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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 25 - Evidence, November 3, 2005


OTTAWA, Thursday, November 3, 2005

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-39, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, met this day at 10:50 a.m. to give consideration to the bill.

Senator Lise Bacon (Chairman) in the chair.

[English]

The Chairman: I call the meeting to order. I want to speak about the two coming weeks. We have next week off and are free to have the other week off if we feel like it. Do you want the committee to sit or not during the week of November 14?

Senator Milne: What bills are there?

The Chairman: There is still Bill S-39. We could hear the ombudsman on November 23, deal with clause by clause the next day, and then start Bill C-49.

Senator Joyal: Were there many witnesses in the other place on Bill C-49?

The Chairman: Officials only — one meeting, that was it.

Senator Andreychuk: Bill C-49 had been some time in the works and I think there was sufficient agreement on the other side of its need. Some parties thought it did not go far enough; some worried about the application consequences. I spoke about some of the public policy issues — criminality should be the only one — so it does not need the kind of vetting that we sometimes do, unless we find there were some constitutionality issues that were not picked up.

Senator Joyal: I do not want to intervene in the work of the steering committee, but it seems to me we should hear someone from Immigration because it is one of the key elements.

The Chairman: I already have a list of some people for Bill C-49.

Senator Milne: I have to be here on Tuesday and Thursday of that week for the Energy Committee anyway.

[Translation]

Senator Nolin: Which week are you referring to?

The Chairman: The week of the 14th of November.

Senator Nolin: That will not be possible for me. I will only be here on the 18th of November.

[English]

Senator Andreychuk: I have a meeting on Tuesday and Wednesday morning.

The Chairman: There are so many different dates when people can be available. That is why I was suggesting we do not sit. We could come back the next week to deal with S-39, with the ombudsman, and do clause by clause the following day.

Senator Joyal: We have Bill C-49. What other bills do you have under consideration? I am thinking about the last part of the session, which extends up to December 16, and what chunk of work we can accomplish in that time.

The Chairman: Bill C-72 was tabled yesterday by the minister. It deals with DNA.

Senator Milne: We would not have it before Christmas.

Senator Joyal: Those are the only government bills. We have a few private member's bills.

The Chairman: Bill C-53 could come too when we come back.

Senator Joyal: What is the object of Bill C-53?

Robin MacKay, Analyst, Library of Parliament: That is the proceeds of crime bill to reverse the onus of proof — to seize the profits of crime from criminals.

Senator Joyal: That is an important bill. It is being challenged in the courts.

Senator Bryden: I agree with what you suggested. I am co-chair of the Joint Scrutiny of Regulations Committee. It meets on November 17 and I will be here for that. I am just coming up for that purpose. We meet every second week, and if I have to delay, I have to bump it for two weeks.

The Chairman: It will be difficult to find a proper day for us to sit, considering that others will be busy with other committees. That is why I suggest we take the week off for our committee and come back and deal with Bill S-39 and then Bill C-49.

Senator Milne: Energy is sitting all day Thursday that week.

Adam Thompson, Clerk of the Committee: There is at least one other committee that intends to seek permission to sit outside its time slot for an extended period, which could lead to other conflicts.

Senator Milne: Which one?

Mr. Thompson: I am not positive, but it is not the Anti-terrorism Committee.

[Translation]

Senator Rivest: Next week?

The Chairman: Yes.

Senator Rivest: That is fine.

The Chairman: Is that ok?

Senator Rivest: You mean the 23rd of November?

The Chairman: Yes. It is a Wednesday.

[English]

Today we are dealing with Bill S-39, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act, SOIRA, and the Criminal Records Act. We had asked Mr. Hoover, who is counsel, criminal law policy section from the Department of Justice, to be back here with us. If you wish to introduce your colleague, we would be pleased to hear from you.

Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice Canada: It is my pleasure to be back again to provide at greater length some explanation of the Criminal Code aspects of the bill. Bill Bartlett, who is my general counsel in the criminal law policy section, is also here to assist in explaining our provisions in Bill S-39.

Perhaps honourable senators ran out of time when we were here before and wanted to hear some response from Justice Canada regarding our particular provisions. We were not the lead department in the original legislation, Bill C-16, or in Bill S-39. However, we clearly have a significant stake in the bill given the Criminal Code provisions that require a judicial oversight of any orders to go in the registry and the discretionary aspects, et cetera — the Criminal Code offences in the bill, including the new ones. It is appropriate for us to be here and provide a full explanation of what these provisions are intended to do.

On the face of it, while there seems to be a large number of amendments to the Criminal Code provisions in that regard — about 45 give or take — I think about one-third of them are strictly consequential to the National Defence Act, NDA, amendments. They are required to ensure that the appropriate numbering and wording, et cetera, are there to give effect to the National Defence Act amendments.

Perhaps another one-third are best described as technical amendments. When working on the specific methodology to bring the Armed Forces into the scheme, more appropriate language was discovered for clarity or drafting conventions. When compared to the Criminal Code provisions, it made sense to mirror the same type of wording that was in the NDA proposals.

A smaller number of amendments might be viewed as subtle shifts in the manner in which proceedings in the courts or in the administration of justice are done regarding the sex offender registry. Again, these were based on a review of the proposals in the NDA, and those sought by Public Safety and Emergency Preparedness Canada, PSEPC, and amendments to the SOIRA bill, which Justice Canada supported upon review. Those specific amendments to the Criminal Code also tend to mirror the other provisions. There are a small number of shifts in the nature of the Criminal Code. We have already discussed one, namely the bringing in of the former section 17(2) offence in the Sex Offender Information Registration Act that will now be 490.03(1)(1), which parallels the current offence structure.

In reviewing my last testimony before this committee, I would only add that it is important to understand that because the previous 17(2) offence was in SOIRA, a number of provinces were suggesting that only a federal prosecutor would prosecute the 17(2) offence, where it would be a provincial prosecutor prosecuting the other offence. The Criminal Code offence was for failure to register and the former SOIRA offence was for knowingly providing false information. They are closely related. It did not make procedural sense to have a provincial Crown prosecuting, for example, the failure to show up and register and a federal Crown also arguing, potentially at the same time in the same proceeding, the offence of providing false information. We were requested to review that and potentially place both in the Criminal Code or in SOIRA case law. We supported the notion that they should be together. We had no opposition to placing the 17(2) offence in the Criminal Code. That seemed to be the consensus of the provincial attorneys general and of federal prosecutors who carry out these prosecutions in the territories. We were in full support and that is the nature of that offence. The other policy shift to which I would like to draw your attention is the moving of the section 490.034 authority for information from the registry to be placed before the courts in the course of the administration of justice, such as in the obtaining of a search warrant. That provision was in the Criminal Code, albeit fairly brief. Crowns and attorneys general expressed some concern as to how it was worded. They were also concerned that it might be more properly placed in the Sex Offender Information Registration Act. Upon review, we concurred that it was better placed within the administrative aspects of section 16(4) which is what the provision does. As well, it addresses the concerns to more carefully spell out the kinds of instances where the information should flow and where it should not flow to create assurances. For example, one concern expressed was that it might expose even the employees of a court, who are handling the information because they have a need to handle it. On a strict interpretation of the wording of former section 490.03(4), it might expose them to liability provisions under the act. Section 17(1) provides for a potential six-month jail term for improper disclosure or dissemination of sex offender registry information, which is an important aspect of the proposed legislation. We acknowledged that which is why we supported that particular provision.

Those are the two most significant aspects that we would like to draw to the attention of the committee.

[Translation]

The Chairman: Specific issues have been raised several times during our conversations with witnesses. They relate to the two-stage process for offences, which are not explicitly sexual in nature, such as the mistreatment of a subordinate.

Firstly, the offence has to be proven. Then, there is a second hearing. If prosecutors wish to seek registration they are required to prove that there was sexual intent involved in the initial offence.

This seems to mirror the process in the civilian system. However, as far as the clarity of the legislation is concerned, I have misgivings over the two-stage process as it relates to the issue we are dealing with. Does the problem stem from the way the legislation was drafted or is it more to do with referring to "mistreatment of a subordinate" in the description of the offence?

Would it not be possible to avoid the two-stage approach by having a single offence with any sexual aspects being set out in the description?

[English]

Mr. Hoover: For situations regarding the NDA offences, officials from the justice department are here today. I might feel more comfortable having them answer those questions.

I would suggest that the Sex Offender Information Registration Act, the National Defence Act and the Criminal Code mirror one another in terms of the policy approach. Regarding the approach to non-sexual offences, it is important to understand that the federal government consulted closely with provincial attorneys general on the original Bill C-16. It was at the request of provincial and territorial attorneys general and justice ministers that we looked carefully at the situation where an individual might not be convicted of a sexual offence but where there was an obvious sexual intent to committing that offence. Justice Canada became involved only in the sense of reviewing the policy suggestion that was supported by all provinces and ultimately by Public Safety and Emergency Preparedness Canada. When we were asked to review that, we did not see it as a constitutional or procedural problem provided the Crown was able to prove beyond a reasonable doubt that there was sexual intent in committing, for example, the break and enter. We thought that it would be viable for the offender to be subject to an application by the Crown in that instance. We insisted on that test being in there. In previous discussions at this table on the bill, honourable senators asked a number of questions in respect of that and went to the heart of it by discussing the plea bargaining situation. From the viewpoint of Justice Canada, we were only asked to review the viability of that particular policy.

The Chairman: Did you write the proposed legislation?

Mr. Hoover: We certainly wrote the Criminal Code legislation and the legislative branch takes direction from the client department.

The Chairman: That is why I am asking you.

Mr. Hoover: I cannot speak to why the policy decisions were taken by those in elected positions. My instructions are to bring forward the policy in terms of legislation. We work closely with drafters and many other branches and consult with the provinces to ensure that it works. The Department of Justice oversight is in respect of the Charter and procedural aspects in the court. We found no problem with the proposal and the position of Justice Canada. As to questions regarding the efficacy of the policy, we can say only that there was one case where there was a non-sexual conviction that is subject to an order based on those grounds. From my discussions with Crown attorneys they seem to be in favour of that approach. Whether it is for the purpose of plea bargaining or otherwise, I can not say for certain that it is a wise approach. I can suggest only that we believe it works and that it is Charter viable. For questions regarding the specifics of the NDA offence, I would suggest that you recall witnesses from National Defence.

The Chairman: I forgot to mention clause 203(c).

Senator Joyal: I thank the witness from the justice department for qualifying the statement that it was just an update or technical change. Because the committee will consider the bill at a later date, I would appreciate having a copy of the chart of consequential amendments, which amounts to one-third of the total, and the relevant pages in the bill. When we first look at a bill, it is not necessarily user friendly. It would help our work considerably if you could provide the list of those amendments. You said that the second third are technical in nature. I understand you changed some words in the French version to ensure that it translates well to English. Then, you said that the final third of the amendments are few in number but are more substantial.

It would be helpful if you would list those with a simple explanation for each one. You have given a good explanation for the first amendments to the Code, and I want to understand the others that may be just as substantial. It would be helpful for our work. If the Department of Justice would prepare such a document for bills that we are to study in the future, it would help us review legislation as we are supposed to.

Mr. Hoover: I would be happy to put that together as quickly as possible with regard to the Criminal Code provisions and provide it, through the clerk, to all members of this committee. If you have further questions during clause-by-clause consideration, we will make ourselves available. I agree that on its face it is somewhat complicated and difficult to understand what each of these amendments does.

Senator Joyal: That would be helpful for the other place, too.

Following up on the question of the Chair in relation to section 203 on pages 2 and 3 of the bill, which amends the National Defence Act, I am trying to understand the differences. I want to know whether my interpretation is right. This is a substantial question and we need to be well aware of what we are doing when we vote on this section.

Am I correct that some of the offences listed in subsection (c) can be linked to the intent to commit a sexual offence and some would not be linked to the same intent?

For example:

(c) an offence under

(i) paragraph 77(f) (offence against the property or person or inhabitant or resident of country where serving),

There is a similar offence in the Criminal Code. If someone breaks into and enters a home with the intent of committing a rape, would that be a designated offence for the sex registry?

Mr. Hoover: For the Criminal Code, yes.

Senator Joyal: We are talking about civilian society. However, when we move to "striking or offering violence to a superior officer," I understand that in civil society if you are found guilty of aggression with the intent of committing an offence you are listed in the sex registry. Is that correct?

Mr. Hoover: You are putting me on the spot. You are asking me to provide an interpretation of a National Defence Act offence.

Senator Joyal: No, I am talking about the Criminal Code.

Mr. Hoover: In the Criminal Code it is quite clear how the "B" list offences work. According to section 490.012, the "B" offences may only be subject to an application by the Crown if the Crown can prove during that subsequent proceeding that there was an intent to commit one of the listed "A" sexual offences. If you can not do that beyond a reasonable doubt to the court's satisfaction, the application must fail.

It is pretty clear how that works. While the structure of the act might not lend itself to an obvious conclusion, it is there if you read through it. I believe the NDA provisions are intended to mirror that. The officials are here if you have a particular question.

Senator Joyal: I am trying to understand the Criminal Code — civilian society. I am trying to understand the parallels between civilian society and the military. The offence of "cruel or disgraceful conduct" is not an offence in the Criminal Code. I do not see how we could link that with the intent of committing a sexual offence. I see there a difference of responsibility.

If you are in the army and found guilty of disgraceful conduct, you can be accused of committing that crime with the intent to commit a sexual offence and find yourself on the registry, whereas there is no such thing as disgraceful conduct in the Criminal Code.

Mr. Hoover: There is no specific offence in the Criminal Code that might be directly analogous to that, but I think defence officials could provide you with a full explanation of why it is, in their view, parallel. It very much mirrors the same type of policy intent.

There are often convictions under the Criminal Code where it is not directly at issue that the crime was committed with the intent to commit a sexual offence, even though that is often the case. In the majority of cases, if the Crown sees that, they will attempt to get a conviction of intent to commit a sexual assault, although that is not always possible.

Attorneys general were concerned that some serious offenders would be left off the sex offender registry when there is a good policy rationale to have them on the registry. Listing such offenders may prevent subsequent offences. Their direction was to include a specific list of offences, and those lists were examined very carefully by senior justice officials. The Department of National Defence was trying to do the same exercise, and it would be up to them to describe why they believe those provisions fit into that exercise.

Senator Joyal: I am trying to understand why those offences are more likely to be done with sexual intent in the military world than in the civilian world. We all have the same concern about that list, which at first sight does not seem to parallel the Criminal Code.

Bill Bartlett, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: I suggest that you query the defence officials because what you are trying to get down to here are the kinds of factual situations that might underlie something like a charge of cruel or disgraceful conduct. There is nothing in the Criminal Code that would immediately parallel that, but the factual situations might well parallel offences under the Criminal Code. However, it is only the defence officials who can really enlighten you as to what the underlying factual situations might be.

Senator Joyal: You will understand this is of prime importance to all of us around the table because it is not clear at first sight when looking at the wording, specifically (v), paragraph 128, "Ill treatment of occupant or person on who billeted".

I can understand, of course, that billeting is a reality of the army, and that it does not necessarily exist in civilian society. What would be the parallel situation? It is important that we understand what the additional responsibilities are that you might have in terms of committing an offence related to sexual intent in the army versus in civilian society.

The Chairman: Perhaps we could ask Colonel McAlea the question.

Colonel Dominic McAlea, Deputy Judge Advocate General/Military Justice and Administrative Law, National Defence: We struggled with this in our previous meeting. Perhaps I can give you a real life example that best illustrates how we draw the connection between the army and civilian society.

Some years ago we had an incident where a couple was engaging in consensual sex which was videotaped without their knowledge by a third party.

It was the assessment of our prosecutors that this videotaping without knowledge did not violate any of the other offences, any of what we understand to be traditional sexual offences. We considered that this was the nature, and the third party in that case was tried and convicted of cruel or disgraceful punishment.

As a result of our last meeting, I believe in response to Senator Andreychuk's question, we are going back and finding convictions for each of these five offences and seeing if there is susceptibility for a sexual aspect too. We hope to complete that research shortly.

Senator Joyal: Colonel, can we ask you or your colleague from the justice department to identify what would be the corresponding parallel Criminal Code offence?

Senator Andreychuk: I believe that the National Defence Act will have uniqueness, and there may not be a parallel and we should know that.

Senator Joyal: That is exactly what I want to know.

Col. McAlea: You will find that in several circumstances. I believe Senator Ringuette made the point that there are some differences. Our objective in this legislation was to bring Canadian Forces members into the regime while reflecting the uniqueness of the operational character of the Forces.

Major Wry and myself are governed by the all the laws and regulations that are applicable to any Canadian. In addition, there is another code of conduct superimposed upon us, and this is an example of that.

Senator Joyal: I understand a profession might have an ethic that is particular to that profession because of the nature of the services to be performed. However, we are talking about the Criminal Code. There should be a recruitment of criminal responsibility as much as there is a distinction on an ethics level because of the very different reality of the professional services. We have to understand the substance of the Criminal Code that we want to overlay one on top of the other.

Col. McAlea: For example, if I disobey an order in the civilian context, the effect may be that productivity where I work may diminish, or I may undermine the authority of my civilian superior. The consequences are probably not that grave.

If in the military context I disobey on order, there is a very good chance that Canadians will die or that the people we are protecting will die. I urge the committee to see it as an ethic, as Senator Joyal has characterized, but it is something with a grave consequence.

We have a code of conduct imposed upon us. It is called the code of service discipline. If I breach this code, I expect to be punished, including going to jail. That is part of my responsibility. When the stakes are so great, I suggest the chain of command needs this authority in order to have Canadian Forces members behave in the way they need to behave to perform the missions the Government of Canada calls upon them to perform.

Senator Joyal: Thank you for bringing that to our attention. As I say again, the nature of what we are doing here is a very important element. I will use the term "to streamline" the responsibility. If you ask us to put in the Criminal Code or as a criminal offence a special responsibility that you have in the military because you are the military, I want to be aware of this when I vote on it.

It is fair to understand what we are doing here. It is not that I am opposed in principle to that, but we have to be very cautious when we do that for obvious reasons.

Senator Milne: I will follow up on the same line because I am very concerned about subsection (c).

I would be much happier if somehow it was spelled out in this act that it was with a sexual intent that these five additional offences were added in. I do not know the easiest way to do this. We do not want to create another section in the Criminal Code.

Is it possible to create an option somehow that both the military or civil prosecutors could apply for a declaration at the beginning of a trial that this was for sexual intent? I am not in the business of drafting legal bills, but it seems to me that if it was spelled out somewhere that these five offences were of a sexual intent, then I would be much happier about putting in "striking or offering violence to a superior officer."

When that person comes out of the military, they will still be on the register, and they will be in civilian life on the register for something they would not be placed on if they had been in civilian life all the way through.

Col. McAlea: I am not a drafter. I share your bemusement with how the text is actually rendered on to paper. My understanding is that as a result of the operation of law, what you want is exactly what happens. No one could be put on the register for having been convicted of one of these offences unless it was committed with a sexual intent.

The question is — do we draft the offence section substantively like that, or do we do it in the way it is done in the bill? I do not pretend to have the answer to that. Perhaps my colleague from justice can answer that.

Mr. Hoover: The approach you are seeking may be problematic. I would suggest, and I would agree with my colleague from defence, that the concern you are expressing is fully resolved and that Justice Canada, certainly in the civilian scheme, was very demanding upon responding to attorneys general that the test for the "B" list of non-sexual offences is beyond a reasonable doubt. That makes it very clear to all Crowns.

I have two points. First, they are obligated to some extent, although not specifically in law but in terms of convention in courtroom proceedings, et cetera. If they want to secure that registry order, they had better give notice to defence counsel that they will be seeking it.

For example, if a defendant is pleading guilty, he is entitled to know the full consequences of that plea. If counsel fails to provide notice that they are going to be seeking that application then drops it on the desk during sentencing, the defendant has good grounds to withdraw his plea and go to trial on that basis.

I understand that in most provinces Crowns have already determined it is appropriate. It is Crown policy. Different provinces do their policy manuals differently. However, in most provinces, that is exactly what they have to do if they want to seek that application.

Even in a non-sexual situation, they are informing in all cases that they will be seeking these. Second, from the perspective of Justice Canada, this works and it is viable because of the fact we are asking Crowns where they are going to seek these that they must prove beyond a reasonable doubt.

As stated in the last proceeding on this bill, that is the toughest task of all in the Criminal Code. We cannot re-devise one tougher than that. What you are asking is taken care of by that particular provision. If it was not there, then the concern would be legitimate that perhaps there is somebody who would be subject to a potential application and who, on the facts, may not have committed that type of offence.

Senator Milne: Do you have more information? I am still concerned. You say most provinces, and that does not give me a lot of comfort.

Mr. Hoover: In terms of the actual principle of justice, when the defendant pleads guilty, he has the entitlement, the fundamental right, to know what the consequences of that plea are. If the Crown fails to disclose, the defendant has grounds to withdraw his plea. That is a very trite principle in terms of criminal procedure.

In that sense, there is an automatic safeguard. The second safeguard is having to prove beyond a reasonable doubt. It is a difficult task. In terms of practice, what you see is somewhere on the record where it makes it quite clear, either by the defendant's own admissions in a guilty plea or by a finding by the judge, that that was the intent. In those types of cases, regardless of the ultimate conviction, the policy objective of those who decide policy objectives was to make sure that there was an opportunity for Crowns to bring forward an application, even if they have satisfied His Honour's tests.

Even where those admissions are made in open court or in the plea, the Crown still has to come subsequently and satisfy the court that whatever admissions were made are there beyond a reasonable doubt. If the defendant chooses to argue, even if he puts a plea on record, he may choose to argue that it did not meet the test. He is allowed to place full evidence before the court.

Again, after meeting that requirement, he still gets to argue through counsel that it is grossly disproportionate to place him in regard to the interest of public safety versus his interest of liberty. There is an additional safeguard in the particular instance of these "B"-type offences.

Justice Canada is relatively confident that the rights of the offenders in this situation are well balanced, and that there will not be a large number of individuals who are going to be subject (a) to an application, and (b) to register, unless they fully meet the criteria similar to the "A"-list offences.

Senator Andreychuk: We did pass the act and we understand this difference. I presume we will monitor to ensure that the accused knows in advance that the registry provisions could apply to the person.

My concern is with the military for two reasons. First, is that the same practice in the military? When you are talking about a discipline, will somebody then have this act click in at the end of the process?

I do not have a great understanding of how a military court would function. Is it going to be exactly the same as a civilian court and, therefore, will we have the same reasonable assurance that it will be run in that way knowing the pitfalls that we pointed out?

Second, the department did come and tell us that it was based on data, research, anecdotal evidence and otherwise why they chose certain offences in the Criminal Code. I have yet to be persuaded that those chosen, in addition, in the military system have a history, some data, as to why we should presume there is a sexual intent in greater preponderance in those cases.

I would have thought the striking of an officer or the officer striking a subordinate would come as a discipline issue, as an authority confrontation, and it has to do with the work environment. I had not heard that this was with sexual intent. If that is what is happening, we should know about it as a society, and then there is validity to putting that offence in.

Is it a preponderance of those discipline situations or lack of discipline situations that have sexual connotations these days in the military? If so, then it is justified on the registry. If it happens occasionally, as the department pointed out, that in any offence under the Criminal Code there could be a sexual connotation given a certain fact situation. They have not pulled in all of the offences. They chose them. I would need to know that there is a preponderance of the evidence to say there is a sexual intent in those cases. We do not have that data.

Senator Joyal: I would like to use the example of using a gun dangerously. It is threatening if you use your gun dangerously, so why is it not there?

Col. McAlea: To answer your question, Senator Andreychuk, we did not engage in the statistical analysis that was done with respect to the Criminal Code. On a policy basis, we looked at those offences which were "B"-class offences in the Criminal Code, and on a principle basis we did the analysis. No, we did not do the statistical analysis that you are asking about.

With respect to procedure and practice at courts martial, they are similar to civilian courts except perhaps a little more decorous in certain circumstances. As a prosecutor, if I intended to rely on evidence, I would ensure that the defence counsel had that before the beginning of the process. There would be no surprises with respect to evidence, nor any surprises with respect to my intentions as to seeking an order under this or any other act.

The Charter, the Canada Evidence Act and the Criminal Code all apply in a parallel fashion. This system exists in parallel. It is perfect. Some of our purposes and principles are different, but the core values are all the same.

With respect to Senator Milne's question earlier, you are right. It is possible that someone could end up as a civilian on the register for an offence for which they would not have been convicted as a civilian. The person would still be entitled to seek a pardon and a termination order with respect to being on the registry. Anyone convicted at a court martial for a serious offence would probably be captured by the Criminal Records Act anyway and show up on the Canadian Police Information Centre, CPIC. That would occur whether or not they were charged for one of these offences.

Does that answer the question? Perhaps you would like to add something, Mr. Hoover.

Mr. Hoover: That is a full and good answer. I would only suggest that perhaps we were involved in some of the discussions about which offences would meet the policy guideline. Based on the list that is now before you in 490.0111(b), we had no problem with those offences meeting the criteria.

We did not, within the Criminal Law Policy Section, CLPS, undertake any broad studies. We were certainly aware of the instances anecdotally and otherwise where these types of things occur. All I can suggest is that I do not see any of the "B" offences in the Criminal Code that do not meet the criteria. Possibly the defence officials have equal confidence in the list they are proposing at this time that there will be instances at some point where you will have individuals charged with those offences who could be subject to them based on factual circumstances.

Senator Milne: What about a case where a military person does not plead guilty? What safeguard is there then that the accused will know before the trial that such an order will be sought?

Mr. Hoover: Overall, whenever one commits a criminal act, you have to be aware that there could be potential liabilities. That does not necessarily stop the individual from committing the act. The only instance where awareness becomes an issue is if there is not a criminal responsible for the acts because of the prerequisite under fundamental justice systems to be able to form intent.

In any event, one cannot plead, "I was not aware of the consequences of my actions in the Criminal Code, that I should not be subject to the liabilities or the administrative consequences of the Criminal Code."

It would be a similar situation perhaps if one was convicted of impaired driving and suggested that, "I was not aware that I was going to lose my licence either before or after I committed the act before I go to trial." It is a well-established principle that these statutes and provisions are public knowledge. They are printed in the statutes of Canada. There is a regulatory notice that goes into the Canada Gazette.

Claiming that I did not get notice does not mean I would not be subject to a sex offender registry order. Again, it is a policy decision in many respects. I respect your view on this. However, overall it is important to understand that there is notice of the consequence. If at trial it comes out clearly in the facts that there was a sexual intent to the break and enter or whatever the base offence was, I think defence counsel — if they have retained defence counsel — will probably advise them at some point. I do not know that the argument subsequently would be any different because of the requirement at trial. In addition, after sentencing, the sex offender registry is to prove beyond a reasonable doubt.

The opportunity is there for a defendant either way to argue fully and with full due process in the ultimate discretion of the judge whether or not to issue the order. However, the Crown does have to meet that requirement of beyond a reasonable doubt which is a very high bar to meet.

Senator Milne: I am still having some difficulties with this. Looking at this list of offences which are strictly military offences, all five, I have trouble trying to imagine a situation where one of these offences would have a sexual intent but would not qualify either as a sexual assault or as attempted sexual assault.

Col. McAlea: The easiest example is one where it was frustrated, where someone intervened to prevent it.

Senator Milne: Would that not be attempted sexual assault?

Col. McAlea: Yes, it would. Well, that would be subsection (d) or (e) depending upon the circumstances.

Senator Milne: Well, (e) takes you right back to (c) again, and it is (c) that I have a problem with.

Mr. Hoover: It is important to understand what the real objective is, and that is to have a database of individuals who, by their past conduct, are somewhat likely to repeat in the future by providing police only, in the event of a police investigation, access to a database.

With a database, they may be able to better protect others by identifying those individuals who are, by their description and modus operandi, in that database. If they belong in the database at a policy level, it is probably because they committed this sexual offence in the past or intended to commit it in the past. On the facts, the Crown was able to show that was the case.

The problem is if the scope is too narrow, by its nature you are going to miss a significant number of individuals who will not be on the database, who will not be available for quick access by the police in the investigation of a sexual offence. This person will not show up and they will not show up on the radar, and maybe they should have been.

For example, in cases of child abduction, adult abduction of vulnerable individuals, you do not have much time to find the individual. The police very much wanted this registry in order to quickly pinpoint who has that particular characteristic based on a slim amount of evidence available shortly after the offence occurred. You might have a hair colour, eye colour and a modus operandi.

Senator Milne: You do not have to convince me about the need for the registry. I am not convinced about these particular things in it. Let me give you a hypothetical situation. A person in the military is convicted under one of these sections and is subsequently discharged from the military. They are on the list. They apply to be taken off the list, and are taken off the list. At the next job they apply for, they are asked, "Have you ever been listed as a sexual offender?"

Mr. Hoover: If they ask that question, what liability is the individual under civilly or otherwise, if he refuses to answer or answers incorrectly? I cannot speak to that. He may not get the job. I do not know. Even if it was a federal employer, he does not have access to the federal sex offender registry in any shape or form.

Senator Joyal: So you can lie?

Mr. Hoover: I am not suggesting anybody should lie. All I am saying is it is of no use for the employer, federal or otherwise, to ask that question because there is no way they can check. It is a useless question. It is more useful to ask if they have ever been convicted. That is lawful. You can not lawfully do a sex offender registry check.

I do not know why any employer would put that down. In other registries, that is an issue. In other jurisdictions that have registries, it is wide open. This registry is not. That type of utility is not only built in but in many ways would be unlawful depending upon how you approach it.

Senator Joyal: I can think of a situation where the question might be asked. Take for instance a steward in an airplane. If you apply for a job at that level, that might be a something an employer in the air industry would want to know.

What is the position of somebody who applies there and has been on the sex registry because of the abuse of a subordinate and would say no to such a question. "Have you been on a sex registry?" The person says, "No."

Mr. Hoover: Again, I could only suggest the correct question for the employer to ask is, "Have you ever been convicted of a sexual offence?" because one follows the other and if the employer cannot check and verify, it is of no utility to ask.

Senator Joyal: There is a difference between asking, "Have you ever been found guilty of a sexual offence?" and "Have you ever been on the sex registry?" Here you are at the secondary level. You are at the repetitive level. You present a risk. That is the difference between not being on the sex registry and having been found guilty of a sexual offence.

Mr. Hoover: Yes, you are right. I concede that there are some individuals who would be able to answer "no" to the question of "Have you ever been convicted of a criminal offence?" but if you asked if they were on the registry maybe they would have been able to answer they were. The utility of asking the question is strange because the employer is unable to check. Even the RCMP is unable to check if they are on the registry in that situation. This registry, by policy decision, was not designed to facilitate that type of access. If someone did try to attempt that type of access they would be breaching section 17(1) of the Sex Offender Information Registration Act. I do not know how much further we can go than that. We might be able to put in a clause saying that question can not be asked and perhaps that would be a different issue.

In terms of looking at the overall balance of protecting the offender's rights post-conviction as opposed to the interests of public safety, the registry was not for the purpose of checking the backgrounds of individuals. There are other ways to do that.

Senator Pearson: I was going to remind all of us what this thing is for, so thank you for doing that, Mr. Hoover. It is for the protection and for the use of the police in fairly limited circumstances. That is all. I am fairly comfortable with the offence the defence has placed on them, because my experience of any kind of sexual exploitation is imbalance of power. The more imbalance of power you have, the more likely you have of these offences. This is a message to people in the Armed Forces to be careful not to abuse their power position or never allow irritation at being ordered — I think of striking your superior officer — but I do feel these are special circumstances where we have, for the defence of the country, actually created the kinds of circumstances in which these offences are more likely to take place. We see that tragically with some of the events that have taken place in prisons in other countries and other circumstances like the Abu Ghraib prison. I can understand why you have put it there and I am glad. It would be hard to demonstrate where there had been many cases where this had happened, but now you have women superior officers with men and that can produce its own dynamic as well. We need to be clear about the messages as well.

Senator Bryden: I want to see if I have this right. If you are serving in the military, you are subject to the Criminal Code of Canada, which would make you subject to the "A" list of sex offences and the "B" list of sex offences in the Criminal Code. What "C" represents, for people serving in the services, are new offences, offences for which the general population will not have been registered. So these are additional offences for one significant segment of our society and you say for good reason and that may be true. I have a good deal of concern about relying on an additional set of infractions or offences. It has always been my understanding that the culture of Crowns, attorneys general and judges provides this calibre that would provide the history that existed under the "A" and "B" offences in the Criminal Code because there are a lot of instances of this within the services. It has always been my experience that in order to determine the intent of a piece of legislation, in order to determine what the policy is, the first place the judge looks is to the wording of the legislation — that is the intent. What is intended by this legislation is what Parliament wrote down, and it is only when you can not get a legitimate reading that you go outside of that. There are very few judges who, particularly for an offence that may cause someone to lose their liberty or have something registered against them that will have a continuing impact, would not be very cautious and they will stick to what is written in the statute in applying that offence.

Now, you have five new offences. They relate peculiarly to your jobs, what you do through your profession. It detracts not one bit from those new offences that apply only in the military. I see no down side to clearly stating the intent of those five offences — by saying a person who strikes a superior officer with sexual intent.

Section 2 will still have to be proven beyond a reasonable doubt. We are dealing in peculiar circumstances and these are peculiar offences for the purpose of the military. The clearer they can be stated the less opportunity there is for error or misapplication. It will take a lot of convincing for me to think that somehow by putting the offence clearly there, because that is the only purpose for them being in there is so you can go on the registry. That is the only purpose. So why would you not put it in there? I do not see how you jeopardize any soldiers or airmen or whomever. Then it would be a clear direction to the court; the prosecutor, the defence people and the judge knows exactly what they are.

I am at least as concerned about the possibility of someone getting on that list who should not be on the list as I am that the police need to have the ability to be able to investigate anyone who might commit a future offence, that absolutely everyone possible has been captured.

I do not want to belabour the point and would ask for a comment or answer. I do not want to start an argument.

Col. McAlea: Clearly what you are talking about is an emotive issue. Just to preface that, these are not new offences, they exist. What would be new is that they are subject to orders for having committed them.

I am here to explain, I may not defend policy. However, if I understand what you are looking at, if you did the changes you are talking about, I suggest that this is tantamount to taking an offence and converting it to an "A"-list offence. We are saying that striking with intent or abusing with intent, at this point is no longer a non-sexual offence. We are talking about something that is really an "A"-list offence. Certainly, that is possible. It enters the policy realm; it is beyond my ability to comment other than characterize it for you.

Senator Bryden: I am not saying to take the other one out, though. The one without the intent stays there; those five stay there. These are five new offences which are the ones with sexual intent and those are the ones that go in here.

Mr. Hoover: Mr. Bartlett has pointed out that the wording in the Criminal Code closely follows the NDA, as far as I am aware and maybe that can be confirmed, but it is an ethereal sexual component we are talking about. The wording in the provision is that the Crown has to show beyond a reasonable doubt that you intended to commit one of the listed sexual offences.

Senator Bryden: These offences are not listed.

Mr. Hoover: Defence would have to comment on that. I am trying to point out in general terms how the structure exists. You are wondering why that can not be put right up front in the provision for the courts to see. I am not a legislative drafter, either. I am a former defence counsel. I do remember the days of flipping through the Criminal Code and wondering what were they thinking in Ottawa when they were drafting this. All I can suggest is that in the past five years that I have been with justice, I see some of the wisdom of drafting with convention and trying to be consistent. Who am I to argue against a hundred-and-some years of such convention? There is a desire by all to make it apparent on its face what the overall intent of the legislation was and what the intent of each provision is.

There have been approximately 50 reported cases so far on the sex offender registry in Canada. In reading those cases, I do not see a significant amount of confusion at the court level. I am satisfied that they fully comprehend what the focus of this legislation was and what the mechanics are. There will always be growing pains. I have seen cases where they either did not read or perhaps did not have the full provisions before them because there are two acts. Overall, we are very satisfied with the direction the courts have taken. Of those 50 cases, as expected, the majority of the orders are being granted. However, with about 10 to 20 per cent of the orders not being granted because the judge finds them grossly disproportionate, the order to register in the particular circumstance of the case means the offender has met his burden.

There have been three cases where the sitting judge found there was a Charter issue. Those have all been in terms of retrospective application where the offender was convicted before the coming-into-force date and sentenced after. Those will be resolved by appeal courts in all cases. We are satisfied with that and we will abide by the judges on that one. That does not imperil the legislation.

Overall, the concern you are expressing, certainly in the civilian scheme, is one where I accept your view fully that perhaps there is a way to make it more up front. All I can suggest is that there is no doubt in the court's mind so far about what the Crown has to show and who the burden is on and what are the procedural aspects.

Senator Bryden: We have a chance on these five offences to do it right, so why not do it right.

Senator Milne: It has been all been civilian so far.

Senator Joyal: We are creating a criminal offence here. This is the question to ask. I tried to understand the nuances you bring to the answers, but the courts have done their role properly in interpreting the Code, so we should trust them for this one, which is a fair judgment on the basis of the analysis you have done.

However, to ask us to make a decision and vote on this, without ensuring that we have answered fully the doubt that we have or to try to see the alternative, is something that needs a second thought on our part.

In adding to what Senator Bryden is proposing or in dissecting the Code I would not want to do that. There is no question about that. We understand the Code is a coherent structure and that it is amended each year many times, as we all do here regularly. We do not want to add incoherence, but the preoccupation we have is fair.

Mr. Bartlett: Criminal law involves a huge body that has been built up over time informing how the courts go about interpreting provisions, including such principles as resolving ambiguity in favour of the accused and a whole host of principles that are at the base of the kind of jurisprudence to which Mr. Hoover has been referring.

The specific words you are looking for might help. They might simply open it up. What Mr. Hoover is saying is that what the jurisprudence has told us so far is that the courts have understood and applied the kinds of principles that you want to see applied. I am not sure the words that you are looking for would crystallize that; they might simply introduce another ambiguity and perhaps open it up some more. It is difficult to capture the kinds of nuanced jurisprudence that Mr. Hoover is talking about with a few simple words.

Senator Milne: The jurisprudence is all civilian and it is not on these kinds of offences.

Mr. Bartlett: It is the jurisprudence that will be applied by the military judges when they are looking at the same question of interpretation.

Senator Bryden: I do not understand why being clear and specific opens anything up. I am not suggesting the words, and I think you understand what I am getting at. I am asking why we cannot be definitive and clear in what we are putting there. If, by being clear and definitive about what we are doing runs the risk of opening it up, I would like to know what it is. Those are your words. Does what I am suggesting help, or does it simply open it up? My question is — what does it open up?

Mr. Bartlett: If you put words like "with sexual intent" in, if that is something broader than what the jurisprudence has applied, then you are broadening it. Those kinds of words may not have quite the magic you are looking for, and if the jurisprudence is capturing the principle you are looking for and it is the same jurisprudence that the judges in the military context will be applying, then there is simply a risk in trying to be more definitive with words that might simply appear to a point to something broader. If it is a nuanced jurisprudence we are dealing with here, then trying to capture it in a few words may simply create difficulties.

Senator Bryden: What the courts will do is what you suggested; they will go, if they want to know, to the vast amounts of precedents and definitions and all the cases that have dealt with sexual intent and they will know. No different, it is there, with sexual intent, what does sexual intent mean in this circumstance? They will look at that and then they will go to their jurisprudence.

Senator Cools: I am still trying to discern why this bill is before us and why we are trying to press the peculiar aspects and needs of the military into this box when, for almost a millennium, the system has contrived to ensure that military justice is dealt with somewhat differently. I have a huge problem because every time a bill comes out of the Department of Justice it arrives with a new set of peculiar terms. Sometimes I think it is not so much an exercise in drafting a penal code as it is an exercise in creative writing. Therefore you have these terms now, "crimes of a sexual nature" and "sexual intent" and obviously more are still to come.

I have something of an understanding of the manipulation of the law around sex crimes or crimes to do with sex, of the tort that has been applied to that set of laws over the past many years, whether it is the rape shield law or whatever. Could one of the witnesses help me and explain again, first, where the initiative for these sections came from? Did they come from the military or did they come from the Department of Justice? I wonder if one of you has an answer to that. Second, again, why is this necessary?

I see this as creating more problems than it is going to solve. We sit here and these bills appear and the minister appears for a few minutes and before you know it the Criminal Code has grown by another 10 pages. I am having real difficulty understanding. Perhaps one or all of you could enlighten me because I see this as going in an opposite direction from the principles and traditions of the creation of the Criminal Code and of the application of the law to military personnel. Perhaps you could clarify and in that way persuade me that I should not be alarmed.

Col. McAlea: Senator Cools asked several questions involving on whose initiative, why is it necessary, and I will speak to that part and then hand over to one of my colleagues.

With respect to the original Bill C-16, it was not possible to bring DND on board in time, so it is my understanding that it was always not a question of if but when this scheme would be made applicable to the military justice system. The policy explanation for why it ought to be applicable is that offences of a sexual nature are committed by persons subject to a code of service discipline, usually military personnel, sometimes not, and that it made sense that those persons not be invisible to police authorities. It made sense that they be subject to being ordered to register so that if the police were doing an investigation they could consider those people.

The explanation is at whose initiative? It is a logical flow from the original Bill C-16, something to which Minister McLellan committed last year. Why is it necessary? It is so that persons who are convicted in the military justice system may be subject to orders to register as required.

Senator Cools: I conclude then that the initiative came from the Department of Justice?

Mr. Hoover: I will restate that I think this initiative overall came from, basically in my view, the people of Canada. This did not emanate from the bowels of the Department of Justice in any sense, nor did it emanate from our shop. Overall the catalyst was the experience of the United States where, going back to the early 1990s, the U.S., followed by the federal government, passed laws to create sex offender registries based on the view of police that they now had computers available, that they could store the information and access it quickly, and now they needed a law to bring it in.

It then came up north in the late 1980s, when Christopher Stephenson was abducted and murdered by a known sexual offender and, again, there was an inquiry that came to the conclusion that had there been a sexual offender registry not only could future crimes be prevented but possibly that individual could have been saved. That was the conclusion of that report.

Senator Cools: I believe there was a coroner's inquest.

Mr. Hoover: That is correct. Based on that, the Ontario law was passed and it came into being in 2001. Subsequent to that there was a demand I believe voiced by Parliament in the other place that the federal government should have a national registry, and that was in fact supported by all attorneys general, by all ministers of justice who were politically elected and the request came through our political masters to do so. That is the genesis of this, so the initiative came from outside the black box if you will.

Senator Cools: It is still the Department of Justice. The military personnel did not come knocking at the door of the Minister of Justice saying that because of these sex crimes in the military we need this.

Mr. Hoover: I would suggest that in fact, again, the request came from outside the black box; it was not the Department of Justice saying defence should be brought in. It was very clear: the provincial and territorial ministers suggested explicitly during their discussions that we not leave out the Armed Forces. That was very explicit. I want to assure you that this was not us telling the attorneys general to make sure to bring in the Armed Forces. It was the other way around. Our job as officials before you today, and when asked by ministers, is to make it so in a manner that will withstand future Charter attacks and future court scrutiny, in a manner as best we can to make it clear. We do try and do that. I assure you. As I know now, it is not that easy because there is so much that hinges on every word that may impact on others.

Again, the initiative was not ours alone; far from it. It was not even our bill per se. We insisted certain things be in, yes, that is true. We insisted certain safeguards be met and certain procedures followed. That was a justice initiative in that regard.

For example, you mentioned that we bring in new language.

Senator Cools: Not only with this bill but every bill that comes before us. Any practitioner of the criminal law of a few years ago would have difficulty with all this new language that we just created as we go along. I speak to a lot of legal scholars in the criminal field and they are all concerned.

Mr. Hoover: Fair comment.

Senator Cools: Madam Chair, perhaps we should hear from some of these legal scholars.

The Chairman: We will have the ombudsman here next time when we do clause by clause.

Senator Cools: In any event, it is pretty clear that C-16 is part of the initiative and somebody has decided it should be applied to the military. I am still not clear on that, but I think that is as far as you can go for now. You should know that I have seen a lot of bills and a lot of creative language and quite often the drafters are making it up as they go along.

Senator Joyal: I have one last question for Colonel McAlea. I am referring to page 14 of section 203.15. The words "operational reasons" are used in the first paragraph.

Col. McAlea: Yes.

Senator Joyal: The chief of the defence staff may determine that the person who is subject to the code of service discipline or an officer or a non-commissioned member of the reserve forces is for operational reasons. Can you tell me if in the National Defence Act the operational reasons are defined somewhere?

Col. McAlea: It is a term of art. This has its plain language meaning. For example, in previous times I have explained that it is a very rare mathematical calculation. Operational reasons are another way of saying obligations under the National Defence Act. If I have an obligation to go to Afghanistan from date "X" to date "Y" and those dates conflict with respect to my ability to exercise my rights under "A", "B" or "C", then the determination is that I am unable, and similarly with "D", with reporting obligations under SOIRA.

A short form that I might suggest for you to consider is that operational reasons mean an obligation under the National Defence Act to perform a duty.

Senator Joyal: You keep using the examples of somebody going away to a foreign country. I am not sure that operational reasons would be applied unless I am shown a definition that it would apply only when someone is abroad. To put it another way, could it not apply when someone is in Canada?

Col. McAlea: That is right. It could apply in Canada.

Senator Joyal: You keep using examples of somebody being abroad. I am not sure I was understanding it right. I thought maybe it was a concept that exists in the National Defence Act, and I did not have time to go through all the act to find out where it was located.

Col. McAlea: If I can assure you, our aim is to reduce the circumstances under which the chief would need to make this determination. If we get the regulations we hope to get under 203.2 with respect to reporting centres and things like that, we expect there will be very few determinations that a member is unable for operational reasons.

Senator Joyal: This will be my last question. Could you come back to us with what would be the definition in your regulations, what you would be contemplating as the essential elements of your definition of the regulation of operational reasons? Senator Bryden said earlier that he is on the Joint Scrutiny of Regulations Committee that reviews the regulations.

We have to have a rather restrictive approach to this, and personally, I would not like that it be used to allow somebody to avoid being on the registry.

Col. McAlea: I would like to clarify the question. Operational reasons are applicable under section 203.15 which is on page 14. What I say are operational reasons probably will not create an ability to comply if the regulations under 203.2 are what we expect them to be. Those should not be confused with section 203.16 which is on page 16.

Senator Joyal: No. That is a different thing. I see national security, international relations and security of an operation as a totally different concept than operational reasons. I am not a specialist in military language, but to me, operational reasons can be anything. It is encompassing as a concept from the way I read it. Unless it is defined in the National Defence Act, that opens the door to almost anything.

Col. McAlea: It not meant to be a term of art. We had not planned to seek to define it because we mean it in its plain term. It means do you have an obligation under the National Defence Act to participate in an operation which renders you unable to either exploit your own rights under "A", "B" or "C" or to comply under "D"?

Senator Joyal: I understand that but if we have to understand operational reasons as deployment of the forces —

[Translation]

— the issue of troop deployment is readily understandable. When forces are deployed, they have to leave the base. This is an easy concept to grasp. However, if I say that it is for operational reasons, then that may mean any number of things.

[English]

It could be anything. It could be within the base itself. It does not have to be outside the base. That is why I feel there is a difference between operational reasons and, of course 203.16, on the following pages. There are two different meanings from the way I understand the bill.

Col. McAlea: That is correct.

Senator Joyal: This is why I am trying to understand whether operational reasons should not be defined, limited or circumscribed.

Col. McAlea: I understand the definition process does have the effect of limiting or circumscribing any concept. The objective had been for that to have its plain language meaning.

I am at a loss right now to try and provide you with a definition other than what I have already provided. Does that still leave you with a question or a direction?

Senator Joyal: If you are telling me in the regulations that are going to be adopted to complement those principles that it is your objective to interpret or provide a way of understanding that, then I will say can we see the elements that you want to circumscribe in there?

If you say, "No, that it is going to stay like this and we will be interpreting it according to what we think the military operational reasons mean."

Col. McAlea: The latter was our intention. The regulations would designate classes of operations for the purposes of 203.16. Therefore, classes of operations would be designated. That is found on page 16. We would also look to regulations to do things such as designate reporting centres, which would not purport to define what operational reasons were.

In this case, it would reduce the number of situations where operational reasons would prevent a CF member from complying with this legislation.

It is not that the intention was to define operational reasons in regulations, but that the regulations would permit us to create circumstances or situations in which it would be very rare that the CF member would be able to comply with the four types of things discussed in 203.15.

Senator Bryden: I have a point I wanted to raise the other day. It relates to what Senator Joyal is saying. The chief of the defence staff has discretion under 203.16 and under 203.13 in which he can say for operational reasons this person could not register. If the person does not have that exemption and he does not register, there is a penalty for that, right?

If the Chief of the Defence Staff does not waive his requirement or extend his requirement and the person who is supposed to have registered believes that he should have, is there is no appeal?

There is no appeal from the "soldier's" point of view to say, "I did not register, and I am charged with this offence. However, I should have had the waiver because I was on an operation. The Chief of the Defence Staff simply chose not to give me that exemption."

My question is not whether he should or should not have but if there is a dispute, the Chief of the Defence Staff has absolute discretion, I believe.

Col. McAlea: There are two aspects to this. I would call the role of the chief of the defence staff under sections 203.15 and 203.16 administrative decision making.

He simply has to look at the facts. Obviously, there is always a certain degree of interpretation when everyone looks at facts. It may be that one person looking at the same set of facts would say, "No, he is quite able to exercise his rights under 203.15 or comply with his report requirements, so I am not going to make a determination that he is unable." That is the situation we are describing.

There is no appeal built into this because this is not, in our suggestion, a judicial or quasi-judicial determination. It is administrative in nature. That would, of course, not prevent any court from judicially reviewing this determination being made by the chief.

My colleague has also pointed out to me an addition that has been put in. You will find it on the very first page of the bill. It talks about failure to comply with an order. In the second subsection it says for greater certainty, a lawful commander prevents a person from complying with an order or obligation is a reasonable excuse.

Our system is not perfect. We may forget things. The chief has other things to do, as you may know.

Senator Bryden: I think that helps and reminds me that ultimately no matter how hard you try to call something administrative, you can get it before a court, if you must.

Senator Milne: I was just going to point out that it could be the subject of judicial review.

The Chairman: Thank you very much.

The committee adjourned.