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