate a little bit from the main topic, because we’re talking about the rights of victims and accused persons.
If we consider the rights of everyone, I would like you to explain to us why, since you are here, you are opposed to the reinstatement of Vice-Admiral Mark Norman, when the charges that were brought against him were dropped. Please explain, unless you have changed your mind since your statement on May 8; to a question about this, you answered that the Armed Forces already had a vice-admiral in place since the questionable suspension of Vice-Admiral Norman. I’d like to hear from you on that.
Mr. Sajjan: Thank you, senator, for the question. First, I want to clarify that in 2015 these changes weren’t actually in the National Defence Act. The changes we are making within Bill C-77 are very important to ensure we align the victim-centric approach in a military justice system as it has been in the civilian system and to ensure the criminal justice system is more efficient by moving most of the serious offences into the court martial system and, rather than a summary trial, by putting it into a summary hearing process. We have to ensure we can move with discipline very quickly and with less serious infractions. This will allow us to do so.
With regard to your question about Vice-Admiral Norman, as I stated, his appointment will be conducted through the Chief of the Defence Staff. Once they have their discussion, a decision will be made. Currently, yes, there is a Vice Chief of the Defence Staff. Once those discussions have been had through the Chief of the Defence Staff, a decision will be made on where Vice-Admiral Norman will be working.
Senator Dagenais: I’m going to ask you another question, with the chair’s permission. Despite the promises that have been made over the past four years, we know that there are still reprisals against the victims of offences in the Canadian Armed Forces. Are you able to give us figures on the number of cases that have been brought to your attention, and what actions have you yourself taken to remedy this situation?
Mr. Sajjan: Senator, as I stated in my remarks, we find it extremely disappointing to see the numbers. I am happy we are finally getting a realistic look at what is actually happening, and we’re doing it in a manner that is open and transparent.
Accurate information allows us to take greater action. The SMRC and the changes we have made to it are steps in the right process. We are making sure the military police has the resources to be able to investigate. That is something we’re taking very seriously. We are also making sure they have appropriate training.
When we put this in the context of Operation HONOUR, a lot is going on. We want to be aggressive as we move forward in everything we do, but we want to base it on accurate information. This is one of the reasons why having information provided by Stats Canada allows us to make accurate decisions.
We will make sure that all the resources are there to ensure this type of behaviour is completely stomped out. A lot more work needs to be done, but we want to create an organization that can evolve with the times as well.
We have to ask ourselves the question: How did we get here? When we have a better idea, this will allow us to ensure, once we stomp it out, that it never happens again in the Canadian Armed Forces.
Senator Dagenais: In closing, it must be noted that the Senate of Canada will have to study Bill C-77 at full speed and in the context of the end of the session, when this work should be done meticulously; do you not agree with me?
Mr. Sajjan: Senator, Bill C-77 is not the answer to the entire problem we face. I want to thank all of you for the passion you put into this study. We can all agree, regardless of party affiliation, that we want to ensure the Canadian Armed Forces have the appropriate environment for all to succeed.
This is addressing one portion of creating greater efficiencies and supporting victims. The problem of sexual misconduct in the Canadian Armed Forces is a much wider problem, as your report and its recommendations have outlined. This issue needs to be looked at much more thoroughly. That work needs to continue, and I am committed to it.
I’ve already directed my department to make sure that we can take action in terms of giving good advice and working with all of you, as we do with other parliamentarians.
Bill C-77 is not the solution for the entire problem. This is about one chunk of what we need to do. We need to provide better support for victims. We need to legislate it. We need to make sure discipline within the Canadian Armed Forces is delivered much more quickly, and hence the changes to the summary trial system.
I would say the work you’re doing needs to continue, but Bill C-77 is a small portion of the wider problem we need to fix.
Senator McPhedran: Thank you, minister and officials, for being with us today. Thank you for the dedication to trying to find a way to bring rights to victims in the overall fairness of the process.
I am really puzzled. I am puzzled by the new Division 1.1 on the declaration of victims’ rights. As a human rights lawyer, I am looking at it and I am liking how it’s laid out. There is a section that deals with information as part of the rights framework. There are sections on protection, participation and restitution.
However, I am completely puzzled by the section on information. Let’s appreciate that knowledge, knowing something, is an absolutely essential step toward actually being able to claim or live rights. Without the knowledge, all the other sections in the framework in Division 1.1 really could mean nothing if victims don’t know.
What is puzzling me is that only in the information section is there a qualification on this right so that in subsections 71.02, 71.03 and 71.04(1) under information it’s a right, on request.
Could you help me understand this? It seems to me that it’s not really a right when it’s qualified in this way.
Mr. Sajjan: Senator, I want to assure you is that we want to make sure the victims get all the information that is necessary. That’s the goal of the actual bill. In terms of the legal question, that is what we’re trying to achieve and touch upon in the wording of the bill.
Commodore Geneviève Bernatchez, Judge Advocate General, Department of National Defence and the Canadian Armed Forces: As has already been stated, it is important to remember that the declaration of victims’ rights aims to completely align with what already exists in the CVBR, Canadian Victims Bill of Rights. There are similar dispositions to make certain rights conditional to the desire of victims to receive those rights.
As we’ve indicated, the approach is very much victim centric and aimed at being mindful and respectful of the desires of victims. Not all victims want to be proactively approached by whichever authority is out there. Not all victims want to assert those rights. Perhaps Dr. Preston from the SMRC could provide more details on that point. That’s her area of expertise.
Certainly, from a legal perspective, by enshrining this declaration in legislation it creates a positive obligation to the institution to deliver those rights to the victims. Also, it makes the institution and its actors accountable for delivering those rights when the victims want to have them delivered to them.
Denise Preston, Executive Director, Sexual Misconduct Response Centre: I would be happy to answer. It is true that the Canadian Victims Bill of Rights has the same upon request clause. Certainly from my previous experience in the federal criminal justice system, which has been a challenge or a bone of contention in many cases.
However, Commodore Bernatchez is correct. We’re trying to balance a number of competing issues in providing information. The goal, obviously, is to provide information as immediately as possible and on an ongoing and continuing basis. At the same time, we want to approach this in a victim centric or trauma informed way.
At the same time as we want to remove the burden to the extent possible on the victim of having to be the one to come forward and ask for that information, we also want to respect their choice, empower them, and only provide the information they consent to.
We have to balance privacy and confidentiality as well. I can give you an example of that. Our data show that about 45 per cent of reports are made by third parties. The Office of the Auditor General noted quite clearly in its report that many victims resented the fact third parties would come forward and report on their behalf because they were not prepared to report and did not want to be put into a formal process.
The concern would be if third parties were coming forward and reporting in 45 per cent of the cases. For example, if the SMRC or the victim liaison officers approached them directly and said, “I heard you were a victim; can I provide you with information,” it has the potential to further burden, further frustrate or further violate the privacy of victims.
Senator McPhedran: My next question and observation in no way should be taken as a questioning of dedication or goodwill. However, we have a huge challenge because so much is being left to the regulations, and there appears to be virtually no clear guidance or guiding principles for the actual development of the regulations.
In responding quickly to Dr. Preston’s hypothetical, there are many ways in which the regulations could actually be protecting victims, alleged victims, much more than exists. How on earth can we have in the act the option not to provide information because a victim, at usually an incredibly vulnerable and confused time for many people, isn’t knowing enough to ask about what is possible? Why would there not be a giving of all of the possible information and the support to allow victims to make informed choices about the exercise of their rights?
My biggest concern here is that the entry point or gateway to the actual giving of rights, so it is not just theoretical in the act, is mostly shut because there’s no onus on the Armed Forces to provide all of the information. The onus is on the victim to know enough to make the request. It’s not good enough, in my respectful opinion, to simply mimic what the existing 2015 Canadian Victims Bill of Rights has done. That should be seen as the floor, not the ceiling, for what’s happening here.
Minister, I am very mindful that you used the words “entitled to.” There needs to be really clear leadership on the regulations and guiding principles from you, so that those regulations cure some of the inadequacies particularly in the information section.
Mr. Sajjan: In terms of the regulations, as I said, words have little meaning without action. Not only will there be direct leadership given to this, but there is an understanding when regulations are written that they’re written it in the sense of what actions we want.
At the end of the day, the results are what matters. We want to make sure the regulations actually create the results that we intend.
I can assure you that the leadership in the Canadian Armed Forces and the people that have been brought in will not spare any resource to ensure that this is done well. You have our commitment in that regard.
With regard to access to information, victim liaison officers have been added by the military. They have been properly trained or have had the appropriate training to make sure victims understand all their rights and have full access to information. If they wish to, they can get access to that information. They won’t have to go through and dig it up themselves. The victim liaison officers will make sure they guide them through the process, will make sure their rights are understood and will make sure what access to information means. They will have somebody who can guide them through this process.
I believe this is not in the civilian criminal justice system. This allows us to put forward more support to victims.
Senator McPhedran: Is this bill in danger of dying on the Order Paper?
Mr. Sajjan: I would say it has a potential, yes. I plead with all of you. A lot of work has been put into this bill. As I stated, it is not the solution to the entire problem. We have a lot more work to do. No one person or no one organization has the solution. I look forward to making sure that my department works with all of you on a lot of the recommendations you have put in your report. I will work with parliamentarians as well in the House of Commons.
Making sure that victims have support is extremely important. Making sure that we can actually have a more efficient summary hearing process will allow leadership to take greater action. This is just one portion of the wider solution we need to work on. I am very proud of the work that the team has done, especially that of Dr. Preston and her team.
I implore you not to look at this bill as adding in things that are the solution for everything because we have a lot more work to do in this regard. I am happy to talk more about that as well.
The Chair: Before we move to Senator Pratte, we have the minister for another 25 or 30 minutes and the officials will be staying, so please judge your questions that way.
Senator Pratte: Minister, before you came in we heard testimony from retired officers and one retired military judge who were extremely critical of the summary hearing process proposed by the bill, in particular the fact that sanctions are nearly the same as the ones presently in summary trials. The burden of proof is reduced from beyond a reasonable doubt to a balance of probabilities. The accused cannot elect to go to court martial. Summary hearing is the only process available to them.
What is your response to the argument that summary hearings in fact deprive the accused of certain very important rights? Yet the sanctions of rank reduction and possible confinement to barracks are nearly as important as they are currently with summary trials.
Mr. Sajjan: Before I pass this question on to the JAG to weigh in, it’s important to know that the summary trial process right now is set up in a way that commanding officers and people who are not trained in the legal profession conduct trials. With that type of burden, the entire process slows down.
Bill C-77 is making sure that serious offences are put into court martial and lesser infractions about maintaining discipline are kept in the new way of doing things.
That alleviates the burden. It allows us to speed up the process. As we know, there’s a very good reason why we have the military justice system. It is to make sure that we maintain discipline not just in peacetime but in conflict as well.
This is about making sure our process can be much more efficient. It allows the leadership to take greater action while at the same time as taking away the burden of serious offences and putting them into the hands of people who are professionally trained to do so.
Commodore Bernatchez: I want to situate the raison d’être of the summary hearings and how they came to be. Year after year after year, the annual report of the Judge Advocate General tabled in Parliament indicated a significant decrease in the use of the summary trial process by the chain of command.
We had to ask ourselves why this was the case. We consulted the office of the JAG and the users of the summary trial process and realized the process was being seen as overly cumbersome and complex for the chain of command. They were trained on using it. They had all the tools to use it, but it had not been their tool of choice.
We listened to that to propose and create a system in this bill that would be non-penal and non-criminal. Basically, it means that all criminal-type offences will be dealt with by court martial like any type of criminal trial found in the civilian criminal justice system.
By making it non-penal and non-criminal, it’s obvious that we have to adjust the types of service infractions that will be included. We have to be very mindful of the stated objective of the summary hearing process and of the type of sanctions that will be afforded or possible.
When we’re talking about a reduction of rank, this is a potential sanction used in other professional bodies such as the RCMP in their own professional codes of conduct. It is not seen as penal or criminal. It is very serious. This is why it’s at the very top of the potential sanctions that would be afforded. We’ve looked at it that way.
As for the confinement to barracks, it is not currently listed in any of the possible sanctions. The only sanctions that will have to be developed by regulations are minor sanctions. In the order of progression, if you think that the reduction of rank is one of or is the most serious, when we arrive at the minor sanctions that have yet to be developed in regulations we will be very mindful of the fact that the summary hearing process needs to remain non-penal and non-criminal in nature.
Senator Pratte: That’s very important. In my understanding of the present regulations confinement to barracks is considered a minor sanction.
Does that mean it could be part of what are the minor sanctions in the new regulations, or have you already decided that it would not be?
Commodore Bernatchez: I would ask all of us to do a bit of intellectual gymnastics and say that the summary trial process will not exist once this bill receives Royal Assent and is put in the regulations.
The summary trial process has some criminal and penal consequences, and that’s the reason why certain offences give rise to the election of a court martial. It would be completely written out of the book. We’re starting from a new tranche that what we’re putting in place is a true disciplinary process that is non-penal and non-criminal in nature.
Lieutenant-General Charles Lamarre, Commander, Military Personnel Command, Department of National Defence and the Canadian Armed Forces: Perhaps I will make a bit of a statement about the importance of our having this tool when we’re conducting operations in Canada.
I’ve been on a task force in Canada and a CO of deployed units overseas both times in Afghanistan, and before that I served in Bosnia and Croatia. Oftentimes we ran into other nations that did not have this kind of tool or disposition. They didn’t have any summary hearings, if you will, to deal with the small matters arising.
The well-being of your task force and the ability to act quickly on things that have gone astray are critical to the well-being. We’ve watched other nations that needed to fly in teams from their home nations to deal with the most minor of matters, not things that would go to a court martial but minor disciplinary issues.
For us to be able to deal with something expeditiously is hugely beneficial to not only accomplishing the mission but, more importantly, to the morale of the unit itself. The men and women who make up our unit expect that the chain of command will maintain discipline. This is one of the ways by which we can do so.
Every unit that has this discipline tends to operate well. We’ve proven time and time again, through the unit morale profiles and research that we do, that the morale is helped by having a good level of discipline. It’s an important tool for us to have.
Mr. Sajjan: We’re talking about the sexual misconduct aspect of it. If we want to hold leaders to account, we need to give them the actual tools to ensure they can dispense discipline for infractions.
This allows us to take the more cumbersome and difficult and move them into court martial. It allows senior leaders to be more comfortable in actually delivering discipline when it’s needed.
It is very important right now to ensure that commanding officers have the ability to correct behaviour. When you look at what we’re dealing with in terms of sexual misconduct and other things we are facing, we need to make sure commanding officers have the tools. This allows us to give them the tools so we can also hold leaders to account.
Senator McIntyre: According to the Canadian Bar Association, Bill C-77 is a positive step in protecting the rights of Canadians. However, according to them, Parliament must undertake a comprehensive study of the Canadian military justice system.
Could I have your thoughts on that, please?
Mr. Sajjan: We need to continually take a look at the Canadian military justice system, just as we look at our other laws. Things evolve in societies. Technology changes. In the military, we have different generations and recruits. We need to continually look at our justice system, and we are.
Bill C-77 is one look we have identified. We need to provide better victim support. That’s one aspect. As the JAG mentioned, the summary trial process was not being well used. It actually prevented discipline and commanding officers from using it for what it was intended. That is what we’re trying to do here.
It doesn’t mean that is the only thing we’re looking at. We also have the National Defence Act review coming up in a couple of years. It allows us to look at not just the criminal justice system but at the totality of a lot of other things as well.
This has been an ongoing discussion. We are looking at various changes, but Bill C-77 is not the only thing we are looking at. We will continue to look at other changes and make changes as necessary. The National Defence Act review will give us that opportunity.
Senator McIntyre: How does Canada compare with other countries such as the United States, France and the United Kingdom in recognizing the rights of victims of service offences?
Mr. Sajjan: I would only be giving you my opinion. I’ve served with the U.S. I’ve also met a lot of my counterparts and worked very closely with them. Before I let the JAG answer about the differences in our systems, I can tell you that when our units are deployed with other nations, especially with the U.S., they are always very complementary to the units that we provide. We maintain our own discipline and our own system. We maintain an effective fighting force.
Does the JAG want to provide any details on the different changes?
Commodore Bernatchez: As we’re speaking right now, the military justice system in Canada does not have legally enshrined rights for victims. That’s what we’re talking about today in Bill C-77. That being said, the entire endeavour to support victims within the Canadian Armed Forces is one of very high importance.
As a matter of policy, a number of initiatives have been developed either by the military police, by the Director of Military Prosecutions or by the courts martial to ensure that as many of the rights as possible would be extended to victims within the military justice system. Once again, they’re not enshrined in legislation.
That is probably a question that could be asked of one of my technical experts during the second hour. Should we work to enshrine the rights for victims within the military justice system, as is proposed by Bill C-77, I would say that we would probably be ahead of many of our allies as far as ensuring that these rights are provided for as a matter of law.
Senator Boisvenu: Welcome, minister. I am critical of this bill, as you know. I agree with you that Statistics Canada’s report on sexual crimes in the Armed Forces is a task for Canada. The situation has probably not improved under your watch. It can be said that your government has not been very active in supporting victims of crime over the past four years. I am thinking, among other things, of the sexual exploitation of minors. Bill C-452 was unanimously passed in 2015. Even your leader voted in favour of this bill, but still today, your government has done nothing to save young girls from sexual exploitation.
I wanted to correct you. You said that victims will be assisted by a liaison officer of their choice. No, it will be a liaison officer chosen by the army. Victims will not have the right to choose.
This bill is incomplete. First, there is no appeal process for victims if a decision is not favourable to them.
When it comes to compensation, protection or participation, it is at the military’s discretion. You call this a bill of rights? Yes, it is one. If you really want it to be a charter of victims’ rights in the Armed Forces, change its name. Call it a charter, not a declaration. A declaration is about intent.
With such an incomplete bill, do you really think you are meeting the needs of victims in the Armed Forces, and what victims did you consult before writing this bill?
Mr. Sajjan: Senator, thank you for the question and also for your work on this file.
Every respectful Canadian would agree that we need to be serious when it comes to sexual exploitation. As a former police officer, I can assure you that I worked on these files. We took these things very seriously, as does our government.
With regard to the victim liaison officer, no. It will be the choice of the victim to request somebody they may want. We want to make sure, for example, that not only do they get their choice but the goal is to have the victim liaison officers trained appropriately so they can support victims. In case the victim chooses somebody who may not have the training, we will make sure the person gets the training so that they can support the victim.
When I became minister, I sent out two letters to all parliamentarians and senators about making sure that we take the politics out of defence so that we can have the appropriate input. I have been very open to this from the beginning of our defence policy. As you can see in my notes, I didn’t talk about how the previous government had it die on the Order Paper.
At the end of the day, I want to be able to work together on this matter. We all agree we want to support victims. We have worked very closely with the parliamentary committee to get unanimous support moving forward. In fact, good points were raised. Some of those points can’t be addressed in this bill, but we will be working on those in other ways as well. That’s what I am committing to here.
We’re in agreement that we all need to support victims in the pinpoints that we provide. My department and I are showing good faith that I will continue to work with all of you to make sure that we look at the wider aspect of things. I just wanted to say, senator, if you don’t mind.
Senator Boisvenu: Minister, why does the bill not recognize the right of victims to appeal the decision?
Commodore Bernatchez: As you know, in the Canadian criminal justice system, the legal issue is between the state and the accused. When a decision is made by a criminal court in Canada, the decision to appeal rests with the Crown, and is granted automatically or according to certain criteria developed by higher courts, such as courts of appeal and supreme courts. With respect to the military justice system, it is important to understand that —
Senator Boisvenu: I understand you have a speech to make, but clause 71.24 provides that no cause of action arises in the event of an appeal. The victim does not have this right. The victim does not have the right to choose who will represent them. The Armed Forces will choose who will represent him in case of absence. The victim is not entitled to protection or compensation. It is the Armed Forces that will decide as they see fit. These are not fundamental rights, where the rights of the victim are recognized. Do you not think that there is too much latitude in this bill for the Armed Forces, which allows them to decide for the victim?
Commodore Bernatchez: Perhaps I misunderstood your question. Are you talking about a right to appeal the court’s decision, or a right of appeal if there is a denial of exercise of the rights provided for?
Senator Boisvenu: I am talking about the court decision.
The bill refers to the right to protection“[...] if the Armed Forces”, or to the right to restitution if... There is always an “if”, and the Armed Forces are given great latitude to decide on the importance of enforcing the law, when this right should be an absolute right, as in the Victims’ Bill of Rights that was adopted in 2015.
This charter gives the Armed Forces considerable latitude in the enforcement and recognition of rights. This is the major weakness of this declaration.
The Chair: Senator, can we let the witness answer the question? Go ahead.
Commodore Bernatchez: I would simply like to emphasize again that the Declaration of Victims’ Rights in the military justice system is virtually a mirror of the Canadian Victims Bill of Rights. Nothing is planned that gives more —
Senator Boisvenu: I wrote that bill of rights, and this isn’t a mirror.
The Chair: Senator Boisvenu, can we allow her to answer the question?
Senator Boisvenu: People shouldn’t just say any old thing.
Commodore Bernatchez: It is not a charter that gives the Canadian Armed Forces more flexibility than the Canadian Victims Bill of Rights gives to Canadian authorities. It is important to understand this. When we talk about the victim liaison officer, what I would like to explain is that he is a liaison officer who will explain the process that takes place in the military justice system. However, there is a whole network of information and support that will also be provided to victims of sexual offences or sexual misconduct. It is a partnership effort. This is not something that will be done in isolation. It is a complement to everything the institution will put in place to ensure that victims are well supported during the process, from the filing of the complaint to its resolution. Perhaps Dr. Preston could talk about the projects that are being considered to support victims.
Ms. Preston: One of the service enhancements we’re about ready to launch is what we’re calling “response and support coordination.” Essentially, it’s a case management system. From the time of first disclosure until such time as the victim no longer requires support, they will have access to a single point of contact, a councillor in the sexual misconduct response centre who will walk the journey with the victim from beginning to end and provide whatever support they need.
If that support is accompanying them to appointments or to court martials, if it is helping them fill out grievance papers or victim impact statements, if they are advocating with the chain of command, if they feel their case is being mishandled or is not meeting time frames, this will be a consistent point of contact to be with the victim from beginning to end.
As Commodore Bernatchez said, this new position we’re getting in place will work very much in a complementary fashion with the victim liaison officer. The two would have to work hand in hand in terms of providing information and supporting the victim.
We will also be ensuring that the victim liaison officers get the appropriate training to be able to do their work effectively. It is not just about providing information on the military justice system but also being informed about being a victim, trauma-informed care, the impact of victimization on people and the soft skills that they will need to work with people who are in a vulnerable state.
Senator Richards: In summary hearings is the presumption of innocence always sacrosanct? It’s not a trial, but does that rule still apply? Lieutenant-Colonel Fowler didn’t think it did. He didn’t come out and say it didn’t, but he had questions about it. I just thought I would ask that.
Mr. Sajjan: Yes, absolutely, this is the case. I think some people might have been talking about having their own experiences. We have to make sure we have an appropriate system in place so that people are properly trained to follow the process more appropriately.
This is one of the reasons why Bill C-77 is also trying to make the system fairer and more streamlined and that the less serious infractions will be dealt with in a summary hearing rather than a court martial. It is quite the burden when we are putting it on commanding officers.
Yes to your question, and this is why the regulations will be very important when we outline how this will be dealt with. The training that will be done afterward will be critical as well.
Senator Griffin: I am considering making a couple of observations when we have clause-by-clause consideration of this bill. The first is to recommend that the government study offering free legal advice to victims in the military justice system. The second is to instruct the Canadian Armed Forces to monitor how the rights of victims are being met and to report on those outcomes regularly.
These would not be amendments but simply things that should be done by government.
Mr. Sajjan: Absolutely. As I stated, it’s not only the recommendations but also being able to have a conversation to make sure that we understand the context fully when you say it, so that when we’re making potential changes they are done with the full context in mind. We look forward to working with you in this regard.
Ms. Preston: I can speak directly to that. We actually have developed a pilot program to provide independent legal advice to victims within the military justice system. We have modelled it very much on the pilot that is currently taking place in three or four provinces across the country. This has been a joint initiative between the Judge Advocate General and the Sexual Misconduct Response Centre. Happily, we recently received our budget. We did get the funding that we asked for to be able to do that. It is our hope to implement that this year. It would be the provision of legal advice, not legal representation.
With respect to monitoring the rights of victims, I can say that recently, as well, we’ve expanded the mandate of the Sexual Misconduct Response Centre. One of the significant additional responsibilities that we’re taking on is the responsibility to monitor the Canadian Armed Forces, their implementation of Operation HONOUR writ large.
That would entail things like monitoring individual cases that come to our attention. It would be monitoring data to identify systemic trends, but it would also be monitoring the effectiveness of programs as well as exactly what you said, monitoring the rights of victims. That would fall squarely within our organization.
As I said, this is a recent new additional responsibility. We haven’t figured out exactly the mechanics of it, but it absolutely would fall under our responsibility.
Senator Griffin: Thank you. I am really pleased with that answer.
Senator Gold: Thank you, minister and officials, for clarifying a number of things, for putting Bill C-77 in perspective of the larger issues that we all have a responsibility to pursue, and for clarifying the rationale behind summary hearings, the sensitivity of the issue of sanctions and the changes in the standard of proof and the like. All of that was helpful to us.
So much is going to be driven by the regulations, I wonder if I could ask you to comment on that a bit more. These regulations, as senators know, are exempt from review by the joint parliamentary committee. I mean that’s the way it has always been. It’s all the more important that you provide us with some guidance, if not indeed reassurance, on some of the issues that you’re going to be directing and ensuring are in the regulations.
Let me mention a few. They are around the victim liaison officer among others, although there is a whole range of issues. Concern has been expressed that people need to be properly trained. You addressed that, and I would like to hear more about how the regulations might hard wire the necessary training and all of the disciplines, crisis, trauma and the like.
Concern has also been expressed that the victim liaison officer needs some degree of independence or autonomy from the unit or the chain of command where the offence may have taken place because it’s hardly reassuring to a victim to be ostensibly supported by somebody who may be in a difficult conflictual relationship with the chain of command.
Will the regulations address that? How far along might you be in thinking through these issues? What lessons are you considering including or learning from the experience of some of the Five Eyes and other allies, for example, the U.S. military’s experience with victim advocates as a stand-alone institution to assist victims?
These are representative of a large number of our concerns. It’s a bit of a blank slate as the regulation process typically is when bills are not yet in law. Could you help us to understand where you’re going?
Mr. Sajjan: A lot of the questions you are asking are a lot of the questions that either I or we have had discussions about internally as well. In fact, even when we talk about certain offences that may happen, we always ask in our discussions with the JAG whether there are any changes we need to make to give better tools to the Canadian Armed Forces from a legal perspective that can have an impact on other topics.
We have regular discussions. We have had many discussions on this issue, and I’ll let the JAG talk about some of the things we might be potentially looking at. If Bill C-77 passes, it doesn’t end with letting the regulations be written. This is about having a continual conversation to make sure that the regulations meet the mark.
What are the ramifications? What is the training going to be? Are the right resources going into it? At the end of the day, I want to emphasize that the goal is to make sure that we stomp out sexual misconduct. This is one way to make sure we provide the support to victims and give the leadership the tools to be more efficient with the delivery of discipline within the Canadian Armed Forces.
When it comes to victim liaison officers, these are a lot of the questions I also had. This is why it’s so important that the victim gets to choose who the victim liaison officer could be. They could come from the unit. They could come from outside. It’s their choice. Having somebody from outside is not only appropriate but it should be their right.
That’s why it’s so important to make sure, regardless of the person selected, they have the appropriate training to make sure the support will be there and that the work the SMRC is doing will encompass that as well.
I won’t talk about the lessons because I know that the JAG team talks more with our allies about what is working and what is not.
Commodore Bernatchez: Absolutely. The military justice system, like the civil and criminal justice systems, is a system that is in constant evolution. It needs to be closely monitored by the executive, the legislative and by myself as the superintendent of the military justice system, to ensure that it continues to meet the obligation under Canadian law, that it continues to align with the requirements of Canadian law, and that it continues to respond to the unique requirements of the Canadian Armed Forces.
We have to ensure that the system continues to correspond to the law and to the needs by ensuring that a proper legislative framework is proposed, which is sufficiently clear to indicate to all of the different actors what are their responsibilities and what is expected. Like the RCMP Code of Conduct and like the Ontario Provincial Police Code of Conduct, how it translates is done in regulations, policies and directives so that there is sufficient flexibility for it to adapt to changing times.
Certain infractions at a certain point and certain sanctions at a certain point will no longer be relevant because they will no longer answer certain of the legal requirements or certain of the needs of the institution.
That being said, we’ll have a major tool at our disposal to ensure that it continues to be reviewed over time. This will be provided by the mandatory review that is done of the National Defence Act and the military justice system. That is provided under section 273.601 of the National Defence Act. It’s a seven-year review. The next one is due to be concluded in 2021.
We have been listening to the Auditor General. We have been listening to the Public Accounts Committee. We are listening to the House of Commons. We are also listening to you and to witnesses that have appeared to ensure that all of the major concerns about the military justice system are ones that can be eventually looked at by the independent review authority that will be named to do so.
I know this is a long answer, but I want to make sure you are informed. The victim liaison officers will be trained, just like all of the actors provided for the summary hearing process. They will be trained in accordance with the training standards that will be established under my authority as the superintendent of the military justice system. That training ensures that they understand their roles, their responsibilities and their accountabilities.
Lt.-Gen. Lamarre: Perhaps I could add a couple of things fairly quickly.
If I could come back to the issue of the chain of command, there’s a bit of perception that perhaps the chain of command is corrupt and does not have the best interest of its members at heart. That’s exactly what they do have for every single member serving in a unit. Our unit sizes can be 100 people or upwards of 600 people. The chain of command has an interest to achieve their mission but first and foremost to look after their men and women. That includes if something has occurred within that chain of command or rather has occurred within the unit.
If there has been an incident where something inappropriate has taken place, an assault, something serious or something less serious, the chain of command wants to make sure that we look after the individuals involved both from dealing with it disciplinarily and looking after the person who has been affected.
I’ll tell you it’s an important part of it. The whole idea of the victim liaison officers being assigned by a chain of command is a proposal that is there. Just as we have right now in the current system, if you want to have an assisting officer for another case, you’re already entitled to go outside your chain of command to get that person. That’s something that is offered.
At the very worst, when we were in Afghanistan and were having to bring back people who had been badly injured, or if we were bringing back the bodies of those who had fallen, we had assisting officers that had been properly stood up and trained to assist the families and to assist the members coming back.
We look upon this as being the same responsibility. We have people we have to look after. The system by which we’re going to do this is with properly trained victim liaison officers, not only on the legal aspect of things but, as Dr. Preston related, properly trained to make sure they can look after the individual. This is only to the extent that the victims themselves want to have that assistance. That’s an important aspect. I need to have it very clear that the primary role of the chain of command is to look after all of their members.
Senator Oh: I am going to follow up with a question on liaison officers. The liaison officer is appointed by the accused’s commanding officer, correct?
Mr. Sajjan: No. Senator, I think we clarified that. The victim has the right to choose the victim liaison officer whether it’s inside the chain of command or outside the chain of command. Whoever is selected will be given the appropriate training to make sure that they provide the right support for the victim.
Commodore Bernatchez: The bill is quite clear that it’s a commanding officer. It’s not the accused’s commanding officer or the victim’s commanding officer. It gives the flexibility to a commanding officer to appoint a victim liaison officer.
That’s done in order to truly respect the nature of the control a commanding officer would have of the member designated to ensure that member is held accountable, made free to accomplish their function and is properly trained to accomplish their function.
The victim liaison officer does not necessarily come from the victim’s unit, the offender’s unit or the accused’s unit. It’s a commanding officer.
Senator Oh: You say that the liaison officers were given training. Is that correct?
Commodore Bernatchez: Yes, absolutely.
Senator Oh: It’s not a permanent job of a liaison officer.
Mr. Sajjan: Senator, if I can explain, it is just like the assisting officers General Lamarre talked about. Whoever the victims are, it is about making sure that they get to choose somebody they are comfortable with. Because you need somebody with the authority in the chain of command to be able to make sure this actually happens, the commanding officer allows for that.
The goal is to train many people to become victim liaison officers as we have training for assisting officers and, in the case of Afghanistan, making sure that the fallen were well looked after. In case the person selected has not taken that training, we will make sure the person gets the training so they can support the victim properly.
Does that answer your question, sir?
Senator Oh: Thank you.
The Chair: Minister, let me take the opportunity to thank you for being with us and going well beyond the time. We very much appreciate it.
I understand the officials will stay to answer further questions. I think there are a few outstanding.
Mr. Sajjan: Thank you very much for the tremendous work you’ve done on your report. I have personally read it, and I’ll be going through it in more detail as well.
At the end of the day, when it comes to our Canadian Armed Forces, our women and men, we need to give them the confidence that they are fully supported. By your doing this tremendous work demonstrates just that.
The Chair: Thank you, minister.
Senators, we’re joined at the table by Colonel Stephen Strickey, Deputy Judge Advocate General, Military Justice, Department of National Defence and the Canadian Armed Forces, and Lieutenant-Colonel Geneviève Lortie, Director of Law, Military Justice, Policy, Department of National Defence.
Thank you. Welcome to the table.
Senator Dagenais: My first question is for Commodore Bernatchez.
In order to report, victims must trust the system in place. I would say that we are proposing a liaison officer concept that has not worked in the United States, and we have to recognize that there is a process where we have to guess what will happen with the regulations.
Why did you choose a model that does not work, rather than using a lawyer?
Commodore Bernatchez: Thank you for inviting to us to speak to Bill C-77.
To come back to the liaison officer for victims, it is important to understand that the liaison officer will ensure that the information related to the military justice system is communicated to the victim and will explain the process that is followed from the moment charges are laid until the decision is made.
That person will be there to support the victim and provide that information. However, they will not be working in isolation. It must be understood that this is an information officer who is part of a much larger victim support network within the Canadian Armed Forces. Although Bill C-77 talks about a liaison officer specializing in the military justice process, the sexual misconduct victim resource centre run by Dr. Preston will have more to offer victims. This may be something Dr. Preston could talk about later.
During the first hour, we also talked about a project currently being developed by Dr. Preston’s organization to provide victims with legal advice.
Ms. Preston: As I mentioned in the first hour, we are initiating a service enhancement where we will provide case managers or response and support coordinators for all victims, upon consent or with consent, from the time of first disclosure until such time as they don’t need support anymore. This role will work very much in a complementary fashion with the victim liaison officer.
In speaking about the pilot we’ve developed for providing independent legal advice to victims, it isn’t either/or. It isn’t whether you have access to a victim liaison officer or independent legal advice. We want to offer both. We want to offer a range of services that victims can choose between as best meets their needs.
Senator Dagenais: I have 39 years of police work behind me, at Sûreté du Québec. When there were victims within the organization, an association defended them and provided them with a list of lawyers.
Have you thought about the solution of providing victims of sexual harassment with a list of external lawyers they can consult who will be paid by the armed forces? The victim may feel more confident because they would be dealing with an external lawyer.
Have you thought about that?
Ms. Preston: That’s exactly what our pilot is going to entail. We will build a roster of lawyers in the community to be able to provide that advice. Similar to the way pilots are running in some provinces, we will essentially issue vouchers to the victims for them to contact whichever lawyer of choice in their province or territory to choose which victims they want. Then the bills would be submitted to the SMRC and we would pay for that.
Senator Dagenais: The Statistics Canada survey on sexual misconduct showed that, in over half the cases, both within regular forces and within reserve forces, the aggressor is a peer. I note that the rate of assaults committed by peers is higher among men than among women. So there are more male victims than female ones, and that is higher in the reserves.
Could you tell us more about those statistics?
Ms. Preston: It is true that there are more male victims than female victims. That is by virtue of the fact that 85 per cent of the Canadian Armed Forces is made up of men. Even though the prevalence rate is lower for men, the absolute number of victims in the military is higher than that of women.
What that speaks to is that it’s very important for us to focus on the experiences of male victims, perhaps some of the myths held around men being victimized sexually, some of the barriers to reporting, and some of the unique treatment needs they might have.
However, we can’t lose sight of the fact that women as a group are victimized at rates four times higher or, in the case of reserves, six times higher than men. We can’t lose sight of the fact that it is very much a gendered offence and that we have to ensure we have supports specifically for women as well.
Senator Dagenais: Thank you very much.
Senator McIntyre: Thank you all for being here today to answer our questions.
Dr. Preston, as I understand, the Sexual Misconduct Response Centre was established in 2015 as part of Operation HONOUR. My understanding is that the centre’s focus is exclusively on harmful and inappropriate sexual behaviour. It provides members with the options of confidentiality and anonymity.
That said, is there a requirement on the part of the centre to report to the chain of command or the military police?
Ms. Preston: No. You’re right that we were stood up in 2015. At that time our mandate was specifically to provide support to members of the Canadian Armed Forces who were affected by what was called, “harmful and inappropriate sexual behaviour,” a term coined within the military.
Over time we’ve evolved to using the term, “sexual misconduct,” in policy documents. You’re quite right that we provide our services in confidence, and they can be provided anonymously as well.
That’s an important addition to the services available to CAF members because there is nowhere else in the system that they can speak to someone under those conditions. Anyone who is in uniform has a duty to report.
The staff that work for me in the centre are civilians. Therefore, they do not have a duty to report when people come forward to speak to them. The only time there would be an obligation to break confidentiality would be the same requirements that exist in other settings. If there’s a risk of imminent self-harm or a risk of imminent harm to others, for example a risk to a child, those are the only legal reasons why we would break confidentiality.
Senator McIntyre: In other words, the chain of command has no authority over any of you in the centre. You’re not part of the Canadian Armed Forces.
Ms. Preston: No, we are not part of the Canadian Armed Forces. We were established consistent with the recommendation of the External Review Authority under Madam Deschamps.
Her recommendation was to establish a centre that is independent of the chain of command. She didn’t say independent from the entire department. She said that it was from the chain of command because of what she heard from people who testified or provided information to her about a profound lack of trust in the Canadian Armed Forces. It was very important to her that there be an independent centre not under the jurisdiction of the chain of command.
Our centre is independent. We are within the department, but I report directly to the deputy minister.
Senator McIntyre: I note that the bill would add a section to the National Defence Act to provide victims of service offences with the right to have their security considered by the “appropriate authorities” in the military justice system.
However, the bill does not define the term “appropriate authorities.” As well, it does not set out the forms of confidentiality that would be provided to protect a victim’s identity.
Who would be considered the appropriate authorities, and what forms of confidentiality would be provided to victims in the military justice system?
Commodore Bernatchez: I will ask my Deputy Judge Advocate General for Military Justice to provide the detailed answer to this question.
Colonel Stephen Strickey, Deputy Judge Advocate General, Military Justice, Department of National Defence and the Canadian Armed Forces: The appropriate authority would entail many entities of the chain of command, those who may have some type of interest in the proceeding.
In terms of your question dealing with ensuring the privacy rights of the victim are accounted for, I would point you to sections 71.18 and 71.19 of the proposed legislation. This is a comment that would apply to a lot of questions dealing with the regulations.
As was brought forth by a senator on this committee who cited this section, every order, rule or regulation is to be construed and applied in a manner that is compatible with the rights provided for in this division.
As was stated by the minister in developing regulations under the Queen’s Regulations and Orders, certainly the primacy clause of this section of this piece of legislation makes it incumbent upon those who work on the regulations to ensure that the department is mandated to the greatest extent possible to ensure that all the rights are taken into account and operationalized, if you will, in the regulations.
On the privacy concerns, I would point to subsection 71.19(2), which is an exception to certain quasi-constitutional statutes which include the Privacy Act. When developing regulations, one certainly has to take fully into account the rights that are accorded in the declaration of victims’ rights. One cannot supersede those quasi-constitutional rights that would be included in something as the Privacy Act.
Senator Pratte: I would like to come back to what happens when a victim files a complaint and, for one reason or another, they are dissatisfied with the decision-maker’s decision — and it is still unknown who the decision-maker will be.
The bill states the following: “No cause of action or right to damages arises from an infringement or denial of a right under this division.” Those are the exact words from the Canadian Victims Bill of Rights. Does that mean the victim won’t be able to appeal a decision on their rights they are dissatisfied with?
Commodore Bernatchez: The right to appeal and recourse should not be confused. That is what I understood earlier this morning. The right to appeal has a very specific meaning in Canadian criminal law before higher courts.
The victim will have recourse if their rights, as defined in the declaration, are not respected. It is important to understand that the complaint or recourse mechanism will have to be established. Inspiration must be drawn from what is being done in other Canadian jurisdictions. That will show what has worked and what hasn’t, and it will be adapted to the military justice system. That is how it will be ensured that victims have a say if they realize that their rights have not been respected to their satisfaction, in compliance with the legal requirements.
Perhaps Colonel Strickey has something to add?
Col. Strickey: Bill C-77 interweaves with the Canadian Victims Bill of Rights.
All that is to say the JAG is obviously correct with regard to the legal right to appeal, which is quite outside the internal mechanism.
To the greatest extent possible, as this committee is well aware the declaration of victims’ rights mirrors that which is currently available in the Canadian Victims Bill of Rights, which includes the remedy complaint mechanism.
Senator Pratte: Does that mean the regulations would specify how this new system would work?
Appeal, as you said, is something very specific, but there could be a mechanism for the victim, if he or she is not satisfied with the first decision regarding his or her complaint. Let’s call it an appeal, for lack of a better term.
Col. Strickey: It could be of use to look at what is currently available in the civilian system. As you know, sir, the Canadian Victims Bill of Rights has been in force for some time now. I want to put on the table that I am far from an expert on available dispute mechanisms.
However, I understand, for instance, under the Department of Public Safety that there is a National Office for Victims. Those subject to federal law who wish to launch an issue they had somewhere pursuant to the CVBR can issue a complaint. That complaint is heard. Again, I am not an expert, but if the person is not satisfied, it’s my understanding that would rise up to an ADM-type level where an official response would be forthcoming.
In developing whatever regulations we will develop in terms of this mechanism, certainly we will glean the lessons that were learned from these other federal institutions, such as the RCMP and Public Safety vis-à-vis Corrections and Border Services, in how they implemented the complaint mechanisms in the Canadian Victims Bill of Rights.
Senator Pratte: Why isn’t this system that will deal with complaints provided in the act? Why is it left totally to regulation?
Col. Strickey: I want to apologize before this committee because I am sure, in the next couple of days I will spend with you, I will use the phrase, “to the greatest extent possible the declaration of victims’ rights mirrors the Canadian Victims Bill of Rights,” for good reason in the corpus of Canadian law.
Many times I’ve had the opportunity to work on pieces of legislation where the Criminal Code has been amended and there’s a corresponding or consequential amendment to the National Defence Act. In bringing the DNA scheme within the National Defence Act, again it is very similar to the civilian system. For the Sex Offender Information Registration Act it was the same.
In this process, I would not say that the complaint mechanism process set out in the DVR mirrors totally the CVBR, but to the greatest extent possible it does. Given the gap in time between the coming into force of the CVBR and if this bill receives Royal Assent and the regulations are developed, we really could learn some lessons from this great example in terms of regulations.
Senator McPhedran: I am not sure you answered this question, but I am going to take another run at it.
I want to observe that the regulations have become kind of a magic wand here. Many of our unanswered concerns and questions are being answered by referencing, “This is going to happen in the regulations.”
I would like to better understand a couple of things about the process of developing the regulations. First, who is primarily responsible for the development and completion of these regulations should Bill C-77 become law?
Col. Strickey: That is an excellent. I’ve had the pleasure of working on many regulatory packages, and my colleague here, Lieutenant-Colonel Lortie, was responsible for developing the largest regulatory package since the advent of massive changes to the military justice system in 1999, with the coming into force of Bill C-15. I will certainly allow her to comment on things that I may miss.
Generally speaking, as the minister stated, the direction comes from the government, from the minister. From my experience, I obviously take my direction from the Judge Advocate General, who is the superintendent. Then, in terms of how it goes from a step-by-step process, it would really be collaboration.
We would sit with a team of lawyers, including regulatory drafters from the Department of Justice, to take into account myriad concerns, comments, questions and points brought forth by this committee, the Commons committee, interested parties, the chain of command and by consulting, as I mentioned, in terms of the complaint mechanism with other government departments. We would begin the structure of developing drafting instructions, which is a framework of a framework, if you will.
Then we would work in very close conjunction with the Department of Justice in both official languages to ensure that we capture the nuts and bolts of the system we are trying to create. Then that would go through a series of reviews by myself, by jura linguists, by the Judge Advocate General and by various experts. We would obviously consult with the SMRC, the Director of Military Prosecutions and the Provost Marshal. There would be a number of parties that would have a say.
The minister noted the report that this committee put forward. There would be reports like that one and a report from a Commons committee. All of them would come together to form the corpus of information that we would use to move forward. Then we would draft the regulations, and hopefully all that work would be published and come into force.
Senator McPhedran: Related to that, to anyone who wishes to answer, is there any reason why the regulations could not require the commanding officer to inform a victim of the VLO option which currently doesn’t exist in the bill?
Is there any reason why that couldn’t become, instead of on request, something that is done automatically to provide essential information to a victim right from the beginning?
Commodore Bernatchez: Thank you for the question. It’s important to remember that the Canadian Armed Forces have several ways of communicating and informing its internal constituency, or members of the Canadian Armed Forces, and the public on any matter through websites, Internet sites, et cetera.
I’ll go back to an earlier comment Dr. Preston made. The main consideration in looking at whether it would be preferable to have a proactive approach to a victim, instead of one that is very mindful of the victim’s desire, is that certain victims do not want to be contacted, especially not by somebody in uniform when the perpetrator is somebody who was or is wearing a uniform. It may be seen as a further act of intimidation or something that is not at all welcome. I think that’s the main concern.
When we say we have a system that is victim centric and we want to ensure that the desires of the victims are respected, that’s one articulation of it.
Senator McPhedran: Before we go further, may I please clarify because you’re not answering my question? You’re making some important points but you’re not answering my question.
My question is about the actual provision of information. It’s not about sending someone into contact. It’s not about any of what you just described. It’s about the requirement or the responsibility of the representative of the Canadian Armed Forces, the commanding officer, to provide the full range of information to a victim, respecting that the victim will be able to make appropriate decisions. It’s about provision of information.
Right now, it is on request under the information section. Bill C-77 places the onus on the victim at probably just about the worst possible time for somebody to be their own advocate and have to request basic information that is needed to be able to proceed and to be able to access the other rights listed later on in the various parts of the overall section of rights.
How does that make sense? Can there not be a way in the regulations that the commanding officer has the responsibility to provide all available information about options and the process, including the VLO option?
Commodore Bernatchez: I think the answer to that is one of practicalities. When we’re talking about a commanding officer, we would have to identify which commanding officer within the chain of command would have the responsibility to provide the entirety of the information.
To ensure centrally that this is done as a matter of course, as would be provided for under the act, the victim has a right to be informed. Consequently, the institution has an obligation to provide that information. It is a reciprocal obligation. I think that would be one of the challenges. If you want to identify in regulation which commanding officer, it would be which one.
The other one is one of consistency within all of the rights provided under the declaration. If I could ask my deputy JAG for military justice to walk us through the scheme, that would be helpful.
Col. Strickey: If I understand, it almost seems to be a clause-by-clause type of question if we were to add a positive obligation on a commanding officer to advise a victim of their rights rather than what is currently in there.
Senator McPhedran: On request.
Col. Strickey: As you quite correctly stated, almost the entirety of the right to information uses the term on request. In answering your question, the challenge for the committee would be a bit of a knock-on effect, one after the other. To change one victim’s liaison officer in section 71.16, presumably it would have to be done in sections 71.02, 71.03 and 71.04 and in the amendments to the CVBR because that would perhaps be an issue as well.
Senator McPhedran: You don’t have to touch the civilian code. This is all about the code for the Canadian Armed Forces.
As I said to the minister, and I think I saw him nod affirmatively, the civilian code is your floor. It’s not your ceiling.
Col. Strickey: Of course.
Senator McPhedran: The modifications that you’re making are appropriate to your culture. How is it that the information is the only qualified right and all of the other listings of rights that follow under this section of rights are not qualified?
This really doesn’t make sense that the critical gateway for a victim to be able to access the entire rights framework is made conditional on the victim somehow knowing what it is that he or she should be requesting.
I’ll leave it at that, but I am completely mystified by this and I think it’s a serious loophole. The key part of my question was: Can this be fixed through regulation?
The Chair: I understand the commodore and Lieutenant-Colonel Lamarre have to go. I know you’re past your time. You should feel free to leave when you need to and we will continue with the rest of the witnesses.
Lt.-Gen. Lamarre: Thank you very much, and we’ll go shortly.
Commodore Bernatchez: Senator, to go back to your question, I don’t want you to misunderstand what the response was. I am not saying this is not something we would consider in regulation. As we said, we’re listening to all the concerns expressed and making good notes as we’re going through it. I was more reflecting out loud in saying when we consider that one of the challenges I foresee we’ll have is to say who would be the commanding officer that would be responsible for providing that information.
General Lamarre was kind enough to pass a note to me to say, “I am a commanding officer and I would ensure, if the victim was within my unit, that is something I would do as a matter of course.”
Just to be clear, I am not saying we’re absolutely not looking at this, no. Regulations will have to be informed by all of these useful comments and clarifications. I was also sharing with you some of my internal thinking about this.
Senator McPhedran: I appreciate that, but I also want us to bear in mind that we are in the age of web pages and comprehensive information is available through a link. This is not onerous for a commanding officer regardless of who that commanding officer may be.
Commodore Patterson: Agreed.
Lt.-Gen. Lamarre: If I could just add to that, oftentimes the commanding officer will be the commanding officer of that victim because he or she will have that victim’s best interest at heart. If anybody who works for you says, “I am having a problem,” you would say, if they identify that way, “Let’s help you, let’s figure out how to fix the problem,” no matter what the problem might be.
In this particular case we are talking about the harmful and inappropriate behaviour of sexual misconduct. The individual in case has access to a tremendous amount of information, not the least of which is starting with the SMRC, which gives you the confidentiality to place a first call if you want to. There are trained experts on call 24-7 to give you advice and assign a victim liaison officer to you that can represent your equities, inform you and make sure they are in touch with them. The VLO would be involved with the chain of command, the medical chain, our chaplaincy, potential external resources that are available in all of our major base locations and everything else for people to reach out to.
They also would also be informed by a number of things. I know we talk about web pages, but they are over and above the entire complement that I am talking about. Every commander and command chain will want to ensure that the person has access to everything that is available to them so they can be looked after. I think that’s an important aspect.
I agree with you. As a commander, I would want our commanding officers to be mandated and told, “You know what. You’re going to have to make sure, if this gets identified to you, that we’re going to deal with it and you have a responsibility.”
To just finish off with a last observation, 5,300 Canadians came through our recruiting centres for basic training. We start in the first week of their training to talk about Op HONOUR. That is where the education starts. It is covered two more times while they’re in basic training, and every leadership course talks about what is there.
We have the methods by which we can make it the responsibility of people to make sure, if they’re dealing with somebody who identifies as a victim, that they’re looked after.
Senator McPhedran: This is so helpful. For the regulations to be effective, they have to address situations where there is bad judgment. That’s why you need the regulations. The way this is worded, you’re leaving the onus on the victim and you’re creating much more space for bad judgment.
Senator Boisvenu: I have a few technical questions, but first, there must be proper understanding of the scope of the Canadian Victims Bill of Rights and of this declaration. This declaration must not create any gaps that allow for arbitrary statements, such as “to the extent possible”. The Canadian Victims Bill of Rights applies to federal organizations victims deal with. When Senator Pratte says that the wording is the same for the two statutes, it is because, for victims of crime, the first jurisdictions are the provinces. So the Canadian Victims Bill of Rights could not talk about services provided by the provinces. A victim is informed by the province, and not by the federal government. I am talking about “normal” citizens. The victim is protected by the province. They will participate in the legal process because the administration is handled by the province. Here, we are talking about a declaration of victims’ rights that comes fully under the responsibility of the federal government and the armed forces. There is no second entity with responsibility in the bill of rights. For example, if “to the extent possible” was included in the declaration, because the provinces provide services, I would agree. However, that is not the case; the declaration applies 100 per cent to victims from the Canadian Armed Forces, and the armed forces are 100 per cent responsible for its implementation. That is not the case with the Canadian Victims Bill of Rights, for which the primary responsibility to inform, protect, engage and compensate victims belongs to the provinces. The federal government does not compensate civilian victims; the provinces do. So having a bill or a declaration of victims’ rights in the armed forces that contains vague language is dangerous. For the victim, beyond the Canadian Armed Forces, there are no other levels of recourse to give them an opportunity for support, information and participation. The only entity is the armed forces. That is why precise and clear language must be used, without possibility of interpretation. The major weakness of this bill is the lack of precision in terms of rights introduced by the passage “to the extent possible”. When you are told that you have a right to the extent possible, someone, somewhere, will determine the scope of that right.
That is why the scope of the two statutes must be understood. Their wording can be compared, but not their purpose because they are completely different, and the armed forces are entirely responsible for the bill.
That said, do you have data on victims in the armed forces who filed a complaint and then left the forces? This bill’s ultimate goal should be to keep more victims in the armed forces. If, in 10 years’ time, out of all the victims who file a complaint, 90 per cent leave the Canadian Armed Forces, you will have missed the mark. The bill’s purpose must be to keep the victims who file complaint in the forces.
If you can, I would like you to give me the current retention rate for victims who file a complaint in the armed forces. Do 50 per cent of them leave after filing a complaint or 100 per cent? Do you have data on that? That is my first question.
Here’s my second question. Why, in this bill or declaration — I have trouble deciding between those two terms, and I will actually propose an amendment, I want to tell you right away, to call this document a bill — have you not included a preamble? I think that is essential, as a preamble would establish the objective of the bill for military members. Why is there no preamble?
Finally, here is my third question. What groups of victims or individual victims were consulted, especially concerning the right to information, in order to agree on the wording “to the extent possible”?
Those are my three questions. Thank you.
Commodore Patterson: Thank you for your questions. I certainly can take on the first question concerning the statistics of who leaves or who stays that has experienced sexual misconduct in the Canadian Armed Forces.
We don’t have the specific statistics on that, but we are trying to close the gap. Every member of the Canadian Armed Forces who leaves completes a survey looking at reasons for leaving. There are questions in there, without pointedly asking if they have been victims of sexual misconduct, that give them the opportunity to come forward.
There are also exit interviews with the chain of command. If somebody feels they want to discuss that, they can. However, at this point concrete statistics on who leaves and who stays are not available.
Col. Strickey: Regarding the comparison between the terms “bill” and “declaration”, I will ask my colleague, Ms. Lortie, to answer you.
Lieutenant-Colonel Geneviève Lortie, Director of Law, Military Justice, Policy, Department of National Defence: Concerning your question on the preamble, what must be noted about the declaration of victims’ rights is that it is part of other texts. It is part of the Code of Service Discipline, which is part of the National Defence Act. When it comes to the Canadian Victims Bill of Rights, which is a piece of legislation in itself, the preamble provided explanations and context for all the rights included in it. In this case, when it comes to the National Defence Act, that mention was not added because the declaration is part of other tools. If there was a preamble, it would be a preamble to the National Defence Act that would explain the entire piece of legislation itself.
However, even though the word “declaration” and not the word “bill” is used, all the rights are the same. The rights found in the Canadian Victims Bill of Rights are also in the declaration, even if the same word is not used, and that gives it the same quasi-constitutional status. So the declaration is at the same level as the Canadian Victims Bill of Rights when it comes to criminal justice. In the provisions themselves, the bill would be amended through Bill C-77. The Canadian Victims Bill of Rights is a reminder that there are other quasi-constitutional pieces of legislation, such as the Access to Information Act or the Privacy Act. The declaration on victims’ rights will be added to that list, and that will also give it quasi-constitutional status.
Senator Boisvenu: Thank you very much.
Senator Gold: Thank you. My first question has to do with summary hearings. Our first panel today had witnesses who were very critical of the elimination of summary trials and the institution of summary hearings. When questioned, they raised two central points. I would ask for your comments on whether you agree with their comments or how you would respond to them.
The first was that it does away with a person’s choice to elect a court martial if he or she so chooses. Most opt for summary trials, nonetheless in all but a few cases there was that election.
The second was the change from criminal standard of proof to the balance of probability.
My second question is more general. I’ll wait for your answers to the first.
Col. Strickey: I will start with the second one in terms of the balance of probabilities. The overall goal of the summary hearing system is to create a non-penal, non-criminal disciplinary system. When one looks at analogous systems currently in use in the Government of Canada, one can make a very loose analogy to that of the RCMP, in which it is an administrative-type tribunal that deals with conduct.
Because we are not dealing with criminal sanctions and because it is non-penal and it is non-criminal, in this case the appropriate standard would be the balance of probabilities.
In terms of the second point which I believe dealt with election to court martial, clearly in the current summary trial system you’re quite correct that although the vast majority of members who have the right to elect do elect summary trial, there is the ability for them to elect court martial.
Here we’re dealing with something very different. I would stress the fact that we’re moving from a penal and criminal disciplinary system to a non-penal, non-criminal system. There would be, legally speaking, a fairly clear line between the two. Therefore, you’re dealing with different infractions, a different balance of probabilities and different sanctions. As I said, it is very much analogous to the RCMP Code of Conduct.
It’s my understanding that the OPP has a similar process, whereby a disciplinary matter can be dealt with in a fair and efficient matter. However, it would not cede to the criminal sphere.
When dealing with a non-penal, non-criminal system in a criminal system, the election would not be required.
Commodore Patterson: Perhaps I could add to that as well. It’s going to be interesting in application when we look at sexual misconduct specifically because we believe we need to cover the entire spectrum, starting off with bad jokes through to much more serious offences. It provides quicker and more rapid tools. It provides an equitable response, depending on the nature of the infraction. That’s one of the values we see.
Senator Gold: We understand that Bill C-77 preserves the notion that all service offences, before Beaudry and Stillman, including Criminal Code offences, will now be tried by court martial. Therefore, the serious offences against the person, sexual offences and others, will all go to courts martial.
Senator Pratte: To the issue of summary hearings, you mentioned, Colonel Strickey, that the sanctions were different. We had witnesses in this committee who had a problem with the sanction, including the sanction of reduction of rank because it is a major sanction and very important for a military officer’s career.
Was there any consideration of not having reduction in rank in the sanctions provided for a summary hearing?
Col. Strickey: Certainly this is a question I received quite often at the Commons committee because it can be quite confusing. We’re talking about summary trial, summary hearing, sanctions and punishments, some of which are quite analogous, as you quite correctly pointed out.
In terms of reduction of rank, what I can say generally is that in creating a system that is non-criminal and non-penal in nature, an assessment would be made with regard to any corollary of that to make sure they fit within the non-criminal, non-penal concept.
In terms of reduction in rank, I don’t want to overstate the comparison to the RCMP Code of Conduct because clearly summary hearing is its own mechanism. Again I apologize that I am not expert in the RCMP Code of Conduct. However, I would point out, in terms of any reduction in rank, that demotion is the terminology they have within their administrative disciplinary scheme.
In terms of the comparison between the two, I caution that I don’t want to draw a direct comparison because the RCMP scheme is very different. It has various levels, boards and things on which I am clearly not an expert. However, in terms of drawing a comparison for comparison’s sake, that is a useful one because we’re dealing with the sanction of a demotion within a Canadian administrative tribunal and what would be perceived here as a reduction in rank.
Senator Gold: My second question is about the bill in general, but more on the declaration of victims’ rights. Thank you for the precision that there’s no legal significance to the title declarations. That’s an important point that I understood you to state.
What would be your concerns if Bill C-77, for whatever reason, didn’t pass and died on the Order Paper? How would that affect your work or how would that affect victims who would otherwise fall within the terms of this act?
Ms. Preston: I think this is an important bill because it places the military justice system in parallel with the Canadian criminal justice system. It would remove the perception that there’s a two-tiered system and that victims in the military justice system are somehow lesser or entitled to less. That’s an important equalization for victims.
Obviously, the enshrining of these rights into law is important. It’s one thing for us to be doing it by policy or by practice, but to enshrine it into law raises it to another level.
One of the criticisms of the legislation that is frequently levelled at the CAF in audits or at various committees is the lack of accountability or need for external oversight or something like that. This bill helps to provide that. It helps to raise the bar so that the CAF will be required to ensure that these rights are met.
Commodore Patterson: If I might add as well, one of the things we certainly did see with Statistics Canada was increasing trust within the system. However, with those who have been affected by sexual misconduct, that level is much lower. When you think about what can be influencing that, it’s fear within the system, fear of the consequences, fear of not being listened to and fear of not making a difference.
One thing that could be of great value in this bill, going back to what Dr. Preston said, is that these rights are enshrined. It helps provide those extra protective factors to move forward and say, “Not only do you have our word; you have it in a legislative framework that this is your right.” We hope it will help us move forward on a lot of our initiatives to develop trust and make people comfortable when they come forward.
Again, from the Canadian Armed Forces perspective, what is very important to us is that we know where this is going on so that it doesn’t continue to affect others. We think this bill is a very important tool in the toolbox in order to move forward on sexual misconduct elimination.
Senator Gold: We’ve had much discussion about the importance of regulations and the guidance we hope can be provided and will be provided. We also hope that the regulations themselves will provide the right level of protection and support for all the participants in the processes covered by it.
Dr. Preston, what role will you have? I know you’re independent of the chain of command. That’s an important aspect of your institutional role. Do you anticipate having a role in providing input to the regulatory process? Do you feel there is receptivity to the input your colleagues are and will be providing?
Ms. Preston: Absolutely, I see that the SMRC should play a central role in the development of the regulations. I’ve certainly had a number of conversations with the people in the JAG office about that. My expectation is that I will be a welcomed participant at the table.
I think it would be a glaring oversight if we were not at the table.
Senator McPhedran: I have a quick supplementary question directly on point. How are you going to develop regulations that ensure you’re not operating in two silos here? Where is your crossover point?
Ms. Preston: Do you mean the silos specifically between the two roles we’ve talked about?
Senator McPhedran: Yes.
Ms. Preston: That is a very good point. Since joining the Department of National Defence I have noticed that there are a lot of silos and people don’t always communicate across the silos. When I came in and took over the portfolio responsible for victims, one of my advantages was that I was speaking to everyone in the portfolios and hearing all the duplications, some of the redundancies and some of the ways in which things could be done more efficiently and effectively.
The bottom line is that the vision I have for service delivery for victims is that we have a seamless, comprehensive continuum of care, from the time they come forward with a disclosure. I don’t mean a formal report. From the time they come forward and speak to a friend or a co-worker, my vision is that they can be funnelled to get support from beginning to end in a seamless way so that they’re not bumped from service provider to service provider, so that they don’t fall between the cracks, so that they don’t get different information from different people.
That is what I’ve been working on since I started. I have been doing that by building very effective relationships with all the partners and getting them to see that if the motive of every one of us is to serve victims better, we need to work together better on this and we need to integrate.
I can tell you that we have buy-in at the table. For example, right now we are actively working with our partners to develop the referral system for our response and support coordination. We’re working with police, prosecutors, health services and chaplaincy. There is no resistance whatsoever. They want to work together seamlessly in the best interests of victims.
We’ve had similar conversations with the JAG around how these roles will work together because the VLO role was proposed long before Op HONOUR came in, the SMRC came in, and the current role we’re setting up was there. We are absolutely going to work it out so that it’s seamless.
Perhaps, if there’s precise military justice information, they can get it from the VLO, but all other supports, information and accompaniment would be provided by the SMRC.
We are the authoritative voice for victims writ large. I will be the one to identify where there are gaps, inefficiencies, systemic issues and perhaps a lack of training to eliminate those.
Senator Boisvenu: I want to thank the witnesses once again. I asked three questions and you forgot one of them, concerning the consultation.
Was there a consultation with victims’ groups or direct victims, or was the consultation held only among the chain of command?
Commodore Rebecca Patterson, Director General, Canadian Armed Forces Strategic Response Team - Sexual Misconduct: If the question is in terms of the bill, I will pass this to Colonel Strickey to address.
Lt.-Col. Lortie: Concerning the bill, as we have said several times, since the idea was to mirror the Victims Bill of Rights, there was no further consultation held. We used the consultations conducted by the Department of Justice to come to the results included in the Victims Bill of Rights. No other consultations were held after bills C-71 and C-77 were introduced.
Senator Boisvenu: Has the Department of Justice consulted military victims, or are you referring to consultations held when the government passed the Victims Bill of Rights?
Lt.-Col. Lortie: I am indeed referring to those consultations. No specific consultations were held. I was not specifically referring to consultations with military victims, but with victims in general.
Senator Boisvenu: Are you telling me that we are studying a bill on a declaration of military victims’ rights, and military victims were not consulted at all? Am I understanding this correctly?
Col. Strickey: I think that is exactly what Lieutenant-Colonel Lortie said. However, I would like to add that, after hearing about consultations carried out in committee, we now have an opportunity to further address the issues that were raised, including issues raised by victims groups.
Senator Boisvenu: You will understand that the consultations on the Victims Bill of Rights were carried out before the bill was introduced. Are you telling me that a bill will be passed and military victims will be consulted afterwards?
I’m starting to believe that this bill was written by the chain of command, without any consultations with victims.
I have spoken with military members, and I am not sure this declaration will be a gift you will be giving to victims who have publicly spoken out over the past five or six years, especially victims of sexual assault.
Col. Strickey: Thank you for the question, senator. What I can say from a legislative history perspective is that when the CVBR was tabled, Bill C-32, the mirroring legislation was Bill C-71 in 2015. To the greatest extent possible, as was outlined in the legislative summary, the bill mirrored the Canadian Victims Bill of Rights. Then Bill C-71 died on the Order Paper and Bill C-77 was put forward.
In studying the proposed legislation and all four rights accorded to victims, to the greatest extent possible the CVBR has been mirrored.
Senator McPhedran: Going back to regulations, I want to thank everyone for helping me this past Thursday with the consultation call that we did and for your additional information here today. Regulations, as I mentioned before, are for the times when there’s bad judgment, to guard against bad judgment, and to provide a framework for action and thinking that overcomes bad judgment.
A lot of what we’re hearing here today sounds reassuring to me. It has a great deal to do with the individuals before us today. Regulations are not for one generation. Regulations are not for this generation of leadership. They’re for what comes after, as well as what we have now.
My biggest concern is that, in the way in which it seems the regulations will be drafted, they don’t appear to have a clear set of guiding principles. If I am wrong that’s great. Clarify that for me, please.
To the point of Senator Boisvenu, may I ask: In the course of drafting regulations, do you have plans to have substantive consultations with people who have experience and therefore expertise, to a large extent, that drafters seldom have in actually living through the processes that you’re trying to make better through the regulations?
Col. Strickey: Thank you, senator, for that question and observation. As I alluded to earlier, I can say a guiding principle of a regulation would be the drafting instructions. That’s about halfway through the process.
Prior to that process, in terms of gleaning all the expert support we need to draft the regulations you are quite right. Having drafted regulations, along with Lieutenant-Colonel Lortie, we may not be aware of all the what-ifs and unintended consequence that may be out there.
As Dr. Preston stated, that’s why, certainly in moving forward with these recommendations, it is critical to ensure that we receive the expert feedback that we receive.
To a great extent, in terms of going out to those experts, I would emphasize as a lawyer that we need to ensure we align the regulations in such a way to be true to the act, to be true to what the minister stated, and to follow through on his direction that the regulations would indeed bring this act to life on a day-to-day basis.
Clearly, that would entail great consultation with Dr. Preston, Commodore Patterson and her team, and with the chain of command, again having the benefit of this committee’s comments, of reviewing Hansard, of all the questions and of going back to the parliamentary committee for as much information as we can glean.
We would rely upon subject matter experts to give us information in terms of regulations rather than having a public consultation. We would also rely upon the subject matter experts to come to us representing a certain point of view as we rely upon the chain of command to represent its disciplinary requirements in terms of the summary hearing and not the victim aspect of things.
We have done this in terms of a consultation. We do this regularly. This is a very significant set of regulations. To finish my answer before turning it over to the other witnesses, I would go back as well to the proposed section 71.18, which means something in terms of the interpretation of this act, the regulations and everything we do if there is a guiding principle. I would say from a military justice perspective that often we would not have such a clear operating principle. It is clear in the proposed legislation, to the extent it is possible to do so, that every order, rule and regulation are to be construed and applied in a manner that is consistent with the act.
From a legal perspective, you can appreciate that would be our takeaway principle. Then we would glean the comments and expertise from outside to move forward with the regulations.
Senator McPhedran: I am hoping that both Commodore Patterson and Dr. Preston will answer the question about consultations with survivors.
Ms. Preston: I would like to add to that. There are two stakeholder groups that I would like to run the regulations by. One is our external advisory council that we’ve established. There is one former CAF member on our council who has lived experience.
I’ve certainly had a number of victims speak to me about their interest in being involved in reviewing the regulations. I wanted to make that clear too. When I speak about the SMRC being involved, I speak about us as practitioners, as experts from a professional point of view, and about the clients whom we serve.
In the last couple of months at the SMRC we have been establishing a formal stakeholder engagement strategy. I hope to use the strategy for the review of the regulations. The reason being that up until now we’ve been consulting ad hoc with people we have relationships with or people who are willing to do that for us.
Obviously, It’s Just 700 is a significant part of the stakeholder group, but we want to make sure we get a range of voices at the table. IJ700 doesn’t necessarily represent everyone. We don’t want to be ad hoc about it. We want to be very systemic. We want different voices at the table. We’ve developed a formalized strategy to enable us to do it in a much more proactive and comprehensive way.
My vision going forward is using the stakeholder strategy to engage in a number of things, including the regulations.
Commodore Patterson: With the expanded mandate or role of the SMRC, that puts where the chain of command sits in a supporting role in this case. For instance, this remains the number one institutional priority of the Chief of Defence Staff, and I am kind of his universal translator on that.
What will happen as we move forward? Dr. Preston talks about the consultation session. I act in a coordination role to make sure this happens. It is very much from the Chief of Defence Staff. He will look at Dr. Preston and ask, “Have we consulted the people who are required?” He won’t even move forward on it until that has occurred. I am basically a supporting component. I serve that role to make sure we don’t miss whether the JAG has moved forward and whether they discussed with the SMRC, et cetera.
Trying to break down those silos is one of the primary tasks of the strategic response team now.
Senator Pratte: I have two questions. The first is on Bill C-71, which was introduced by the previous government. I am looking at it quickly. I do not know it as well as Senator Boisvenu does — I am a novice to all this — but this is a declaration, and not a bill. It seems to me very similar to what is in Bill C-77.
Colonel Strickey, are there any significant differences that we could find in the declaration of victims’ rights between Bill C-77 and what was provided for by Bill C-71?
Col. Strickey: No. My colleague is looking at what we call a table of concordance between some changes. I’ll certainly follow up with you if it’s not the case, but our initial assessment is that there were some terminology changes but no significant changes between either piece of proposed legislation.
Senator Pratte: The second question is on more of a technical point. Some concerns were expressed about subsection 71.04(1), which gives the victim the right to receive information on the offender while they are in a service prison or a detention barrack. That seemed, to some witnesses, quite imprecise as to what information the victim would have the right to.
I am wondering about what you mentioned earlier about subsection 71.19(2), which is the exception. It seems to say that the Privacy Act, among other quasi-constitutional acts, would protect the offender from information that could be indiscreet or whatever.
Col. Strickey: Indeed, it is a technical question.
Senator Pratte: I am sorry about that.
Col. Strickey: No, no. That’s why I am here. It’s a warm-up for clause-by-clause consideration.
You’re quite correct. I would go back to section 71.18. Every rule, order and regulation made under this act, or any other act, will afford victims the rights in the declaration, to the greatest extent possible, with the exception of those quasi-constitutional pieces of legislation, of which would be the Privacy Act.
I will correct the record if I am wrong on this, but my first impression is that, to the greatest extent possible, the information will be provided to the victim with regard to the section 71.04 that you pointed out, to the point at which it would run afoul of the Privacy Act.
Senator Pratte: What kind of information was envisioned when the bill was drafted? What is envisioned?
Lieutenant-Colonel Lortie can answer that question? Okay. So what kind of information are we talking about when it comes to the victim obtaining information on the accused?
Lt.-Col. Lortie: The provision included in the declaration is meant to mirror the Canadian Victims Bill of Rights, where it is a matter of the Corrections and Conditional Release Act. That act lists various mechanisms used to determine what information can be accessible to the victim and is found in another piece of legislation.
For military members, that information is in regulations, while, in the declaration, there is a reference to establish the necessary regulations to get to the same types of mechanisms, without extrapolating on what can be had in the regulations, of course. Obviously, we will carefully consider the Access to Information Act, the Privacy Act and everything already in the Corrections and Conditional Release Act.
If I may come back to the exclusion mentioned in the declaration we were talking about earlier, when the offender is to serve a sentence in a penitentiary or a civil prison, the victim is told they are excluded from the declaration.
In fact, the mechanisms of the Victims Bill of Rights come into play at that point. The victim will obtain rights through the Victims Bill of Rights when the military member charged is to serve their sentence in a penitentiary or a civil prison. That is why there is a provision, in clause 61 of Bill C-77, that amends the bill of rights. That provision will be modified to mention that, in the case of military offenses, victims are excluded from mechanisms set out in the Victims Bill of Rights, unless the military member found guilty is to serve their sentence in a penitentiary or a civil prison.
The two mechanisms will be merged to ensure that there are no gaps and that, in both systems, the victim has all the necessary information at all times.
Senator Pratte: Okay. Thank you very much.
Lt.-Col. Lortie: You’re welcome.
Senator Richards: My question is for the colonel. Just as an overview, could you speak for a moment on Indigenous special circumstances?
I think I know what it might intend, but I am not sure if it’s clear in itself. Is it a policy for both a victim and an accused?
Col. Strickey: The answer, quite briefly, is that this is a mirroring provision to a provision that currently is in the Criminal Code with regard to sentencing an offender. It would not deal with victims.
A judge must consider, on sentencing, particular circumstances dealing with Indigenous offenders prior to sentencing. For the lawyers in the room, many of you would be familiar with the Gladue case, the original case in the Supreme Court. This is a mirroring of that sentencing provision.
Senator Richards: My sister is a judge, so I have some knowledge about it. Thank you.
Senator Gold: I have a very technical question. Although I am tempted to ask you, yet again, why you think this bill should pass, I won’t.
Bill C-77 entitles victims to a victim liaison officer, unless the commanding officer, to quote from the bill, “is of the opinion that it is not possible” to appoint one “for operational reasons.”
Could you give those of us who don’t have a military background some examples of what operational reasons might exist that would trigger this particular exception? What is the thinking behind it?
Col. Strickey: If I could, senator, just on your question regarding the bill, I didn’t get a chance to answer it. Clearly I am an official here. I do not advocate one way or the other, but I would like to point out, from a military justice history perspective, that I’ve had the pleasure of working on a number of bills that have come before this chamber, if not before this committee. We usually have gone before different committees.
When you look at the reform of the modern military justice system since 1999, Bill C-25 ushered in that system. There has not been a significant number of bills that have made big changes to the National Defence Act. As the JAG alluded to, current section 273.601 calls for an independent review to look at a number of things, including Part III, the Code of Service Discipline. That was part of Bill C-25. In 2003, Chief Justice Lamer did such a review and submitted a report.
Bill C-7, Bill C-41 and Bill C-45 were subsequently tabled in various parliaments, but because of elections and various other things they died on the Order Paper. It was not until Bill C-15, in 2013, enabled the changes recommended by Chief Justice Lamer to be examined. It was not until the good work of my colleague Lieutenant-Colonel Lortie working on the regulations that affected those changes very recently.
From a historical perspective, the changes in the military justice system are not frequent. I will correct the record if I am wrong, but I recall the then Minister of National Defence in 2014 described this bill, although it was Bill C-71, as enshrined to align the military justice system with the civilian justice system. That was in April 2014, and here we are.
From a historical perspective, although I clearly take no position one way or the other, I’ve had the benefit of working on many of those pieces of legislation, including Bill C-71. From a historical perspective, it is very rare that major changes to the military justice system are made. I wanted to make that point because I spend a lot of my time doing these things. I find it very interesting and fascinating. I am certainly pleased to do so.
In terms of your other question, Commodore Patterson might have some comments from a chain of command perspective. What I can say from a legal adviser perspective is that there are times when the military justice system is portable. We travel where the soldiers, sailors, airmen, airwomen and special forces are in terms of summary trials, summary hearings and the entirety of the military justice system.
You will see current provisions in the Queen’s Regulations and Orders dealing with appointing an assisting officer. To the greatest extent, for operational reasons, it may be a factor that the commanding officer wants to appoint a particular officer, a non-commissioned member, but for whatever reason, operationally speaking, cannot do so. The person could be in another country on an exercise. The person could be unavailable, whatever that may be.
That is a reflection of the current provisions of the assisting officer in the summary trial system where an accused gets the choice of an assisting officer to the greatest extent possible, but there is an issue with operational concerns and reasons.
Commodore Patterson: I have nothing else to add. That about sums it up.
Senator McPhedran: I want to pick up on the explanation where you referenced a situation out of the country to make sure I understand it clearly.
If an alleged assault occurs outside of Canada where members of the Armed Forces are involved, they are not covered by Bill C-77, as it now reads, unless all parties are transported back to Canada in order to have this dealt with.
Col. Strickey: I will be a little more precise. If the offence occurs in Canada, right off the bat there is the connection to Canada subsection 71.15(2):
A victim is entitled to exercise their rights under this Division only if
(a) they are present in Canada; or
(b) they are a Canadian citizen or a permanent resident . . .
I will let Lieutenant-Colonel Lortie correct me if I am wrong. If you are a Canadian citizen, if you are a member of the Canadian Armed Forces, if you are overseas and you are a victim, you have the benefit of the declaration of victims’ rights.
Senator McPhedran: Is it overseas or only if you come back to Canada?
Col. Strickey: Overseas because you’re a Canadian citizen.
Senator McPhedran: Or a permanent resident.
Col. Strickey: Or a permanent resident, yes, as per the bill.
The Chair: Let me take this opportunity to thank our witnesses. They brought it in right on the minute. We appreciate the long afternoon you’ve spent with us. Thank you for answering all our questions. It’s greatly appreciated.
The Chair: We are pleased to welcome once again to the committee Marie-Claude Gagnon, Founder of It’s Just 700; by video conference, Diane Crocker, Professor, Department of Sociology and Criminology, Saint Mary’s University; and Sergeant (Ret’d) Jessica Miller.
The Chair: Ms. Gagnon, would you like to start?
Marie-Claude Gagnon, Founder, It’s Just 700: I thank the committee for the opportunity to share my observations today.
Before I start, I would point out that for the last four years military victims were forced to face a justice system that delayed their rights. The drafting of the proposed declaration of victims’ rights in the Code of Service Discipline was done without the input of military victims. Now, time constraints now leave us with no choice but to limit our recommendations to ones that will most likely be well received and modified.
Today, I will share my main concerns about this bill as a former naval reservist from the Canadian Armed Forces, a military sexual trauma survivor and founder of the group It’s Just 700, dedicated to Canadian survivors of military sexual trauma.
First, the declaration of victims’ rights should be renamed. By its own title, this addition to the Canadian Armed Forces Code of Service Discipline has less meaning than the Canadian Victims Bill of Rights. A declaration means a formal statement, proclamation or announcement. A charter means a formal document by which a government grants rights, power and privilege to a person or the people. Also, this title may confuse francophone victims since the victim impact statement is called the “déclaration de la victime.”
Second, the basic set of principles found in the Canadian Victims Bill of Rights preamble should be in the proposed declaration of victims’ rights. If the declaration of victims’ rights is meant to mirror the rights of Canadian victims, it should include its basic set of principles, particularly the following statement:
. . . victims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for their dignity,
And this statement:
. . . victims’ rights be considered throughout the criminal justice system,
Third, the declaration should ensure that victims are proactively made aware of their rights to information and to appoint a victim liaison officer by removing the terms “on request” and “at the request of the victim.”
I was 21 years old at the time of my assault at sea. I was a young reservist easily intimidated by hierarchy, ranks and confused by the complexity of the military justice process. With no access to the Internet, nobody to inform me of the options, resources and support available to me, I had no idea of my rights.
According to the Statistics Canada 2018 Survey on Sexual Misconduct in the Canadian Armed Forces. For the victims of sexual violence in the Canadian Armed Forces morality is not that different from that of today’s victims 20 years later. This declaration should ensure that victims are proactively made aware of their rights. Military judges should also be required to inform victims of any order made under section 147.
Fourth, the role and training of the victim liaison officer should be more defined. According to the Auditor General Report 5 — Inappropriate Sexual Behaviour — Canadian Armed Forces, training given to the chain of command was not sufficient to understand how to effectively respond to and to support victims.
The same report found that in 21 of the 52 cases the file showed that victims experienced fear, distress, discomfort, a lack of support, reprisals or blame, including the victim’s commanding officers, senior leaders, instructors and colleagues.
As the Federal Ombudsman for Victims of Crimes pointed out last week, the role of the victim liaison officer could be further strengthened by explicitly stating that the VLO is also responsible for providing information to the victim mentioned in my third recommendation. His or her role should be expanded to help victims work through the justice process, inform them about the documents that can be given on consent as stated in the bill, help them obtain these documents so as not to put the whole burden on the victims, and provide information on how to access additional victim services and legal information.
VLOs should be military lawyers to help ensure that victims have access to a person well versed on victims’ rights and the military justice system, protected against unit bias, independent from the chain of command, and able to safeguard the victim’s confidentiality.
Victims should be informed of their right to have a liaison officer who has received adequate trauma-informed and victim-centric training. I concur with the ombudsman that any substitution of this role should be done by someone with an agreed upon basic knowledge, experience and training, and an absence of conflict of interest. The appointment of this substitution should not be left to the discretion of the commanding officer or anyone else placed in a conflict of interest. The choice of the substitute and the reason that the VLO is not provided should be clearly documented.
My recommendation is therefore to add the additional role I just highlighted to the victim’s liaison office section in proposed subsection 71.16(3) and ensure that training requirements are clearly stated either in the bill or in a subsequent regulation.
Fifth, and of utmost importance, victims should have the right to appeal decisions or orders on the ground that rights under the declaration have been infringed or denied and that no cause of action should be removed from this bill.
The 2018 Auditor General of Canada, Report 5 — Inappropriate Sexual Behaviour — Canadian Armed Forces, found that the required procedure to help ensure the needs of victims are met was not followed in 31 of the 46 military police cases the OAG sampled. This means victims were not always contacted to provide statements and were not provided with the required support, the information package, or even offered referral services at the start of the investigation.
As the Federal Ombudsman for Victims of Crime declared:
. . . appeals related to infringements or denials of victims’ rights to ensure the effective oversight and enforcement of victims’ rights. . . . Victims’ rights must be enforceable in order for the military justice system to be held accountable for the rights it will be mandated to provide under the declaration of victims’ rights.
“No cause of action or right to damages arises from an infringement or denial of a right,” under the division declaration must be removed so victims have the power to exercise and enforce their rights if they are not respected. Oversight cannot be ensured if this section remains.
Before I conclude, I would like to recommend two other points. First, the application of this declaration should be reviewed within a year or after the Beaudry decision.
Second, the declaration of victims’ rights should also be applicable to civilians, employees and families that must go through the military justice system.
Diane Crocker, Professor, Department of Sociology and Criminology, Saint Mary’s University, as an individual: I am a professor of criminology at Saint Mary’s University. I have spent my research career researching topics around gender-based violence in particular. My comments will have to be limited to that domain and to the victims of sexual violence, intimate partner violence and domestic violence.
I’ve also done a fair bit of work on restorative justice. My interest really lies in how we achieve justice for people and what that means to people, particularly when we’re talking about crimes that disproportionately affect women. This is particularly relevant to the current military context and some of the issues that have come up.
In my experience through hundreds of interviews with victims and offenders and perpetrators, and those who work with them in prisons, community agencies and government agencies, I’ve been struck by the mismatch between people’s expectations of justice and what our systems provide. I mean more than our justice system or the system in a larger way. It holds true for victims and perpetrators, but what is at stake here today is victims.
From this work and reading the work of others, I have concluded that our systems take a far too narrow, retributive and adversarial approach to justice. We’ve narrowed justice down to punishment, just desserts and rights, and pitting rights of accused or offenders or perpetrators against victims.
In my experience of talking to victims, this hasn’t actually served their interests well even though it’s appealing to appeal to rights.
Restorative justice scholars and petitioners in particular speak of how crime creates harms and obligations. They don’t speak in terms of rights. Crime creates harms and obligations, but our current justice system fails to address either. My concern with this sort of preamble is a broader concern about framing victims bills of rights as a way of achieving better justice or even, in the context of the military, creating some kind of culture change for how victims experience what happens after there has been an offence of some kind.
Restorative justice practitioner Dennis Maloney in his thought experiment says that if we were walking down a road at night and saw a woman in an alley being brutally assaulted, and her children were there and were terrified, we would help her. We would let the perpetrator flee. We would help her, not because she has a right to that help, but because she has been harmed and we have an obligation to help her and support her. Our current justice system in the way we frame justice around rights doesn’t lend itself to helping.
My understanding is that I am here today partly because of a project that I am involved with in partnership with the Nova Scotia Advisory Council on the Status of Women, a community-based organization called Be the Peace Institute and a colleague of mine at Mount Saint Vincent University Deborah Norris.
We are collecting justice stories from people who identify as having been victimized by some form of gender-based violence. We’re not asking them their opinions, to start. We’re asking them their stories. We have a lot of research that documents the complaints that victims have and the terrible experiences they have when brought into a justice process through no fault of their own.
Instead of asking them their opinion, we’re starting with asking about their story. Then we’re using those stories with them together to draw out principles of justice that underlie what their sense of justice would look like.
The issues covered in the Canadian Victims Bill of Rights don’t come up. The principles that underlie their sense of justice form around ideas of identity, agency, denunciation and getting support to regain their sense of humanity. I can say more about those later, if you’d like, but it’s not necessarily always about the criminal justice system either.
We have no stories of victim impact statements in our stories. The mostly women that we’ve talked to have identified stories about justice or having agency, having the ability to decide things for themselves and having supports to move forward with their lives.
While very well intentioned, I don’t know the full intention of this addition to the law, but there is not enough in here at the level of principles, I don’t believe, to truly change how much around how victims will experience the processes they go to. I don’t have the specific details of the previous speaker. Leaving aside the question of whether a rights-based approach is the best way to support victims, there are some limitations here insofar as the rights outlined offer the right to protect but don’t operationalize how. The right to participation is defined as the right to express views. The right to restitution is a right to have restitution requests considered.
In a sense it really doesn’t empower victims in the process. It gives rights to speak, rights to ask questions, rights to get information, but it doesn’t address the injustice stories that we’ve been told and the research that we’re doing.
In essence it doesn’t address the harms. It doesn’t put any obligations on the state, the military, the military community or the community at large to make things right for people who have been harmed.
Sergeant (Ret’d) Jessica B. Miller, as an individual: It is a privilege to be here today. I thank the committee for allowing me the time to speak and deliver a first-hand account of what it was like to go through Operation HONOUR.
I served proudly for nearly 22 years as a medical technician. I deployed to Afghanistan, to operations throughout the Caribbean and to aid the Civil Power in Canada, and I am a survivor of military sexual trauma.
It is important for me to give a short background about what brought me here today. I worked for a physician assistant on board the HMCS Toronto, who I believed would be a mentor and a guide to becoming a better medic and a stronger leader. Instead, I found myself trapped on a ship with a man who decided it was his privilege to slap my buttocks, grab my breasts, run his fingers through my hair, or touch me in any way he wanted. He would kiss and hug me without my permission.
When I was would say no, he would beg. He threatened me with a poor performance review if I spoke up. He never used my name or my rank. He called me baby girl.
I endured this for nearly 10 months. I couldn’t go to my chain of command. He was the chain of command. I knew what the outcome would be. I would lose my position on the ship, and I would be responsible for mission failure. He ensured I knew that.
When I knew I was ready to speak, I was asked to talk with a CFNIS investigator in Halifax. I walked into a non-descript building and escorted into a small sterile room. It was all new, intimidating and incredibly scary. I had to tell a female investigator my deepest pain. I had to describe in detail each time he touched me, how it made me feel, and then talk about things that I was not ready to even speak about.
I walked out of that building alone and confused. The investigation process had just begun, but things got worse from there.
The original prosecutor changed because he was posted for operational reasons five months before the trial. The first prosecutor did his post charge review. He preferred four of the charges, including sexual assault. The original prosecutor’s intent was to move forward with that. He told me which punishments he would be seeking.
The new prosecutor posted in. He was given my file to review. I say “he” because I am unsure to this point who the second prosecutor even is. The prosecutor took a file and plead down sexual assault charges without ever meeting me, not even once. I never spoke with him in person, on the phone or even by email. I was never scheduled for a meeting with him. He never even heard my voice describe the trauma I had been through.
In the end, the prosecutor plead down from sexual assault crime to a service incident, and he plead guilty to the charges under 129. He paid a $1,000 fine and walked out the courtroom door.
I only learned of the court proceedings and final decision because I googled it. No one has reached out to me, not even anyone to this day, including the prosecutor, CFNIS or the victim’s liaison person. No one has followed up to see how I am, to give me details of the case or how it came to a conclusion.
The Canadian Armed Forces tried a case of sexual assault, multiple sexual assaults, and the prosecutor never even bothered to meet the victim.
I have many suggestions on how to fix these issues, but I found three topics that are small changes which will have a large impact.
First, there is always one consonant in the Canadian Armed Forces: passage of information in a timely manner. It is one of our guiding principles of leadership. Communication is key to success.
After reviewing Bill C-77, An Act to amend the National Defence Act, I found a reoccurring theme throughout. Under general information, investigation and proceedings, information about the offender, there are two words that must be removed. By adding “on request” throughout the document, you have put the onus on the victim. This is not fair to the victim and what they have endured. Violation of your body is the greatest personal attack. Victims of sexualized trauma are just that, traumatized.
To expect a young junior sailor, soldier or air person to know what information they are entitled to is an impossible task for them. Unless you’ve lived through the sort of trauma, you don’t know how hard it can be to come forward, let alone reach out. You fear you’ll be the one getting in trouble.
You have the ability to make a strong impactful change that will affect many survivors of trauma. Give the power to victims. Let them feel they are part of the process. Take more time to bring them in and speak in person. No random phone calls.
Have the prosecutor sit with the victim, have him or her feel what the other person has been through. Empowering a victim with the right to information and not upon request is the first step in healing. Take the pressure off the victim and engage with them. Don’t wait for a scared, confused and traumatized person to think of a question to ask. Let’s give back the power to those who have been traumatized. Please remove those two words.
Second, as I first mentioned, going into a building off base to tell your deepest secrets to a stranger was an anxiety-filled experience. I was alone, and my brain could not process what was happening during that interview.
Section 71.16 describes the intent of the victim liaison officer to give support. This would have been a wonderful asset for me, but it can’t just be someone who is randomly appointed and given a three-day training source. A victim liaison officer needs to be fully aware of law situations, the procedural process, and able to handle mental health situations and comfort the victim as needed. This position cannot be randomly selected. The officer needs to be approachable and have compassion.
I want you to know how important this position is. It is almost equally as important as the nursing case manager you receive when you’re leaving the forces.
Part III of the act amends other things. Subparagraph (b) protects the privacy and security of victims and witnesses in proceedings involving certain sexual offences. I ask, why is victims privacy only secured in certain offences? Why aren’t all victims of sexual assault or harassment given the protection and safety of keeping their names out of the media?
Had I reviewed the public affairs officer media release prior, I would have asked to remove one word, “subordinate.” If the PAO knew, he or she would have removed it too because I was his only subordinate.
Once the charges were published across Canada, I was quickly identified and I lost the last bit of security I had. Under subparagraph (g), certain circumstances require a military judge to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any prearrangement entered into by the accused and prosecutor.
Again, why is it only in certain circumstances? What are those reasonable steps? Why aren’t all victims of sexual assault given the dignity of information? The judge should always ensure the victim has been informed in all cases, not just a select few.
Had the judge asked the prosecutor in my case, he would have found out that the prosecutor standing in front of him had no idea who I was. He didn’t know anything more about me than what was in the file. He never heard my pain, saw the torture on my face or how this has impacted my life.
My unanswered question is: How does a federal prosecutor for the Canadian Armed Forces plea down a civil crime like sexual assault that occurred over many months and on deployment to a service-related offence, all while still pleading guilty to performing these heinous acts? He plead guilty to doing all the things I described earlier, but he was charged only under NDA 129, and all the other charges disappeared. They didn’t even make it to the conduct sheet in court.
I ask you to please read the judicial decision written by the lieutenant-colonel. Read his misogynistic words. Read how he praises my assaulter. Read how he describes kissing as being okay in some cultures and how the guilty knew what he was doing was wrong, but still only gave him a $1,000 fine.
Making these simple changes to the bill will have a big impact for every victim. Giving victim power of knowledge and communication, allowing the victim to keep their privacy and assigning caring, compassionate liaison assistance will give a victim someone they can trust.
I hope these small changes can be implemented. Eradicating sexualized culture in the Canadian Armed Forces will take many years of hard, dedicated work. If we work as a team, and that team includes victims, I hope my assault and lack of punishment to the guilty will be a wake-up call for those involved in Operation HONOUR.
Military sexual trauma is real. It has a huge impact throughout the forces. Let’s start making a difference and protecting members in uniform so we can protect those who truly need our help.
The Chair: Thank you, Sergeant Miller. We will now move to questions.
Senator Dagenais: I’d like to thank the three witnesses. My first question is for Ms. Gagnon. From one committee to the next, what I’m noticing as we consider bill after bill, is that the government thinks it knows everything and has no regard for those who don’t hold the same views or think the same way. Why didn’t the government consult you when it was drafting this bill? It would appear to be standard practice for this government.
Ms. Gagnon: Since there wasn’t a legal obligation to consult, a decision was made not to hold consultations.
Senator Dagenais: I would say the first people who should be consulted on a bill to better protect victims are the victims. They can look at the legislation through a lens politicians can’t. In your view, what are the bill’s biggest flaws, and do you think it could be amended to make things easier for victims and improve their lot?
Ms. Gagnon: The biggest issue, as I see it, relates to the declaration of victims’ rights and the no cause of action provision.
That’s the most important part of the bill, because, as it stands, the declaration of victims’ rights has no teeth. No accountability is provided for. A modicum of accountability should be established to ensure victims’ rights are respected. According to the Auditor General, most of the procedures that were put in place weren’t followed or subject to any accountability. Every five years, we can’t keep being told that the system isn’t working, prompting the department to make promises and so forth. Real action is necessary to tie the declaration of victims’ rights to some form of accountability.
Senator Dagenais: My next question is for Sergeant Miller.
I’d like to talk about assaults or offences that occur during missions outside Canada. Do you think the bill will make a difference for victims like you? I believe you said you were assaulted on a ship or while you were out of the country. How would this bill do more to help you?
Sgt. Miller: I think it would depend upon where the assault took place. Was it an assault that was between two Canadian service members, or was it an assault between service members from different countries?
In my case it was my direct boss, so it was the physician assistant on board. Because we were on ship out in the ocean, we were told that we were still technically in Canadian jurisdiction. Therefore, everything still applied under the Canadian law because we were still on a Canadian ship.
He happened to use the opportunity of being in an isolated area to take advantage of the opportunity.
Senator Dagenais: My last question is for Ms. Crocker. What have your research findings revealed about how perpetrators in positions of authority behave? Do you think Bill C-77 can restore any justice?
Ms. Crocker: I missed the first part of the question. I am sorry. I didn’t catch that.
Senator Dagenais: In your research work, what have your findings revealed about how perpetrators in positions of authority behave, and do you think Bill C-77 is a solution that can restore some justice?
Ms. Crocker: Thank you. I didn’t catch the first part about people in positions of authority.
In the interviews we’ve done I don’t think the victim’s perception of the attitudes of people in positions of authority change with the notion of the rights of victims as articulated in this bill.
I don’t think they change the culture of disbelief, of prosecutors feeling an obligation to sit down and share, or of navigators or liaisons being very trauma informed. I don’t think those things necessarily arise from the articulation of rights.
People in authority who provided justice in the stories that I heard tended not to be in the criminal justice system. They tended to be outside it. They tended to be social workers, sometimes lawyers, but lawyers more on the victims side, and other informal support networks. Those are the people in authority who in our stories provided justice to victims.
Senator Dagenais: Thank you very much.
Senator Boisvenu: I’d like to welcome the witnesses. Ms. Gagnon, this isn’t your first time before the committee. Your input has always been extremely helpful.
Since you weren’t consulted as part of the process, we, on our end, will endeavour to do just that.
I can’t get over the fact that Canadian Armed Forces Command handled the bill in much the same way it would have gone about procuring a used submarine. It would be quite normal for senior leadership to make such decisions. However, moving forward with a bill without asking victims whether it would make things better for them once they had reported their attacker shows a total lack of respect for victims. I get the impression that this was simply cut and paste from the victims bill of rights, with precious little attention paid to the circumstances of sexual assault victims in the Armed Forces. I’m quite worried when it comes to your future, ladies.
If, instead of a “declaration” of victims’ rights, this were called a “charter,” or “bill,” of rights, do you think it would send a clear message to victims in the Armed Forces that they matter? Symbolically speaking, a charter and a declaration are not the same.
Ms. Gagnon: Yes, I do think the word “declaration” is full of good intentions, as the federal ombudsman mentioned, but means little. It’s merely words on paper. At the very least, the wording could be equivalent to that used on the civilian side.
Senator Boisvenu: If all the issues in the bill could be removed, would it then be possible to truly recognize the rights of victims in the armed forces?
Ms. Gagnon: I think that would make a big difference, because the bill lacks teeth in its current form. There’s always a way to circumvent the system, and not necessarily through exceptions. I’m familiar enough with how things work in the Canadian Armed Forces to know that situations can be manipulated to justify not respecting victims’ rights.
Senator Boisvenu: Should victims be given a copy of the order?
Ms. Gagnon: Yes, victims should be able to obtain a copy of the order so they are aware of what’s going on. Given the frequency of postings within the armed forces, it can be very unsettling for victims to find themselves working alongside their attacker in another setting.
Senator Boisvenu: When a victim is represented by a third party, is it important that the victim, rather than the armed forces, choose the representative?
Ms. Gagnon: Yes, because it could create a conflict of interest, especially when the representative is designated through the chain of command. What safeguards are there to make sure the person isn’t subject to influence or chosen for their personality or views? The victim should be the one to choose her representative to ensure some degree of independence. A unit is small. In a place like Gagetown, nothing prevents a commanding officer from attending a social function with an accused, a victim or a liaison officer, so that unit cohesion can be detrimental to the victim.
Senator Boisvenu: Given all the interpretations attributed to the declaration, do you think it would be better to proceed on a step-by-step basis or take a few extra months to improve the bill to make sure it does what victims want it to and meets their expectations, as opposed to going full steam ahead? If we rush things, victims may end up being disappointed. When victims come forward, they need to feel protected so they stay in the armed forces.
Ms. Gagnon: From the research I did based on my group, I can tell you that the proportion of victims who stayed in the armed forces was 7 per cent.
Senator Boisvenu: Do you think we should take a few extra months to examine the bill to make sure it meets victim’s expectations?
Ms. Gagnon: If we are talking about a few months, I think that would be very significant. We’ve been waiting for four years. We weren’t consulted and we weren’t given the opportunity to propose changes that could make a real difference for victims. I think it would be better to wait a bit.
Senator Boisvenu: Thank you. After today, consider yourself consulted.
Senator McPhedran: I want to thank Professor Crocker, Ms. Gagnon and Ms. Miller for being with us today. It not only takes courage to make a complaint. As someone who has represented survivors in other cases, it takes great courage to follow through when things don’t go well and to try to make it better for others.
You may have been here earlier to hear me ask the minister whether this bill is likely to die on the Order Paper. You may have heard his answer that he thought there was a reasonable possibility of that.
In some ways I am sharing with all three of you the opportunity to think about this bill in much the way that my colleagues and I on the committee have to struggle. You’ve heard very excellent points made by colleague senators about changes. You’ve made excellent points about changes. I happen to agree strongly with many of the points that you’ve made, but is this bill worth having as it is with no changes?
Sgt. Miller: I’ll be honest, no. If I approach this from a leadership position, as a sergeant, if I had a young member come to me and describe what happened to them and we went looking for their rights, what’s the next step?
What is it we have to do? If I took Bill C-77 as it is right now, with someone who was a victim of sexual assault, we would look it over and be lost on what to do next, what the expectations are and what the victim can expect moving forward.
The entire bill is very ambiguous, saying almost everywhere it can be put in, “on request.” I read Bill C-32, the Canadian Victims Bill of Rights. It’s glaringly similar; it’s almost verbatim. Taking an institution like the Canadian Forces, which prides itself on being an independent institution from the Canadian general public, we need to have our own bill of rights that is clearly laid out step by step so that everyone can understand what is expected of them from the victim to anyone going forward.
Right now, the way this bill is written, it doesn’t say much at all.
Ms. Gagnon: That’s a difficult question. I’ve made statements before saying that it is better to have one than none. At the same time it’s difficult. If it was that important, why wait until the last minute to make it pass?
I can’t see the teeth in it. I wish I could. I’ve changed my mind from when I spoke. At the end of the day, I would rather have none than have this.
Ms. Crocker: Leaving aside my concern about framing justice issues around rights, it is very much like the Canadian Victims Bill of Rights. One of the problems is that it can create harm by creating expectations that may not be fulfilled.
I don’t know enough about the military system, but what I’ve heard from Ms. Miller and Ms. Gagnon leads me to believe that some specific procedural issues of authority and seniority need to be addressed. This could create more harm than good if it leads people to expect certain things will happen and they do not.
In our stories we hear that one of the injustices people experience is that their expectations are not met. They feel betrayed by the system for laying out certain things it couldn’t deliver on.
Senator Gold: Thank you for your answers to a tough question. I am sure the answers are also tough.
I don’t know if you were here for some of the testimony that preceded yours. We asked the minister and the officials a number of questions. They provided answers on a number of issues.
As you know, a lot of this will get fleshed out in regulations. They advised that there will be a full range of training for victim liaison officers. They made it clear that it would be for the victim to choose his or her victim liaison officer, and not one simply assigned by the commanding officer. They seemed open to providing and getting input from stakeholders and victims as the regulations developed.
To the extent that you heard what they have in mind when they give it teeth, put flesh on the bones, or whatever the right image is, would you still feel the same way about the bill? If the bill can’t be amended, died on the Order Paper or went forward with those provisions in the regulations as you’ve heard, would that change your mind?
We would all like to see in a crystal ball what the regulations would look like. I am mindful of what you’ve gone through and really appreciate your courage and presence here today. Based upon your knowledge of how the system has failed in many ways, would anything you have heard from the officials and minister change your perception of the possible benefits of this bill, if we could just imagine what it would look like in the future?
Ms. Gagnon: I don’t know if you have heard of the crime victim assistance that I was provided by the Canadian Armed Forces. It was broadcast everywhere on their website and as a service. There was a long time, I have been told, where not all the positions were filled. I don’t know if anyone was able to benefit from it. It was on paper but it never happened.
That’s what happens when there is a lack of accountability. I hear promises. I’ve been hearing them a lot. Consultation was done in the past for the court martial review tribunal, for example. I was invited, but it became a discussion piece that would not be looked into. Many things like that happen without accountability. There needs to be a way to be accountable.
My best would be if there were some amendments. As is, if it matters to some victims then great, but I don’t think it will make a difference for victims. What makes a difference is not necessarily the report. It’s furthest victimization. This is what happens with this bill. The support isn’t as it should be, and people are further victimized.
This is why there is such a high number of people leaving the military after they report. When that happens, it makes other people not want to report because they see their peers reporting and leaving the forces. It’s damaging for victims.
I understand, if there were amendments, the value of having something in maybe a couple of years. It won’t make a difference for me if it needs to pass. To be honest, I would prefer to wait a couple of months. I don’t know what else to say. We are stuck between two difficult places.
Sgt. Miller: I can add that this bill is very broadly written. In the forces we’re taught and indoctrinated from the very beginning that we follow the rules. We follow the chain of command.
Things just get lost if we don’t have a guiding principle, if we don’t have a full and clear set of rules as to what is supposed to transpire and the order of that. The ball gets dropped.
I went through an entire trial, and I never saw the prosecutor. He tried a case with me as the victim, and I don’t even know who he is. Those are the things that should be clearly laid out. It should not be assumed that a lawyer would want to speak to a client.
Senator Gold: Perhaps my question was not precise enough, but thank you for your answer.
We were told by the minister, and it’s clearly in the act, that the procedures and definitions of offences, the whole infrastructure of the rights of victims and the coordination with the independent senators will be fleshed out in the regulations. These can only be worked on if and when the bill is passed.
I was asking whether or not it is a leap of imagination or perhaps faith. Would this framework, supplemented by the Queen’s regulations which you’ve lived under in so many ways, change your opinion of this bill, imperfect though it is?
I agree with my colleague. I agree with many of your comments and recommendations. I agree with the intent, spirit and content of them.
We don’t have three months because Parliament will rise. The brutal reality is that we either pass this bill, amended or not.
It might or might not die on the Order Paper, but we certainly don’t have three months. It will be for the next Parliament then to decide, as it had to do in the past, whether we start over or resume work on it.
That’s the challenge we have as legislators. I wonder whether your views were informed by the regulations and the undertakings about the content of the regulations.
Sgt. Miller: Essentially, you’re saying that we need to potentially take this bill as it is, and then in moving forward there would be amendments to clarify the various points.
Senator Gold: I wasn’t suggesting that you have to do anything. That’s kind of what falls on us.
Sgt. Miller: No, that is what I am asking.
Senator Gold: Amended or not amended, if this bill passes then there’s a whole next step where regulations have to be developed within the military in consultation with others, including Dr. Preston.
A number of witnesses have said they understand that much of the action will be in the regulations for better or for worse. The regulations will either really improve support for victims or they won’t, and we don’t know yet. We’ve had undertakings that they’ll be attentive to these.
I didn’t mean to put you on the spot. The hard choice we’re faced with is that a bill, imperfect as most bills are, is to be fleshed out by regulations that we haven’t seen. Although we’ve had a lot of discussion about them and commitments about what might go into them, we’re at the end of a Parliament. Whatever decision we make over the next days and weeks will determine whether or not we have anything at all.
Ms. Gagnon: I studied political science at university and how Machiavelli learns from history. When I look to history, I don’t see the promise when this is together. Over the last five years there has been a lot of promises. I don’t know if you saw the progress report from 2016 and then the one that was never delivered. It took a year and a half when it was supposed to be quarterly.
There were many promises, but which ones were kept? I am looking at that and thinking, “What guarantee is there that this one will be kept?” Looking to history right now, I can’t find much that has been kept.
Senator Richards: Thank you very much for being here today. My question has kind of been answered, but I will ask it again.
Ms. Gagnon, you mentioned a number of amendments. Even with the amendments, do you think the bill is worth it? In what ways do you think the bill fails?
If you could answer it again, I wouldn’t mind.
Ms. Gagnon: With the amendments, definitely I would support it.
Senator Richards: You would support the bill with the amendments.
Ms. Gagnon: Yes, I would.
Senator Richards: Without the amendments, do you think it’s a failure?
Ms. Gagnon: Yes.
Senator Richards: Do you think the same, Sergeant Miller?
Sgt. Miller: Absolutely. I am in complete agreement with Ms. Gagnon.
Senator Richards: Ms. Crocker, you were talking about rights compared to justice. I am wondering if you could expound on that. You mentioned rights compared to justice and that you didn’t want to confuse the two or whatever.
Perhaps you could clarify that for me. I didn’t quite catch what you were saying.
Ms. Crocker: Yes. In the face of the stories we’re hearing from Ms. Miller and Ms. Gagnon, it’s a bit of an academic point. You are attempting to get better justice for victims and enhancing the rights of victims. The argument is that if you balance the rights of the accused and the rights of the victim, you will get more justice. That is fundamentally flawed as a way to get justice for victims.
That doesn’t say that we shouldn’t provide the rights to information, as Sergeant Miller was talking about. The right to that information is fair enough, but in terms of the stories that I hear those are not the things that people identify as what got them justice at the end of the day.
If the idea is to make sure the rights of victims are protected in this bill, the right to information, the right to participation and the right to restitution, that is fair enough, but the bill doesn’t actually give those rights beyond information. Even that has caveats, it sounds like, in the opinions of others who have testified. It gives opportunities to express views.
Victims who read the Canadian Victims Bill of Rights read that they have the right to participation and then feel harmed by the fact they don’t really have a right to participate. They have the right to share their voice, but it doesn’t necessarily have to be accounted for or brought into the hearing. There are ways in which they feel that it doesn’t matter.
My concern about some of the rights framed in this way is that they can create harm by creating expectations. Also, by giving victims’ rights doesn’t create a more just system. It certainly doesn’t precipitate culture change. If a military culture exists that is supportive of or is ignoring some of the issues underlying these problems, then these rights aren’t going to change that either, unfortunately.
Senator Richards: Thank you.
Senator Pratte: I have a question about the right of appeal. There’s been a lot of discussion around the bill’s failings, which are of concern to me. I would point out that those same failings were in the legislation brought forward by the previous government.
For example, Bill C-71, under the former government, already used the language “to the extent possible” and “at the request of the victim.”
Essentially, the content of the declaration of victims’ rights specific to the military was already known because of Bill C-71. It says the same thing. It’s a cut-and-paste job.
Ms. Gagnon, you said the right of appeal was probably the amendment the bill needed most. Could you explain your position? The bill already sets out a complaints mechanism, but we don’t know exactly what it will look like. The officials we heard from earlier said it would be fleshed out in the regulations. When you talk about the right of appeal, what would you like to see in place?
Ms. Gagnon: It’s not just the right of appeal; it’s also the right of action, which is of particular importance in this case. If a victim’s rights aren’t respected, they won’t be able to bring an action. Herein lies the problem. How is it possible to ensure victims’ rights are respected if they have no recourse? How is it possible to ensure accountability if victims have no recourse and the system bears no responsibility?
According to the Auditor General’s fifth report, a mistake may have been made, but there was no oversight. As long as things continue to be done in the same way, nothing will change. Making the system accountable is key.
These are just words, so there is nothing to guarantee that the system will bear responsibility if victims are not provided with services in accordance with their rights.
Senator Pratte: The cause of action mentioned in the bill refers to the ability to initiate legal proceedings. Victims will have access to a complaints mechanism if their rights aren’t respected. The internal complaints system will probably include an appeal mechanism. It won’t involve going before the courts.
Would you like victims to have the opportunity to go before the courts to have their rights respected, under the legislation?
Ms. Gagnon: Victims need recourse. It has to go beyond their complaint being dismissed once it’s been reviewed. There has to be some accountability. It has to be documented when one of their rights hasn’t been respected. It’s about more than just having their complaint acknowledged only to be dropped.
Senator Pratte: Sergeant Miller, do you have any comments on this issue?
Sgt. Miller: Are we referring to an appeal as an appeal to a decision, or are we referring to an appeal as to rights?
Senator Pratte: The issue is: What kind of appeal mechanism should exist if the rights provided to victims in the bill are not respected?
The bill says that there will be some kind of mechanism to treat complaints, but this mechanism will be defined by regulation. The bill also says that you can’t go in front of a court to have your rights confirmed or whatever.
Sgt. Miller: I did go through the appeal process after the decision came down for my court case that I wasn’t involved in. The decision or all the findings that came out were basically that they did not follow their procedures, their DAOD or their QR&Os. Nothing was done the way it was supposed to be done in my case. They apologized and basically said, “We’ll try harder next time.”
Do I think an appeals process is a good mechanism for us? I don’t think at this point because nothing came out of it. Nothing was changed. There was no written documentation saying that we were going to try to do something different. It was basically, “We’ll just keep going as per,” and “we’re sorry that happened to you.”
Senator Pratte: The issue is whether you would like to have a right of appeal, if it’s possible, in front of the courts. Going in front of the courts is not easy. It’s not easy for victims either.
Sgt. Miller: Absolutely. I think that would be on a case-by-case basis. It is up to the person who has been victimized. I can’t say for the whole, and I can’t say at this moment I would want to either. We need to give victims every opportunity to feel fulfilled through the process.
Senator Gold: On a point of information, the process that you went through unfortunately, was that a court martial or was it a summary trial?
Sgt. Miller: A court martial.
Senator Boisvenu: Bill C-71 never made it past first reading in the House of Commons, back in 2015. Had it been referred to the Senate, I would have raised the same concerns and suggested the same improvements as with the bill establishing the Canadian Victims Bill of Rights.
There is danger in the regulatory mirror. I worked in government for 30 years, so I know that when bureaucrats make regulations, the purpose is to make the law more restrictive, not more permissive. Bureaucracy being what it is, the public servants who apply the legislation passed by senators and members of Parliament often give it an even more restrictive interpretation. That’s why it’s risky to leave the bulk of the weaknesses in the bill in the hands of public servants, who can’t do the job of lawmakers. Our job, as I see it, is to determine whether this is a good bill or not and, if necessary, to improve it. What do you think?
Ms. Gagnon: I agree with that.
Sgt. Miller: Yes, I agree.
The Chair: I would like to express my sincere thanks to our witnesses. To Professor Crocker, thank you for joining us and giving us your perspective. To Ms. Gagnon, we always welcome you back. To Sergeant Miller, thank you for your service to our country. I also want to tell you that your perspective has been well heard by this committee. Thank you very much.
Senators, for our final panel today, we have before us from the Canadian Bar Association, Eric Charland, Member, Military Law Section by video conference; Lindsay L.Rodman, also by video conference; and Carly Arkell, Department of National Defence and the Canadian Armed Forces.
Mr. Charland, perhaps you would like to begin.
Eric Charland, Member, Military Law Section, Canadian Bar Association: The Canadian Bar Association, Military Law Section, appreciates the invitation to appear before you today on Bill C-77, the National Defence Act amendments.
The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries and academics. An important aspect of the CBA mandate is seeking improvements in the law and the administration of justice. It is from that perspective that I appear before you today.
The CBA section consists of specialists in military law from across the country. To avoid a perceived or actual conflict of interest, section members who are also members of the Office of the Judge Advocate General make no comment on this submission.
This presentation today will touch on two aspects of Bill C-77, the introduction of the declaration of victims’ rights in the National Defence Act and the replacement of the summary trial system by the summary hearings system.
First, on the integration of the Canadian Victims Bill of Rights into the National Defence Act, the court martial system deals with offences often involving victims. They should be entitled to an analogous level of protection to that of victims in the civilian system. This bill is a positive step. It articulates specific rights of victims without adding procedural roadblocks for the court martial system.
Section 71.17l indicates that it should be construed and applied in a manner that is reasonable in the circumstances and in a manner that is not likely to interfere with the discretion that may be exercised by any person or body authorized to release an accused person or offender into the community, endanger the life or safety of any individual or cause injury to international relations, National Defence or national security.
In light of the specificity of the military environment, these confines are understood. We reiterate, however, the importance of protecting victims and trust that an appropriate balance of challenging interests will be conducted when applying the declaration of victims’ rights.
We have three specific comments in our submission on the declaration of victims’ rights. The first one is about the victim liaison officer. It is a new role that is provided for in the bill. We support this role, particularly given the context of the Canadian Armed Forces. We stress, however, the importance of the victim liaison officers receiving appropriate training. It’s a delicate role they have to play.
Second is the victims right to information. We recommend that the bill articulate the information made available to the victim and confirm whether its disclosure is discretionary or as a right.
The third concern is about the information on the offender, while they are in a service prison or detention barrack, that can be provided to a victim. Other than the time of the offender’s release, this information is usually protected by the Privacy Act.
The main part of my presentation is about the replacement of the summary trial by the summary hearing system. The military justice system has a two-tiered tribunal structure, court martial and summary trial.
A court martial is a formal military tribunal presided over by an independent military judge. A summary trial is conducted by a commanding officer, delegated officer or superior commander.
Under the current system, an accused person who is triable by summary trial has the right to elect to be tried by court martial, except for categories of minor offences, when the punishment is within a certain threshold. This bill would make the following changes: replace summary trials with summary hearings; introduce the concept of service infractions; address the burden of proof obligation on a balance of probabilities as opposed to “by proof beyond a reasonable doubt;” and not prevent a member of the armed forces from being tried by court martial for an offence arising from the same facts after a finding of guilt further to a summary hearing.
Moving from a summary trial to a summary hearing system is a fundamental change that would significantly alter the very essence of the military justice system. It is more than just a name change.
The purported aim of the change is to reform summary trials into a non-penal, non-criminal summary hearing process for dealing with minor service infractions. More serious offences would continue to be tried by court martial.
The summary trial is a predominant service tribunal used to maintain discipline at the unit level in the Canadian Armed Forces. The lesser degree of constitutional protection for the accused at summary trials is balanced by the right of the accused to choose to be tried by a court martial in circumstances where the sanction contemplated meets a certain threshold. There is an election process.
The major overhaul of the military justice system contemplated in this bill has not been the subject of a recent comprehensive public review of the Code of Service Discipline and military law.
We recommend, first, that the transition to summary hearings contemplated in Bill C-77 be deferred and, second, that Parliament conduct a comprehensive review of Canada’s military justice system and the proposed reforms to the current summary trial system.
The CBA section appreciates the opportunity to comment on Bill C-77 and trusts our comments are helpful.
The Chair: Ms. Rodman, would you like to make your comments, please?
Lindsay L. Rodman, Marine Corps and Operation Enduring Freedom veteran, as an individual: Members of the committee, thank you for inviting me to be here today.
It is my great honour to be with you today. I regret that I cannot appear in person. I come to you today wearing many hats. I am director of communications and legal strategy at Iraq and Afghanistan Veterans of America, a fellow at the Canadian Global Affairs Institute, and a non-resident senior fellow at NYU School of Law, Reiss Center on Law and Security.
Perhaps most relevant to you, I am a judge advocate in the U.S. Marine Corps where I hold the rank of major. I have served on active duty and in the reserves, including deployment to Afghanistan and tours in the Pentagon and in the White House.
Today, I am speaking to you in my individual capacity. My remarks are my own and do not reflect the views of the United States Marine Corps.
I am also proudly part of the Canadian military community. My husband retired in September after 20 years of service as an officer in the Royal Canadian Air Force. We spent the past two years in Ottawa, where I was a fellow with the Council on Foreign Relations studying Canadian national security and defence issues.
In our household comparing and contrasting the experiences of the U.S. military and the Canadian military was commonplace. I learned many things from my husband’s experience about how we could do things better back home, and I am humbled that you’re receiving my testimony today to learn more about what the American experience might have to offer the Canadian Armed Forces.
When Canada’s military sexual assault numbers came out last year, I was astounded. The numbers were nearly identical to similar data that came out of the American military in a 2012 survey. That survey kicked off years of congressional oversight inquiries, annual changes in the law and a slew of new polities aimed at addressing the scourge of military sexual assault in our military.
One such policy change that eventually became law was the advent of the victims legal counsel, or VLCs, in 2015. I will admit that I was adamantly opposed to VLCs when the idea was introduced.
I had three major problems with the proposal. First, it offended my notions of fairness in court and might jeopardize convictions. Second, I did not think we had the personnel capacity in the judge advocate community to cover this additional mission. Third, it seemed unnecessary since we already had significant victim advocate support available for our victims.
I was wrong. Our command’s ability to respect the interest of victims has been improving over time and while we have seen an outpouring of gratitude and support for this program.
Although there is no civilian analogue for the position of victim legal counsel in the United States, we have found that the unique context of the military requires these extra resources for victims to be truly taken care of within our system.
In addition, attorneys are able to take on the command even in situations where uniform victim advocates and civilian social workers seem unable or disempowered.
At this point we have a number of personnel devoted to a victim when he or she comes forward in the U.S. military, including the uniform victim advocate, a member of the command; the victim advocate, a social worker charged with helping the victim gain access to the resources he or she needs; and the VLC.
There are gaps in our coverage, however. Civilian victims with no connection to the military, for example, are not entitled to VLCs.
While I offer lessons from our experience, I regret to say that what we are doing has not worked. The rate of sexual assault in the military has not gone down. The latest numbers from the Department of Defence are not good and show little to no progress in lowering the overall rate of sexual assaults in our military.
While our military is taking additional steps to take care of victims, we are also creating victims at the high rates we were a decade ago.
There are many constructive ways we can try to compare and contrast the U.S. and Canadian experiences in combating sexual assault in our militaries. In the U.S., for example, there is nothing called Op HONOUR. Despite not having this overarching program, we have devoted many resources and many years of study to addressing this problem. Some have been more successful than others. In the end, however, we retained a deep cultural problem in the U.S. military.
I have focused my comments thus far on our efforts to support victims of sexual assault because that is where I see great need in both militaries for new and innovative solutions. I know that Bill C-77 contains more than just the Victims Bill of Rights, including significant reforms aimed at your summary trial process.
Having heard some of your testimony today, and from Mr. Drapeau and others earlier last week, I can offer some thoughts on the U.S. summary court martial process. In our summary court martial there is also no right to an attorney. Summary courts are not available for officers. Enlisted members can lose rank and can be confined for up to 30 days.
Though we retain this tool, it is used sparingly. Instead, we favour using special and general courts martial which provide all the protections, safeguards and processes that we as Canadians and Americans associate with modern justice systems.
The analogy between the Canadian summary trials and American summary courts martial is not perfect, but I hope these reflections and the others I have offered this afternoon have been helpful.
Thank you for your attention, and I look forward to your questions.
Major Carly Arkell, Department of National Defence and the Canadian Armed Forces, as an individual: I would like to start by thanking the committee for the invitation to speak today. My intention is to share my personal experience with sexual violence in the Canadian Armed Forces post Op HONOUR as it relates to victim support and rights.
I have 21 years of combined reserve and regular service in the Canadian Armed Forces. From the time I joined in 1998 until four years ago, I had not experienced sexual violence. There were many incidents of mild to moderate harassment, both sexual and non-sexual in nature, but I had acclimatized to the cultural and saw them as infrequent annoyances.
Since Operation HONOUR started in 2015, I was sexually assaulted by a member of the Canadian Armed Forces. This was someone whom I had trusted and who was also a senior rank to me.
Although I wanted to ignore what happened and pretend that it did not happen, I reported the attack within two weeks. I felt particularly compelled to report because my attacker had been and would again be in positions with a great deal of authority granted to him. I realized that if this had happened to me, I could not be the first and I would not be the last. I couldn’t live with myself if I didn’t speak up and thereby let him do the same thing to someone else.
My experience is that I was not well supported as a victim. First, as the investigation unfolded, I was not kept informed of the progress or status, despite the investigator having promised to keep me so informed.
Second, I felt as much under investigation as the attacker. The investigator tried to pressure me into consenting to have my entire medical file released to them. I was interviewed on multiple occasions.
Finally, when I asked for victim liaison support that was reportedly available, I had to call multiple times before I was able to speak to anyone. The only support I received was to be provided with a list of local civilian sexual assault and rape crisis centres. I was never contacted by the victim liaison again.
The only support I received was through my own initiative and consisted of informal peer support and accessing counselling through Canadian Armed Forces Health Services.
One of the values in the Canadian Armed Forces military ethos is loyalty. In part, Duty with Honour: The Profession of Arms in Canada:
For loyalty to endure, it must be reciprocal and based on mutual trust.
From the first day of basic military training, members are taught to be part of a team, to work together and to trust each other. This is critical to operational effectiveness. Regardless of your occupation or element, every member needs to be able to trust that the person beside them will do their job and will save their life, regardless of whether you are flying, on foot patrol in a hostile area, or on a ship in the middle of the ocean.
Sexual misconduct erodes that trust. When a member is sexually assaulted, that trust is broken in an instant. I am not so naive as to believe that sexual misconduct can be eradicated. However, I strongly believe that as an organization and as individual leaders we can control how we respond. The response of the organization through policies, procedures and resources is critical, but just as critical is how the individual leaders and supervisors respond. This action, or inaction, will determine if trust can be rebuilt.
I believe the following points are critical to victim support. First, clarity and transparency in the reporting process encompass both the disciplinary process including the military justice system and the administrative process. Bill C-77 addresses the disciplinary process, but there is yet to be any support for the administrative process.
In my case, I was told by a general officer, “Don’t count on the disciplinary side, but the administrative side will get him.” However, given the secretive and confidential nature of the administrative process, I have no way of knowing what was the outcome of the administrative process. I do not even know if an administrative review was conducted as per the Defence Administrative Orders and Directives.
Second, victim support and guidance must come from a person that is well versed in victim rights, the military justice system and the military administrative processes, able to protect against unit bias, independent from the chain of command, and able to safeguard the victim’s confidentiality.
These individuals should not be members of the victims unit. This should not be assigned as a secondary duty in the same manner as assisting officers in general. Doing so would fall short of providing the necessary support and guidance and would most likely further traumatize the victim, thereby causing more harm.
In my experience, I had a very supportive supervisor and chain of command. This made a tremendous difference in how I viewed the Canadian Armed Forces. I believe it is in large part the reason I have the strength and confidence to appear before you today.
I am not the only survivor of military sexual trauma, but I am fortunate to be able to speak up. I am only the tip of the iceberg. There are many other members and veterans who don’t have the ability or means to speak up. My trust in the organization is still fragile. How the organization responds to the needs of other members will build or break that delicate trust.
A few years ago, I was asked if I had suggestions on what the Canadian Armed Forces could use as a measure of success. I responded:
If a member can come forward to report, go through the process and come through with their career intact, then we have succeeded.
As my medical release due to military sexual assault is processed, I am proof that the approach taken to date with Operation HONOUR has failed. The past cannot be undone. However, something good can come from my experience. If someone else is protected or if someone else can be better supported and recover, then something positive will have come from my pain and suffering, from the pain of suffering my family and I have endured.
The Chair: Major, thank you very much. We will now move to questions.
Senator Dagenais: Thank you to our witnesses for being here. My first question is for Ms. Rodman.
Do you think Bill C-77 is merely a political smokescreen? If so, what inspiration could we draw from the U.S. to maximize the bill’s impact?
Ms. Rodman: Thank you, senator, for your question. I don’t want to opine on whether or not it’s a political smokescreen, but I will say that it sounds like a step in the right direction.
More resources for victims in the U.S. military have been universally received as being positive steps in the right direction.
The question of whether it goes far enough is a different question. If you, in your wisdom, determine that it was enough to take care of all the victims in the Canadian military system, I would have some doubts about that, but if you felt that extending the protections that exist for civilians within the Canadian military system is a step in the right direction, I would have no problems with that.
Senator Dagenais: Thank you. My next question is for Major Arkell.
What is your take on the system of information-sharing put in place by the bill? Do you think it would have helped in your case?
Maj. Arkell: I think the bill, as written, could potentially have been helpful in my case.
However, I have some concerns specifically about what policies and regulations would be put in place to ensure it.
First, it does not provide protection against chain of command retaliation or if the chain of command fails to carry out their duties as per the directives and orders.
In my case I had a very supportive chain of command, but there are still no means or measures and no guarantee that the policies and procedures that would be put in place as a result of the changes in this law would actually provide the necessary supports.
The second aspect is something that I think is extremely important. In how it’s worded in informing the victim, it specifies “upon request.” I come from a relative position of privilege due to my education, my rank, my years of service and my leadership experience in operational units and at headquarters and bureaucracy. I struggle to know where to look, whom to ask or what to say.
If I couldn’t figure out where to go to get that information, or that I could even ask for information, then how do we expect our junior members or people who are even further traumatized than I was to do so?
I feel strongly that members and victims should be told their rights as a matter of course and a matter of action. They should be told that they have the right to ask for a liaison officer. They should not have it enforced or imposed on them, but they should be given the information so that they can choose.
Senator Dagenais: Mr. Charland, commanding officers will still be the ones who determine whether a member of the military committed an infraction and who impose sanctions. Is that dimension of the bill unconstitutional, or could it give rise to challenges that could drag on for years?
Mr. Charland: Thank you for the question.
I’d like to clarify something, if I may. You referred to commanding officers being the ones to determine whether service infractions had been committed. If we are talking about service infractions, the accused normally has a choice between a summary trial and a trial by court martial. If we are talking about a summary hearing, under the bill, then, yes, commanding officers or delegated officers would be making the determination. However, the biggest difference is that, under the current process, when the offence is such that it could result in a fairly serious punishment, the accused has the choice between a summary trial or trial by court martial. That’s a very important distinction because a summary trial doesn’t offer as many procedural safeguards as a trial by court martial. In a summary trial, an officer — a commanding officer, a delegated officer or a superior commander — conducts the trial. Conversely, a trial by court martial is presided over by a duly appointed military judge who is a member of the bar, and a Crown prosecutor and a defence lawyer are also involved. They therefore have full authority, as recognized under the Charter and other Canadian instruments normally applicable to criminal justice.
Senator Dagenais: You said that a military judge presides over a trial by court martial, but that it’s not a member of the military in a summary trial. Is that right?
Mr. Charland: Exactly. There is no Crown prosecutor or defence counsel. It is an inquisitorial procedure presided over by the senior officer, the unit commander or delegated officer.
Senator Dagenais: Are you saying that this is an inquisitorial measure presided over by a commander?
Mr. Charland: Yes, when we talk about summary trials or summary hearings proposed in the bill, the commander is responsible for presiding over the trial. No lawyer or judge participates in the trial. However, with our current summary trials, a military member who is charged could contact defence counsel services, who are military lawyers. They can be reached at any time to answer questions. However, that’s not legal representation. It is legal advice on proceedings initiated as part of a summary trial.
Senator Dagenais: Ultimately, they are still military members.
Mr. Charland: The defence counsel services have military lawyers whose mandate is to represent military members if they are court-martialled. At that point, it becomes full legal representation.
If I may, following up on your question to Ms. Rodman and Ms. Arkell, I would like to tell you that I do not believe that the bill is a smokescreen for the Declaration of Victims Rights, for one reason: right now, military justice is completely excluded from the Victims Bill of Rights.
The Canadian Victims Bill of Rights doesn’t apply at all in the military justice system.
If this part of the bill is passed, protection will be provided. That is why we are saying that this is a step in the right direction.
Senator Dagenais: It is a step in the right direction, but still, the victims have never been consulted.
Mr. Charland: I understand your viewpoint.
Senator Dagenais: Thank you.
Senator McPhedran: I have a question for Ms. Rodman and one for Major Arkell.
Ms. Rodman, thank you for the article in one of Canada’s major newspapers. I think we all found it very helpful. Within the U.S. military legal representation is now provided to victims at no cost.
What are some of the key shortcomings of the VLO equivalent system in the United States? How did those shortcomings contribute to the decision to provide the legal representation that is now available?
I am wondering if you’re going to give us a view of our future.
Ms. Rodman: We actually had a hybrid approach. We had two different victim support systems. The uniformed victim advocate and the victim advocate, who was a civilian masters level social worker, were a combined resource provided to victims before the advent of the victim legal counsel in 2014 and 2015.
As I mentioned, at the time I thought that the victim legal counsel seemed obstructive. What was articulated in the legal community was that victims, even in the disciplinary process, were not being represented adequately at court.
Major Arkell referenced her medical records being something that the attorneys were looking for. We had both prosecutors and defence attorneys looking for those medical records, so victims did not feel like they were being adequately represented at court by either side. We had victim legal counsel there to intervene in motions where it was relevant to their interests. The actual mandate for victim legal counsel has been much broader than that.
I am really touched by Major Arkell’s testimony. It is amazing that it reflects the stories of so many U.S. service members. The ability to be actually represented in administrative processes, to have an attorney by your side, and to have the attorney challenge the command and ask for the information that you need, has been very powerful on behalf of victims. It’s something that victims, even through the victim advocate and the social worker, did not feel empowered to do.
One of the reasons I was so skeptical when I was skeptical was because I didn’t understand why they were not getting the response they needed. As an attorney, I did not always feel like I had this special position where I was going to be necessarily getting better responses than they were.
I want to clarify that I have not personally served as a victim legal counsel but I have colleagues and friends who have. My understanding is the responsiveness is much better to an attorney asking a question, even when you’re not really doing it in the scope of a traditional legal representation.
A lot of their work is not done according to how we would think of a traditional lawyer’s role. They’re not exclusively representing victims in court. They’re doing a lot of shepherding victims through the process administratively and disciplinarily to ensure their rights are upheld.
Senator McPhedran: Major Arkell, thank you for being with us in public. I also want to express appreciation to the supervisors who supported that and encouraged you. I think you’ve given us a great deal today.
One of the aspects of what you shared with us is also about your family. One of my major takeaways is that not only is not enough being done for victims, but not enough is being done for families of victims.
In reviewing Bill C-77, do you see anything there that would be helpful or could have been helpful to your family as well? Did anything strike you as being, “Oh, that might have made a difference?”
Maj. Arkell: In short, no. To elaborate on that, I think that better support in my case for me would have had a positive impact indirectly on my family. However, I didn’t see anything in there that would have applied to my family.
If I recall reading the bill correctly, it was a representative on behalf of the victim if the victim was unable or incapable, but nothing directly for that support.
Senator McPhedran: I don’t know how much you heard of what we heard this morning, but I actually indicated to the officials that they were holding out the regulations as a kind of magic wand.
Perhaps we can go with the idea that the regulations can actually cure a lot of what is missing in the bill. I don’t necessarily agree with that, but let’s go with that as a hypothetical. What kinds of regulations or what more could be done to address the needs of families of victims? Do you have any thoughts on that?
Maj. Arkell: I agree that the bill is only one component. I’d be concerned about what reassurances we would get that the policies and regulations that would come from it would provide necessary supports and would even be applied to considering the needs of the members and their families.
What supports would be beneficial to families? I don’t see this as necessarily the means to go about it. However, stepping back from this bill specifically and looking at member support and member family support, I think there should be access to family counselling and psychological services for spouses, children, couples and families, particularly in the context of understanding the military environment.
Psychologists are not employed by the Canadian Armed Forces as uniformed positions. They are employed as contractors or are sent out to the community. There’s no guarantee that those providers understand the military environment. That can impact the quality of care.
In addition, the limit is for individual members or couples, not for spouses, not for children or not for families. There are a lot of limitations in the existing system and room for improvement. An additional one would be child care during meetings, trials and counselling.
My husband and I both work full time so we have child care arrangements and our children are school aged now. However, a lot of members, particularly if their spouse is a stay-at-home mother or father, don’t necessarily have access to child care services. In addition, they may not have family in the area. It doesn’t matter where your family is. You could be posted from one end of the country to the other.
Expanding psychological services would be an important aspect, as would providing additional services such as child care when accessing those services or during trials or other components of the investigation.
As a personal story here, it wasn’t my situation but I accompanied a close friend in reporting and during their interview with the Canadian Forces National Investigative Service. For two and a half to three hours, I carried her six-month-old around the waiting room and looked after her baby while she reported her assault.
Senator McPhedran: If you were asked to consult on the regulations, if you were asked by the Canadian Armed Forces to assist if Bill C-77 proceeds, how would you respond to a request to be involved?
Maj. Arkell: I would personally be glad to. I know there are other members, both currently serving members and retired members, who would also jump at the opportunity to provide that input and assist in the development of policies and regulations, as well as the writing of procedures and the implementation of the programs.
Senator McPhedran: Thank you.
Senator Boisvenu: My sincere thanks to our guests. Thank you for your courage, Major Arkell.
First, Mr. Charland, would it be better to go to liaison officers who have legal training to provide better legal support to victims?
Here’s my second question. If this bill is not passed by the government because of time constraints, would the military justice system have the authority to issue a directive to incorporate a declaration of victims into its procedures?
Mr. Charland: To answer your first question, legal training for victim liaison officers might be a good idea, but it’s not something I could talk to you about on behalf of the Canadian Bar Association section. We have not analyzed that issue in depth.
As a former military lawyer and a member of the forces for about 20 years, and as a civilian lawyer today, I can tell you that if a liaison officer has legal training, he or she is almost a lawyer for the victim. Right now, liaison officers are not lawyers for victims, but they provide assistance to victims.
In terms of your second question about the Declaration of Victims Rights, we have not analyzed it in depth, and it remains to be confirmed. However, I understand that, with or without the Declaration of Victims Rights, and whether or not this bill is passed, the changes to the National Defence Act make it possible to invoke a declaration of victims’ rights at court martial. My understanding, and I think this is important, is that summary trials or summary hearings addressed in the bill are not affected; there is no impact. The bill makes no changes to that. At least that’s how I understand it.
Senator Boisvenu: It’s like the Canadian Victims Bill of Rights in the civilian world.
Major Arkell, I understand you’re a major and you’ve been a victim before, right?
Maj. Arkell: Yes.
Senator Boisvenu: I also understand that you were not consulted on Bill C-77?
Maj. Arkell: No, not at all.
Senator Boisvenu: I’m really concerned about something. When a member files a complaint and procedures are initiated, if she leaves the armed forces, she will be forced to deal with the provincial services rather than the armed forces services, whether it is for compensation, protection or anything else.
The armed forces will “dump” that person onto a province — excuse the term, but it’s sort of like that. Four provinces in Canada provide no services to victims, four provide a minimum number of services and four provide very good services. This means that a victim could — please correct me if I’m wrong — ultimately suffer that type of pressure because they have filed a complaint about a high-ranking officer, and the pressure could prompt them to leave the armed forces because of the stress. They will then be automatically dumped, and will no longer be able to depend on the armed forces for help. Is that how you understand the bill?
Maj. Arkell: Yes. From my understanding, there are no services or support provided even with the bill that would extend beyond a release date. I don’t know the numbers but I am sure there are statistics on it. A large percentage of members come forward to report and go through the investigative process. Whether or not it makes it to trial or charges are laid, they end up suffering from the experience with psychological struggles and ultimately being released from the forces either due to medical reasons or due to their own choice of losing faith and needing to get away from the environment.
Once you are released, on the date of release you are no longer receiving any services from the Canadian Armed Forces and you are under the care and assistance of the provinces.
As you indicated, it’s completely dependent upon what services are provided by the provinces. It varies across the country. Depending on what province you choose to retire or release in and move to, it will completely dictate. There is no standardization or guarantee of anything.
Senator Boisvenu: Shouldn’t an amendment be introduced to require the armed forces to follow through on the assaults, so that victims can receive psychotherapeutic support and, if necessary, compensation? Even if the victim has left the job, shouldn’t it be the responsibility of the armed forces towards the victims, given that the aggressor will still work in the armed forces and can obtain therapy, while the victim is totally dumped?
Maj. Arkell: I am speaking as an individual. I am not speaking on behalf of the Canadian Armed Forces. I feel the need to ensure that is very clear.
I personally as Carly think that services and support should be provided to the member throughout the process of the investigation and any subsequent trial. As it stands now, it’s not, but I believe it should be.
I am not going to get into whether or not that should be by the Canadian Armed Forces or by Veterans Affairs and the transition aspect. I understand those support services are being beefed up right now. There’s a lot of work and effort to be done on that file.
The aspect and the impact of military sexual trauma impacts more than just the legal side. There is the administrative side. There is the medical side. There are support services and Veterans Affairs. It’s bigger than just this bill.
If someone is expecting this bill to solve everything, I don’t think that’s realistic. I don’t think it is reasonable. I don’t think it is fair to anyone. Yes, I believe there should be the ability to receive those supports and services even if a complainant has been released.
I would say that there has been some improvement by the Canadian Armed Forces in the last two years or year and a half. The CANFORGEN on harmful and inappropriate sexual behaviour has allowed members to elect to self-identify and thereby slow down the release process until the criteria are carried out. As they identify including the criminal/disciplinary processes and the medical aspects, there’s no guarantee that it will remain in effect or how it will be incorporated into policy and further regulations.
The intent is there to provide support and services, but there is no long-term framework.
Senator Boisvenu: Thank you very much for your service to Canada.
Senator Gold: Thank you for your last comment because Bill C-77, if passed, would fit into a much larger range of legislation, regulations, policies, directives, services and the like.
I want to make sure I understand correctly. With regard to the victims declaration of rights, the definition of a victim is clear that it is someone, whether in the military or a civilian, against whom a service offence has been committed. There is no time limit set. Even if a victim leaves the military, she or he is still, in theory, afforded the same set of rights within this bill.
There may be actual services that lapse and the like, and that really matters; but for the purposes of our work on Bill C-77 I wanted to make that clear.
Senator Pratte: I have two questions.
My first question is for Mr. Charland. The bill provides that summary hearings will deal with all service infractions and the imposition of a set of sanctions. It even talks about a reduction in rank, up to minor sanctions that will be defined by regulations. A reduction in rank is a fairly serious sanction in the military. What do you think of the list of sanctions? Is it part of a process? Should the issue be addressed by the new summary hearings?
Mr. Charland: Thank you for the question. The bill does not provide an answer to that at this time, because summary hearings, offences, as the Canadian Bar Association understands them, will be regulated. There will be regulations to define all that. There are also offences and penalties. However, the sentencing principles are very similar to those currently in place for summary trials and courts martial. So our section of the Canadian Bar Association has not looked at that. You have heard from witnesses, including a retired lieutenant-colonel, former military judge Perron. In his brief, he provided more detailed arguments on the issue. Even if a reduction in rank, for example, is not considered a criminal sanction, it comes with a reduction in salary, and when all that reaches a certain level, a certain degree, people might think that the sanction is criminal in nature.
One concern that our section of the Canadian Bar Association has is that, for the time being, we have no details on the issue. The details will come with the regulations. That is why it is difficult to give you a very clear answer. However, I think a reduction in rank could be considered a criminal sanction.
Senator Pratte: Thank you very much.
Major Arkell, thank you for sharing your painful story with us.
You mentioned something that has been mentioned earlier by previous witnesses about the administrative process. One witness who was before us this morning said that the chain of command or whatever resorts to administrative processes rather than the military justice system, as it’s more convenient or they simply decide to bypass the military justice system.
I was surprised by the fact that officers told you they would treat the matter of sexual assault, which is a very serious offence, by administrative processes. Did I understand correctly what they said?
Maj. Arkell: What was said to me wasn’t by someone. My case was under investigation by the National Investigative Service at the time. I was told by a general who reassured me and wanted to temper any expectations I might have. The disciplinary process, the military legal process, was not necessarily something that would achieve what I want or need. However, I could be confident the administrative process, as per Military Order and Directive 50(19), indicates that an administrative review must be carried out. The administrative review, which is a parallel but separate process, would address that situation.
That is the means used to adjust performance deficiencies, not necessarily criminal acts or disciplinary issues. It can be used for something as simple as a member repeatedly not doing their job to an appropriate standard.
At the same time, the file of anyone who has been accused of sexual misconduct or anyone who has been found to have illegal drugs in their possession immediately goes for an administrative review.
Administrative reviews are also done when you have a new medical category and you are no longer fit to serve. It was using many more aspects than just disciplinary. It is a parallel process, but it is the means by which somebody can be discharged from the Canadian Armed Forces.
Senator Pratte: In your case, if I understand correctly, as far as you know nothing happened on the administrative side.
Maj. Arkell: I have strong suspicions that an administrative review was never carried out. However, due to privacy concerns, I have no right to know the outcome of an administrative review or to get reassurance that an administrative review was carried out.
Senator McIntyre: Major Arkell, I echo the remarks of my colleagues regarding the terrible situation in which you sadly found yourself. It’s very disturbing indeed, but you spoke very well.
Mr. Charland, I understand that, according to the Canadian Bar Association, Parliament should undertake a thorough review of the Canadian military justice system.
Could you give us some details, please?
Mr. Charland: Yes. Actually, when we look at Bill C-77, we notice two things. Essentially, the bill is part of the plan to incorporate the Declaration of Victims Rights into the National Defence Act. Sometimes, it seems to sort of be under the radar, but we are told that, with a reform of the summary trial process, which replaces summary trials with summary hearings, there would no longer be an offence under criminal law and therefore there would no longer be a criminal record.
The National Defence Act has undergone major changes over time, most notably in 1998, after Bill C-25 was passed. Since then, five-year reviews have been incorporated into the legislation to make changes as Canadian law has evolved.
Some of our studies have examined summary trials, which are an integral part of the military justice system. However, we did not note any major shortcomings in the summary trial system.
I understand that, on your end, you heard from witnesses who talked about problems with the mindset of the commander or officer presiding over summary trials. If I understood correctly, you were told that the person was found guilty from the outset. I understand that this may be a perception; however, eminent jurists have spoken out on some summary trial issues and we have not noted any conclusions of that sort. No legal challenges to the constitutionality of the process have been able to demonstrate that sort of thing.
However, our National Military Law Section of the Canadian Bar Association believes that changes of that magnitude require an external review of military law or of the responsibilities of military lawyers. Parliament seems to be in the best position to do that. You are studying the bill, but the bill covers a lot of things, such as the Declaration of Victims Rights and major changes to summary trials, which would become summary hearings. Much has been left to the regulations, and we clearly do not have the regulations to the bill to guide us.
I hope that sort of answers your question.
Senator McIntyre: Yes, thank you, Mr. Charland.
Senator Gold: Thank you all for being here. Major Arkell, I want to make sure I understood your testimony correctly.
Had you had access to a resource of your choice like a properly trained victims liaison officer and the other supports that the bill contemplates for victims, did I understand that in your particular case it might have been of some help to you and your family in going through what you had to go through?
Maj. Arkell: In my particular situation I don’t know whom I would have chosen to be a victim liaison officer. I was very fortunate that my privacy was respected by the chain of command and that very few people within my organization or in any other organization were aware. To this day I am sure it will be a shock to most people I work with that I testified here today.
If I understand it to be similar to an assisting officer, such as when a member is ill or injured and returning from Afghanistan or in other situations where an officer is assigned to assist a member, I don’t think a victim liaison would have been of much benefit to me because my supervisor was able to provide me with some of that.
The lack of clarity, processes, procedures and what rights I had, if any, were bigger impediments. Even my supervisor didn’t know about it. I should specify that my supervisor at that time was quite senior. I was in a unique position at that point.
I don’t think I would have benefited from the victim liaison officer, to be honest with you.
Senator Gold: Your latter point is an important one about how your supportive superior nonetheless was not able to provide you with all the information. My understanding of the bill and the testimony is that one of the functions of the victim liaison officer is to provide the range of information and resources which you might choose to benefit or take advantage of.
In that case, might it not have been helpful to give you the information you couldn’t get from your otherwise supportive superior officer?
Maj. Arkell: In many cases it would be beneficial to have someone provide information. Yes, I think it would be extremely beneficial in most situations. I was just speaking to my particular situation.
As was mentioned in other testimony, it doesn’t replace a legal counsel. I think that having access to legal counsel is very important. I actually took advantage of the Ontario pilot program. That was extremely helpful for me. There have been additional services, supports and policies put in place since my experience. I cannot stress enough adequate training, respect for the member’s confidentiality, and not being subjected to influence by anyone’s chain of command, particularly that of the accused. This is an issue when you get to smaller organizations in smaller bases. It’s a very small community. Also, the training of the individual needs to include trauma-informed care and victim-centric care because that is where well-intentioned efforts can cause more harm.
Senator Gold: My last question is directed to all three of you.
Earlier today, Colonel Strickey reminded us that reviews of the National Defence Act and the military justice system don’t happen very often. Attempts in the past have not been successful, at least in getting bills across the finish line and enacted into law. That’s a reality we’ve had in the past, and that’s the context for my question.
All three witnesses have expressed some level of support for the declaration of victims’ rights aspects of this bill. On behalf of the Canadian Bar Association, Mr. Chartrand, you led testimony in that way as a step in the right direction however imperfect.
Given the reality of how long it seems to take to get revisions to the military justice system addressed and given that we’re coming toward the end of this particular Parliament, how do you evaluate the possibility that this bill will not pass?
In other words, what would be your reaction if, for whatever reason, this bill simply could not be passed before Parliament rises and therefore died on the Order Paper?
Mr. Charland: The Canadian Victims Bill of Rights, if I am correct, became law in 2015. We are in 2019. Legislative bills related to military justice do not necessarily have much horsepower, so to speak, in terms of the order of priority.
I will speak from a personal perspective now. I have been involved in the directorate of law, which was under then Lieutenant-Colonel Strickey until 2014. I was very happy when I saw Bill C-15 receive Royal Assent, which last amended the National Defence Act. Sadly, a regulation that came into effect to carry on the provision of Bill C-15 happened in September 2018, so there is a lot of delay.
In terms of the Canadian Victims Bill of Rights incorporation into the National Defence Act, it’s better to have it than not at this time. It’s better that this section of the bill pass. In terms of the summary hearing reform, there is no right of victim involvement in this section of law or in this part of the bill. The answer is different depending on the part of the bill. Yes, for sure, I think it’s better to pass this bill on the incorporation of Canadian Victims Bill of Rights into the National Defence Act. As it stands, my understanding is that military justice is excluded from what is applicable in the civilian equivalent in Canada.
Ms. Rodman: If Bill C-77 were to pass and Canada felt satisfied that military justice reform had accomplished recognizing the needs of victims within the system, I would be concerned about that. If Bill C-77 failed to pass and it resulted in some kind of renewed and holistic effort to get it right, even though in the intervening time we might be worried that might actually be a good outcome in the long run.
That being said, I would hate to sacrifice good progress in the short run just in the hopes that it would not spur even better progress in the long run.
Maj. Arkell: I have to echo the last statement. I’ve been torn about this, realizing the reality of timelines and having worked in Ottawa for a number of years. I am familiar with the procedures and the impact they have on the operations of government departments.
As Major Rodman put it, we have to recognize that this is just the beginning. We have to do more in how we write the policies and regulations to incorporate this bill. There are other aspects of it. If this is simply one piece of the pie and not the total solution, then, yes. However, I give it a very low grade.
It barely passes. I am not even sure it really meets the standard, to use a military term, but a lot of progress has been made. I guess something is better than nothing, but we can’t rest on our laurels. We can’t stop here.
Senator Griffin: You will be glad to hear, chair, that I had three great questions, and Senator Gold just took the last of the three, so I pass.
Senator Richards: My question will be very quick. Wherever this happens, it’s horrendous, but I was wondering if Major Rodman or Major Arkell could answer it.
Are there any data on what percentage of assaults take place on base or during deployment? Is there a big difference there? Does anyone know? Have there been any data about that over the last number of years?
Ms. Rodman: I suppose I could start with the U.S. system. Off the top of my head, I don’t know the breakdowns between which assaults happen on base. The vast majority of assaults happens when the 18-year-old to 24-year-old cohort live on base in barracks. You will have a substantial portion there. I also know that sexual relations are prohibited on deployment in the U.S. military. It would be completely naive of me to say that somehow helps preclude these things from happening, but fewer relationships develop on deployment. That’s not to say they don’t happen; they absolutely do.
If it’s of interest to the Senate, I can commend and refer you to the very detailed sexual assault prevention response office data from the U.S. Department of Defense. I would be happy to provide more numbers later if that could help you answer some of these questions.
Senator Richards: Thank you very much.
Maj. Arkell: I don’t know for sure what are the statistics. I would actually probably look at both the Statistics Canada survey that came out in 2018 and the one from 2016. I would check the data to see if that was specified there.
However, I reinforce that the military environment is unique from that of the civilian world. The civilian Bill of Rights doesn’t necessarily extend to the military, in part because of the cultural environment in which we operate. We work, we live and we socialize together, so it extends beyond just the office.
The Chair: Thank you, Major Arkell, Mr. Charland and Ms. Rodman, for your being here today. We are deeply appreciative of the contributions you have made to our study.
(The committee adjourned.)