Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 38 - Evidence for May 30, 2013
OTTAWA, Thursday, May 30, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts; and Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders), met this day at 10:31 a.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today we are continuing our consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. This is our fourth meeting on the bill.
Later today, we will begin consideration of Bill C-350, an Act to amend the Corrections and Conditional Release Act (accountability of offenders).
To begin our deliberations today, I am pleased to introduce Pierre Daigle, the National Defence and Canadian Forces Ombudsman; Bruno Hamel, Chair of the Canadian Forces Grievance Board; and Glenn Stannard, Chair of the Military Police Complaints Commission. Also at the table is Julianne Dunbar, General Counsel and Director of Operations with the Military Police Complaints Commission.
I believe Mr. Daigle, Mr. Hamel and Mr. Stannard have opening comments. We will begin with you, Mr. Daigle.
Pierre Daigle, Ombudsman, National Defence and Canadian Forces: Thank you, Mr. Chair. I would like to begin by thanking the committee for inviting us today to testify as part of this study of Bill C-15.
The office of the ombudsman was established in June 1998 to help increase transparency for the Canadian Forces and the Department of National Defence and to ensure the fair treatment of concerns raised by members of the defence community. The office is not cited in the National Defence Act; instead, the ombudsman draws his or her powers from ministerial directives and reports directly to the Minister of National Defence. The ombudsman works independently of both the Department of National Defence administration and the Canadian Forces chain of command. The office of the ombudsman remains neutral and serves as an objective sounding-board, attempting to resolve complaints informally and at the lowest level possible.
In February 2011 and again in February 2013, I appeared before the House of Commons Standing Committee on National Defence to discuss the findings of our report entitled The Canadian Forces Grievance Process: Making It Right for Those Who Serve. The report highlighted deficiencies in the grievance process that are causing further hardships for Canadian Forces members who have already been wronged.
[Translation]
At that time, we found that the redress of grievance process was flawed and unfair. It is supposed to provide soldiers, sailors, airmen and airwomen with a quick and informal mechanism to challenge Canadian Forces actions, and resolve matters without the need of the courts or other processes.
Specifically, we determined that the Chief of the Defence Staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness. Moreover, when claims are rejected — which is often the case — Canadian Forces members are informed that they must initiate legal action against the Government of Canada in order to obtain compensation. However, unbeknownst to most men and women in uniform, legal action will rarely be heard by a court because previous courts have ruled that there is no legally enforceable employment contract between the Crown and Canadian Forces members.
[English]
Our findings were consistent with both that of former Chief Justice Lamer, who in 2003, 10 years ago,- recommended that the Chief of the Defence Staff be given financial authority to settle financial claims in grievances, and that of former Chief Justice LeSage, who indicated in 2012 that the issue should be addressed in legislation.
I was advised by the minister in July 2012 that the Treasury Board of Canada Secretariat approved the authority for the CDS to make ex gratia payments in the grievance process. However, ex gratia payments have significant limitations in that they are prohibited by the Treasury Board policy from being used to fill perceived gaps or limitations in existing acts, policies or other governing instruments. As a result, the Canadian Forces' redress of grievance process remains flawed and unfair, from our point of view.
With that, Mr. Chair, I am happy to answer any questions you may have.
[Translation]
Bruno Hamel, Chair, Canadian Forces Grievance Board: Mr. Chair, honourable senators, it is a pleasure to be here with you today to answer your questions on Bill C-15 as it pertains to the Canadian Forces Grievance Board and its role within the Canadian Forces military grievance process.
Let me first briefly introduce you to the board. In operation since June 2000, the Canadian Forces Grievance Board is a quasi-judicial tribunal, independent from the Department of National Defence and the Canadian Forces. It is, in effect, the external component of the Canadian Forces grievance process.
Since its creation, the board has earned a reputation as a centre of excellence in analyzing and resolving military grievances and has developed a substantial expertise on a variety of subjects relating to the administration of the affairs of the Canadian Forces. In addition to reviewing individual grievances, our work enables us to identify larger trends and areas of dissatisfaction, which we are then able to share with the senior leadership of the Canadian Forces.
In law, the board is mandated to review the grievances referred to it under the National Defence Act and the Queen's Orders and Regulations for the Canadian Forces. The board must also deal with matters as informally and expeditiously as the circumstances and the considerations of fairness permit.
[English]
Upon completing the review of a grievance, the board simultaneously submits findings and recommendations to the grievor and to the Chief of the Defence Staff, who is the final decision maker. The Chief of the Defence Staff is not bound by the board's findings and recommendations but must provide reasons in writing should he choose not to act on them.
Turning now to Bill C-15, I am pleased to note that the bill includes a proposed provision that would replace the board's current name with "Military Grievances External Review Committee." This is an important change, long sought by the board. The board has found that its current name often leads to misunderstandings and complications. The proposed name change will lead to a better understanding of the specific and unique role for which the board was created. It will also underline its institutional independence, while clarifying its mandate.
[Translation]
As Bill C-15 is intended to be the legislative response to the report submitted several years ago by the late Chief Justice Antonio Lamer on military justice, I would like to reaffirm the board's support of the 18 recommendations related to the grievance process that are included in his report.
[English]
Several of these recommendations have already been implemented and others are included in Bill C-15. Unfortunately, three recommendations that specifically relate to the board and that were intended to facilitate its work do not appear in this bill. One of these recommendations proposes that board members be permitted to complete their caseload after the expiration of their term. A second would provide the board with a subpoena power. The third calls for the alignment of the board's annual report with the fiscal year rather than the calendar year.
The three recommendations are important to the board. To give them effect, legislative amendments to the National Defence Act will be required.
[Translation]
Thank you for inviting me to speak here today. I would be pleased to answer your questions.
[English]
Glenn Stannard, Chair, Military Police Complaints Commission: Good afternoon, Mr. Chair and honourable senators. Thank you for the opportunity to appear on behalf of the Military Police Complaints Commission to testify on Bill C-15.
We are here today on one issue, and it is a fundamental question of principle: Whether it is appropriate to confer legislative authority on the VCDS to direct the CFPM in respect of particular MP investigations. In our opinion, the answer to this question is no. It has no implications to the MPCC in terms of our budget, our mandate or legal powers. It does, however, speak to the very purpose of the commission that I presently head.
We take no issue with 185(1) or (2). Really, the issue is (3) and (4). However, the proposed authority of the VCDS to direct the CFPM regarding the conduct of particular military police investigations set out in section 18(5)(3) represents a significant step backwards in the independence of military police investigations, which various reforms over the past 20 years have sought to enhance and protect. Under 18(5)(3), it would abrogate the accountability framework as developed by the BCDS and the CFPM in 1998, which aim to provide the Canadian Forces Provost Marshal accountability to the VCDS in a manner that expressly safeguarded the independence of investigations from the chain of command influence.
I will only read two small sections of it. Specifically, it stated:
. . . [t]he VCDS shall not direct the CFPM with respect to specific military police operational decisions of an investigation nature . . . .
. . . [t]he VCDS will have no direct involvement in individual ongoing investigations but will receive information from the CFPM to allow necessary management decision making.
It was reviewed and endorsed by the minister's Military Police Services Review Group. It was also reviewed by Chief Justice Lamer. The only concern with the accountability framework at that time was the non-legislative status offered insufficient legal protection of the CFPM's investigative independence.
If I can briefly look at what police operations are like in Canada, police departments operate under police services acts across the country and, although some wording is different, they are all virtually the same. As an example, in Ontario, within section 31, police service boards, if I can equate that to the chief of police, to the VCDS and the CFPM, are prohibited from providing or interfering with the operations of a police organization. That goes with the mayors or councillors or anyone else. Police investigative independence is protected. They are able to give policy instructions but not direction relative to investigations.
If I can expand that to Justice LeSage and his answer a couple of days back to this committee, certainly there are provisions within the Criminal Code where police have to get permission from the Attorney General to lay certain charges. It does not say you have to give permission to investigate. As well, the Attorney General always has the ability not to proceed with a charge laid by the police. It does not have anything to do with interfering with investigations.
In that case, the police independence has been protected across the country. In this case, it is different. I know that the department defends the provision on the basis that it is necessitated by potential military imperatives. Why is this provision not restricted to the type of exceptional operational circumstances as referred to by the minister?
I understand the military police concept. We go back to the municipal context across the country. In 15 years, I did not have any direction as chief or deputy chief or in charge of investigations from anyone on the direction of investigations. Senator White, I think, as chief of Durham and Ottawa police would not have had that kind of direction either. I worked for the honourable chair. Never did I have instructions from the honourable chair relative to operational matters — policy, yes, but not investigations.
In the military police context, we can talk about the military police, big M, small P. We understand that. You could have that ongoing debate: soldier first, police second. It is an ongoing debate. I think police always have that sworn duty to do the job, but that is another debate.
When looking at the whole issue of the VCDS and what is proposed in this section, really it is legislated interference in how the military police will respond to something. It is legislated that the VCDS can do it. I do not know how that can be, but that is something hopefully we never run across.
For all the years since the accountability framework took place, there have not been any issues. What has changed? We have been through a conflict in Afghanistan. What has changed? We have all of the circumstances that have come over the years where we have the opportunity for investigations to take place. I have not seen any examples put forward that can really justify this kind of section being included in the legislation.
I think it needs a serious look. I made the same presentation at the house. Changes were not made. This is really the last opportunity. If changes are not made at this point, we are looking at another seven years down the road, nine years, ten years, whatever the case may be. I think it needs serious consideration.
The Chair: Thank you, Mr. Stannard.
We will begin the committee's questions with the deputy chair, Senator Fraser.
Senator Fraser: Mr. Stannard, you have given evidence that I find very compelling and on which I have put a number of questions to people who have appeared previously, both supporters and opponents of this particular section. Although my heart tends to be with you, I really need to ask Mr. Hamel about something that has not been raised in this committee before.
[Translation]
You mentioned that three of Mr. Justice Lamer's recommendations are critical, or at least important, in your eyes, as I understand it. What is that importance? How does the fact that those three recommendations are missing affect your work? What interests me more is why you need that power of subpoena.
Mr. Hamel: Thank you for the question.
[English]
These three recommendations are not in Bill C-15, and they are important for the board. They are internal processes.
I will go with the easiest one first, the alignment of the annual report with the fiscal year that currently is short of being aligned. In order to really understand the grievance board's work, you need two annual reports to really have statistical information on one year. We are kind of misaligned. This is an easy part.
[Translation]
In terms of the ability for members to continue their casework, a number of tribunals already have that authority. It is nothing new. A number of administrative tribunals have that provision in their legislation.
It has a direct impact because, at the moment, the board has an average backlog of about two and a half months in dealing with each case.
[English]
When a file is assigned to a member, it takes at least 2.5 months for him or her to get through the review of the grievance and submit findings and recommendations to the CDS. With that in mind, I am unable to assign a case to a board member appointed by the GIC in that three-month window. That is because he or she may simply not be able to get through that case, and I would have to reassign the case to a new board member at the end of the term. A new board member assigned to a term would have to start de novo on the case. He would rehear the evidence. Now you understand delays are creeping in.
[Translation]
It would be an administrative tool that would let us complete our files and it would be a great management tool.
It has been suggested that it might be a way for members to extend their mandate, but that is mathematically impossible. We are simply talking about cases assigned before the end of a mandate. For all practical purposes, a member might see his or her mandate extended by about three months.
[English]
That is the second one. The third one is the subpoena power.
[Translation]
In that case, the legislation already requires the Canadian Forces to provide the grievance board with all information about a file that they have at their disposal. So the board does not really need the power of subpoena when we are dealing with members of the Canadian Forces on active service. The power of subpoena becomes essential in cases when we need to research facts involving civilians or those who are no longer members of the Canadian Forces. In those cases, if we do not get information voluntarily Ð
[English]
I would be forced to call a hearing, which is far more costly and lengthy. If that individual comes or does not come to the hearing, that would have to go to Federal Court and get the courts involved to require information. Really, subpoena power is a focused tool to allow the board to perform its duties when we are talking about members involved in the case who are not Canadian Forces members.
Senator Fraser: Have there been examples where this has created a difficulty?
Mr. Hamel: I have had one example, but I decided not to pursue it because the individual who actually refused to provide the information was the grievor himself. He was no longer a CF member. I said, "It is your case. If you will not provide me with the information, I will deal with the case without your information." It happened once. He might not have been the grievor, and I would have been forced to launch a hearing process to acquire that information.
Senator White: I have listened intently to the commentary referring to police and elected officials or to a police services boards' interference. I would rather use police and another agency. I will use, as an example, a plane crash. I have been to those. The police want to rush in and start their investigation to ensure that there was no criminal element or to see if there was a criminal element, and yet the aviation authorities or, in some cases, the fire departments stop you and say, "There are other things we have to do first. Prior to you entering that investigation, we actually need to take control of the scene." I know Mr. Stannard, former chief, knows this as well. I would rather use this than use the political interference piece because I do not see these as the same, I have to say. I know that there is often a complaint, as often happens inter-agency, about how one agency took control when they maybe should not have or did not take control when they should have. Would you not agree that when we look under the complaints section, the involvement of the Vice Chief of the Defence Staff in issuing an order or instruction or in taking control or giving direction when they should not have, actually has a place in, first, accountability? It must be in writing, and it must be brought forward.
It also has a place in a complaint process that could be brought to the Military Police Complaints Commission about interference. I understand that there might not be a lot of these that happen, but I have seen incidents where I have had to take a back seat to other agencies. I think, due to the fact that it might happen once, twice or more often, one has to have the ability to actually do this in the first place. To me, the fact that you have the accountability piece is the important part. I will put it to Mr. Stannard.
Mr. Stannard: I understand that the concept here is that it would be something very severe and might involve something relative to military operations, whether domestically or internationally. Quite frankly, if it is serious enough to stop a police investigation, chances are that I will not even see the information that will come forward. I have lived through the redaction process for the past three years. We have had things as simple as dates, names and things like that redacted, let alone an entire circumstance.
We have been through entire conflicts. I just do not see where the military police should be interfered with in terms of an investigation. I have not heard an example yet that would satisfy me of that. I understand what you are talking about. To me, it is a different story in terms of us cooperating on a plane crash and dealing with coordination of police, fire and ambulance services. We all stand back and work together on those kinds of things.
That is not what this section is about. This section is to issue instructions or guidelines, in writing, with regard to a particular investigation. It is very specific. It is not what you are speaking about. This is in regard to a particular investigation.
Having said that, either this section needs to come out or it needs to be amended in such a fashion that it can only be the defence of Canada or something to that effect.
I understand that JAG and the drafters have struggled with this. I know that they sat at the table with different people to try to come up with wording that would satisfy it. The result is clause 4. I just do not see how it will work. I think they need to have some caveat in there, if they are going to leave it in there, as well as having number four in there. Quite frankly, I still see it as legislated interference. I cannot see how the military police can come back once you have legislated that he or she can give those instructions. I would have to rule on whether he or she was wrong in doing that. I just do not see it happening. I know it is unique policing, but the military has chosen to have an independent police agency. It is not independent if the CFPM does not have the right to control police investigations.
[Translation]
Senator Dallaire: Please forgive me for being late. I was held up in another meeting with a conflicting schedule. Welcome to our witnesses and to an old colleague of mine, who is now in the role of ombudsman.
My question is in two parts. The first part is about what we have just been discussing: the position of the Vice Chief of the Defence Staff. The second part deals more with what you presented, General Daigle, about the grievance resolution process, the matter of compensation when the decision is in favour of the individual, and the way in which the resolution is managed in other cases where the decision is negative.
[English]
The Chief of the Defence Staff has no authority to spend money. That authority is with the DM and the CFO. We are breaking down in this process where, ultimately, the final arbiter is the CDS but where he or she does not have the capability to respond to a positive solution to this grievance.
Mr. Daigle: This is why, in our report, we feel that the Canadian Forces grievance system is still flawed and unfair. The final authority, who has all authority to close this grievance, does not, in fact, have the authority to do it. Justice Lamer, in 2003, was quite clear. In fact, 18 of his recommendations had to do with the redress of grievances. Sixteen were supported at the time, and we were told by the then minister that all of those changes were on the way. That was in 2003, and one of those changes was to give the Chief of the Defence Staff financial authority to compensate financially in the grievance system. Ten years ago, that was approved by the department.
Chief Justice Lamer and Justice LeSage used very clear words. Mr. Lamer said that the CDS must have the necessary financial authority to settle financial claims and grievances. Justice LeSage said, "Give the CDS authority to grant relief." Right now, if the Chief of the Defence Staff, who receives grievances and is the final authority, agrees that someone has been wronged and there is financial compensation attached to the solution, he cannot grant that financial compensation.
The last change that came about was that the department said that the CDS will now have an ex gratia. However, the process of ex gratia ends up at the deputy minister level. For the ex gratia itself, Treasury Board is quite clear: You cannot use an ex gratia payment to compensate for gaps in policy instruments. At the end of the day, the Chief of the Defence Staff has no final authority to say, "You have been wronged. We owe you $25,000 because you have been wrongly dismissed, but I cannot do it; I agree, but I cannot do it."
The recourse for this member is to go to court. This is what the Director of Compensation Litigation said to the member: "You go to court." This was said knowing the court has always stated in the past that they will not hear those things because there is no contract between the Crown and the member.
The CDS, who is in charge of control administration of the whole Canadian Forces, agrees and we need to settle that. He has no authority. The member has to go to court knowing ahead of time the court will reject his grievance.
This is absolutely unfair. As Chief Justice Lamer clearly stated, the principle behind the redress of grievance is to treat soldiers fairly. This must not be lost in the bureaucratic process. We have been at it for three years since the report was produced, and 10 years since Chief Justice Lamer raised it. The redress of grievance is not part of the Canadian military justice system, which is adversarial in nature; it is an administrative system. It is a system where you look at cooperative matters by the chain of command. This is a morale, leadership and quality of life means for the wellbeing of a member. This is why we have been insisting.
Even with these new changes that the CDS has an ex gratia authority, which is limited — I do not have the exact number, but it is limited — he cannot use that to close the grievance because it is stated clearly in Treasury Board that he cannot use this thing to cover a gap in the system. There is a gap there.
Mr. Chair, I am sorry; I am very long here. An amendment to Bill C-41, the former Bill C-15, regarding this particular issue stated: "decide all matters relating to a grievance, including financial matters." It obviously never passed. If you give the Chief of the Defence Staff the authority to decide all financial matters and to close a grievance, then you close the loop and bring fairness to the system. It requires an amendment.
[Translation]
Senator Dallaire: So do we need an amendment?
Senator Dagenais: Welcome to our guests. My question goes to Mr. Hamel and Mr. Daigle.
I am a police officer with the Sûreté du Québec and I was president of the police union at the Sûreté du Québec for seven years. In that capacity, I had to negotiate and settle more than 1,400 grievances with the employer. We were averaging about 90 per cent. We would first try to deal with the situation with the employer and, if we could not come to a resolution, we would begin a process of arbitration.
You have explained to us that, in the military, grievance resolution organizations are in place but that the process is long and laborious. Basically, if they do not arrive at a satisfactory result, they appeal to the government. I feel you might need a union in the military, but I do not think that that is going to happen any time soon.
Will Bill C-15 improve the process or will it make things more complicated?
Mr. Hamel: I have already talked about what in the bill will affect the board as such. If we want to expand on that a little, subclause 12(4) gives the chief the power to cancel the release of a member if the release was improper and allows for that member to be reinstated administratively in the Canadian Forces. I think that is a positive element about which the board has made a number of recommendations.
The basis for that was the Dunsmuir case which held that, when procedural fairness has been denied, a decision is absolutely null. For us, that is certainly a step forward. Canadian Forces administrators have been looking for that kind of power for several years and this bill will be very positive.
There are also recommendations. To be consistent with what I said, Justice Lamer's recommendations have been supported, as have those of Justice LeSage. Clause 9 deals with subsection 29.14(1), which gives the chief the power to delegate, and that is something we have supported. In our opinion, it gives the Chief of the Defence Staff the ability to organize his caseload as he sees fit.
[English]
There is a caveat on this one. We recommended that the delegation must be done to an officer who holds a rank higher and not of equal rank. That is a little different than what I see in Bill C-15. We believe that a colonel should not review a colonel, or a brigadier-general should not review a brigadier-general. From a hierarchy and fairness perspective, it should be one rank higher than the delegated authority. There is a small discrepancy there. However, those would be the two positive points I see with regard to grievances.
[Translation]
Mr. Daigle: I would like to make two comments that directly involve the Office of the Ombudsman. First, in the Canadian Forces grievance system, the picture will never be complete until the final authority has the power to award financial compensation for a grievance. This became a problem in 2003 and, ever since that time, everyone has been in agreement but it is still being debated. It will definitely put the last step of the process into place.
The second important point is that our experience shows that the Office of the Canadian Forces Ombudsman is in a unique position to help members of the Canadian Forces — mostly the military ones in our case, but also the Department's civilian employees — to resolve problems of unfairness or injustice at the lowest levels. As I said at the outset:
[English]
Our office is not in the National Defence Act. In many cases, Canadian Forces members are unsure which existing avenues of recourse are open to them. They come to us and we direct them to the right one.
[Translation]
To tie in with your question about whether it would be in the best interests of Canadian Forces members to also include a reference in the act Ð
[English]
Ð that the ombudsman has a recourse to help the members navigate the grievance process and any other avenue.
[Translation]
We are not there yet. I am reviewing the processes that come out of the grievance system, but the Office of the Ombudsman is not recognized in legislation. When I look at the service that we provide to all the members of the Canadian Forces who come to see us, it would be good if they could see that service in the legislation and that the service is completely dedicated to helping them to resolve the injustices that they are experiencing.
[English]
Senator Joyal: You puzzle me with your comments. If I understood you well, the special power that the VCDS would have now did not exist before, and there was no reason due to past experience that would justify or explain the need for such a provision. Did I hear you correctly?
Mr. Stannard: Yes, the accountability framework has been in place for a number of years. I have not had any issues or heard of any issues in my time, or in our previous corporate memory, that would necessitate the need for the Vice Chief of the Defence Staff to provide in legislation specific guidelines or writing instructions to a particular investigation. To me, that is interference. For all police agencies in this country, there is legislation that prohibits their bosses from interfering in investigations or providing specific instructions. It is contained within the provincial legislation. Nothing in the Criminal Code says that somebody can provide instructions to the police. There are permissions that need to be obtained in terms of laying certain charges for specific offences after an investigation has been done, but nothing to do with the investigation.
On this issue of the Canadian Forces Provost Marshal, he is essentially the police chief for the military police. I recognize that they refer to soldier first, police second, but he is the police chief for that. The NIS conducts very serious investigations internationally and domestically, wherever it may be. I have not seen the purpose —
Senator Joyal: Could we interpret that new power as being a possibility to do a cover-up? Let us take the Somalia inquiry as an example.
Mr. Stannard: That is before my time. The Military Police Complaints Commission was put in place due to the circumstances that happened coming out of Somalia. One of our legislative mandates, and it gets specific, is that we are the investigative body for purposes of investigating interference that military police members may believe they have.
I know that the Canadian Forces Provost Marshal testified here. I have never heard of a situation, and I did not hear it at the table, where he would need this kind of provision.
Senator Joyal: If such a provision would remain in the bill, how would you frame it in a way that it would not lead to abuse?
Mr. Stannard: In terms of framing it, the bottom line is that the VCDS would be able to, as it says, give instructions or guidelines to a particular investigation. To start with, I guess he would have to know what that investigation is.
Senator Joyal: Of course. He has to know the particulars. If you delay an investigation, sometimes you lose elements of proof. From usual practice, anyone around the table will understand that. People forget. Written proof might disappear. All kinds of elements and situations can happen if you delay an investigation.
Mr. Stannard: I have heard of circumstances where there might be instructions provided where the military police were about to go and make an arrest or something, and that might interfere with something. Once you start deferring arrests, you need to be very careful, and you are sharing information, it maybe should not have been shared in the first place.
To me, the chief of police has that ultimate responsibility to deal with investigations. That is that person's responsibility. I understand the military police concept if it is that serious that it is going to impact something that is going to deal with the defence of Canada. The way this is written, it does not bring it down to that. It is so wide open.
Senator Joyal: That is why I asked you how we should frame it to avoid obvious interference with the police.
Mr. Stannard: The first thing is to remove it.
Senator Joyal: I agree with you. That seems to be the logical approach.
Mr. Stannard: If you are not going to do that?
Senator Joyal: That is the second step. If we do not remove it, how should we frame it or limit it or establish criteria to prevent abuses?
Mr. Stannard: The guidelines are one way. That could stay in there. I think you need to reference somehow that it has to be in relation to the defence of Canada. It has to be something very specific to the defence of Canada. We have laid out in our submissions a suggestion on that, and I include the defence of Canada in that.
Senator Joyal: One could be led to even challenge that decision on the basis of the principles of fundamental justice, because justice would not be brought in such a context.
Mr. Stannard: No, it would be denied to proceed.
Senator Joyal: Exactly.
Mr. Stannard: I can understand that the drafters struggled with this. I heard the minister say it is time to move on with the legislation, and I agree with that too. However, it is not time to move on with a flawed piece of legislation. It is time to make sure we do it right. If there is a problem here, it will not get changed for another five, seven or eight years. This is the last chance.
Once you take away police independence and talk about cover-up, and I am not going to go that far, but it is something that is protected. I know former Chief White knows it is something that is protected by chiefs of police in terms of independence. With police services boards, in all my time I never had anybody come and try to direct me or my people on an investigation. It is just unheard of.
Here, there has to be a proper resolve to it, and this is not it.
Senator McIntyre: The Canadian Forces Grievance Board is an organization external to the Canadian Forces and the Department of National Defence. I note that under Bill C-15 the Canadian Forces Grievance Board would now be named the "Military Grievance External Review Committee." Would the name change alter the committee's mandate or structure, and what significance will this have in the grievance process?
Mr. Hamel: It is really about education, in the first part. The board began its operations in 2000. Thirteen years after beginning its operations, many CF members, all the way up to very senior officers, believe that they are part of the Canadian Armed Forces. Every year, I constantly receive submissions from the Canadian Forces or the department asking me to report on A, B or C. That is inherent, in my view, to the current title. Canadian Forces Grievance Board is like saying "Bruno's bike." There is a possession link there.
Changing the name will, first of all, focus on what we do. We review military grievances. It will ascertain that we are not a decision-making body or a commission; we are a board. We review and make findings and recommendations to the Chief of the Defence Staff. These five words were carefully selected to really inform everyone from the CF member all the way to the public about who we are, what we are mandated to do and what it is we are really doing. We are part of the system but external to the Canadian Forces.
There is a provision currently in the statute, section 29.16(10), which allows for an active CF member to be seconded to the grievance board. In my view, and I have expressed this before the House of Commons committee, this provision in the statute should be eliminated. The independence of the board, that external aspect, is essential to its function and to the reason for which it was created. Currently I have no CF members seconded to the board. The statute provides that tomorrow I may end up with a full-time or a part-time board member coming straight from the Canadian Forces, seconded to my organization. That would be devastating for the board.
[Translation]
Senator Boisvenu: Welcome, and thank you for your testimony. Mr. Hamel, Mr. Daigle, I am a little confused by your testimony. I am not sure if it is because of your respective positions that your vision of the impact of the Bill is different.
One of you says that the process of grievance resolution in the Canadian Forces remains unfair and flawed. The other one says that the amendments are important ones that have been long sought-after and that will provide institutional independence.
Why do you have opposing views on the impact of the bill on the resolution of grievances? Are your visions different because you have different roles?
Mr. Daigle: I am not sure I grasped that. The role of the National Defence and Canadian Forces Ombudsman is, of course, to inform, to educate and to guide people towards problem-solving mechanisms and, possibly, if required, to investigate in order to resolve cases of injustice.
Our mandate is also to review the problem-solving processes, including the Canadian Forces' grievance system. People who come to our office often do not know where to turn and we guide them through the mechanisms. For them, the mechanism of last resort is access to a grievance resolution system. When they submit a grievance in the Canadian Forces, an initial authority looks at it, someone who might have the authority to resolve it. Otherwise, the final authority is the Chief of the Defence Staff. When the matter gets to the Chief of the Defence Staff, if the chief decides that an injustice really was done and, to correct the injustice, the member must be awarded financial compensation because he is out of pocket, the chief does not have the power to do so.
How can the system that is being reviewed be just and fair as long as the person with the authority to wrap the situation up really cannot do so because he does not have the power to provide financial compensation? If you are an official in the Department of National Defence and your boss sends you home for six months, you file a grievance. If it is agreed that you were sent home unfairly, you will get your salary for those six months. But the Chief of the Defence Staff has no financial authority.
Senator Boisvenu: It is the negative element that is missing. Mr. Hamel, do you have the same perception?
Mr. Hamel: The board's vision is not automatically different from the Office of the Ombudsman's. But I agree with you that our roles are different, even though they can be called complementary in certain areas. The board is an administrative tribunal, a bit like an administrative court. I have jurisdiction in the legislation and that jurisdiction starts when the Chief of the Defence Staff sends me a file. Unless I am sent a file by the Canadian Forces, I have no jurisdiction in a case and I cannot get involved, because, like a court, when a case is received, you see if you have jurisdiction. Mine starts with the referral and ends when I provide the Chief of the Defence Staff with a report in which I recommend a remedy, a possible solution. The solution can be positive or negative, or it can be anywhere in between. I look into a particular complaint and then we look into it in more depth. We write a report that is several pages long and we say to the Chief of the Defence Staff: "You asked us for our opinion on this matter and our recommendation is to provide the complainant with the following remedy, or to apply the remedy because the decision that was made, the one that was contested, was the right one." We work in a different way.
[English]
We are looking at things from a different perspective.
[Translation]
Mr. Daigle: As I explained, the old CFVV is an integral part of the grievance system. When a member of the military files a complaint, it starts from the initial unit and can go directly to the Chief of the Defence Staff as the final authority.
In some cases, it goes through his board that makes a recommendation to the Chief of the Defence Staff, who makes the final decision. When someone comes to see us thinking that they have suffered an injustice, I go through all the process completely and, even if the grievance board operates externally, it acts internally and recommends a decision to the Chief of the Defence Staff. And if the member who receives that reply from the Chief of the Defence Staff is not satisfied and asks us to review the process, we go through everything that has been done up to and including the final decision. But our office is not a part of the Department of National Defence.
[English]
Senator Beyak: All of my questions have been answered. However, I wanted to ask Mr. Hamel something. It was suggested during second reading debate that 60 per cent of the board should be non-military. You opposed it. Could you give me more detail on that?
Mr. Hamel: I am happy you asked that question. I absolutely oppose quota, for several reasons. I have mentioned them on the record already, but I believe that military background is an asset and not a requirement. The fact that I have experience A, B or C should be evaluated on its own merit when coming to decide which board member gets appointed to the grievance board.
That being said, I have never asked and will never ask for a board constituted completely with members who have previous military experience. It is an asset. I look forward to diversity. In that regard, we support the recommendation from Chief Justice LeSage.
We are a specialized tribunal. It is not unusual for professions to be looked after by professionals. Doctors are reviewed by doctors. Lawyers are reviewed by lawyers. The profession of arms, in my view, should not be treated differently.
The complement of the actual board's constitution is a Governor-in-Council decision. As the chair, I am concerned with having the best-qualified individual to do the job at the time the competition is running. If that individual has military experience, so be it. If he or she does not, so be it; as long as he or she is the best candidate.
Proportionality becomes problematic.
[Translation]
We could currently prevent ourselves Ð
[English]
The Chair: I have to interrupt. We are pushing close to our timelines here. I will make my usual plea for short answers and abbreviated responses. We have five members on the second round. Therefore, if you wish to give your colleagues the opportunity to speak, please do.
Senator Fraser is removing herself from the list. We are down to four. Very quick questions, please, and similar responses.
Senator White: Mr. Hamel, you have talked about expediency and the importance of that in the grievance process. Do you see this legislation making expediency more of a priority in assisting that?
Mr. Hamel: I do not think the bill addresses time limitations. It is a regulation that affects the timing, really. The bill will not make the grievance process faster or shorter.
Senator White: But from the perspective of who can respond to the grievances, sharing the workload, so reducing the ability for grievances to be handled at a different level, what about that?
Mr. Hamel: I am not sure I understand the question.
Senator White: I will leave it. Thanks.
Senator Dallaire: You described interference or potential interference because of this VCDS clause. You have described policing very much in context of garrison life, that is to say, inside of Canada. That is policing in garrisons with military or civilians — the same scenario, requirements and situations.
I was a theatre commander. Due to the scenario on the ground, I was able to stop human rights people from doing investigations, because if they did, they would get killed. I have stopped humanitarian aid moving in, because if they did, even though thousands were depending on it, they would be killed or captured and all that stuff would actually aid and abet the enemy.
I am looking at the police in operational theatres. Somalia proved that there was a significant need to improve the quality of military police training, professional development and skill sets to meet the requirement, and I take for granted that has been done.
If the VCDS, who is operationally knowledgeable, is not an authority to influence a situation that is happening on the ground, you would say that the Provost Marshal, because of his military background — trained and educated — should be able to make that decision as to whether the investigation should keep going or wait for an appropriate moment. If it is not the Provost Marshal, then who is it — the CDS?
Mr. Stannard: The CF Provost Marshal is a high-ranking officer of the military. He, in this case, has a tremendous amount of experience, not only policing experience but military command experience.
We have just come through significant conflicts around the world, in particular in Afghanistan. We have the Canadian Provost Marshal, CEFCOM and different people. There was no issue with the VCDS relative to issuing instructions on investigations. The NIS conducted investigations in Afghanistan. They are professionals as well, and they know when to go outside the wire to do certain things. They had control over whether to do escorts and other things. I did not see anything, and had no complaints from the Canadian Forces Provost Marshal, relative to anyone interfering with that.
I have not seen anything that has changed with the accountability framework. It is in place. I am not here to suggest for a minute that the VCDS has any intentions to use the proposed authority for any nefarious purpose. In fact, I am not even sure that the VCDS has asked for it —
The Chair: As I indicated, Mr. Stannard, we have timelines here.
Senator McIntyre: Ms. Dunbar, my question has to do with the powers of arrest under both the National Defence Act and Bill C-15. Sections 154, 155, 156 and 157 of the National Defence Act set out the authority to arrest, without or without warrant. On the other hand, clause 27 of Bill C-15 places limitations on power of arrest without warrant. Are you satisfied with this new amendment as defined in Bill C-15?
Julianne Dunbar, General Counsel and Director of Operations, Military Police Complaints Commission: Thank you very much for your question. We take no issue with the other clauses, other than the one we are raising with proposed subsections 18.5(3) and (4) and (5). We are here today really to speak to the issues that affect our commission and the mandate, and certainly the independence aspect of the military police.
Senator McIntyre: Are you satisfied with the powers of arrest with or without warrant?
Ms. Dunbar: Yes.
Senator Joyal: Mr. Stannard, we have mentioned the first criterion that you have stated, the security of Canada. I would say the future of human life being at stake could be a criterion. The time limit is another important factor. If you receive an order to suspend, do you not also agree that there should be a time limit so that it is not suspended indefinitely?
Mr. Stannard: That is quite possible. It depends on the nature of this particular investigation and whether there was to be an impending arrest, search warrant or loss of evidence. Each one would be very difficult, and it would be difficult to say without knowing.
That is the problem with the legislation: What is the particular investigation? That is the struggle.
The Chair: Thank you all for your appearance today and your contributions to our deliberations. We very much appreciate it.
For our second panel this morning, we have the former Director of Military Prosecutions for National Defence, Navy Captain, Retired, Holly MacDougall. Welcome, Captain MacDougall. I understand you have some brief opening comments.
Captain (N) (Ret'd) Holly MacDougall, former director, Military Prosecutions, National Defence, as an individual: Good morning, honourable senators. My comments will be very brief. First, I would like to thank the committee for the opportunity and the invitation to appear before you today.
I want to give you a brief overview of my background. I was a legal officer in the Canadian Forces for more than 27 years, until my retirement in 2009. When I retired, I was the Director of Military Prosecutions for the Canadian Forces and held that position for just two months short of five years.
I would like to make it clear at the outset that I am not an expert on Bill C-15, although I have obviously familiarized myself with the contents. That said, I do have extensive practical experience within the military justice system that this bill is seeking to strengthen, and I would be pleased to answer any questions that might assist you in your deliberations.
I do have one other comment. In the area of my most recent expertise — prosecutions — this bill does in fact strengthen the military justice system. I would point to three provisions specifically.
The first one is the rules of courts martial practice that the Chief Military Judge may, if the bill passes, put into effect. I believe that that has the potential to strengthen and improve the administration of military justice. In the courts martial system, as in the civilian criminal system, delay is always a challenge, and the ability of the Chief Military Judge to implement these rules of practice has the potential to address some of those delay issues.
Another area that I think is very helpful and strengthens the military justice system is the expansion of the sentencing provisions. The additional flexibility that these sentencing provisions afford the triers of fact, either at summary trial or at court martial, is a very large step forward.
Finally, I think the victim impact statement is also something that is very important in our system, as it is in the civilian system.
The Chair: Thank you. We will begin the questions with the deputy chair of the committee, Senator Fraser.
Senator Fraser: Never having been a prosecutor myself, I have no expertise in the field. I will ask you something that is not about prosecutors but that was raised by an earlier witness today and that I did not have time to come back to. I am not asking you for a legal opinion; I am just asking you, as someone who has been involved in the military justice system and who understands the military's mindset, for an informed, but not necessarily legal, opinion. This has to do with the grievance process, but not the technicalities of the grievance process.
This bill says: "The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that" — and this is what I want to ask you about — "a grievance submitted by an officer may be delegated only to an officer of equal or higher rank . . . ." It was put to us by a witness in the last session that that should really be confined to an officer of higher rank. I am assuming that if you are asking someone of equal rank to make a decision, there might be some form of conflict there. Given your understanding of the way the military works, do you think that would be a fair conclusion?
Capt. MacDougall: This is definitely outside my area of legal expertise.
Senator Fraser: I know that. I gave all of my preamble to say that this is not what you did. However, you were in the military, and I never have been.
Capt. MacDougall: I can say, based on my personal experiences, that you are absolutely right. The norm would be decisions with respect to individuals would be made by officers or non-commissioned members who were senior in rank. I can also say, however, that it does happen where officers of equal rank in limited circumstances will make decisions related to another individual who holds the same rank. Really, I cannot add anything more to the debate than that.
Senator Fraser: Back to what you did talk about, which was sentencing, we believe in and recommended a rather broader range of alternative sentencing options than is provided in this bill. Do you think this bill goes far enough in providing flexibility in sentencing?
Capt. MacDougall: I think it is a giant step forward. There are some challenging issues with respect to going further. I will use as an obvious example the conditional discharges or probation. I do not doubt that this has been looked at and we may see something in the future, but I do not think it is possible to implement that type of sentencing until you actually have the process in place to be able to oversee that type of thing. I do not know if that is why, but my instinct tells me that that is probably why it is not here.
Senator White: I will try to talk about the independence piece. We have had a lot of dialogue. I will try to direct it towards your experience and see if you can draw a parallel.
Section 165 of National Defence Act provides that the Director of Military Prosecutions acts under the general supervision of the Judge Advocate General. The section also provides that the Judge Advocate General may issue general instructions and guidelines in respect to prosecutions, even in relation to a particular prosecution. Given your experience, do you have any opinion whether such an arrangement impacted on independence and, if so, can you draw a parallel where the VCDS might find themselves in the future, should this legislation pass, in a similar position of having to give a general direction in relation to a particular investigation, with accountability, of course, whether or not you can see the parallel?
Capt. MacDougall: I would be happy to comment on that in respect of how the process works for the prosecution service. I can certainly give you my personal views on how I felt as one who could have been in receipt of those specific directions. It is almost an exact parallel between what is in the legislation, in Bill C-15, and what currently exists in the National Defence Act with respect to the Director of Military Prosecutions. In the context of prosecutors across the country, it is not unheard of, and it is not even unusual to have that in the legislation.
I will give you an example. The Director of Public Prosecutions for the federal prosecution service has a similar type of constraint in the legislation that gives the Attorney General the authority to issue specific instructions. I am not aware of what the legislation says in the policing context, but I do know that, in the prosecution context, that is not unusual. While the concept of prosecutorial independence is just as important and just as entrenched in law as the police, and I would say perhaps even more so because it goes back a little further in history, there certainly is a history and a background where there can be specific instructions.
I will tell you from a personal perspective that I always took comfort in the fact that there was a provision that said, when I was given instructions, I could make it public. The bottom line is that when discussions were being had between myself and the Judge Advocate General at the time with respect to specific high-profile cases, and this was more in the form of informing him as opposed to seeking instruction from him, I always knew that ultimately, if we disagreed, we could agree to disagree, but I had and would make that direction public. I saw it as protection and transparency, but more than transparency, it gave me comfort, particularly in a military context. You have to realize that it is the VCDS, who is a very senior general, and the Provost Marshal, who is a colonel. The JAG is a major-general. I was a colonel, as the Director of Military Prosecutions. That provision gave me the statutory authority and obligation as being able to stand up for what I saw was the appropriate thing to do.
Senator White: In this case here, should there be interference, there is an opportunity to file a complaint, and it is transparent. You would see that as being legitimate as well?
Capt. MacDougall: I certainly would. In fact, I think there is a second protection there that does not exist for the Director of Military Prosecutions.
Senator Dallaire: One of my questions is on reserve judges and the other is on sentencing.
Clause 41 describes the criteria for a reserve judge. Essentially, would you see us going to get a judge who could be totally civilian to meet a situation where judges or courts martial are being held up because there is such a backlog, or would that not be the overriding factor for advancing courts martial in order to be more timely?
Capt. MacDougall: I would, to be honest, never see using that provision, and again, this is my own personal opinion. I would never see it using civilian judges. I see that provision as reserve judges who are military, just like the reserve concept we have for any other classification in the Canadian Forces. However, I could see that being of assistance. We have four judges now. We went through a period of time where we only had two available, and that was during my tenure as DMP. The backlog of cases certainly increased. I could see that possibly being something that could be used in that context as well.
Senator Dallaire: The criterion speaks about years of experience, barrister and so on, but does not outright say that the individual has to have any particular training within the military structure or within the reserve structure. If this is approved, do reserve judges have enough required training to be brought in as a judge within the military system and be able to handle it, or do we really see this being judges who have maybe gotten out and are on a supplementary reserve list and are simply called in?
Capt. MacDougall: Senator Dallaire, I am not the drafter of the bill and I cannot tell you the thought process in their minds, but certainly, in my mind, when I read this provision, I was seeing it as something similar to what we use for our reserve military prosecutors and defence lawyers. They are reserve officers and they get the training we have, so they have the military experience. However, for the most part, our prosecutors are all civilian prosecutors in their daytime jobs, as we like to call them, so they have a blend of both experiences that could be very helpful.
Senator Dallaire: Should detention be on the criminal record?
Capt. MacDougall: I am not surprised you asked me that, Senator Dallaire. I have been following the transcripts.
Senator Dallaire: I am glad you are saying it is not because I use it so often.
Capt. MacDougall: My answer is that reasonable people can disagree where you draw the line as to where the cutoff is regarding what you see as a serious offence and what you see as not. If you look objectively at the scale of punishment, detention is above reduction in rank and forfeiture of seniority.
In my own personal experience, when I have seen detention given, at least in recent experience — perhaps not in the 1980s and 1990s but certainly now — it is a fairly serious breach of discipline.
If you want my personal opinion, I am one of the reasonable people who might fall on the side that, if they get detention, they perhaps should have a criminal record.
Senator Dallaire: Do you not believe that is changing the nature of this fundamentally disciplining and reforming tool given to commanding officers?
Capt. MacDougall: Of course. If my recent experience had been that detention was really used in that context, I would agree with you. My recent experience — and certainly at least one decision coming out of the court-martial appeal court — tends to show that people are using detention and imprisonment interchangeably in sentencing. That, coupled with where it is on the scale of punishment, is why I fall on the other side.
[Translation]
Senator Dagenais: From the testimony that we are hearing, I am realizing that the military is an environment that is really very closed and that military justice is not always easy to administer. Do you feel that Bill C-15 will help victims in your justice system? You mentioned the word "victim" in your presentation.
[English]
Capt. MacDougall: Thank you, senator. Victims in any criminal system, whether it is the civilian system or the military justice system, are not part of the system, per se. They are the victim, but they really do not have a great deal of involvement. I think that is a common complaint you will hear from victims; namely, that they do not have a great deal of involvement in the process itself and the outcome of the process.
To the extent that we now give victims a say in the sentencing process, I do think this is a step forward for victims. It will help them come to some resolution; they will at least feel not so helpless.
That being said, I do want to say that although we have no formal process for it, prosecutors pursuant to the Director of Military Prosecutions Policy Directives do consult with victims throughout the whole process and attempt to seek their views in what is appropriate with respect to whether the charges should proceed and what they would see as an appropriate sentence. They are clearly not bound by it; however, we seek to do that even without this being in place.
This is a step forward, though, because it formalizes a process that has been in place on an informal ad hoc basis for a while.
Senator Joyal: If you will allow me, I do not want to look misogynistic, but having had an opportunity to hear from somebody in the military justice system who is a woman, I cannot resist asking you: What are the most common problems that women in the force encounter with the military justice system?
Capt. MacDougall: Senator, I am probably the wrong person to ask. I think that might be a function of the fact that because I am a woman and was a prosecutor for probably about 50 per cent of the time I was in the military, I was not aware of any problems. The women I dealt with did not articulate them to me.
I feel the system itself is gender neutral, at least as much so as a civilian justice system. I do not think there are particular problems in the military justice system that women experience that would not be there in a civilian justice system.
I am sorry. I sound like I am waffling, but I cannot think of anything that would give you —
Senator Joyal: What are the most common offences that women in the force might be charged with, since you were on the prosecution side?
Capt. MacDougall: We do not keep statistics like that. It never entered my head to look at that. There has not been anything that has struck me or, to be honest, the Judge Advocate General in their constant review of the administration of the military justice system, that would highlight that type of thing.
Clearly, far fewer women are charged and prosecuted in the military justice system than men, but that is a function purely of the percentage of women in the military as opposed to the percentage of men.
I cannot help you; I simply do not have the answer.
Senator Joyal: How do women participate in the process? You are a prosecutor yourself. You said you spent half your time in the forces in that role and capacity. Are there any other women at various levels of the system in the military police, as in the court, court-martial and so on?
Capt. MacDougall: Yes, definitely.
Senator Joyal: I am trying to understand the participation of women in the overall line of the system to figure out the approach that has been developed in the military in relation with the presence of women in the field.
Capt. MacDougall: I will put this in a general context and then I will try to bring it down to the military justice.
My personal experience as a legal officer in the Canadian Forces has been stellar. I have said this before, and I am perfectly prepared to say it now: I can honestly say I have never experienced any bias or prejudice based on my gender. That may be unusual, but the reality is that if you are looking to harass a woman, you are unlikely to pick a lawyer.
Some Hon. Senators: Hear, hear.
Capt. MacDougall: If I could take that one step further and put it into the context of JAG officers within the military justice system, we have had women who are military judges and women who are prosecutors. During my tenure, there used to be a running joke that maybe when Captain MacDougall was DMP, she was trying to get rid of all the men in the office. It had nothing to do with that; it was just the normal posting process. There have been women in the defence.
We are integrated in the whole process, as we are in every other aspect of the type of work that the JAG does in the Canadian Forces.
Senator Dallaire: What about the Provost Marshal?
Capt. MacDougall: Definitely. I am not as familiar with the numbers, but we certainly had a woman Provost Marshal. We have had two that I am aware of. Perhaps picking the classification of police or lawyer is not the best one to determine whether there is some sort of gender bias. I can only tell you my experience in that regard.
Senator McIntyre: My understanding is that under the National Defence Act, the military prosecutor has security of tenure — a fixed term of office. I read somewhere that in order to enhance the perception of the independence of defence counsel, the Director of Defence Counsel Services would be on a par with the Director of Military Prosecutions in terms of both pay and security of tenure; is this correct?
Capt. MacDougall: Yes. When I was serving in the forces, the Director of Defence Counsel Services was a lieutenant colonel. After my retirement, that position was upgraded. It is my understanding — and I am certain that the sponsors of the bill within JAG can give you the sections — that we are simply moving into legislation what has been in practice and regulation.
[Translation]
Senator Boisvenu: Ms. McDougall, I would like to get your opinion on the competence of courts martial versus summary trials. We know that the code of service discipline in the National Defence Act contains a number of sections that deal with offences, including sections 72 to 132. There is a choice between a court martial and other cases that are heard by officers at a summary trial.
One of the most difficult offences for a woman in the military to deal with is likely sexual assault. Can cases of sexual assault, as set out in the code of discipline, such as sexual assault with a weapon or aggravated sexual assault, be heard before a judge at a summary trial, or do they automatically go to a court martial?
[English]
Capt. MacDougall: The charge of sexual assault has to go to court-martial. It cannot be presided over by a presiding officer at summary trial. It is one of the offences referred directly to court-martial based on the legislation.
Senator Fraser: I am going back to this question of instructions in respect of a particular investigation/prosecution. You said you felt comfortable with the system set out in the National Defence Act. In that system, as you rightly said, the Judge Advocate General, the head of your department, is empowered to issue instructions. Interestingly, the Judge Advocate General does not have the power to issue instructions about a particular case to defence counsel.
Capt. MacDougall: That is correct.
Senator Fraser: That is under general guidelines. In the case of the military police, it is not the Provost Marshal who can issue instructions in respect of a particular investigation, it is the Vice Chief of The Defence Staff — the brassier brass, if you will. Do you not see any distinction? Why would it not apply to defence counsel if it is okay for prosecutions?
Capt. MacDougall: I will start with the easier question first, which is why it does not apply to defence counsel. It is unethical. Defence counsel in our system, civilian or military, has carriage of the defence, and that is absolutely between the accused and the defence counsel, who takes instructions only from the accused. That is an easy one. That will not apply.
Senator Fraser: I get that point.
Capt. MacDougall: I agree with you that there is a difference. It is a parallel as opposed to a mirror image between the Director of Military Prosecutions and the Provost Marshal. The big difference is that Judge Advocate General's role is set out statutorily in the National Defence Act. He is charged with overseeing the administration of the military justice system. Clearly, there is nothing specific in the act —
Senator Fraser: There will be something specific because this bill sets out the Provost Marshal.
Capt. MacDougall: It does not set out with respect to the Vice Chief of The Defence Staff. That said, the closest analogy I can use to the civilian system for the JAG and the DMP is that the JAG almost fills the role of the Attorney General in the civilian system. An Attorney General in the civilian system can give a prosecutor specific directions on cases, and has done so, in particular in British Columbia where there are a number of examples. It also happens in civil jurisdictions, not frequently, but it is not unusual. The JAG fills that kind of role. That is the parallel.
I agree with you that there is no parallel in respect of the role of the Vice Chief of The Defence Staff and for the Provost Marshal. Hence, I can only comment from a personal perspective. In a military organization, I found it useful to have in the legislation that it had to be in writing. I saw it as a protection as opposed to a restriction of my independence.
Senator White: Have you ever been involved in wiretap authorizations under Part 6.
Capt. MacDougall: I have not.
Senator Joyal: You mentioned cases in British Columbia where the JAG intervened. Could you give us the examples? What were the cases?
Capt. MacDougall: It was not the JAG but the Attorney General.
Senator Joyal: Sorry.
Capt. MacDougall: The cases dealt with prosecuting polygamist marriages. That one comes to mind but there were a couple of others.
Senator Joyal: They were exceptional cases.
Capt. MacDougall: Absolutely.
Senator Joyal: It is not common.
Capt. MacDougall: Delineating the exceptions can be almost as problematic as going too wide. It is a very difficult line to draw. Do you give broad authority and find out after fact, as is a legitimate concern, that it was too broad and that it is been abused? Or do you narrow it by making specific examples and find out after the fact that you did not think of the one example that you need right now? This has happened to us in the military justice system, but not in this context.
I do not have an answer to that. Reasonable people can disagree and have an informed debate with respect to that.
Senator Dallaire: The system is such that an infraction happening off-base or maybe on-base could come under either the civilian judicial system or the military through court-martial. That decision is taken by the potential convenor of the court-martial or by the accused; is that correct?
Capt. MacDougall: Are you asking about which system the matter is proceeded with?
Senator Joyal: Yes.
Capt. MacDougall: It is definitely not the accused. Normally the police make the determination. On a practical basis, when an offence is committed, either the civilian police will do the investigation or the military police will do the investigation. It has a cascading effect. Whichever police authority has started the investigation, it will likely proceed, although not always, along that justice system.
I am aware that the Provost Marshal has policies with respect to coordination of who has jurisdiction over policing, where the matter will go forward, and who will lay the charge.
In the military justice system, it does happen that it will come to the prosecutor as well, and there will be an issue as to whether this is one, when you just look at it and apply common sense, that should proceed through the military justice system or whether it would be better served in the civilian justice system. In that context, what happens is that the military prosecutors and the civilian Crown discuss the matter, and we come to an agreement on a case-by-case basis.
Senator Dallaire: Yesterday, we got quite an exercise from Judge Létourneau and Colonel Drapeau in regard to C- 15, responding to Antonio Lamer — not yet to Justice LeSage — and how some of the changes coming out of Somalia were moving forward. It is nowhere near the reform that they would think essential for our justice system and that the British, Australians and so on have done. Do you see that requirement appearing in the future, or is this moving us simply to meet the requirements of deficiencies that have been discerned from the past?
Capt. MacDougall: I was a legal officer for 27 years, so I cannot say that I am completely objective in regard to the value of the military justice system. I put that on the table to start with. However, having been a practitioner for 27 years, I have seen the system function at the summary trial level, because I was adviser to commanding officers for approximately 50 per cent of my time, and in the court-martial system. I believe the system to be fair and basically sound.
Every system can benefit from outside information, oversight and informed debate, which I think is a very important aspect for any system.
If you are asking me if I think that, as Mr. Drapeau believes, the summary trial system is unconstitutional and should be completely reformed, I guess I start with the premise that we need a summary trial system. It is the fundamental building block available to commanding officers for disciplining troops. We have to have disciplined forces. We cannot be operationally effective without disciplined forces.
We know it works because we have subjective evidence of that. I give you what Mr. Justice LeSage's report says when he is interviewing accused and commanding officers. We know it works because we have the JAG doing an annual survey on the summary trial system that is published in his annual report.
It is not like everybody is sitting back and just ignoring problems. People are actively going out to see if there are problems. I would say we even have some objective evidence, although it is hard to prove the negative because we have not had any challenges to the system.
On top of that, we have three eminent jurists who have reviewed this and said that it is fundamentally sound.
I tend to go with the three eminent jurists and the practical requirement for a summary trial system. We need to be informed by what other countries are doing. Policymakers have to be informed but cannot be dictated by what other countries are doing in a different legal structure, by their policies and by what they have adopted.
The Chair: Thank you, Captain MacDougall, for being here today and for assisting the committee in their consideration of Bill C-15. It is very much appreciated.
Honourable senators, I am going to encourage you to stay in your seats so that we can quickly get on with the next panel. A number of us have time commitments, and our next witness may also be called for votes.
The next witness has assumed the hot seat, and we appreciate his attendance.
Honourable senators, we will now begin our study of Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders.) According to its summary, the purpose of the bill is ". . . to provide that any monetary amount awarded to an offender pursuant to a legal action or proceeding against her Majesty in right of Canada be paid to victims and other designated beneficiaries."
To introduce this bill to the committee, I am pleased to introduce the member sponsoring this bill in the House of Commons, Mr. Guy Lauzon, the Member of Parliament for Stormont—Dundas—South Glengarry.
Mr. Lauzon, the floor is yours for a brief opening statement.
Guy Lauzon, M.P., Stormont—Dundas—South Glengarry, sponsor of the bill: Thank you very much, Mr. Chair.
[Translation]
Senators, it is an honour for me to appear before you today.
[English]
I am very honoured and pleased to be with you. It is my first opportunity to appear before a committee of the Senate. It is a great honour for me to be here, so thank you very much.
Let me begin by saying that I am proud to speak to Bill C-350, which I think will take a great step in the right direction towards increasing offender accountability and improving restitution measures. This bill will help to ensure that offenders are held accountable for the monetary debts that they owe. Bill C-350 raises important issues about the way in which offenders are held accountable and responsible for their outstanding debts.
What we have heard loud and clear from victims of crime, victims' families and victims' advocacy groups is that offenders must be held accountable, and Bill C-350, I believe, does just that. It will ensure that in cases where an offender is awarded money from a final decision by a court or a tribunal, it must be first distributed, in order of priority, in order to fulfill outstanding debts to child and spousal support, restitution orders, victim surcharges and any amount owed as a result of a court judgment before any remainder goes to the offender. Bill C-350 puts in place a structure that ensures that a monetary award from the Crown is first directed toward the offender's financial obligations outside the penitentiary walls. In particular, it will ensure that offenders are fulfilling their family responsibilities by continuing to pay court-ordered spousal or child support or by paying restitution orders and victim surcharges.
The proposed bill addresses a very specific section of the Corrections and Conditional Release Act, section 78, which addresses payments to offenders. I am proposing changes to the law to ensure that the money owed to an offender is distributed to meet his or her financial obligations.
It is important to clarify that we are not talking about all monies. This legislation deals only with the specific cases in which an offender has successfully won a monetary award as a result of a final decision by a court or a tribunal. This could include a case against the Correctional Service of Canada or any other federal department.
When this happens today, the CSC or other federal departments would pay out the award directly to the offender. Of course, offenders are obligated to pay their debts even while they are in prison. They do not always do that, of course.
Under the recently passed Safe Streets and Communities Act, they must participate fully in a comprehensive correctional plan which, among other things, includes addressing court-ordered obligations. However, there is no law specifically ensuring that they honour these obligations. This legislation does just that and prioritizes child and spousal support. In many cases, the children or the spouse of an offender face the strain of having lost the income of that partner and perhaps lack the basic necessities. In many cases they are the biggest victims of crime.
To promote accountability among the offender population and to ensure that victims and families of offenders are not further burdened, Bill C-350 will set out in law a means of ensuring offenders honour their obligations according to set priorities for repayment. In this case, the award must be paid out in the following order of priority: any amount the offender owes as a result of a spousal or child support order; any amount the offender owes as a result of a restitution order; any amount owed as a result of a victim surcharge; and any other amount owed by the offender as a result of court judgment.
Mr. Chair, I believe that Bill C-350 represents an important step forward in our progress to make offenders accountable and responsible to society. It is all about rehabilitation. It sends an important message to families, children and, most importantly, victims of crime of these offenders that we have not forgotten about them.
I hope all honourable senators can see the value in this and support Bill C-350 because quite frankly, this is just common sense. It is an aid to the rehabilitation of a convict and helping him or her to accept his or her responsibility.
I think it is important that we understand what we are trying to do here. If this person, male or female, were outside the prison walls, they would have to live up to the responsibilities and accept them, and we are trying to encourage them to do that even while they are within prison walls.
Thank you very much. I am most prepared to answer any questions.
The Chair: We will begin with the deputy chair of the committee, Senator Fraser.
Senator Fraser: Welcome to the Senate, Mr. Lauzon. I do not understand the size of the problem that your bill seeks to address. Do you have any data on how many offenders get court awards from Her Majesty and what the size of those awards would be?
Mr. Lauzon: I do not have exact information on that. I can tell you about a couple of examples where it is incredible. People convicted of multiple murders in one case, and a case in point, a chap by the name of Gregory McMaster, murdered two Canadians and an American law enforcement person. He repeatedly said that he was being abused by the correction officers, et cetera, and occasionally, I think in three cases, was awarded relatively small amounts of money, $7,000, $2,500, that kind of thing. However, this person had a family and had victims. I do not think we can only talk about the number of cases. It is the damage. These people are not accepting the responsibility. There are victims. In every case there is a victim, and as I said in my statement, most of the time the victims are children and spouses.
Senator Fraser: I do understand that.
Mr. Lauzon: We are trying to address that. Even if this corrects one case like that — where we have a poor spouse with two children not having food in their home and someone in prison awarded a $7,000 award and they are living the high life, meanwhile their family is suffering — I think if we solve one of those problems, this is worth Bill C-350. However, it is much greater than what meets the eye.
Senator Fraser: You said you had a couple of examples. You do not have more than that?
Mr. Lauzon: No. There are many examples. I just happen to have two with me.
Senator White: Thank you very much for being here today. I truly appreciate it.
There was dialogue around whether or not the common experience payments as a result of the Truth and Reconciliation Commission hearings would be included. My understanding is they will not be included.
Mr. Lauzon: Definitely not.
Senator White: Can you explain to the committee and to listeners why it is important that they not be included?
Mr. Lauzon: I think that is totally separate from what we are trying to achieve here. This is a hurt that has happened in the past, and in that case, they themselves are victims. What we are trying to do here is to say that someone in prison — and most people are in prison because there is a reason they are in prison. If they are in a federal institution, they have committed a serious crime. We are saying that if they have an award, it is very specific. There are few cases where they would receive an award. It has to be a federal department, basically. If they were to receive an award, I feel personally that if they have an outstanding commitment to their spouse, their children or to a victim, I think that should be a priority, and that is what we are trying to address with this bill.
Senator Joyal: First, I congratulate you for your initiative, but your bill puzzles me on various grounds, especially clause 2 where you list a priority of payment. How does it fare with the Bankruptcy and Insolvency Act? In other words, if someone goes bankrupt, there is a list of priorities to be paid, the amount of money paid, for instance, for the income tax department, alimony and so on. There is a list of priorities in the Bankruptcy and Insolvency Act. How did you take that into account in determining how you will be proposing the allotment of the money available?
Mr. Lauzon: I am certainly not an accountant or a lawyer in bankruptcy, but it is my understanding —
Senator Joyal: It is a federal statute.
Mr. Lauzon: This has been vetted by — it is my understanding that if a person does declare bankruptcy, any monies owing to their spouse are not subject. They still are obligated to pay these amounts, as well as anything that has a victim. First, these awards will be generated when the person is in prison. Right now, if a person has declared bankruptcy before he gets to prison, this will supersede that, because this is an award made to someone who is incarcerated now and that is paid by a government department. It will be after any bankruptcy proceedings have taken place, for sure.
Senator Joyal: Your bill, as I understand it, is to protect or help the victim.
Mr. Lauzon: Exactly.
Senator Joyal: It seems to be your overall objective. However, when I look at the list of how the victims are treated here, it is essentially under surcharge (c) whereby there would be a payment made according to the surcharge that we have legislated in Parliament, as you know, before this bill. I do not see any other initiative that would support the provincial funds dedicated to victims or any other initiative except the victim surcharge. Am I right?
Mr. Lauzon: Yes. That is what the bill says.
Senator Joyal: How did you proceed with the drafting of your bill? I understand there have been various incarnations and changes. Could you give us a summary of that? It is helpful for us to understand where we are at now.
Mr. Lauzon: You are correct. We had to tighten up some of the conditions of the bill. Here is how this came about.
Apparently if a prisoner has money within an institution — $5,000 if you are inside prison is a lot of money and it gives you a lot of power. What is happening is many of these people who are incarcerated realize this, and they are putting in frivolous claims, but occasionally they are being rewarded. With the luck of the draw, eventually they get an award. Then they live the high life, so to speak. Meanwhile, their families or a victim is behind this. People have told me this. Socially, a prison guard told me that this is so unfair. When we talk to victims and to victims' families or to the families of the incarcerated, they are saying the same thing: "They have money and I do not have food for my children."
We have tried to address it. Originally I maybe had my rose-coloured glasses on and I was trying to make it wider. The committee made suggestions, and I agreed with them, that in order to make this work we had to narrow it down. This is the end result of that study. It was a lot of back and forth and study and getting advice on what would actually work and what would be the best approach.
Senator Joyal: In that back and forth and the arguments that were expressed during the committee's study of the bill, was the issue of the constitutionality of some of the provisions raised at that time?
Mr. Lauzon: Yes, and there were the provincial jurisdictions.
Senator Joyal: Provincial jurisdictions were involved. What I said about the Bankruptcy and Insolvency Act, which of course is a federal statute, could apply to other provincial acts that define a list of payments in a priority that may be different from the one you have.
Mr. Lauzon: That is why we had to narrow it to these particular priorities. We did not want to overstep provincial jurisdiction, of course.
Senator Joyal: One of the main constitutional issues was of course, as you say, the sharing of powers between the federal and the provincial governments in relation to compensation. There is also the constitutional issue of putting a burden on an offender, whatever the crime, that would go beyond what an ordinary citizen placed in the same condition would have to face. That is essentially where there is also a line that might be thin at the point in time to define.
Mr. Lauzon: That is exactly what I am trying to address with this bill. I do not want anything special for that person. I am asking that he or she accept the responsibility that he or she would have if they were outside that. Everyone has to support their dependents.
Senator Joyal: I agree. I could be the object of a decision of a court to provide my ex-wife or my wife or children with some support, which I think is well recognized throughout Canada and is portable from one province to another. You know the legislation.
Mr. Lauzon: It could also be to a victim.
Senator Joyal: Yes. Then I can go to court. I can be the object of a court decision and it is very fast, as you know, because it is family court. That is why I am trying to see how the condition of an offender in prison would deprive his family or spouse or children of a capacity they already have in the court system at the provincial level to sue the person.
Mr. Lauzon: In many cases they would not know about it. In many cases they are estranged and the victims or the families would have no way of knowing if this award were granted to the prisoner. Therefore, we are saying that if an award is made by a federal department, then we just take that right out. No one has to take the initiative here. It is an automatic thing. If a person receives an award, the CSC only has to look at whether there is a spousal agreement or commitment, or a victim's commitment. If there is, then it is there. The onus is on the person, the spouse and/or the victim, to register that with the CSC. It is not the CSC's responsibility.
[Translation]
Senator Dagenais: Mr. Lauzon, we know that most incarcerated offenders are going to try to divest themselves of their possessions and transfer them to someone else so that nothing can be seized. As I understand it, your bill stipulates that the amounts of money that can be seized are payments made by the department. Are they also payments to the families?
Mr. Lauzon: No. They are just the payments they receive following a judgment while they are in prison.
Senator Dagenais: Great. That is clear. Thank you, Mr. Chair.
Senator Rivest: My question follows up on the comments from Senator Joyal and Senator Dagenais.
First, I believe you are aware that, in Quebec, spousal support comes under civil law. Second, there is a way of collecting spousal support payments that protects the spouses and the families. I do not see what this bill adds, because, if an inmate receives an amount of money, the spousal support scheme comes into play and the government helps the spouses seize the money that was going to the inmate.
Mr. Lauzon: If they are aware. This all takes place in prison with Correctional Service of Canada. The decision is made by the administration, and sometimes the inmate receives a few thousand dollars.
Senator Rivest: This applies to someone who is not an inmate and who has an alimony judgment. But for someone who is not an inmate and who receives an amount of money, that person is not necessarily aware. Why would the system for inmates be different?
Mr. Lauzon: I think we have to try to help the prisoner rehabilitate in society. We try to encourage this person to take responsibility.
Senator Boisvenu: Mr. Lauzon, I fully agree with the objectives of your bill, which I will obviously support. I would like to congratulate you on this initiative. I think it is a general principle that must be acknowledged here. Criminals incarcerated in Canada live in conditions that are better than in a lot of countries, with respect to the quality of housing and food, access to services, recreation and education, all for free.
Inmates also have access to the possibility of receiving other income if they go to school or work. They can save a certain amount of money to prepare for their release. With the principle that if you have more money than you need, I think the priority for criminals is to compensate their victims.
Mr. Lauzon, why does victim compensation not take precedence over family or individual responsibilities in your list of priorities? There is a social safety net for families of a criminal who is incarcerated. There is a relatively generous social safety net in Canada through medicare and income security. There is already a social safety net, whereas this social safety net does not exist in a lot of cases for victims of crime.
I am thinking of Newfoundland, where there is no social safety net for victims of crime. Why not put victims before families?
Mr. Lauzon: As far as I am concerned, my priority is families, and I understand very well that victims have suffered a lot. I think families suffer the most. Because if you have young children at home, and the mother or father has very little money to manage the household, I think those are the people who are most vulnerable. We need to try to prioritize families. When I met with families and victims, it was obvious that they were suffering. Everybody suffers because of what the inmate has done. It is not fair.
Senator Boisvenu: Let me give you the example of a white collar criminal. He is relatively comfortable. These people are often quite ingenious and, while they are incarcerated, it is conceivable that they could find all kinds of ways to hide money or something like that. There are many cases like this. These individuals are bright and often very comfortable, financially. Do you not think that compensating the spouse of one of these people is done at the expense of the victims? Would it not be appropriate to ensure that your bill takes exception to these situations so that victims are not penalized? I am not sure that the families of organized criminals are all in a bad situation.
[English]
Mr. Lauzon: The issue here is that these awards, generally speaking, are under $10,000. I am trying to ensure that a criminal who has perpetrated a serious crime and has gone to prison will accept his responsibility to rehabilitate and get back into society. It is as much the principle as the amount. In most cases, as you mentioned, the families of white-collar criminals are probably not suffering, but for a spouse who is on welfare with two or three children and living in substandard housing, $1,000 is a huge amount of money. Thinking from a humanitarian point of view, these families need this desperately. It is not that the victim does not; in many cases the victim is poor as well, but in most cases I feel that the family is a priority. I think they are the greatest victims, to be honest with you.
Senator McIntyre: Thank you, Mr. Lauzon, for your presentation today.
When Bill C-350 was given second reading in the House of Commons, it was referred to the Standing Committee on Public Safety and National Security for study. That committee made several amendments to the bill and referred it back to the House of Commons for a vote. In sponsoring the bill, you proposed a further amendment relating to spousal and child support payments. Were there any further amendments made to Bill C-350 before it reached the Senate?
Mr. Lauzon: Yes. We made the amendment for the awards that were as a result of the —
Senator McIntyre: It had to do with the narrow definition of "spouse" in the French language.
Mr. Lauzon: Yes. There was some confusion around the translation because a common-law spouse is not a conjoint.
Senator McIntyre: The French word only applies to those who are married.
Mr. Lauzon: Yes. We had to address that, and we did, and we now believe that it is correct legally.
Senator McIntyre: There were no further amendments after that?
Mr. Lauzon: No.
Senator Beyak: Mr. Lauzon, we all know about the Bernie Madoff case in the United States in which the victims lost millions and the Madoff family was left fairly well off. Do we have legislation in Canada to cover something like that?
Mr. Lauzon: Unfortunately I do not have the legal background to be able to answer that question.
Senator Beyak: I should have addressed the question to everyone here.
Senator Fraser: Mr. Lauzon, when you were answering Senator Joyal a few moments ago you said your bill had been "vetted by the" and you did not finish the sentence.
Mr. Lauzon: By the committee, and we got legal advice on it through the house.
Senator Fraser: Did you consult officials from the Department of Justice?
Mr. Lauzon: Yes.
Senator Fraser: Did you get a view from them on whether this bill is in conformity with the Charter?
Mr. Lauzon: Apparently it is. Apparently my first version was not and improvements were made to it along the way so that it is. That is my understanding.
I must tell you that I was not intimately involved in this because I do not have the legal background to be able to ask the right questions.
Senator Fraser: Join the majority. There is nothing wrong with not having a legal background, I will say without fear of too much contradiction.
You said you did not have much in the way of data, but you also said that most awards are under $10,000. Do you have data on that or is this, again, just what your experience tells you is the case?
Mr. Lauzon: This is the information we got from Corrections Canada.
Senator Fraser: If we seek information from them, they can get it for us?
Mr. Lauzon: Yes. To put this in context, a person in prison who wants to be a troublemaker can do that by interfering with the administration of the prison. If I am not mistaken, these complaints have to be answered within 60 days. That takes a lot of resources and costs a lot.
Senator Fraser: We have heard a lot about that.
Mr. Lauzon: It is almost like a lottery for prisoners. We have received feedback. Someone relayed to me a story about a prisoner who said that they used to do that all the time. It was the thing to do in there because occasionally they hit the jackpot and got $300 or $3,000. That is a lot of money when you are in prison, and it is something to do when whiling away the time. On the other side of the coin, it is a huge volume of work that Corrections have to address.
Senator Fraser: We have heard quite a lot from them about that difficulty.
Senator White: Thanks again for bringing this forward. Although it may not be used a lot, I think it will be very helpful for accountability purposes.
Have you considered that this could be moved beyond the walls of the penitentiary or prison and apply to someone who is in a halfway house or on parole who may file a complaint or a civil suit? Can we access funding if they are under any jurisdiction of the Correctional Service of Canada, including parole?
Mr. Lauzon: I believe that if the complaint was made while they were in prison, they would be covered under this law because they are in prison.
Senator White: I am asking about if they complain 48 hours after they are released.
Mr. Lauzon: If the complaint were made while they were in prison and the judgment came after they were released, I would think that the law would apply and they would be obligated to follow the law. You could ask that of someone who has legal experience.
Senator Joyal: Proposed subsections 78.1(8) and (9) on page 3 of the bill determine the scope of the money available. Proposed subsection (8) states the following:
This section applies subject to any other Act of Parliament.
In other words, if there is an act of Parliament that contains a list of creditors, your bill would not amend that.
Mr. Lauzon: That is right.
Senator Joyal: Proposed subsection (9) states:
Subsection 30(1) of the Crown Liability and Proceedings Act does not apply to amounts referred to in section 78.1.
If the offender, for instance, had sued the Crown and received a positive determination under the general responsibility of the Crown, that makes — let me give you an example. Somebody falls in an airport, sues the Crown and is awarded compensation or damages of $10,000. According to your bill, this amount would not be part of the money available to be distributed along the list.
I am combining proposed subsections 78.1(8) and (9) of your bill, and I am trying to understand what is left. Do you know what I mean?
Mr. Lauzon: I can give you a very quick example of the case of Peter Collins. Mr. Collins murdered a police officer in 1983. Since that point, he has been serving a sentence in a penitentiary. He filed a complaint against CSC at the Canadian Human Rights Commission, claiming that he was targeted discriminatorily by CSC staff who required him to stand, per standard procedure, during regular inmate count. He was awarded $7,000 and an additional $2,500 for special compensation by the CSC.
That is what we are trying to target. There are statutes that look after the kind of things you mentioned about the person in the airport, but there is nothing specifically to look after the awards that an inmate is getting in prison through this mechanism that they are using daily. Some prisoners actually put a complaint in every day.
Senator Joyal: The Human Rights Act is an act of Parliament. If it is an act of Parliament, I would contend that subsection (8) would apply. It would not be part of the award.
Mr. Lauzon: You are the lawyer, and I am not.
Senator Joyal: I am trying to understand. My question is to try to understand the scope of your bill. I understand subsection (9) very well. The Crown liability is outside. Subsection (8) can cover a lot of acts of Parliament whereby there is a list of creditors or payment to be made.
Mr. Lauzon: I cannot answer that question.
Senator Joyal: In reading subsection (8) and in reading the first paragraph, I would like to have an additional understanding of the distinction that you could make between an award that is granted to an offender on the basis of an act of Parliament that has no list of creditors versus an act of Parliament that has a list of creditors. Maybe that is the distinction that subsection (8) covers. I am not sure. I am trying to understand the bill and listening to you.
Mr. Lauzon: I wish I could answer you definitively. What I am trying to do here is take a common-sense approach to a problem that victims, families and, as a matter of fact, a few prisoners have mentioned is something that should be stopped.
People who commit crimes should be rehabilitated. We are talking about people who committed a serious crime and have never accepted the responsibility, sometimes never in their whole life. They are 40 years old and they have never accepted the responsibility to pay their debts and honour their commitments. That is what this bill is trying to address.
I have been told by Justice and by different legal departments that this will address that. It has the very narrow focus that awards given to a prisoner while incarcerated will follow the priority if there is a judgment. Sometimes there is no judgment and the prisoner will get the money, of course.
[Translation]
Senator Boisvenu: Mr. Lauzon, my question follows on what Senator White said earlier.
I will quote the legal text:
In furtherance of the purpose referred to in paragraph 3(c), any amount owed to an offender as a result of a monetary award made to the offender by a final decision of a court or tribunal pursuant to a legal action or proceeding against Her Majesty in right of Canada. . .
In my opinion, that includes the incarceration period and the parole period because the offender is still under the responsibility of the correctional system.
Mr. Lauzon: Yes, absolutely.
Senator Boisvenu: We have seen cases in Quebec where individuals have claimed CSST benefits for workplace accidents that took place inside a penitentiary. What is special about workplace accidents inside federal penitentiaries is that inmates are paid $6 or $12 a day, but when you receive CSST compensation, you are paid a minimum wage. So there are criminals in federal penitentiaries in Quebec who have received $30,000 or $40,000 in CSST compensation.
Does this bill target money from federal and provincial organizations?
Mr. Lauzon: Yes.
Senator Boisvenu: Fine, thank you.
[English]
Senator Beyak: The point of my previous question is the same concern that Senator Joyal has expressed. I was supportive of your bill and the idea of keeping it simple and focused, but I was concerned that we already have legislation that may be more comprehensive, legislation that covers it more broadly and covers more issues. I know you do not know the answer, and I do not either, but I wonder if we could find that out.
Mr. Lauzon: I can tell you there are laws that will cover that. However, they are so cumbersome for the victims and families to use that they are not attainable for the average person. This will solve that problem, at least for this narrow focus. This is all I am particularly looking for. You cannot fix every problem in the world, but you can fix one particular issue.
The Chair: Thank you, Mr. Lauzon. We appreciate your appearance here today.
Next week, members, on Wednesday, we will be dealing with Bill C-15 clause by clause at the outset of the meeting, and then we will move back into consideration of Bill C-350.
(The committee adjourned.)