Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 43 - Evidence - Meeting of May 15, 2019
OTTAWA, Wednesday, May 15, 2019
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, met this day at 11:45 a.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: Senators, we will begin. Before we do so, I would like all senators to introduce themselves.
[Translation]
Senator Dagenais: Good morning. I’m Jean-Guy Dagenais from Quebec.
[English]
Senator Richards: Senator David Richards from New Brunswick.
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator Busson: Good morning. I am Bev Busson from British Columbia.
Senator Oh: Good morning. Victor Oh, Ontario.
[Translation]
Senator Gold: Good morning. Marc Gold from Quebec.
Senator Pratte: André Pratte from Quebec.
[English]
The Chair: Gwen Boniface from Ontario.
Senators, today we begin our consideration of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.
Senators, on our first panel we have the privilege of having Retired Colonel Michel Drapeau and Joshua Juneau, Barrister and Solicitor.
Mr. Drapeau, you have the floor.
Colonel Michel Drapeau (Ret’d), Senior Counsel, Michel Drapeau Law Office, as an individual: Good morning, ladies and gentlemen. Thank you for inviting me to appear before you today to participate in your study of Bill C-77 which aims at amending the National Defence Act. My comments will be brief.
[Translation]
I do know that Bill C-77 has already received support from both opposition parties in the House of Commons. I also know that Bill C-77 is largely based on Bill C-71, which was introduced in the last months of the previous Parliament.
I am also aware that no opposition to the main provisions of this bill has been expressed so far, on the contrary.
[English]
As some of you might know, as a published author of Canadian military law since 2005, and a teacher of military law at the University of Ottawa since 2009, for the past decade I have been advocating in many fora, some national, others international, for the reforms that are precisely now the central part of Bill C-77.
Let me first discuss summary hearings. Bill C-77 has my full and unreserved support for the repeal of the existing summary trial system which has been decried, and I have been one of the individuals doing so, as being ancient, unjust and an unfair justice system. With the passage of Bill C-77, the military profession will join other professional bodies in Canada while having its own disciplinary process. This is a good thing.
[Translation]
My one and only — and strong — objection to the proposed model is that, under the amendment to section 162.7 of the National Defence Act, an individual could be sanctioned with a reduction in rank if he or she is found to have violated the Code of Service Discipline.
In my opinion, such a sanction should be reserved for serious crimes tried by court martial, and not for an offence that is, in principle, a minor object under the Code of Service Discipline. Given the severity of a sanction like this, I think that natural justice requires the presence of a wide range of procedural rights, including the right to counsel.
Second, I also support the provision in Bill C-77 that gives victims more rights and protections, similar to those in the Canadian Victims Bill of Rights. This will finally correct a major injustice, by which these victims are currently excluded from the Canadian Victims Bill of Rights.
[English]
The one major flaw in Bill C-77 concerning the victims’ bill of rights, if I can call it that, is clause 71(6), which would task the commanding officer of the accused to name a liaison officer to assist a victim, if the victim so requests.
I find such a procedure very weak. It begs the question whether a victim of sexual assault, for instance, and in particular a civilian, would be satisfied in having a member of the unit of the accused be appointed to liaise with her in relation to her rights as a victim.
In my opinion, DND should be taking a look. I give you, as an example, what is happening in the U.S. Army, which has introduced victim advocates at the formation levels. These advocates are trained military professionals who are on call 24 hours a day, seven days a week. They provide needed guidance and emotional support to victims of sexual assault, including assistance in securing medical treatment. They also provide information on legal rights and proceedings. These trained professionals attend an 80-hour sexual harassment and sexual assault response course, and at the end of it they are given a certificate of having attained certification in victim advocate training.
Compare that with what we have: A liaison officer from the unit of the accused who has basically been picked by the commanding officer. He could be an infantry member, a member of the Air Force or a sailor with no legal training, or any training whatsoever, to be able to provide instant emotional, legal and other forms of assistance and advice to the victim.
Having said that, I can say that I’m well aware that Bill C-77 also brings a significant number of procedural changes in the operation of court martial proceedings. I have no comments to make on these statutory changes.
In closing, save and except for the two suggested changes I made earlier, Bill C-77 has my full backing. I sincerely hope that it will receive Royal Assent before Parliament is dissolved. Thank you for your attention and I look forward to your questions.
Joshua Juneau, Barrister and Solicitor, Michel Drapeau Law Office, as an individual: Thank you, honourable senators. This is my first time appearing at the Senate, and it’s an honour and privilege to be here to speak on Bill C-77. Thank you for this invitation and opportunity.
I’d like to start by making it known that I’ve never served in the military. I’m a lawyer who practises in administrative law and many of my clients are members of the military. In this role I have been exposed to the military justice system and have been critical of it at times. I voice such criticisms due to my firm conviction that members of the Armed Forces and veterans are Canadian citizens first and should not be deprived of any of the rights that they fight to protect.
Over the past years, I have co-authored several articles critical of the military summary trial process. Many of these ideas are not my own and have been written on by leading academics, including my colleague, Professor Drapeau, Anne London-Weinstein, a recently appointed Superior Court judge, Pascal Lévesque and many others.
As it stands, in my view, I have two central issues with the current summary trial system.
First, if convicted at summary trial, a member may lose their liberty. Second, if convicted, members may have a criminal record. These have been referred to as true penal consequences and I accept this as the appropriate wording.
This is problematic because there are few procedural protections at the summary trial. For instance, there is no right to legal counsel. There may be full reliance on hearsay evidence, there is no transcript of proceedings and there are other procedural issues.
Thankfully, Bill C-77 will resolve these two issues, and there are four central points I would like to make.
First, summary trials will be rebranded summary hearings. Second, summary hearings will only hear service infractions and not service offences, which are to be reserved for courts martial. Third, a scale of sanctions for summary hearing will be separate from the court martial scale of punishments. And fourth, the term service tribunal is no more.
These are more than mere word play. The result is that members facing summary hearings have their rights established at law. Members will no longer face a possible loss of liberty or a criminal record. As it concerns the summary hearing process, Bill C-77 should not only be assented to and put into force as soon as possible, but it should be celebrated. Thank you.
The Chair: Thank you very much.
[Translation]
Senator Dagenais: I would like to thank our guests. Colonel Drapeau, can you give us some examples of new benefits that could be provided to victims through this bill? Do you think that will be enough to encourage reporting among Canadian Forces members? Of course, we know that Canadian Forces members are often reluctant to report. Lastly, will this bill make any major changes?
Col. Drapeau: I don’t think that giving victims rights will enable them to report an attack or something similar in greater numbers. I don’t think that’s the goal. The goal is for these people to enjoy the same rights as all other Canadians through the Canadian Victims Bill of Rights, whether they are refugees, citizens, residents or tourists, in prison or not. The only people excluded are civilians and military personnel who appear as witnesses before a service tribunal. It makes absolutely no sense. Over the past three years, these people have been reduced to non-personal status and have absolutely no rights.
With the proposed changes to Bill C-77, victims who are prosecuted before a service tribunal will have the same rights as if they were appearing before a civilian court, including the right to information, the right to restitution, the right to be kept informed of what is happening, as well as the right to receive support, however small.
These rights are now equivalent to those of victims in the civil field. This is a good thing, since it serves to redress a great injustice that still exists today.
As a lawyer, I have represented some of these victims before service tribunals. This is important, especially for civilian victims who have no understanding of the military justice system or the court martial and who are unaware of their rights. Even if they don’t, they could at least know the procedure to use. They will consult civil law lawyers who, most of the time, cannot help them because they don’t have the expertise or knowledge to inform them.
This bill will correct the situation and bring them up to the same level as the other victims, which should have been done when the Canadian Victims Bill of Rights was adopted in 2015.
Senator Dagenais: Could you give us an idea of cases that might now be transferred to the court martial?
Col. Drapeau: There will be no change to the court martial. The court martial has full jurisdiction over all crimes committed by military personnel, whether in uniform or on duty and wherever they are in civil society, in Canada or abroad. If the military authorities decide that they have the necessary jurisdiction to try these crimes, and if the crime is committed in Canada, with a few exceptions — murder, guilt on the charge of manslaughter and child abduction are not covered — the military justice system is perfectly capable of doing so.
In the case of victims of sexual assault, I represented mainly victims, civilians, who were victims of an assault by a military member and, in these cases, the trial took place before a service tribunal. These These individuals are are doubly disadvantaged because, in addition to being victims, everything is completely incomprehensible to them, and they receive no information or assistance from the military authorities.
Bill C-77 will make a small change by giving the commander of the accused’s unit the responsibility to choose, from among its ranks, the person who will act as a liaison officer to the victim. That’s why I made that comment earlier.
Senator Dagenais: Thank you, Col. Drapeau.
[English]
Senator McPhedran: Mr. Drapeau and Mr. Juneau, thank you for being here. I’m going to ask you to think with me a little bit, not so much about the specifics of the bill but the impact of the bill. I have two parts to my question.
There is an overarching question here that I would welcome your response on. Do you anticipate that this bill, if passed substantially in the form we see it, will add significant value to our Chief of Defence Staff General Vance’s Operation HONOUR. If you do think so, any specific examples would be very welcome. If you don’t think so, then I would very much like to hear why that is your sense.
The second part of this is, again, about this bigger question of the effectiveness of what we are trying to do here. Both in terms of the Canadian Armed Forces and the leadership there and also what members of this committee in the Senate are trying to do to support greater effectiveness and responding to victims through the military system.
Your suggestion, Mr. Drapeau, about looking at the American system around victim advocates is very interesting. It raises, I think, a big question about the liaison and having someone embedded within the institution that is being questioned, being designated to act in a role that is typically not their job and still being subject to the kind of incentives within a hierarchical organization if they go too strongly against leadership. For example, what are the implicit risks to them in terms of their own career security and advancement? I would really welcome some discussion on that.
The first part of the question is where you see this bill in relation to Operation HONOUR, and the second part of the question is down to the specifics of effective, fair and reliable representation of victims as set out in this bill.
Col. Drapeau: To answer your first part and I will try and be short since it is a broad question.
Will it assist the CDS and Operation HONOUR? Yes. But I hasten to say, most significantly, it will assist the institution and it will assist the respect that Canadian society and members of the Armed Forces have on the institution. It serves nobody to have a justice system that is unfair. The current summary trial is unfair. When someone can be charged, no rules of evidence, hearsay is accepted, no right to counsel, you can be sent to jail for an extended period of time and you can have a criminal record — that is the system in place at the moment.
When I first started to write about it and speak publicly, there were 1,500 summary trials a year. That is almost 1 in every 50 members of the Forces who went through summary trails. It made no sense. This change will bring about a heightened sense of respect for the military justice system.
If, as a victim, you report a crime it should be investigated and it should be prosecuted. But to be prosecuted doesn’t mean that you throw away all the safeguards that every other Canadian has when facing the justice system. A right to have a fair trial, a right to have counsel, a right to have a right of appeal — which a summary trial does not. Perhaps it will bring a heightened sense of confidence and respect for the military justice system. If nothing else, it achieves immense value added to the system. At the moment it does not.
As an aside — and I will not go into details about it — I can also say Mr. Juneau and I have seen those. We represent victims of crimes, particularly when we have sexual assault, but we also see other victims that have fallen by the wayside in Operation HONOUR. Those are victims who have been wrongly accused because of some peccadillo or something banal as having said a word out of place. We can give examples galore. They are made to go through a system that is punitive in nature and you are almost guilty as charged before going through the process. We’ve seen that.
If we can bring about a better balance and assurances that if you are to be charged you will be given due process, we will achieve a tremendous amount of success in stepping forward. Because members of the military don’t have the same rights as their civilian counterparts have. It’s easier for a young punk to go to trial on a Monday morning in a superior court than it is as a trained, disciplined, loyal, educated soldier to go to a summary trial. He is guilty before he walks in and has no right of appeal. So, yes, it does.
It will also improve effectiveness, because of the criticism levelled at summary trials. The summary trials, over the years, have gone from 1,500 to about 400 a year at the moment. Fewer people were sent to detention. Already the message has been sent out and the message is being sent out even more now with Bill C-77.
When it comes to the liaison officer, I have a serious problem with that. It is a well-known fact that I am acting for Madam Raymond, who as a victim of sexual assault committed by a military superior in Quebec City, she had front-page coverage in Maclean’s magazine and Actualité. I acted for her after charges were laid. Originally, when charges were laid, they were laid as the warrant officer having conducted himself in a manner that caused prejudice to good order and discipline, which is a disciplinary offence. After my presence as her counsel that was changed to, more properly, sexual assault.
As a retired military member she had no knowledge, she had never been inside a court martial. For her to come in as a victim without any preparation and the individual they would have assigned to her was a member of the very unit that the accused belonged to. They had no idea, no duty of confidentiality to her. Anything that she would have been confided as a victim before testifying could have gone back to anyone else. I became convinced at that time that legal counsel was an absolute necessity if for nothing else than to give her what rights, if any, she has, what preparations she could make before she testified. Things haven’t changed so far and we have represented a few others, but that’s something that needs to be done.
The bill could have gone a step forward, as some organizations do, and provide — not for all crimes but sexual assault would be one — a package. You get five hours of legal counsel free or something of that nature so the victims can properly receive legal advice as to her rights. We’re not there yet.
Having said that, I still maintain my position that Bill C-77 should be passed as it is if not to delay, at the very least, to give them 90 per cent of the rights to which they are entitled.
Mr. Juneau: I will add one point. I suggest that the reason that Bill C-77 concerns and speaks to a victim’s rights is because section 18(3) of the Canadian Victims Bill of Rights expressly excludes persons who are victims of service offences, and it still does. This is unfair. It creates a two-tiered system where persons who are victims of a Code of Service Discipline offence are not kept informed to the same degree as members of the general public.
So how can this be solved? One way that we have advocated for in the past is simply repeal section 18(3) of the Canadian Victims Bill of Rights. One other solution is what is being proposed in Bill C-77.
My reading of Bill C-77 is that it will result in members of the military, persons who are victims of crime in the military, having many of the protections that are already available and enshrined in the Canadian Victims Bill of Rights — provide them with information from a fundamental perspective and provide them with information relating to the service events. Why is that necessary? How will that assist with Operation HONOUR? In our practice, we encounter victims of crimes and sexual offences, specifically military members, and any victim in that circumstance generally feels in a vulnerable position. If they are not involved, often times the trial process can have the impact of re-victimizing them. Any steps toward providing procedural safeguards and protection of a victim in these circumstances can only be a positive way to advance the operational objectives of Operation HONOUR.
[Translation]
Senator Pratte: My question is for both witnesses and is about what Col. Drapeau pointed out about reduction in rank, which could be one of the sanctions incurred by a person who is subject to a summary hearing.
Could you expand on why you consider this sanction inappropriate and why it is particularly serious? Perhaps those of us who have never been in the armed forces have a poor understanding of the manifestations of this sentence.
[English]
I would also like Mr. Juneau to reflect and give us his comments on this particular point.
[Translation]
Col. Drapeau: A sanction of reduction in rank certainly involves significant financial losses. There can be a difference of $3,000 to $10,000 in pay between one rank and another. It will also have an impact on the individual’s pension, prestige and reputation. Under the bill, an officer will preside at the summary trial. The rank of this officer must be at least one rank higher than the accused. This decision is therefore made by a single person.
In the case of a disciplinary committee that governs another professional body — whether it is the Bar, the College of Physicians, the Order of Dentists or something else — before a demotion is achieved, there is a disciplinary process governed by a committee composed of several people. Information is provided on procedural rights. In our case, it is instead the accused’s immediate superior, who probably has no independence from the accused. This superior will impose a reduction in rank penalty overnight, with all the consequences that this entails and with very little information on procedural rights, namely the right to appeal the case, the right to request that the case be better defended and the right to have a representative of the legal community at the trial, which does not currently exist. I think it is a very primary, very arbitrary justice. This is not necessary and exceeds the powers that should be granted to a disciplinary tribunal in such a context.
[English]
Mr. Juneau: This punishment is available now at summary trial and in the years I’ve been practising law, I’ve never seen it used. That would suggest to me that in order to have someone’s rank reduced as a punishment at summary trial, the issue would have to be very severe. I’ve simply never seen it used.
The question comes to mind: If the conduct is so severe as to warrant this punishment, perhaps it should be sent to court martial, where all the procedural protections are available. Not having served and not having seen this penalty invoked, I’m really not sophisticated enough to speak to the circumstances on when it would be appropriate or not.
[Translation]
Senator Pratte: Colonel Drapeau, do you have any objection to one of the other possible sanctions for summary hearings, such as a reduction in salary?
Col. Drapeau: There is a limit to that. As far as I can remember, the limit is 18 days, or half a month. I believe there are many similar fines being imposed right now. Our forces members are well paid. The 18-day limit means that the penalty is proportional to each person’s salary. This is the highest standard. I have no difficulty with that. Currently, in a summary trial, a commanding officer can give up to 30 days. It’s still a pay cut.
Senator Pratte: Thank you.
[English]
Senator Griffin: This question will be for both of the witnesses. In May 2018, there was an article in The Globe and Mail entitled, Does Canada’s bill to protect military victims go far enough? It was authored by Lindsay Rodman, who noted that when it comes to protecting victims and responding to their needs, the military context possibly requires more protection than the civilian world offers. I think you gave a pretty good answer to that when Senator McPhedran had a question for you.
I want to go a bit further in my question. Are there any outstanding victims’ rights issues that have not been addressed in Bill C-77?
Col. Drapeau: No, I think Bill C-77 addresses it, but my only reservation is the liaison officer. I wish there was a different formula. I would disagree with the article you quoted that victims of crimes, particularly those who wear uniforms, are better protected. If I paraphrase what you said, I disagree with that. I’ve represented a number of victims who, for instance, were at the Royal Military College. Because it’s almost inside a seminary of a sort, they are cadets and are subject not only to the discipline, but the camaraderie of all the cadets.
Of those we’ve had as clients, many of them don’t want to file a complaint. In fact, some have withdrawn their complaints. I’ve seen that, because they know from the moment they do, they are looked at by their colleagues, the other cadets or young female cadets, in a manner that is very different and sometimes hostile, as if they somehow disapprove of coming forward and bringing about some form of enlightenment where none is required.
Among almost all whom I’ve represented, their fear is that this should not have an impact upon their career. They’d rather absorb the indignity of having been subject to some form of sexual harassment, complaint or assault, but be allowed to continue to serve so their career, life and reputation don’t take a turn for the worse. I’ve seen that too often.
Now, in the case of a civilian, more often than not, if not always, the trial takes place outside the workplace. In the military, if the victims and the accused are both at the Royal Military College, the court martial takes place at the college. The members on the panel are from the college and all the cadets are not only invited, but are ordered to attend.
So you can imagine if you’re a victim and you’re asked to appear and testify, you don’t know where to look when you go to the cafeteria for lunch or you go for a break, so you’d rather not go there. Those I’ve seen swear to me they will not appear as a witness in order to prosecute or have prosecuted their accused.
So, is it different? Very much so.
Mr. Juneau: From my point of view, senator, the standard isn’t perfection or even equivalence. The standard is justice seen to be done. In my view, Bill C-77 advances the yardsticks in a very meaningful way. Could more be done through the legislative process? Perhaps, but the approach of the Armed Forces is to attack this problem through the operational directive of Operation HONOUR. I think the cultural transformation is occurring through Operation HONOUR. I can’t speak to specifics, not being inside the box and not having those statistics, but from a colloquial position through our practice, we see there is some transformation in attitude and the types of case load we’re receiving.
This type of cultural transformation can only occur through preventive measures, such as Operation HONOUR, and it is having an impact.
Senator Griffin: It’s good to hear that Operation HONOUR is having an impact. Thank you.
Senator Oh: Do we have any idea how many victims quit the military, resign and never come back because they couldn’t take the pressure of a situation like this?
Col. Drapeau: Senator, we don’t. I think the statistics across Canada, and possibly North America, suggest that ultimately only about 25 per cent report crimes and of those who report, only a small proportion eventually leads to a conviction. Victims see that and the high price they pay because the criminal justice system is simply not set up to properly and separately address these kinds of issues. They see that victims are, in fact, in some ways victimized.
I’ve said this before as part of the public record because I’m acting for Madam Stéphanie Raymond. If I remember correctly, she was assaulted in 2011 and her court martial took place in 2014. It’s now set before the Supreme Court in 2019. The Court Martial Appeal Court last year ordered a new trial, so a new trial will probably take place in 2020. This is a lot to demand of a victim and an accused to go through in this particular process.
So would you recommend to your sister or niece to go through the system, particularly if they want a career within the same organization, and know that those people may look at them in a funny way? The answer is no.
I’ve met individuals of senior ranks, one in particular, where that person said, “I was abused when I was a young officer cadet the first day of my graduation. I never reported it. And had I reported it, I would not be wearing the rank I do now and I would not have a career.” I had tears in my eyes just hearing that.
Senator Oh: Thank you.
Senator Gold: Thank you very much for being here. You’ve said a number of important things. What I take from that, in part, is that you’ve raised an important point about the role of the victim liaison and what you would see otherwise. I also heard you say that you support the bill as is and want it to get passed. We’ll take your concerns seriously into account, certainly in an observation or more, but keep a watching brief on that one. That’s an area we thank you for bringing to our attention.
You mentioned en passant that a victim liaison officer wouldn’t have any training, quite apart from whether he or she comes from the same unit.
If I’m not mistaken, in the current system of summary hearings there is training for people involved in the process, for the superior and commanding officers. They get some training in how to run a hearing and the like. Would we not expect to see some training for victims liaisons? In that regard, I point to paragraph 71.16 in the bill where it speaks of a victim’s liaison officer and it provides that a non-commissioned member may be appointed if they satisfy the conditions established in regulations made by the Governor-in-Council. Would it not be reasonable to expect that those regulations to include some kind of training?
Col. Drapeau: Senator, I agree with you and it’s kind of loose. Having not seen the regulation yet, it could. Christmas could happen and I hope it does.
Ultimately, the test is: Will this give victims a sense of assurance? It says “if requested.” Will victims, particularly civilians, understand and know enough that they need to find a commanding officer of the CANSOFCOM unit — I’m purposely using abbreviations because that is the way they speak — in Petawawa? Will the victim know enough to be able to drill down and talk to commanding officers and do it? Particularly as a civilian, and in the process have confidence that her needs — psychological, legal, medical, privacy and so on — would be looked after by somebody who’s had training? Perhaps if that person happens to be certified and licensed by a law society or some other organization, there is a bias in the sense that there is a professional qualification to begin with. Will a military person have that? Maybe so. We’ll have to wait until we see the regulations.
I suggest that it is for you to ask the minister or somebody else whether these regulations will be extensive enough to provide not only these qualifications but a sense of confidence for the victim.
Senator Gold: Thank you very much for that. Mr. Juneau?
Mr. Juneau: I fully agree. It’s speculative on what the regulations might include. I can tell you that currently the commanding officer overseeing a summary trial does get some training, but my understanding is that it’s about a half day of legal training. My point of view is that a half-day training does not a judge make, but so be it.
Senator Gold: In both of your strong support for doing away with a summary trial procedure as criminal and unfair, you expressed support — especially Mr. Juneau — for the administrative nature of the hearing that’s contemplated, that it was administrative, no criminal record, et cetera.
It has been argued, though, by others — and we may hear witnesses to that effect soon — that notwithstanding appearances, it really still is criminal in nature. I’ve read the invocation, for example, of the Supreme Court decision in Martineau and the principles to decide whether something and I wonder if you have any comments on that.
Col. Drapeau: Senator, the system is so broken. I find it so offensive, the current system, that anything is better than it. Bill C-77 brings it to a new standard, one that at least removes the criminal aspect of it. You don’t go to jail —
Senator Gold: If I may, could you give us as much help as you can while answering the challenge that will be made that it really is still criminal in nature? Therefore, changing the standard of proof from beyond a reasonable doubt, which is the standard in trials because it’s criminal and you can go to jail, to the balance of probabilities because it is administrative and you can’t go to jail and it’s not criminal. There are experienced critics who say it may look that way but it’s not necessarily so. How would you respond to those criticisms?
Col. Drapeau: I can only make a recommendation that will perhaps encapsulate where I’m at. I do so by alluding to the experience I’ve had with the British system. The British system has kept the current existing summary trial system, but — typically British — they have established an appeal court on which three members sit.
The individual going through the system, even if he doesn’t have the procedural guarantees that he should have, can now appeal. This summary hearing could have something similar. At the moment, it’s a review authority named by the CDS and you have no more guarantee that it will act independently or judicially. That could be done. You could have an appeal and people will say that would be costly. If you do a proper job at the first level, you won’t get that appeal in every case. If you do that, you can at least correct the perception that it is, in fact, quasi-criminal.
Senator Gold: I’ll conclude on this. I would like to hear from Mr. Juneau as to whether or not you think it is still criminal in nature, as some might argue. I would just like to hear from you on the record as to what your view is.
Col. Drapeau: I don’t think it’s criminal. No, it’s not.
Mr. Juneau: Once you remove the true penal consequences, I think you remove the stigma that’s typically associated with criminality. Is it perfect? Could things be done better? Possibly, but change often happens in bite-sized pieces.
Senator Gold: Thank you.
Senator Richards: This has kind of been answered because I was going to ask how severe an offence would have to be for demotion. Mr. Juneau said in his mind it would go to court martial rather than a summary trial.
Then I was going to ask about the timeline of a court martial. Colonel, you seemed to answer that it’s an awful long time. It takes an awful long time to get any judgment. That’s a stigma in itself, isn’t it, if the accused is not guilty. If he or she is guilty, that’s another matter. That becomes a stigma in itself and is almost a demotion in itself, even if the person is innocent. Could you comment on that, please?
Col. Drapeau: It is a stigma. What most people don’t realize is that the system was designed in the Middle Ages. Picture a deployment abroad. When an incident occurred, the commanding officer would name a prosecutor and a defence attorney and the trial would take place in unit lines that could be separated by hundreds of miles from the home station. We still do it the same way. The court martial takes place in the unit’s location where the accused is located. Sometimes the victim is also located there.
So all through the process, the victim may run across the accused. Certainly, opinions are being formed and shaped. A trial eventually takes place, and if she’s asked to testify as a victim, a female victim, she’s asked to testify before her workmates. And the day after she goes back to her workplace. It’s a special environment. Does it need to be this way? No. I’m saying this because the time it takes is amplified in terms of consequences and impact because of the proximity of the accused, the victims and the trial takes place because we’ve always done it this way. It doesn’t need to be.
All courts martial could take place in Gatineau. They have a perfectly good court martial. They could have it there and remove this kind of stigma that automatically attaches to you because you happen to have served in the same unit as the accused at the time of the assault. The time factor just amplifies it.
Senator Richards: Thank you.
[Translation]
Senator Boisvenu: I would first like to apologize to witnesses and my colleagues for being late. I had other urgent obligations to attend to. It is always a pleasure to see you again, Col. Drapeau and Mr. Juneau
As a criticism of this bill, I can tell you that I would first like to congratulate the armed forces for having such a mechanism to protect victims. I regret that this mechanism hasn’t been called a charter of victims rights rather than a declaration, which seems to me to be a strong symbolic message in relation to victims. We will see what happens with the amendments to the bill.
There are two things I would like to hear from you, Col. Drapeau, especially because of your significant experience in the armed forces, which is something that strikes me every time we meet.
The first element is the right to information. This charter is based in part on the Bill of Victims Rights, which the Conservative government adopted in 2015 and on which I have been actively working. One of the rights included in this bill of rights is the right to information. Let me know if you agree with me. What I recognize as a weakness with regard to the right to information is its non-proactive value. The structure in the armed forces is pyramidal. The command relationship is very strong, and victims are often intimidated by rank, which is something that is not found in civilian life. In civil life, an individual is simply intimidated by the aggressor, while in the armed forces an individual can also be intimidated by someone’s rank. When we see that victims will have to have this right recognized themselves, shouldn’t we include in this statement a section that would firmly state that the right to information is an employer’s obligation to inform victims proactively, rather than requiring them to find this information themselves?
Col. Drapeau: Senator Boisvenu, you read my mind. That is absolutely true. For instance, the armed forces have great difficulty in recognizing the right to legal representation. Not a week goes by without there being a fight because we are representing a client and want communication to be done with us. It’s always a problem.
If it is difficult to obtain information as a lawyer, imagine what happens to the victim, whether civilian or military with a lower rank, who requires—and rightfully so—that he or she be given information on the progress of the police investigation, on why the trial did not begin or on the publication of the charges, which is not done as it is on the civilian side. Until the date is chosen and announced at court martial, the charges are not published.
A few years ago, a doctor was charged with sexual assault against another doctor. It took almost a year and a half for his identity and the charges to be revealed. Until the victim retained our services, the victim didn’t receive any information, and had gone a year without receiving any information from anyone.
Senator Boisvenu: Ultimately, this is something that needs to be improved in the declaration.
Col. Drapeau: Absolutely, and that’s why the victim’s right to information must not be meaningless. There must be a corresponding obligation. The Department of Defence must respect the right to legal representation and provide timely information. I think it will be difficult.
[English]
Mr. Juneau: The inclusion of a statement that the right to information should be proactive provided by the chain of command is an excellent idea.
[Translation]
Senator Boisvenu: Thank you.
I have one last question that deals with a fundamental problem in the bill of rights. In the armed forces, there are about 60,000 military members and 25,000 civilians. These civilians will devote their lives to the military. The bill of rights doesn’t recognize an equal right between military and civilian victims. If you are a military victim, you will be cared for by the armed forces, but if you are a civilian victim, you must contact your province for psychological services for victims. It’s another path. Does this unequal right in the application of the bill of rights create two categories of victims in the armed forces?
Col. Drapeau: I think there is a crossover between the acts. I’m no expert on this. The Canadian Victims Bill of Rights states that it does not apply to offences that are service offences. This section may need to be changed. Bill C-77 states that a victim, without identifying if the victim is military or civilian personnel, if I’m not mistaken, will be entitled to this type of service.
Senator Boisvenu: I asked the department when they came to my office. They told me that when a civilian is recognized as a victim and wants psychotherapeutic help, he or she must go to his or her province of origin. If this is not the case, it must be clearly stated in the bill of rights that it also applies to military and civilian personnel.
Col. Drapeau: I can’t answer that, but I can tell you that if your conclusion is based on facts, then it doesn’t work. Extra work, emotions and expense shouldn’t be required of victims. A victim is a victim. Whether the victim wears a uniform or not has nothing to do with it; on the contrary, a civilian victim who must appear before a service tribunal needs more help, support and understanding.
Senator Boisvenu: Thank you very much.
Senator Gold: I would like some clarification. Senator Boisvenu raised an important issue, if it really is an issue. When I read the definition of the term “victim” in the bill, it’s clear that Col. Drapeau was right to say that this definition makes no distinction between the civilian or military status of the victim. All victims of service offences are entitled to the full range of services provided for in the bill.
[English]
I don’t think there’s a gap.
[Translation]
Col. Drapeau: A more appropriate response would be that, at present, the legislation is not yet in force, and that the current Canadian Victims Bill of Rights excludes them. This may explain the response the victims received.
Senator Boisvenu: No, the Victims Bill of Rights includes civilians, regardless of where they are.
Col. Drapeau: No, the Canadian Victims Bill of Rights excludes victims—
Senator Boisvenu: Military members?
Col. Drapeau: No, it excludes any victim whose crime is being tried by a service tribunal.
Senator Boisvenu: But the crime could be tried by a civil court.
Col. Drapeau: Yes, of course, but many victims—
Senator Boisvenu: It’s even more complex.
Col. Drapeau: Ms. Raymond is one of these victims. The accused’s trial in this case took place at court martial.
Senator Boisvenu: If the armed forces ever come back to appear before the committee, it would be important to clarify this because it’s a major point. Thank you, Col. Drapeau.
[English]
Senator Busson: Col. Drapeau, first of all, thank you for your service. I was quite impressed with the way you spoke and advocated for victims and, at the same time, passionately talked about the people who serve this country and the respect we ought to have for them, which is a wonderful balance that you seem to be able to maintain.
Within this bill, it seems to have moved, in my estimation, having read it, away from more draconian to a system that seems to be focused on a remedial approach to discipline within the Armed Forces.
Given that, in most cases, other than a sanction of dismissal, you have these people who are still in the Armed Forces, whether they are victims or the people accused of the infractions, am I right to say that Bill C-77 is more remedial than it used to be? If so, do you feel this bill goes in the right direction as far as making sure you have these people on your hands who have to be brought back into the fold. Is that expedited?
Col. Drapeau: Is it more remedial? I don’t think so. I don’t suggest it is less, but I don’t think it’s more remedial. It is more just, more respectful and more in line with our civil standards that should be the law of the land by a long shot. It will demonstrate more respect for our soldiers who are good Canadian citizens to be begin with, and they deserve to be treated with procedural fairness, among other things, which they are not at the moment. It removes some of the arbitrariness that the military has had up to now, where a summary trial is really walk in the guilty party; that is the way it is being seen. It will remove some of those excesses and some abuses to a large degree, and it will prevent the award of a criminal sentence, a criminal record and jail without due process, which any court in Canada observes.
This legislation will bring the Department of National Defence into the 21st century from the 15th and 16th. It will be a hard pill to swallow for many disciplinarians because it is easy to administer. You charge someone and, three days after, he passes before the committing officer and you are certain he will be convicted and what he will get.
Things will change. If you can balance that out, it will make a better soldier. I expect my soldier to be intelligent, disciplined, loyal and committed to the task. I respect what they are and I need to respect their rights if they want to respect my authority. That’s the way it ought to be.
This moves it forward. It’s a separate universe. The universe is not perfect, but this certainly moves it from the Middle Ages into the 20th century. Now we need to go to the 21st century; that will be the next phase.
[Translation]
Senator McIntyre: Col. Drapeau, it’s always a pleasure to see you again. I’m sorry for being a little late.
I have two questions for you. The first is along the same lines as Senator Boisvenu’s and concerns information provided to victims.
I note that the bill doesn’t recognize the right of victims of a service offence to receive information on the execution of the sentence, including the date of conditional release served in a federal or provincial penitentiary. What do you think justifies this provision?
Col. Drapeau: I have absolutely no reason to give you to justify this omission. I think the information should be provided to the victim. If we owe anything to the victim, it is to be as transparent as possible without violating the rights of the accused in the sense of justice. Otherwise, that person has every right to receive information. I don’t understand why that’s not the case.
Senator McIntyre: Second, what do you think the impact will be of the coming into force of Bill C-77 on Operation HONOUR? What will happen to this operation if the bill isn’t passed? How does the bill address the problem reported by victims and highlighted in the report following the external review?
Col. Drapeau: I can tell you that the first impact is recognition, that is, that Parliament, which is supreme, is interested in military matters. This is huge, and this decision comes through Parliament, which has decided to scrap summary trials and all procedural abuses in order to offer something that is much better. I would like to thank both Chambers.
This change was not made by the chain of command. It was brought by those who have a duty to exercise civilian control over the chain of command and to ensure that all our boys, girls, nephews, nieces who serve in the armed forces are treated equally in our Canadian justice system, which unfortunately is not the case at present. Well done, then! This change will be welcome.
I would like to make a clarification. Operation HONOUR is not the Chief of the Defence Staff’s operation.
The Chief of the Defence Staff is responsible for conducting defence-related activities. He is neither chief judge nor a senior justice official. Operation HONOUR existed long before we talked about it this way.
The Criminal Code severely punishes assaults and reprehensible acts between individuals. That is the role of the military justice system. We should not think that, because the Chief of the Defence Staff set up Operation HONOUR, a person is automatically convicted as soon as a complaint is filed against him or her and a sanction is automatically imposed. The military justice system should operate independently of the chain of command. There is a distinction to be made between the two. Currently, the two systems work in unison. Complaints of all kinds are filed. In some cases, a person may be slandered and investigated for trivial matters that have nothing to do with the justice system or the notion of being “criminally responsible”.
A balance must be restored. The pendulum leaned too far to one side under Operation HONOUR. While this operation has brought many changes, it has created victims in its wake.
[English]
The Chair: Thank you very much. Let me express our appreciation to our witnesses today. It has been a great way to start off our study of Bill C-77. Our deep appreciation to you both for being here.
We will now go to our second panel. Today we have, from Barreau du Québec, Pascal Lévesque, Chair of the Committee on Criminal Law by video conference. Welcome. From the Office of the Federal Ombudsman for Victims of Crime, we have Ombudsmen Heidi Illingworth.
[Translation]
Pascal Lévesque, Chair of the Office of the Committee on Criminal Law, Barreau du Québec: Thank you, Madam Chair and members of the committee. The Barreau du Québec thanks you for inviting us today to discuss Bill C-77 with you. I am the chair of the Committee on Criminal Law, and I was a legal officer for 15 years. I also have a doctorate in military law.
The Barreau du Québec supports the intention of the legislator that led to the introduction of this bill. Military justice must better reflect the rights of victims, while ensuring that the treatment of offences deemed minor is as effective and fair as possible. We welcome several amendments made by the bill to provide better support for victims. In particular, we welcome the incorporation of the Canadian Victims Bill of Rights into law, as well as the creation of the role of victim liaison officer and the granting of new powers to military judges to facilitate the testimony of victims and witnesses.
In the brief presented during our appearance, you will find recommendations to improve several of the measures proposed by Parliament to better protect victims. Some elements of the bill seem problematic to us, and we will focus here on summary trial reform.
The legislator approaches military justice with respect to professional disciplinary law as opposed to criminal law. This paradigm shift could have benefits, such as reducing military stigma and criminal consequences, while making the process leading to a trial more efficient.
But, in our opinion, this reform as presented is likely to compromise the rights of the military in a disproportionate way. Indeed, the punishment relating to detention is repealed.
The bill removes the possibility for a commander to impose a custodial sentence. In a military context, it is a sanction that aims to rehabilitate the soldier and restore his habit of obeying within a structured military framework. In our opinion, without detention, it will be more difficult to deal with serious misconduct in theatres of operations. Examples include sexual harassment against another member of the military or a civilian.
Courts martial abroad are more complex because they involve parties from Canada, while those participating in the summary trial are already on site. A summary trial system that includes a custodial sentence is more likely, particularly in a theatre of operations, to deter or sanction a potential harasser firmly and quickly with respect to the code of misconduct. It is not detention itself that is problematic, but rather the defence of the rights of the military personnel facing it.
The lowering of the standard of proof to balance probabilities seems consistent with the desire to decriminalize the process. However, despite this change in the burden of proof, members will continue to face serious consequences, such as demotion, deprivation of allowances and pay, or being confined to quarters or ships, a sentence in the current military justice system that is similar to imprisonment to be served in the community by civilian justice for a period of up to 21 days.
If these sentences are maintained, the standard of proof, beyond a reasonable doubt, of any aggravating factor should be maintained. At the very least, the bill could opt for a clear and convincing burden of proof.
The bill contains undefined expressions. The terms “military breaches” and “minor sanctions” are later defined by regulation. This raises concerns about the transparency of the law. These concepts should be clarified before parliamentarians, especially since, according to the exceptions provided for under the Statutory Instruments Act, military regulations do not have to be pre-published in the Canada Gazette.
With respect to procedural protection for the military, even approaching an administrative law model, the bill fails to provide minimum protections for procedural fairness. Commanding officers will always be responsible for determining whether the military has committed breaches and imposing sanctions.
By reducing certain aspects of criminal proceedings within the current system, the bill reduces the need for an independent decision-maker, as defined in paragraph 11(d) of the Canadian Charter of Rights and Freedoms.
The fact remains that, compared to the disciplinary regime applicable to officers of the Sûreté du Québec, the Ontario Provincial Police and the Royal Canadian Mounted Police, military decision-makers have less independence.
The bill eliminates the possibility of a court martial, as long as the military is always exposed to serious consequences. It is desirable to maintain this right of option.
The bill also does not address representation for persons facing allegations of military misconduct. For the time being, only lawyers from the Director Defence Counsel Services, which is a kind of military legal aid, are authorized to provide advice of a general nature. This does not include the ability to provide full legal advice based on the analysis of the evidence on file or to represent the military, as is the case for RCMP, OPP and Sûreté du Québec officers.
Legal services to the military should be increased, at least to provide comprehensive legal advice. Summary hearings should be recorded as much as possible, and decisions should be reasoned in writing. To the extent that members may suffer serious negative consequences on their careers, such as demotion, procedural fairness would require written reasons for decisions.
In fact, the bill is silent on the possibility of reviewing on request or automatically the decisions reached in summary hearings as they exist today. The bill should provide for a right of appeal from decisions of summary hearings that would follow the review process.
In short, given the various elements we have mentioned that we believe are problematic with respect to this summary trial reform, we recommend that it be postponed in order to improve it.
We hope that our presentation has contributed to your thinking. We are now ready to answer your questions. Thank you.
[English]
The Chair: Thank you very much.
Ms. Illingworth.
Heidi Illingworth, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime: Thank you, Madam Chair and honourable senators, for inviting me. It is an honour to appear before you to discuss Bill C-77.
[Translation]
Bill C-77 is very important for victims of crime.
[English]
I became the Federal Ombudsman for Victims of Crime in October 2018. Our office is an independent, arm’s length organization within the Department of Justice Canada. We work with victims by taking and reviewing their complaints. We also make recommendations to federal departments and ministers to ensure that victims are treated fairly and with respect across the federal government and criminal justice system.
As ombudsman, I firmly believe that all victims of crime, including those serving in the Canadian Armed Forces, hereafter CAF, and other victims of service offences, should have legislated rights which address their need for information, participation, protection and restitution.
My office has consistently called for an end to the disparity between the rights afforded to crime victims in the civilian criminal justice system and the military justice system.
Several provisions of Bill C-77 bring positive change for victims. It builds on efforts made to support victims of sexual misconduct in the CAF such as those undertaken in Operation HONOUR, the Sexual Misconduct Response Centre, as well as the Sexual Misconduct Action Response Team. However, I am concerned that this bill parallels the shortcomings of the Canadian Victims Bill of Rights, specifically that victims are not required to be informed of their rights, and more importantly, that victims’ rights are not enforceable.
I also believe the bill should be amended in four areas. First, strengthen and clarify the role of the victims liaison officer, hereafter the VLO, to ensure victims are proactively made aware of their right to appoint one. Second, implement a training program for all officials involved in the administration of the military justice system. Third, provide for an appeals mechanism related to infringements or denials of victims’ rights. Fourth, require a review of the progress of the implementation of the legislation.
With regard to the role of the VLO, I believe the bill should be amended to require military justice system officials to proactively inform victims at the outset about the role of the VLO and about their right to request to have one appointed. Additionally, the role of the VLO should be broadened by including a requirement that the VLO also explain to the victim the rights that are available to them in the military justice system, including the right to avail oneself of a complaints mechanism and how to address that complaint.
Also, I believe the VLO should be responsible for providing information to the victim to address their other general rights to information, which include the right to information about the role of the victim in the military justice system and about the supports that are available to them.
With regard to a training program, I recommend amending the bill to enshrine a requirement for mandatory training for military justice personnel within the declaration of victims rights.
The training program would be required for officials involved in the administration of military justice, such as military police, prosecutors, counsel, judges and VLOs, who are likely to encounter victims. The program should ensure that officials are aware of their obligations under the legislation and receive generalist and specialist training related to victims, including trauma and violence-informed training.
With regard to an appeal mechanism, Bill C-77 should be amended to include such a mechanism regarding any decision or order on the grounds that a right under the division has been infringed or denied. The bill should also identify an oversight body to review appeals related to the infringement of victims’ rights. The oversight body should have the power to compel information and recommend remedies on appeal complaints.
With regard to a review on the progress of the implementation of the bill, it is important for the CAF to monitor and report on how victims’ rights are being met in practical terms. The military justice system must be held accountable for the rights that it is mandated to provide under this declaration of victims rights.
I have three final points to offer.
Since all of the officials involved with the administration of military justice are federally regulated employees, it should be easier than it would be in the civilian justice system to promote awareness of victims’ rights and really infuse a victim-centred approach throughout CAF culture, policy and practice.
I do see a need for accompanying guidelines to this legislation to clarify the roles and responsibilities under the declaration so that military justice personnel are fully aware of their obligations to victims.
Finally, to really make implementation a success, I see a need for a seamless, comprehensive and robust supports, such as free legal advice for victims at all stages of the military justice system and a mechanism to help victims collect any unpaid restitution amounts.
I welcome the opportunity to answer your questions. Thank you.
The Chair: Thank you, Ms. Illingworth.
Senators, we’ll move to questions. Just a reminder, we have about 40 minutes and we already have seven senators with questions.
[Translation]
Senator Dagenais: Thank you to our guests. I have a few questions for Mr. Lévesque. Mr. Lévesque, you caught my attention when you talked about the Sureté du Québec’s ways of doing things. I was a member of the SQ for 39 years and I know them well.
Do you have any comparisons to make about the treatment of victims and standards of evidence in other countries? This could shed some light on the recommendations you have made to us.
Mr. Lévesque: I have no examples from other countries. I could check with my research department and answer you on the standards of evidence regarding victims’ rights. Did I understand your question correctly?
Senator Dagenais: Yes. To continue on the same subject, despite the shortcomings you have raised, do you think that this bill could be adopted, given the progress it contains, provided that we add recommendations to the government so that it can review certain points you raised in your presentation?
Mr. Lévesque: You seem to be suggesting a sunset clause. On balance, if you decide that one part of the bill can be passed and another part should be field-tested, it would be wise to have a sunset clause, especially since there are jurisdictions that have adopted other approaches. In Canada, we are trying to decriminalize, but other countries, such as the United Kingdom, Ireland and New Zealand, have tried to divert this criminal process. You could have chosen to do that, but you chose the decriminalization approach. When doing this with respect to disciplinary law at it applies to members of a professional group, you must look at what police officers do, in order to have a better basis for comparison.
Next fall, a group of experts will meet at Yale University, and I will be part of it. We will address the question of the basic principles that must be observed when conducting summary trials in the area of military justice.
I would tell you that it’s a bit like a control panel. If we continue to opt for penal sanctions, we must increase the protections. However, if disciplinary action is taken, it can have serious consequences on someone’s career. There are protections that are not at the same level as for criminal proceedings, but they must be maintained.
Here, you have retained the burden of proof of the civilian disciplinary system, the balance of sanctions versus probabilities, but there are still serious consequences. You have eliminated some of the real consequences, such as detention and the criminal record, but there still seems to be some vagueness in terms of protecting the military. That is what we fear at the Barreau du Québec. We fear that the baby will be thrown out with the bath water.
Senator Dagenais: Thank you very much, Mr. Lévesque.
[English]
Senator Griffin: Actually, my question has already been answered, thank you.
Senator McIntyre: Thank you both for your presentations. My question is directed to Ms. Illingworth.
In your presentation, you addressed the issue of the victim’s liaison officer. As we know, the bill provides for the designation at the victim’s request for a victim’s liaison officer. My understanding in reading the bill is that the officer would assist the victim by explaining the procedures regarding investigations, charges and convictions, and by obtaining information that the victim requests and to which the victim has a right.
To what extent would the assigning of a victim’s liaison officer be sufficient in helping the victim to navigate the military justice system?
Ms. Illingworth: We definitely support the use of a VLO. We think it’s positive, but the problem is that a victim has to know to request one or to have one appointed. That’s problematic. In my view, it should be automatically assigned to victims.
I heard the presentations by the last two witnesses, and I also have concerns about it being somebody appointed from the unit of the person who was accused.
At the outset, I thought this position would be something that was brought in by the Sexual Misconduct Response Centre and a person who’s trained, perhaps a social worker trained in victim support services. I feel that’s very problematic. We have to look carefully at who will be assigned these VLO roles.
My main concerns would be around ensuring that we have stringent and excellent training for these people and that it’s not somebody from the accused person’s unit. It should also be provided automatically to victims because, depending on the situation where it could be a civilian, they don’t necessarily have an understanding of the military justice processes.
Senator McIntyre: There’s no question in my mind that in reading this portion of the bill, it is of the utmost importance to strengthen and clarify the role of the victim’s liaison officer.
With that said, and in your opinion, to what extent would the liaison officers be able to provide legal advice to the victims they have a responsibility to assist? They practically would have to have training in law.
Ms. Illingworth: Yes. I don’t think the VLO as currently written is somebody who would give legal advice. I would agree with the other two witnesses. In our written brief that we shared with you this morning, we referred to what has been going on in the United States. They have been offering legal counsel now in the U.S. to people who come forward who are victims, especially in sexual assault cases. We would be really supportive of that as well, namely, to have separate access to legal advice and representation.
In the United States, I would like to note that they allow victims to file a restricted report, which means they can confidentially disclose the crime to identified individuals, such as victim support staff, such as a VLO; or to a health care provider, without triggering an official investigation in the investigative process, notification to command or an unrestricted report where actual command gets involved in responding to the report that has been made.
I think they’ve done a very good job in the U.S. of understanding victims’ needs and taking it to the next level where they have not only support but also legal advice.
[Translation]
Senator McIntyre: Thank you very much for your presentation, Mr. Lévesque. Earlier, you referred to the right of appeal. Under the bill, the violation of a right contained in the victims’ Bill of Rights does not in itself confer the right to appeal a decision or order.
In your opinion, what would be the impact of the proposed provisions on victims?
Mr. Lévesque: I have not examined this issue, but if it is not included in the provision, one must ask oneself what remedies a victim might have. Actually, I’m speculating.
At that point, the victim should turn outwards. If they have an interest in the case, they should turn to the outside world. We are talking about trials held before federal authorities. So, what does the victim have left? He still has section 18 of the Federal Courts Act to seek judicial review. Judicial review is very tenuous. I have not examined this issue, but if there is no right of appeal, a victim would not be able to appeal the decision made in a summary proceeding.
Senator Boisvenu: Welcome to our guests. In Canada, for about 30 years, we have had a bad habit, when we talk about victims’ rights, of talking about a victims’ bill of rights. It is an expression that has always been considered by victims as a form of trivialization of their rights. We have a Charter of Rights and Freedoms, which ensures that people who engage in a judicial process can use this charter to avail themselves of their rights. When the Charte des droits des victimes, the Victims’ Bill of Rights, was adopted in Canada in 2015, we had to work hard at the Department of Justice to use the term “Chartre des droits”, which has a much broader symbolic scope than a declaration of rights.
In your experience, does the notion of “charter” have a different scope for victims?
[English]
Ms. Illingworth: Yes, I would agree with your comments that, in Canada, the Canadian Victims Bill of Rights is really a statement of principles of how victims should be treated, but it doesn’t provide rights that are enforceable in a court of law. That is problematic, very much so. It’s something that I hear constantly in my work previously and now at this office from victims, that they want to be able to assert the rights that they’ve been provided in law, and they can’t do that currently under the Canadian Victims Bill of Rights.
[Translation]
Senator Boisvenu: Mr. Lévesque, my question is very simple. When we read the bill and refer to the law, we always see the expression “on request”, “on request”, “on request”. In your opinion, is this term superfluous in this bill, and do you think that a right cannot be “on request”, but that it is something that is absolute in itself?
Mr. Lévesque: Your question is a legitimate one. There is a contradiction in having the terms “right” and “on request” in the same sentence. When we examined the bill at the Barreau du Québec, we wanted to take care of ourselves and show some flexibility, because victims’ rights are probably more complex in reality than in theatres of operations. Summary hearings can involve sensitive national security issues. That is how we understood it. Will this water down the law?
You raise a point that shows that this is where we must be vigilant in practice. In fact, I think we mentioned it in our brief. If we keep this wording, it is essential to see in practice how victims’ rights, with respect to the terms “on request”, affect the exercise of this right.
It is in the application mechanism that we will see in practice whether any charter — whether it is called a charter, declaration, or bill of rights — is implemented. Are there any implementation mechanisms? The question regarding the expression “on request” is a very legitimate one, but are there grounds, in the way things are done, for not granting rights to victims? It is practice that will tell us, senator.
Senator Boisvenu: There is also the right to protection, which is the basis for the safety of victims. The time between the report and the trial can be very long, and in many cases, intimidation by the accused will result in victims abandoning their complaints.
The bill states: “Every victim has the right to have their security considered...”. Basically, this means that it is left to the Armed Forces to consider whether or not protection has been provided to victims. However, this should be a fundamental and mandatory right.
I understand that it is the courts that will interpret the bill of rights, as they did with the Canadian Charter of Rights and Freedoms in 1982.
The courts have defined the scope of the charter. It’s a question of terminology. If a victim feels that he or she has not been protected and the army tells them that this has been considered, but that it could not ensure their safety for one reason or another... In my opinion, this bill of rights is fundamental in terms of principles. It is welcome, but it was written as if the Armed Forces were entering on tiptoe to recognize the rights of victims. Do you think my observations are relevant?
Mr. Lévesque: I don’t want to give you a legal opinion on this. Perhaps the Armed Forces or department representatives could answer your question. There is a semantic difference between the expression “tenu en considération”, considered, as it compares to “soit assuré”, be assured. If the bill is passed as it stands, how will this be viewed in practice? What policies will be adopted? These are questions you should ask them. At the Barreau du Québec, if you ask us the question, we will answer you that “be assured” is clearer than “considered”. However, in practice, perhaps their policies will ensure that it will be the equivalent of “be assured”.
Senator Boisvenu: Thank you very much.
[English]
Senator McPhedran: Thank you very much. My questions are to either of our witnesses. Thank you both for making the time to be with us today.
I have a confession to make: I am really furious right now. I’ve just started to focus on Bill C-77, and I was tricked by the fact that a new division is being added to the National Defence Act that is entitled “A Declaration of Victim Rights.” It’s only true, in my opinion, if we understand that a declaration is words. Yes, there are words here. This is absolutely not anywhere close to delivering on rights of victims.
I want to thank Senators McIntyre and Boisvenu for your previous comments and your astute observations and because of the brevity of time, I want to ask two particular questions.
I don’t think I heard either of you address the fact that a victim of a service offence committed abroad is basically not covered and is not entitled to exercise the so-called rights set out — I’m not even going to call them rights because that is not what is being delivered here — in the declaration, regardless of whether the trial is conducted in Canada or another country. I’d appreciate commentary from you on that and I’m wondering why that wasn’t flagged.
The second part of my question is there’s no capacity for alleged victims, complainants, to be parties to this proceeding. Others have spoken about the VLO function, which I would submit is largely a sham and is set up to work against victims in a truly effective way, but let me confine my questions to those who are subject to an offence that is committed abroad.
[Translation]
Mr. Lévesque: Thank you for the question. It is obvious that, for an offence committed abroad, the same philosophy should be adopted. For example, the treatment would be the same for a victim who is a civilian employee of the Canadian Forces or a civilian from the country where the Canadian Forces are based. We should follow the logic that the person is a victim like any other.
In fact, it is very important because the law of armed conflict or law of war, or international humanitarian law, requires the Canadian Forces or any other military force to maintain discipline primarily to protect civilian populations who, among other things, could interact with the forces. If this logic is followed, the definition of the term “victim” should be broadened as much as possible to include people who are abroad.
In our submission, we mentioned that, with respect to the shortcomings of summary hearings, there may also be victims. They too should be covered by the law. I used the example of harassment: it is sexual misconduct or sexual violence that is not sexual assault, but could be dealt with by summary hearing in terms of harassment. This could involve, for example, a member of the military and a civilian from the country where the Canadian Forces are based. That person is a victim. The definition should therefore be broad enough to cover that person as well.
[English]
Ms. Illingworth: I would certainly agree with the other witness. I didn’t understand from my reading of it that victims who are in service abroad would not be covered under Bill C-77. So I assume they would be entitled to the rights provided, as any other victims who are impacted by service offences.
With regard to becoming a party to the proceedings, it’s the same thing that we have in the civilian criminal justice system. Currently, we don’t allow victims to have that status, so unfortunately, we see the same. The legislation is essentially repeated here for the military context.
I think that would require a massive cultural shift in both the civilian and the criminal justice system, but I think it would lead to a better recognition that victims should have rights. Crimes are committed against them, it’s a violation of your body, personal integrity and security, and you should be able to speak to what has happened to you and the offences against you.
In my view, I would love to see Canada move towards victims actually having legal representation and being able to voice their issues and needs in court, but we’re just not there yet.
Senator McPhedran: I’d like to next address the way in which the victim’s liaison officer has been described in this bill. I’d very much appreciate commentary from both of you on the difference between having a right to counsel, having the resources to be able to retain counsel to be represented throughout an entire process that is so life-changing as these are for all parties involved, the complainants and the respondents.
This VLO is — again, I think it’s a shell game. This is not going to work if we’re serious about seeing victims adequately represented in the process. I’m leading with my opinion. You’re welcome to disagree with me, but let me just ask you: Can you see a way to strengthen the way in which the VLO is currently described in this bill?
[Translation]
Mr. Lévesque: This point was made in our brief. The problem may be related to the training of these victim liaison officers. We must ensure that they are very well trained. In the provinces, professionals are responsible for accompanying, supporting victims. This has been in place for several years. This work requires a certain sensitivity. You have to be able to know what stage the victim is at
A person who does this work only on an occasional basis, as a secondary job or on a case-by-case basis, could, even with the best of intentions, make a mistake when accompanying victims. In addition, if this person comes from a military unit, there could also be a perception problem with respect to their independence. Even if they really want to help the victim, the victim themselves may wonder if that person can really help them
There may be potential solutions, such as creating a profession of accompanying victims per se, or placing these liaison officers under the direction of the Canadian Forces health care services so that they can be professionally trained. They could be civilian employees of the Department of National Defence, so that we have a system that is very similar to provincial victim assistance centres.
[English]
Ms. Illingworth: I would like to agree with those comments. I think the VLO role is very important. It is very important to have support services, but that person’s function is not necessarily the same as the person who would provide legal advice. I think that you can have both. I think it’s important, given the implications — and, in my role I’m concerned about the people who are harmed by crime — to have representation and advice. In both the civilian criminal justice system and the military system, there are people who are acting differently. In civilian matters, it’s the Crown, but the prosecutors don’t necessarily represent the victim and their interests may be different.
I think you can have a VLO person assigned to victims. I think you do have to be very careful about where this person comes from. It shouldn’t be from within the unit where the accused person is located. What the sexual misconduct response centre is doing right now in the context of the CAF is great. There are civilians and counsellors doing work independently. They are within the CAF, but they are independently supporting victims and providing information and getting them resources. I think we can do that with these VLOs as well, but you can add and strengthen the victim’s position and support by also providing legal advice, and you have to provide it for free. It has to be part of the system.
Within the Canadian Forces, if we want to eradicate sexual misconduct and that sort of behaviour, we have to make sure we are providing those supports to the people who need them.
Senator McPhedran: This is a yes or no question. For both of you, for what you have recommended to make this a more meaningful and fair system with the VLO, can it be done without amending this bill or would there have to be an amendment?
[Translation]
Mr. Lévesque: The Barreau du Québec recommends that this issue be examined more closely.
[English]
Ms. Illingworth: You really need to clarify the role in this legislation and make sure it’s something that is offered proactively. Like I said earlier, people who are highly traumatized in the aftermath of violence do not know their rights and do not know to ask for this support service. It needs to be offered and you have to make the officials within the system responsible to offer it.
Senator McPhedran: It needs an amendment?
Ms. Illingworth: Yes.
Senator Gold: Thank you to our witnesses. It has been very helpful. I will conclude with a question for both but a bit of a preamble.
Ms. Illingworth, I understand that the declaration of victim rights here is, for all intents and purposes, equivalent to the Canadian Victims Bill of Rights, its strength and its shortcomings are reflected in both.
I understand from your testimony that you are favourable to the introduction of this but you have proposed changes. We thank you for your insight in those areas.
[Translation]
Mr. Lévesque, I understand that there are aspects of the bill that you support, especially with regard to victims’ rights, but at the same time, with regard to summary hearings, you have reservations.
[English]
We heard in the previous panel, from Col. Drapeau and his colleague, that in his view the current summary hearing procedure is, and has been for some time, fundamentally unjust and represents, from the statistics, about 90 per cent of cases that the military justice system hears. He argued rather strenuously that Bill C-77 is a step in the right direction and should be passed before this Parliament rises.
My question to both of you is this: In your judgment, what would be the impact, either on victims or on persons charged under the military justice system, if, for whatever reason, this bill were not passed before Parliament rises and we remain with the state the law as it is currently?
[Translation]
Mr. Lévesque: As for those who are charged, they will continue with the current system.
I partly agree with Colonel Drapeau’s observation that the current system is flawed and needs to be changed. The government decided on a decriminalization approach, but it has not gone all the way. There are still some blurred lines. There is a saying that the best is the enemy of the good. Madam Chair understands me because she worked at the Law Commission of Canada. Before we go too fast, let’s give ourselves time to check what others have done. I am repeating myself, but we believe that appeals with respect to summary trials should be referred to civilian courts, in order to ensure greater protection of the rights of the military, and that that would be preferable. If the bill is not passed, it will be the status quo for the military, because it will mean that they are still in the same situation. If you pass the bill, you risk hearing that you have lowered the standards of evidence. There will be no more redeterminations or appeals than before, and people could be demoted, with serious consequences, even after a summary hearing. From an administrative point of view, their release can be recommended by reference to lower standards. If accused persons are not necessarily represented in court, there is a risk of producing unintended perverse effects. I say this with the greatest respect for Colonel Drapeau, who has a great deal of experience. If we go too fast, we may have occasion to regret it when it comes to military rights. We must be very careful with the rights of the military; not only can they not go on strike, like others, but they cannot ask for changes to current policies and laws. They are not allowed to do so. Just recently, when we marked Ghislain Maltais’ departure, he said that the Senate’s role was to protect minorities; in this case, we are discussing one of them, accused members of the military. That is why we suggest that you show wisdom here.
[English]
Ms. Illingworth: I would take the opportunity to encourage you to pass this legislation. Absolutely, it’s really important. It’s critical that we bring the rights in the military justice system up to par with the civilian justice system. I would ask you to consider some amendments, particularly around the victim’s liaison officer role by clarifying it, strengthening it and making sure victims are proactively made aware of their right to appoint one. I would encourage you to look at some of the other recommendations I made in my opening remarks to strengthen the bill around victims rights. I do urge you to pass it, yes.
Senator Gold: Thank you.
[Translation]
Senator Boisvenu: Perfection is in the details, but perfection is not a detail. That being said, where I have a problem with the scope of the bill of rights is when we look at the four pillars: the right to protection, the right to information, the right to participation and the right to compensation.
The scope of each of these rights is diminished to some extent. For example, for the right to safety, we say it will be “considered”; when we speak of the right to compensation, we say it will be “considered”; when we speak of the right to participation, we say it will be “considered”; and finally, when we speak of the right to information, we see the expression “on request”. These rights have been constrained with very specific terms, but the terms leave the Armed Forces sufficient leeway to define their scope. It seems risky to me, because, indeed, all this can be random; it depends on where you are in the Armed Forces, whether in the Army, the Air Force or elsewhere. Managers are given some discretion, when the law should be written in black and white, without being subject to interpretation.
What is your point of view?
Mr. Lévesque: We too found this challenging. There are not two types of victims. Now, there may be a legitimate reason for all this. People from the Department of National Defence and the armed forces may tell you that. If we decide to proceed with this bill, your views and those of Senator Dagenais and Senator Gold could justify the inclusion of a review clause, or a sunset clause proposal. We believe you’ve been careful. Unless you make an amendment directly that would say clearly, without eliminating the discretion that is left.... It might be wise to have a sunset clause to check, in practice, what happens to victims. In practice, what happens to military accused? In practice, how do commanders behave? Do they really feel independent when deciding on a verdict at summary hearings? At the moment, things are a little vague and several things will be specified by regulation. With respect to the predictability of the law, this may be a concern for the Bar. It is as if we had to trust the practice, and in this regard, we could ask the responsible organizations to be a little clearer, or at least to take responsibility, and demand that they be held accountable at some point.
Senator Boisvenu: Thank you very much. This was very interesting.
[English]
Ms. Illingworth: I just want comment on Senator Boisvenu’s question. I would say that you could clarify the roles of military personnel and justice system personnel, and clarify who is to provide what information at what point, like what security considerations can be taken into account.
That’s really what the Canadian Victims Bill of Rights is lacking. It is very vague. No one is responsible for what role to provide, what information to provide or what level of protection. That is something you could do in regulations. This bill has clarified those roles and assigns military justice personnel specific roles.
The Chair: Just a reminder, senators, that on May 27 our committee meeting will begin at 11 a.m.
(The committee adjourned.)