Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence, October 27, 2005
OTTAWA, Thursday, October 27, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-39, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, met this day at 10:54 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this morning we are dealing again with Bill S-39, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act.
Our witnesses this morning are, from the Department of National Defence, Colonel Dominic McAlea and Louis- Philippe Côté; from Public Safety and Emergency Preparedness Canada, Mary Campbell; and from the criminal policy section of the Department of Justice Canada, Doug Hoover. Welcome to our committee this morning.
We need to have you back because we have many questions from our members and perhaps we need more time to discuss the bill we have before us. I know many of our members have many questions, and I worry about the bill as well.
Senator Joyal: We have a witness from the Department of Justice. Since the bill contains a large section of amendments to the Criminal Code, starting on page 21, will we have a formal presentation from Justice Canada to explain in their own words the substance and the various elements that deal with the Criminal Code, per se, or are we putting everything together this morning?
The Chairman: I thought they would address the committee. Mr. Hoover, do you have a presentation this morning?
Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice Canada: Honourable senators, I am not prepared to make a formal presentation. However, I will provide some background to the Criminal Code amendments, the majority of which are consequential to the National Defence Act changes.
The Chairman: We will begin with Col. McAlea. Please proceed.
[Translation]
Colonel Dominic McAlea, Deputy Judge Advocate General for Military Justice and Administrative Law, National Defence: Honourable senators, thank you for allowing me to appear before your committee regarding this important bill which seeks to amend the National Defence Act, the Criminal Code, the Sex Offender Registry Act as well as the Criminal Records Act.
Bill S-39 follows through on the commitment made by Deputy Prime Minister McLellan on March 11, 2004 before the Standing Senate Committee on Legal and Constitutional Affairs. At the time, Minister McLellan stated that the Government of Canada would come back with a bill that would include the registration of sex offenders found guilty under the military justice system.
[English]
Bill S-39 fulfills this commitment and it ensures that the Canadian military justice system maintains consistency with the Canadian legal norms, generally. Other minor amendments have been made to the Sex Offender Information Registration Act, SOIRA, and the Criminal Code to enhance the administration and the enforcement of the Sex Offender Information Registration Act as it currently exists.
[Translation]
The amendments to the National Defence Act included in Bill S-39 are consistent with the original intent of the Sex Offender Registry Act. Bill S-39 also contains amendments that translate the practical reality of military discipline, national security operations and international relations.
The bill adds five military offences to the list of designated offences that can lead offenders to be compelled to register. These offences, including violence to a superior officer, abuse of subordinates, cruel or disgraceful conduct, to name but three, are found in the Code of Service Discipline pursuant to the National Defence Act.
[English]
With respect to operational reality of the Canadian Forces — and I expect that you will have some questions on that — we propose to give the Chief of the Defence Staff authority under this bill to temporarily suspend expiration periods of certain rights of convicted offenders to challenge or appeal orders to report as well as certain aspects of the reporting process under the Sex Offender Information Registration Act.
It is also proposed that the Chief of Defence Staff may determine that information relevant to a convicted sex offender who has already registered, but that could jeopardize national security, international relations and security information, not be reported under some circumstances.
While the incidents of sexual offences committed by the Canadian Forces is relatively low, these amendments are necessary to ensure that the military justice system does not lag behind the progressive steps taken by the Canadian civilian justice system on December 15, 2004.
The military justice system strives to maintain consistency with the rights and obligations of all Canadians. One significant example of this was Bill C-25, when the National Defence Act was amended to ensure that courts martial were fair, transparent and met Charter of Rights standards.
One amendment at that time was the provision of jurisdiction to try an accused with sexual assault in Canada.
[Translation]
This important legal power is now out of step with the civil system because the administrative consequences, conviction for sex offence by a court martial, do not include registration under the Sex Offenders Registry Act. Bill S- 39 eliminates this difference and makes the military justice system consistent with Canadian standards.
[English]
In conclusion, this bill is required to ensure that the military justice system keeps pace with the civilian criminal justice system as committed to by Minister Anne McLellan last year. It ensures that sex offenders at court martial are registered where appropriate and that the military context is taken into consideration when administering the Sex Offender Information Registration Act. We are happy to explain any and all aspects of Bill C-39 about which you may have questions.
Mary Campbell, Director General, Corrections Policy, Public Safety and Emergency Preparedness Canada: I know that the senators are concerned about some of the amendments in the bill that might be characterized as housekeeping amendments, and I am pleased to answer any specific questions that the committee has.
On one of my last appearances on the bill and its original sex offender registration, the then chair commented appreciatively on officials' candour in explaining what went into the bill and I hope I can continue in that tradition today.
There were many discussions among federal and provincial officials about what might go into this bill. It was clear that the government wanted to table a bill that would put the military in the same position as civilians in relation to the sex offender registry. Of course, many officials had other ideas of what they would like to go into the bill. I believe I incurred the wrath of not only a few of my federal and provincial officials personally by insisting that the bill focus on national defence and that we fairly present a bill that would have only housekeeping amendments in relation to the registration system currently in force.
I want to assure the committee that, from my personal perspective, I am satisfied that I can state fairly that any of these changes are housekeeping matters. However, I appreciate that senators themselves will want to be assured of that. I will be happy to review any of the more technical amendments that are causing questions.
Mr. Hoover: Again, I am in the hands of senators as to how they would like me to explain some of the Criminal Code. Again, I believe the bulk of the changes, if you review them, are in fact necessary to be consistent with the National Defence Act changes. There are some other changes. A witness yesterday pointed to one that is not insignificant in the sense that there is a new Criminal Code offence in clause 490.0311 now. However, Madame Chair correctly pointed out that this provision was in fact not in itself new. It is new in the sense that it formerly was an offence under, I believe, clause 17(2) of what was Bill C-16, SOIRA, and it has now been moved into the Criminal Code. That was at the specific request originally of federal and provincial Crowns. It was unanimous that there did not seem to be a good rationale for having that particular offence in SOIRA as opposed to the Criminal Code, given that there was a Criminal Code offence. Justice Canada, in consultation with Public Safety and Emergency Preparedness Canada, PSEPC, and DND reviewed that request. We could not disagree with the provinces and territories on that specific issue, nor could we find any specific Charter or privacy reason to withhold such a request. That is why that was moved.
In some sense, it is obvious that there is at least a minimal impact on the offender. While the charge itself is similar, certainly the implications of a Criminal Code conviction as opposed to a SOIRA conviction may be somewhat different in terms of, for example, future prosecutions or future sentencing. It may cause some aggravating circumstances, but I do not think there would be a great difference between the two.
Perhaps there are a few others — what we would call technical amendments. I agree with Ms. Campbell that we would see these as housekeeping in the Criminal Code. We found, for example, a number of instances in the Criminal Code where provinces came back to us and suggested they were having difficulty in administrating the regime that played between the courts: how the information flows from courts to the registry and back. Primarily because this is a tight ship, little leakage of information is allowed, unless explicitly provided for in the act. Any leakage that is outside the act, in fact, is an offence under SOIRA.
As such, when we reviewed the act in consultation again with PSEPC, DND and all our provincial and territorial justice partners, we could not disagree in a sense that there seemed to be a number of bars that were by design encoded with good intent but perhaps were too strict. For example, one complaint was that it was difficult for court administrators themselves to help the information flow according to the strictest sense of the act, so there were some subtle changes in wording.
I could point to them specifically if senators want me to go through clause by clause. It might be better perhaps to wait for clause-by-clause review and we could go through it at that time. It might be more efficient in the sense of the committee's time. I am in your hands as to how you would like to go through that.
[Translation]
The Chairman: I have only one question to ask and then I will give the floor to my colleagues. I will go back to page 3, clause 203(c) which seems, once again, quite unusual because it refers to designated offences that do not really have a sexual connotation. I know we keep coming back to that, but I would like it to be clear.
We were told that this allows a prosecutor to prosecute an offence such as violence to a superior officer, but here, clause 203.01(2) states that the prosecutor establishes beyond a reasonable doubt that the person committed the offence against a superior officer with the intent to commit a sex offence.
Do you not find it unusual that the prosecution, acting on its own, has the ability to transform the nature of an offence — violence to a superior officer — into a sex-related offence? It seems to me that the law must be clear. That is one of the fundamental principles of law. Are we being clear here? I want to be sure that we will settle that this morning.
[English]
Col. McAlea: I understand a witness yesterday was concerned about being surprised. They go to court and are expected to defend one charge. After the conviction, prosecution says, oh yes, we have something else. If I was surprised, I would be concerned myself because I am subject to the system as are my colleagues behind.
As both a former defence counsel and prosecutor — I have done both — I would consider in practicality that would never happen, at least not the surprise aspect. Stinchcomb requires that as a prosecutor I will disclose to the defence counsel all evidence that I intend to rely upon during the course of the trial. If there is a conviction and sentence and then I intend to seek an application, an order under this act, I will disclose before the trial and tell the defence counsel my intent. There should be no surprise therefore.
I invite my colleague to comment on the practice in the civilian side.
Ms. Campbell: This provision in Bill S-39 mirrors what was in Bill C-16, the original creation of the sex offender registry. In my work for the past 15 years at least, I have heard there has been this concern that often offences are committed that appear to be non-sexual on the surface but in fact have a sexual component. Often the name of a notorious multiple murderer is raised in this context because he allegedly started his criminal career as someone who committed break and enters, but these offences were clearly sexually oriented.
The concern we have heard from prosecutors across the country for many years is that a list of sex offences that are sex offences on the face do not adequately cover the kinds of sex offences that are being committed. This concern was first raised probably 15 years ago in the context of drafting the Corrections and Conditional Release Act, which contains a list of offences that speak to violence and have certain implications for how inmates are treated.
What we did then in drafting the original Sex Offender Information Registration Act was to build on that line of thinking that has been around for some time. The desire then to ensure that the National Defence Act amendments truly parallelled what was in the Sex Offender Information Registration Act from last year was to identify those offences under the National Defence Act that paralleled that.
Such was the thinking behind the scheme and, as Colonel McAlea has said, there is some history to this. There is an expectation that offenders and their counsel would not be taken by surprise at any point but would be aware that would be part of the prosecution package of information.
The Chairman: It would be clear then.
Ms. Campbell: Yes.
Senator Bryden: Mr. Hoover, what is SOIRA?
Mr. Hoover: That is the acronym for Sex Offender Information Registration Act.
Senator Bryden: Some of us country lawyers still need it spelled out.
When you say that you are trying to parallel, mimic or duplicate, to the best of your ability, for the military the system that applies to the rest of the public, can you give me an example of a situation in the general population that compares directly with clause 203(c)(ii), ``striking or offering violence to a superior officer,'' that would then have to be registered as a sex offence?
Col. McAlea: The five new offences that are proposed are, obviously, not sexual on their face as are what we call the ``B offences'' under section 490.011(1)(b) of the Criminal Code. They do not necessarily have a sexual element.
If we seek to find a parallel in the civilian system, we will not always find it. If I understood your specific question, it was whether there is anything in the Criminal Code list that is similar to striking or offering violence to a superior officer. I can go through the list here. I can find ones that involve violence, but the aspect of offering violence to a superior officer is unique to the military environment. I am not going to find a perfect parallel for you.
I do not need to if there is a sexual intent. These five offences were chosen because of their potential to be associated with a sexual offence.
Senator Bryden: Is it the case that mostly the striking of a superior officer — I am guessing — would not be with a sexual intent? Would it be because the person is just pissed off?
Col. McAlea: I do not have the data on that, but my personal experience is that it does involve that, that is correct.
Senator Bryden: I can understand why you can say in our practice and because of the law, we can ensure that where you have an assault against an officer, the defence will not be taken by surprise because we will tell them that there may be sexual implications to this assault.
The issue I raised yesterday is the reverse of that, namely, that the prosecutor says to the defence that there may be sexual implications in this.
Do you plea bargain in the military?
Col. McAlea: Yes, there is plea bargaining, as there is in the civilian system.
Senator Bryden: The defence attorney, in dealing with his client, says, ``You realize if we go through this, we will likely end up having to listen to a prosecutor try to prove beyond a reasonable doubt that you did this with sexual intention or for sexual purposes.'' It would be easier for them if he pleaded guilty to the assault. Maybe he would not do that.
It could also be that the defence attorney says that, and then when it comes up, it turns out that the prosecutor really did not have any grounds that would be provable beyond a reasonable doubt that would have made it stick.
I am more concerned about the violation of the rights of the defendant, even in the military, than I am about missing somebody being registered in a registry bank because we did not check off any and every possibility that there may have been some sort of sexual intent involved here.
If you are trying to parallel the system outside the military, it is difficult for me to understand why, in these provisions, we cannot say in this section — because this act is for the sole purpose of registering, an ``investigative tool'' — instead of incorporating by reference what is in your provisions, specifically, ``striking or offering violence to a superior officer for a sexual purpose or with a sexual intent.'' I do not mean to draft the bill here.
Surely it does not then somehow specially treat people charged in the military or offend the general criminal law.
Col. McAlea: You raise many issues there that involve, for example, the ethics of the prosecutor and the defence counsel, and sometimes the disparity in the negotiating positions.
Having been both defence and prosecution, if I were defence, it would be my ethical duty to defend the client. That ethical duty requires that if the prosecutor does not have the evidence, you advise your client not to go down that path.
For example, if a person is convicted of one of these five or one of the many sections under the Criminal Code, for example, trespassing at night, on the face, there is no obvious sexual aspect to it. I will invite Ms. Campbell to speak about things that are sometimes not overtly sexual but are in fact sexual.
We have a different officer corps than we had years ago. Our officer corps used to be mostly men. That is now not the case. We have men and women. The sexual dynamic has changed. That is one reason why I would suggest this is one offence where a prosecutor ought to have the option to consider that.
I will get to your question as to whether or not we make it a hybrid offence in a second.
When it comes to prosecuting, if I am a prosecutor, I will disclose the information I will rely on. As far as the defence counsel is concerned, I suggest that information better contain evidence that is capable of sustaining a finding beyond a reasonable doubt that the offence was committed for a sexual purpose. If it does not, it is just wasting the court's time.
With respect to your other question, if I understood it, should we redraft these offences so it is clear with respect to the one you cited, ``striking or offering violence to a superior officer for a sexual purpose or with intent to commit an offence?'' I had not thought about that.
If you look at the actual section, it is with intent to commit an offence as described in section 490.011(1)(a), which includes 20 different offences. There might be some drafting challenges there. I just do not know the answer right now as to why we could not do it that way. I would invite my friend to comment on that. Before I do that, have I answered your question as far as I can go?
Senator Bryden: You will know that better than I, of course. There is no registry for the offence of striking a superior officer, is there?
Col. McAlea: That is correct.
Senator Bryden: Is there a registry on the civil side for committing a common assault?
Col. McAlea: It is possible, if I understand it correctly, for someone to be convicted of a whole host of offences: manslaughter, criminal harassment, kidnapping, abduction, and breaking and entering. Those offences, not overtly sexual, could result in a conviction, sentence and ultimately an order that resulted in being listed on the registry, if the offences were committed with the intent to commit a sexual offence.
Senator Bryden: At what stage is it introduced to the court that this offence has a sexual overtone, and we are going for registration.
Col. McAlea: In the act it says the application is to be made after sentencing, so after the conviction has been entered and the sentence imposed. In reality, certain aspects of that would be evident throughout the trial.
Senator Bryden: Is that exactly the same in the civil sector?
Ms. Campbell: The short answer is yes, senator. The process that is provided for in the civil sector is a long list of offences that are not overtly sexual on the face. The test is the same. The court must be satisfied beyond a reasonable doubt that there was sexual intent.
Based on my knowledge and experience, we know that at least 80 per cent of criminal charges are resolved in this country through plea bargains. Matters are discussed in advance. In experiences that are normally a part of sentencing submissions, the crown will indicate that they are asking for a certain penalty. Of course, there are a range of other orders that can be asked for as well. It might be a DNA order, it might be a weapons prohibition or it might be a registration on the sex offender registry. It would be raised at that time in the process.
Senator Bryden: When is that dealt with at trial in the normal course? Is that part of the proof that is dealt with before the sentencing occurs? That is, you start out with a break, enter and theft, and that is all you prove. What is more, after that person has been convicted of break, enter and theft, there is another hearing that says he was really doing this for sexual purposes.
Ms. Campbell: Essentially, that is correct. At that point the prosecutor would indicate that they are asking for a registration order for the sex offender registry. Given that the offence is on what is referred to as the ``B list,'' the crown would then have to demonstrate that registration is appropriate. An element of that is demonstrating beyond a reasonable doubt that there was a sexual intent. Yes, I think it is fair to say there would be a second hearing at that point. That is in the civilian system.
Senator Bryden: Section 84 of the Code of Service Discipline says:
Every person who strikes or attempts to strike, or draws or lifts up a weapon against, or uses, attempts to use or offers violence against, a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
Section 95 says:
Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence —
I suppose that could be him or her —
and on conviction is liable to imprisonment for less than two years or to less punishment.
Why is the punishment so much heavier for hitting a superior officer than a superior officer hitting an inferior?
Col. McAlea: I do not actually have the policy explanation for why Parliament chose to do that. When it comes to the relationship, it is more detrimental to discipline if a subordinate strikes a superior, although it is no less heinous for a superior to strike a subordinate.
Clearly there is a dichotomy in the maximum punishment. I do not know what Parliament had in mind when it set those two things. I can try to determine that for you.
Senator Bryden: In a sense I do not really care if you determine it. I wish you would fix it or somebody would fix it. I can understand the part about somebody who raises a gun or a weapon, but there is no reason for that to be in the same section as the one that basically parallels striking a citizen of Canada if you are an officer.
If the striking goes one way, the person who does the striking can get life. If it goes the other way, the person can get a maximum of less than two years. There is something strange about that. I am probably off topic, but it just hit me between the eyes when I looked at the sections.
Senator Andreychuk: I wanted to ask Ms. Campbell: Those offences that do not look like sexual offences were included, as I understand from what you have said, as a result of analysis, research, gathering of information and evidence from the prosecutors and hopefully defence counsel too. The information from those sources showed that those categories we chose had started to have sexual connotations that were detrimental to society.
I just heard Colonel McAlea say that the ones chosen under the military have not necessarily been identified by research or otherwise chosen to be ones that have had sexual connotations. They are severe crimes. They are unique to the military. No one has made a link that those particular ones are where the sexual activity from predators occurs.
Col. McAlea: I will respond first and then hand it over to my colleague. The thinking was that they are in the same genre of what Ms. Campbell refers to as the B class of offences under the Criminal Code. If you look, for example, at the ``ill treatment of an occupant or person on whom billeted,'' that would be clause 203.
Senator Andreychuk: Perhaps I can stop you there. I understand you have taken it to be in the same genre. You say these could be the same. The ones in society were based on some evidence that there was some significant sexual activity of a harmful nature. Ms. Campbell pointed out one specific case.
These cases may be comparable, but is there comparable analysis and evidence that sexual behaviour was behind many of those cases that was of a severe predatory and repeated nature?
Col. McAlea: Is there scientific data with respect to this?
Senator Andreychuk: Is there some analysis or some case law that you relied on? Are you simply saying we need some cases to be equal to this?
Col. McAlea: No, we went through the provisions of the Code of Service Discipline, which is in the National Defence Act, and we defined those offences that had the potential to have a sexual aspect to them. These are the ones which we identified.
Some are easier than others to identify; for example, the billeting one. Billeting is where soldiers live in the home of a family. Obviously that may put them in proximity to people who are not only of another sex but possibly young and subject to exploitation. This proximity is something that we are concerned about, and we want to control strictly. It has a domestic aspect to it, so we are concerned that it not have a sexual one also.
Senator Andreychuk: My question is: Do you have any evidence that these offences that you have chosen have had sexual connotations? Have you had evidence of cases where people are billeted and ill treated where it constituted a sexual attack? Do you have that kind of data or evidence?
Col. McAlea: Not right here.
Senator Joyal: On that point by Senator Andreychuk, I looked into the list of details of sexual offence convictions at court martial, January 2000 and December 2004 that was circulated this morning. I did not do a total analysis. I had no time. I was listening to Senator Bryden, but if you look at the list it says:
[Translation]
...while in a position of authority or trust.
[English]
I have the first page. The second one is April 4, 2000.
[Translation]
...while in a position of authority or trust.
[English]
May 24.
[Translation]
...while in a position of authority or trust.
[English]
Senator Joyal: October 20, 2001.
[Translation]
...while in a position of authority or trust.
[English]
It seems that it is one of the reoccurring scenarios of some sexual offences, as Senator Andreychuk is questioning. What is the situation of abuse of authority? In other words, the person is in authority and uses that position or the context of that position to commit an offence of a sexual nature.
We do not have the explanation or details of each and every case that is reported in this report but the report has the reoccurring ones. In other words, there is more occasion for somebody who is in a position of authority to abuse a person under him or her than the reverse. It might happen, you never know, but in this context it is abuse by a person in a position of authority.
If we include paragraph (c) of clause 203 on page 3 of the bill, then it has to have a sexual connotation. I do not see how we can establish the mere offence of ``abuse of subordinates.'' I do not how many times it has happened in your records of offences in the military.
We should not accept that there must be a link as Senator Milne said yesterday with a sexual intent because you can abuse authority in many contexts. When you abuse your authority with the intention to commit an offence of a sexual nature then, of course, we understand the direct connection. It is difficult for us to accept paragraph (c) of clause 203 as it is now with no relation to the sexual intent or the intent to commit a sexual offence or that follows with the sexual offence.
Col. McAlea: We are a hierarchal organization. When you have a hierarchy, the potential for exploitation of the difference in power or authority always exists, and sexual exploitation is one of them. As my colleague has pointed out, the particular section of the Criminal Code that is quoted here is in the nature of exploitation in relation to authority. My colleague, Ms. Campbell, would like to speak on this as well.
Ms. Campbell: Again, setting it in context on the civilian side, one issue we have grappled with for many years is on the corrections side of the criminal justice system. We often wind up with an offender who is a sex offender or is displaying some sex offending behaviour, we did not know about it and it goes unacknowledged and untreated.
Something I have dealt with for over 20 years now is coming to grips with ensuring that all professionals in the system tackle the right problem and deal with sex offenders. The harm they cause is really one of the most difficult issues. We have tried on various fronts is ensure that we have a way of properly identifying where sex offending is going on that may not be apparent on the surface.
As experts, we look at what those offences are, what advice we can provide based on what we know about behaviour or what we have seen in terms of prosecutions. Over the course of many years we developed a list. On the list of civilians, I can point to many of these offences and give you case names where it was clear that there was a sexual component.
We have to factor in plea bargaining, which is part of our system for all kinds of good reasons. I do not want to get distracted and get into a discussion about the pros and cons, but plea bargaining is a reality. We may see people who want to plead to an offence that is simply break-and-enter as opposed to break-and-enter with the intention of committing a sexual assault.
The idea of having this other list, as I say, has been to try to identify people who pose a risk of this kind of offending. As always, we try to make sure the checks and balances are there. For example, if a prosecutor asks for a sex offender registration order based on that list, the onus of proof is on the prosecutor. The standard of proof is the highest it can be in the criminal context, which is proof beyond a reasonable doubt. The offender, of course, is given notice that this order will be an issue during the sentencing proceedings.
As a matter of drafting, why is it there as opposed to being tied right in there with the offences? I am not a member of the drafting division of Justice Canada, but I think, in fairness, it is a drafting issue. The decision was made that the offences would be listed, and in the original sex offender scheme, this list is longer than the one that appears in the National Defence Act.
A decision was made that it made more sense to list the offences and then when you describe the process, describe all the elements of that process that have to be demonstrated in the application. If the decision were to move any of the elements of that process to the list of the offences, one would want to take care that it is not done in a way that would be confusing or contradictory. In my view, senators, it is a question of drafting in a way that made the most sense.
Senator Andreychuk: I would like to go back to the question that I posed previously because it is not the same question as Senator Joyal's. My point was, you did an analysis in the civil system and said there are hidden problems — it might be break, enter and theft — but there was good case analysis and other analysis to say these cases are likely to be the ones that could lead to sexual offence.
Otherwise, you would take the entire Criminal Code and say any criminal offence can lead an offender to a sexual registry. I presume you did not do that because that is unwieldy. You had to narrow it and you had some rationale. My question was that in the military you chose these offences based on some rationale and I would like to know what that rationale is. Is it case law, actual cases, that led you to this? Is it something you fear?
You mentioned, ``ill treatment of occupant or person on whom billeted.'' I do not know whether you have done the research and can provide it to us as to why these particular offences were chosen. Otherwise, I am led to think that you took out what seemed to be unique, serious offences in the military, and that is where people challenge or abuse authority. Perhaps they do not have a sexual connotation at all.
Col. McAlea: You have characterized the offences well. They do constitute challenge or abuse of authority. I do not have any statistical data that I can give you. I can tell you our understanding and our own policy analysis was that these offences are of a nature like those in section 490.011(1)(b).
For example, in the B class, we have offences that take place inside homes. In the B class there are offences which involve exploitation of children. Here we have ones which involve exploitation of the power relationship, which is in the nature of our hierarchal organization.
The question is: Why did we do it? We think these offences are of the same nature as those we find in the B list, as Ms. Campbell describes it.
Senator Andreychuk: You do not have the statistics to support that.
Col. McAlea: We did not do a statistical analysis as you have described.
Senator Andreychuk: Do you have any statistics of where sexual harassment or abuse is taking place in the military? We hear exposés from time to time where someone in authority has abused women in the military. More recently, we have heard of cases in the United States, but not here, fortunately, for us.
How would you have attacked this problem within the military of putting women into the military, even into submarines, ships and all that? From time to time we have heard anecdotal evidence that there have been problems, and I would like to know, are they tied to the ones here or are they somewhere else?
Col. McAlea: With respect to statistics, Senator Joyal has made reference to the chart that has been provided, which talks about 17 convictions since the year 2000. The sexual harassment you mentioned does not always rise to the level of a criminal offence. It would not show up on here. We can go back and do our research and give you statistics on sexual harassment, if you like.
Senator Andreychuk: Perhaps my point is that in my own research or in understanding the offences you have listed that have been equated to inappropriate sexual behaviour, criminal or otherwise, in the military, it has been a senior officer using his authority to intimidate, to get sexual favours or otherwise, or to withhold promotions. Those case scenarios are the ones I have heard about. Those are not Criminal Code offences, as you say. They are workplace offences at times. They could be Criminal Code offences, but are they really striking as opposed to intimidation?
Col. McAlea: If you say there is a disparity in rank that was exploited for a sexual purpose and the facts are that the one party consented, then you have to ask, Was there really consent, or was it vitiated by the great disparity in the authority? If consent was vitiated by the disparity I authority, I would say that offence does belong in a criminal sphere.
Senator Andreychuk: Which one of these offences listed here would it be?
Col. McAlea: Do you mean the offences as set out in subclause 203(c)?
Senator Andreychuk: I mean the offences that you are now linking to the sexual registry.
Col. McAlea: It could be cruel or disgraceful conduct. It could involve the abuse of subordinates. It could be striking or offering violence to a superior as well. All three have the potential to be present in the context of a sexual offence.
Senator Andreychuk: You cannot provide that for me in a database. Perhaps we have it.
Col. McAlea: We do not have it here. So I can understand, you would like data with respect to sexual harassment?
Senator Andreychuk: What I am really getting at is, we are here because of the sexual registry, not because of inappropriate or criminal conduct in the military. We are here because certain offences have a sexual aspect to them that could lead the offender to a registry.
Col. McAlea: That is correct.
Senator Andreychuk: I would like to know, will these offences where the sexual activity has taken place lead to the sexual registry? I would like to know where it occurs, and is it a workplace harassment issue we are dealing with here. Is it a criminal activity that is taking place? We need to know why we are taking these out.
Col. McAlea: I am not certain how to give you the statistics. We can go back and research convictions for all these five offences to see the circumstances. Would that give you what you are looking for?
Senator Andreychuk: I would also like to know from the military side, when you spoke to the Department of Justice, you must have given recommendations as to why these offences were included and what the decision was based on at that time other than what I have heard that it mirrored.
The Chairman: Perhaps Ms. Campbell can give you information on that.
Ms. Campbell: Developing a list of offences for any purpose is one of the most difficult tasks we do, and one of the most discussed issues. It is always difficult when you are simply dealing with offences as categories and not with the particulars or nuances.
This committee of experts knows, for example, that manslaughter can encompass a wide range of behaviour. This is one of the most discussed and reviewed issues that we undertake. When we did this civilian list, we had many years to build on in terms of expert advice and experience.
When we do our research, it involves consultations with prosecutors across the country. I co-chair a working group of officials and the group is based on experiences in the courtroom across the country in terms of the kinds of offences where they have seen a certain element, such as, are there any other offences that might be rare but are highly susceptible to being of a sexual nature?
You are right, senator. We would not see theft appear on a list such as this. There is some rationality brought to bear in terms of what is chosen. At some point, you have to draw the line and say, ``These offences we know from experience are ones that have a sexual connotation or are so highly susceptible that it would be reckless not to include them on a list, and we need to rely on the onus and standard of proof to ensure that we have got them right.''
That kind of consultation and expert analysis goes into the kind of list that says, ``There are actual cases of a sexual nature or cases so highly susceptible to being of a sexual nature that they must appear on the list.'' It is that kind of background that goes into it.
I am not a member of the Department of National Defence, and the department will review their list in response to your question, but it was that sort of process of analysis. Part of it is you go to the prosecutors to consult with the people in the courtroom and as you point out, with defence counsel as well. It is a body of knowledge that is developed around these offences. I go back to saying it is one of the most discussed issues.
Senator Andreychuk: It is also important. If we are trying to protect society, we should make the right choices and also protect the persons who may find themselves on the registry. They should be there for good reason, not because it happens to be an easy list.
As I understand, in the civil system now, the registry is still fairly new. When defence counsel have their meetings with the prosecutor, they expect to know what case they have to meet, and also all the other consequences. At that point, prosecutors disclose that they may go for the registry. Prosecutors could go to the sexual registry at the end of the trial only if something comes out in the case that could be classed as new or unforeseen evidence. Technically, it says in the act that you finish the trial procedure and then you start this non-trial procedure. It is a different phase; that is not supposed to be in the same category. You start right at square one. Am I correct? Is that how it is being implemented?
Ms. Campbell: That is my expectation. That returns to what we know about how charges are resolved in this country. About 80 per cent or more are resolved through plea bargain. Therefore, those discussions happen at the same time.
I cannot give you my personal guarantee that this process is followed now. I simply do not know. I can tell you that I have a meeting of federal, provincial and territorial officials scheduled for early December, and one of the items on the table will be to review the implementation issues in the past year. We have an evaluation process in place to collect not just data about the number of orders and the case law, but also to review how the process is working. I expect at some point that we would be able to provide Parliament with more information along that line.
Based on my own knowledge and experience, my expectation is that all the issues are on the table at an early point. However, I cannot give you a personal guarantee at this point.
[Translation]
Senator Rivest: I would like to thank the army authorities for being here. I looked at their documents quite quickly. They are precise and extremely interesting. I suppose there will be other measures taken after the trials in order to take care of the psychological consequences suffered by the victims.
I would invite my colleagues to read the documents we have been given on the Armed Forces concern about taking care of the victims too in this area. The documents are very well written.
In general, I still have a bit of a problem understanding the need for specific provisions governing soldiers, in the case of sexual offences, as opposed to what the Criminal Code already covers. It seems to me that all of the concepts we are discussing, for example, assault with a sexual dimension, are already included in the Criminal Code or in the practice of the Criminal Code, when an assault is investigated and found to have a sexual dimension. The charges are usually amended to reflect the facts discovered.
Second, the notion of ``superior'' may also be inherent in the structure and very nature of the Armed Forces, which is different from civilian society. As was mentioned, in this preoccupation with respect for authority, even in cases of sexual assault or sexual practices, it is quite clear that in reality — as Senator Joyal pointed out — the sexual act committed may occur the other way around.
We should focus on the subordinates, particularly women. I suppose that in the statistical reality, what is happening is abuse of authority.
But under the Criminal Code, even this notion of a person being in authority or subordinate in relation to another, when there is a criminal offence, is a factor that is quite prominent and taken into account by the criminal law, as it applies to everyone.
I remain quite skeptical about the need, as contemplated by the bill before us, for specific provisions for the Armed Forces around all of these issues. It seems to me that the Criminal Code already covers all of that.
This bill is still necessary. If it created criminal offences for the Armed Forces, given that they have military tribunals or court martials, and a registry like the one for civilian society, I would be satisfied with this bill. That will be seen when the bill is studied clause-by-clause, and the committee makes an effort to make changes, based on the interventions of our colleagues on each issue.
But basically, I have always remained a bit skeptical about the need for this exercise. Why not take the Criminal Code and apply it to the Armed Forces? On the other hand, a bill is needed for there to be a specific registry, given that a court martial is involved. And the criminal law, for all of these concepts, applies equally to members of the Armed Forces and all Canadians.
That is a general comment, but that is how I feel at this time in our deliberations.
[English]
Senator Pearson: I wish to ask a basic question because this is an opportunity to understand the relationship between the court martial system and the system with respect to the Canadian Forces, and the general system.
The detail on this list you have given us is interesting material. You talk about the administrative procedure that is released.
After the accused has been convicted in the court martial process, when you talk about the accused being released, you mean only that the accused has served the other sentence as well; the accused has been released, extruded or whatever the term is, from the army. Is that correct?
Col. McAlea: That is correct.
Senator Pearson: A conviction under a court martial has the same kind of consequences as a conviction under the Criminal Code for a civilian.
Col. McAlea: To be clear, there are two processes. A court martial has the authority to dismiss someone from the forces. On the list I gave you, no court martial has chosen to exercise that. They could have.
Faced with a conviction, the Canadian Forces needs to determine if these people are suitable for retention. We go through a list of factors that are considered by the office of the lieutenant colonel, who is sitting behind me this morning.
If they are deemed suitable, and many factors are considered, they will be retained. If they are determined to be unsuitable, they will be released.
Senator Pearson: You do not repeat the trial once they come out into the civil process.
Col. McAlea: That is correct.
Senator Pearson: I think your list is important. I often feel that part of law is education. There are situations in the Canadian Forces related to authority and the opportunity to abuse that are not replicated in civil society. I am thinking particularly of the issue of billeting. It is a dangerous situation. You try to convey a strong message that anyone who is billeted in a private home must behave. I do not have the same problem with this as my colleagues do. You had to demonstrate to soldiers and the Canadian Forces administration that there was an extra risk because they are in a different culture.
Col. McAlea: Exactly: With billeting it is a domestic situation. It could be a broad spectrum. It might be a billeting situation in which we are welcome. It might be a billeting situation where our presence in a country is not all that popular. We need to send a strong message, as you say.
Senator Pearson: The message is that this kind of thing is not permitted. This deals with many of our issues around the sexual exploitation of children in forces that have been deployed elsewhere. I am not talking about the Canadian Forces, thank God, but other forces such as the UN forces and so on. You have to make your message as strong as possible.
Col. McAlea: As Ms. Campbell has said, these offences are not overtly sexual in themselves, but they are susceptible to situations which are.
Senator Joyal: In relation to Senator Rivest's comments about the policy, in appendix 4, sexual assault protocol guidelines for understanding the adult victim, I would like to put on the record a letter that was circulated this morning from the president of the Canadian Resource Centre for Victims of Crime, Steve Sullivan. The letter is dated October 26. I do not know if the witnesses got a copy of the letter. We should give the witness the opportunity to read the letter and return to the subject later.
The president of the Canadian Resource Centre for Victims of Crime points out elements that are missing in that policy that should be under our consideration as we study the bill, especially the compensation aspect that does not exist and is not part of the military policy in relation to victims. We should get a formal answer to this.
The other point I would like to raise is in relation to Justice Antonio Lamer's report. We raised it when the minister testified last week. I would be interested in knowing about the recommendation of Justice Lamer in relation to civilian oversight of military decisions. In this bill, powers are given to army authorities with no oversight, especially the decision to delay the registration of a person who is found guilty and should be on the registry, and the various reasons or contexts in which that delay should be given: the military operation context and the risk to national security.
I wish to satisfy myself that the power that has been given to the chief of the military meets the test of Justice Lamer. It is proper for us to ask for that. The report has been mentioned around the table. It is important for us to ensure that if we adopt the bill as is, we are not contradicting the spirit of the recommendation of Justice Lamer over civilian oversight when we give special power, especially the one that we have here.
If this matter were to be dealt with in the civilian world, if such a request was made, it would be made through an arbitration that would offer a capacity to balance the decision, the arguments for and against. I am not sure that the way the authority is given to the military affords the balance that we would find in the civilian context. As much as I understand the principle or the reasons, I wish to be satisfied that the system meets the test of what is due process.
Col. McAlea: Your question involves two streams. I will not pretend to put words into the mouth of former Chief Justice Lamer, but his good work focused mostly, I would suggest, on the military justice system, that part of the Criminal Code. He also spoke to the grievance issue as well as the military police complaint process.
As far as the courts are concerned — when I say courts I mean courts martial — their administration of this will be overseen by two bodies: the Court Martial Appeal Court as well as the Supreme Court of Canada. Appeals with respect to exemption or termination orders may ultimately go to those bodies. I hope you feel as far as the judgments are concerned with courts martial that there is civilian oversight.
With respect to the decisions and determinations that can be made by the Chief of the Defence Staff, you are right, it is not as clear. If I might, I will walk you through a couple of examples to give you a sense as to how it might work. I invite you to look at proposed clause 203.15. That clause deals with the Chief of the Defence Staff to suspend time limits. There are four subclauses there: (a), (b), (c) and (d). The first three deal with the ability to suspend the expiration of the rights of the convicted person. Under (a), let us say that I have been convicted of an offence and I am still under sentence for it when this bill comes into effect. I have the right to apply for an exemption order. If I am in Afghanistan, I cannot exercise that right.
The Chief of the Defence Staff would be like an air traffic controller. He would make a finding of fact. He would say, ``Col. McAlea is in Afghanistan; he is not able to apply for an exemption order as contemplated under (a), so I will suspend the period that he has to apply.'' Normally with exemption orders, that period is about a year.
If I am in Afghanistan for nine months, the chief's authority could operate to suspend the suspension until I get back. My right to apply for an exemption order is not lost because I have a pre-existing duty under another act of Parliament.
I invite you to look at these sections as a de-conflicting mechanism. With respect to this aspect, in particular, we do not disenfranchise an offender because they are obeying a duty under another act of Parliament.
Similarly with respect to (b), if I have been convicted and a decision has been made and I apply in that context to appeal the legality of an order that has been made or a termination order, again, this application preserves my right to appeal. What the chief is doing is a fairly mathematical process. If you use me as an example, What are Col. McAlea's obligations? He must be in Afghanistan from date X to date Y. Do those dates conflict with his right to appeal? If they do, then the expiration will be suspended until he gets back. Once he gets back, the period starts to run again.
The first three subclauses have to do with preserving the rights of convicted offenders.
The fourth subclause is different; it deals with reporting. With respect to the retrospective decisions of the bill, if I have not paid off all of a fine when this comes into effect, I will be under sentence when the bill comes into effect, and I will be ordered to comply with the SOIRA.
If I have an operational obligation, for instance if I cannot be in the country or I cannot come to Ottawa, if I am north of the 60th parallel for the next six months and I cannot instruct my counsel, the Code of Service Discipline, CDS, would say, ``Your operational obligation is X. Your timelines with respect to your obligations under SOIRA are Y. They conflict so I will suspend one until your other obligation is done. As soon as you get back, then you comply.''
Does the CDS have to report anywhere on that? Is there any formal requirement? Under section 18 of the National Defence Act, the Chief of Defence is responsible for the administration and control of the Canadian Forces and he is responsible to the minister for that purpose.
Is there oversight? Yes, there is. It is the traditional oversight that we understand to be ministerial responsibility. The CDS in that case is responsible to the minister.
Proposed clause 203.16 is different again. This clause deals with people who are already on the register. They have provided all their details: their full name, date of birth, address, distinguishing features, where they work, and primary and secondary residences. All that information is in the registry.
This situation deals with people who are moving around in Canada or leaving the country. In this situation we ask: Would the divulgence of this information cause some damage? The damage we talk about here is jeopardizing international security, international relations, or a third category — a class of operations to be determined by regulation which, of course, the government counsel would have to promulgate.
In this case, for practical reasons, if the matter involves a CF member who must be deployed out of the country, the chief would be saying, ``Do not inform the registry when you are leaving.'' That action would be the effect of the Chief of Defence Staff making a determination under this section. If the person is moving inside the country, then the chief may say, ``Do not tell the registry where you are going and when.'' The chief may do that for a host of reasons. It may be because we are hosting a G8 meeting in a part of the country which is quite distinct, let us say in Yellowknife, or it may be at a certain date. Certain aspects of the meeting may be classified. If a member subject to the registry must provide that information to the registry, then he might be put in the situation of having to provide classified information to the registry. The registry already knows all his details: where he normally lives, where he works, what he looks like, what his aliases are and what scars and tattoos he has. Proposed clause 216 is fairly narrow; it deals with where you are going and when. There may be circumstances where, if that information is divulged, it could damage national security or international relations, or compromise an operation. That is how the registry would work under those circumstances.
The next question is, is there oversight. A court would not oversee what the chief does, but I suggest that the minister oversees what the chief does. All ministers in living memory have been civilians. If you go back far enough, you will find military ministers of defence.
I hope that description has addressed your concern. Clearly, the oversight with respect to courts martial is much clearer than it is for the exercise of authority by the Chief of the Defence Staff. The courts martial are overseen by the Court Martial Appeal Court, which is composed of federal judges and ultimately the Supreme Court of Canada. The decisions of the Chief of the Defence Staff, under proposed clauses 203.15 and 203.16 are effectively overseen by the minister. The minister is accountable to his cabinet colleagues and ultimately to the Prime Minister.
The Chairman: If an offence is committed in Yellowknife, as you mentioned, would the RCMP know about it? Would the Chief of the Defence Staff tell the RCMP?
Col. McAlea: The RCMP holds the database. For investigative purposes, they can look into the database at any time.
The Chairman: Are they told?
Col. McAlea: Are they told where the member will be?
The Chairman: No, are they told when the offence is committed?
Col. McAlea: I did not understand your question.
The Chairman: If a sexual offence is committed in Yellowknife, would the Chief of the Defence Staff tell the RCMP or would the chief keep it for the Canadian Forces only?
Col. McAlea: Perhaps I did not explain myself. I was using Yellowknife as an example of someone living there who was already on the registry and they are required to move because of the duty of the National Defence Act. What must then be determined is, will the divulgence of that information create a conflict between the two acts? The best way to look at the function of the Chief of the Defence Staff in this context is like that of an air traffic controller. He has two parliamentary legal regimes imposing obligations on Canadians.
In the military context, there is a potential for those regimes to conflict, thus when the Chief of the Defence Staff exercises his authority, it is to de-conflict the competing obligation.
The Chairman: The local police would not know if that person is on the registry.
Col. McAlea: They would know if they consulted the registry.
The Chairman: They are not told. Would they know if the person is in Yellowknife?
Col. McAlea: They may or may not: That is correct. What they would know is that the individual was with the Canadian Forces. For example, if they were doing an investigation and they were looking for this person and they wanted to know where that person was and when, we could provide those details because he would be on duty.
Senator Ringuette: I want to clarify something on this Yellowknife situation. I gather you are telling us that if a military officer is convicted of a Criminal Code/National Defence Act offence and is on the registry, that person could be exempt.
The Chairman: No, it is not an exemption.
Senator Ringuette: There would be a delay in complying with the registry.
Col. McAlea: It is possible.
Senator Ringuette: Would that be granted by the Chief of the Defence Staff?
Col. McAlea: It is granted by this act.
Senator Ringuette: Yes, but the person granting under this act would be the Chief of the Defence Staff?
Col. McAlea: I would not describe it like that. I would describe the chief, for example, as a cashier.
Senator Ringuette: That is not the question that I am getting to with regard to this naval operator or air traffic controller situation. Where my question is heading is as follows: Would you have in the military people convicted of criminal offences but at the same time operating with classified information and security clearance?
Col. McAlea: Yes: They might lose their security clearance as a result of the criminal offence. That is correct. Maybe I can go back to something I said earlier. If someone is convicted of an offence, a court martial has the authority to dismiss them, to kick them out. If the court martial does not choose to exercise that authority, then the CF administrative authorities will review the situation.
As you see on the list,17 people listed here have been convicted of offences of a sexual nature, since the year 2000. Ten of those people have been released from the Canadian Forces. Six are in under what is called ``Counselling and Probation.'' They have been put on notice. They have been given instructions regarding their poor performance. It is like probation. Throughout the period if they can comport themselves properly, they can remain in. If they do not comport themselves properly, they will be released. The six people you see on the list may be released.
Ms. Ringuette: My question is with regard to the current list that has been provided to us: Would the six people on probation still have their security clearance even though they were convicted?
Col. McAlea: They may or may not, as Senator Andreychuk correctly says. It will depend on the circumstances, and on what their position is.
Senator Andreychuk: The registry is an investigative tool. The individual is in Yellowknife. The military has made some choices, but the individual goes out on the streets and commits another sexual offence. The police have no ability as of right: it is discretionary whether they can use the registry and find the information that they would on a civilian.
Second, if that man is posted to Afghanistan and is walking the streets of Kabul, how do the police there know that he is on a registry or subject to any previous violations? What kind of investigative tool is it in the military? I understand it in the civilian context.
Col. McAlea: I can answer in part, and then I will ask Ms. Campbell to speak to the other part. The Canadian Forces military police will know.
Senator Andreychuk: Will the civilian Afghani authorities know?
Col. McAlea: I will ask Ms. Campbell. She can respond to the foreign police forces.
Ms. Campbell: There would be no way for the foreign police force to have that information.
The Chairman: They should not have it.
Senator Andreychuk: We are training the Afghani police.
Ms. Campbell: This tool was designed for Canadian police forces to use. It was intended for domestic investigations.
The Chairman: I want to remind everyone that it is 12:30, and the Senate sits at 1:30.
Senator Joyal: I appreciate your explanation. I am still preoccupied with the fact that the Chief of the Defence Staff makes a decision that has an important impact with no specific responsibility to report it except as you stated under section 18 of the act, which I do not have in front of me.
It is probably of a general nature. Perhaps you can quote it for the sake of our record because to me it is a key element of decision for this committee, if we satisfy ourselves with the general overall responsibility of the minister or what he has to report to the minister in section 18 of the act.
Section 18 says,
The Governor in Council may appoint an officer to be the Chief of the Defence Staff who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces.
Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.''
In other words, the Chief of the Defence Staff is responsible for the control and administration of the Canadian Forces. It is such a vague mandate. It is an overall encompassing mandate that we would, in fact, have to look into. The regulation may prescribe and shall be subject to the regulation and under the direction of the ministers. What kind of regulation would rule or govern the Chief of the Defence Staff to report to the minister about that?
Col. McAlea: There is no regulation that requires reporting of this particular item. There is no question. I realize we do not have a lot of time, but section 4 of the act sets out the minister's authorities and responsibilities, and I think you need to read the two together.
The Chief of the Defence Staff really is a machine in this. Clauses 203.15 and 203.16 are the direction and the criteria. What the chief does in this case is apply one on top of the other. If there is no conflict, the chief takes no action. If there is a conflict, the chief says, ``Yes. I determined there is a conflict.'' Then, automatically consequences flow from that.
The Chief of the Defence Staff has no regulation-making authority in this or in any other act. The chief is really the machine that carries out the assessment of the criteria on behalf of Parliament with respect to these particular things.
If I am a convicted offender and the chief looks at my particular situation and sees that my rights as described under clause 203.15 will be infringed, the chief can say, ``The rights will be infringed.'' By operation of law then, the chief states the date when the rights will cease to be infringed and would inform the Canadian Forces provost martial. The machine automatically clicks in from then on, if you understand what I mean.
Senator Joyal: Yes, I do. Thank you for your explanation. Can we get Justice Lamer's report?
The Chairman: Yes, we can get copies.
Senator Cools: I would like to welcome the witnesses before us and also to thank the military witnesses for their contribution to Canada. It is often difficult for many people to comprehend that the military is the oldest social organization in the world, and it is self-contained, portable and mobile. They can move a hospital along the road. They can move trials and a criminal system along the road, and even a whole system of policing.
Many of these systems exist for good reason because if soldiers are stationed in ``X'' country, you want to avoid situations where your soldiers fall into the criminal justice system in other countries. It is a huge phenomenon and not easy to manage.
I will give an example, not about the Canadian military. I was once visiting somewhere and one of these massive aircraft carriers of the United States of America came into port. The entire small community was flooded with thousands of these young kids. They are kids really. They are soldiers but they are kids to me.
The military police were around visiting all the bars and so on. Even after the ship was scheduled to leave, they left individuals behind to gather up those who were too preoccupied to have made the ship, rather than let these individuals fall into police hands.
I remember remarking what a massive organization must be involved to able to do that, how well they do it and how well we do it. All of that is by way of commentary of comprehending the nature of the portability and the mobility, whether it is pitching tents or setting up a city overnight literally.
My questions are of a different nature. I am not convinced that this bill was necessary but that is another side. I know a fair amount about sexual deviances, and I know a fair amount about sexual offenders. I am concerned often that the insignificant sexual offence is thrown into the same kitty as the predatory sexual deviant and they are, I tell you, creatures to be afraid of.
When one encounters something like a psychopathic sexual deviant, these individuals are beyond most of our comprehension. Because of ideological considerations, sexual offences seem to have become exalted over offences. Small things such as somebody pinching somebody's breast has been thrown in peoples' minds with the large ones.
My question is as follows: Between the years 1987 to about 1997 we had a plethora of wrongful convictions in this country. We had an epidemic of what I would call false accusations of sex abuse. It was the weapon of choice for about a ten-year period. As a matter of fact in an unrelated matter, we had some witnesses, I think, from the Children's Aid before a different committee on different subject matter. We had some witnesses tell us that two of three of their claims or charges were false or unsubstantiated.
My question to you is two-fold: One, of the sexual offenders that you deal with in the military, how many are extremely serious? In other words, do sexual offences in the military outstrip, or do they match, the population?
There are three questions really. Two, do you have a record then of wrongful accusations made against military personnel or false accusations of sexual misconduct? If there is such a record, do you have any idea of the numbers? It would seem to me that by nature of the military, these individuals have a higher risk of exposure to these kinds of accusations.
Three, could you tell me about women and sexual offences and what percentage of military sexual offences are committed by women? The entire debate so far seems to be predicated on the idea that only men are sexual offenders. Some of us have known for a long time of sexual offences by women, but at least the literature and the criminal system is beginning to admit them.
When I was in the business of social services, it was the hardest thing in the world to even interest a prosecutor in a sexual offence by a woman. For example, I came across a case where a teenage boy in a high school was sexually involved with his 23-year-old school teacher. I encountered numerous other ones, some involving children.
It was the hardest thing in the world because there was a disbelief that women could do these things, and the most famous case is obviously the Bernardo-Homolka case where an entire set of plea bargains moved ahead on that premise.
I can understand that you may not have any information, but I see the Canadian Forces as an inherently difficult organization to manage. Do you have anything on sexual offences by females and also about vexatious or mischievous accusations? The reason I ask this is because I have had a lot of these things cross my desk.
In the years when I did a lot of work on divorce and custody, I had a lot of letters from lads who were in the military who were being harassed, they thought, by divorce proceedings. I put that out to you. There are three questions in there, but if you do not have the answers, I understand, and perhaps we can go forward with that. Please know that I appreciate the work that you do.
Col. McAlea: Senator Cools, I appreciate your comments very much. I understand that you have asked three questions: One with respect to the gravity of offences, two with wrongful accusations, and the third, women and sexual offences.
I think I can give you partial answers to each of them. With respect to the seriousness of offences, I do not know if you had a chance to see the chart here that we issued.
Senator Cools: No, I have not seen it.
Col. McAlea: Maybe I can speak to it.
Senator Cools: It would be good to get some if it on the record unless you have already put it on the record. I am interested whether you know the kind and quality of the sexual deviances. We have a fair idea of the percentages and the population: one in so many thousands.
Col. McAlea: I am not a social scientist, so I do not pretend to speak with expertise on this. I do not think I am wise enough to create a hierarchy of atrocity for you. I invite you to look at the offences. There are 17 here for which offenders have been convicted. You can probably determine better than I can where they belong on the spectrum that you have identified.
When I look at the offences, I do not see any offenders that appear to be of a serial nature but that would not necessarily be evident here because of the nature of it. I can provide this to you. If you have any further questions, we can provide answers.
With respect to wrongful accusations, it is an offence under the National Defence Act, in particular, under section 96, to make a wrongful accusation. Our sexual harassment regulations contemplate the possibility that a wrongful accusation could be made. That is one of the reasons why we are so concerned about due process in it.
For example, if somebody said, ``McAlea, you sexually harassed somebody,'' my entitlement is to know what the details are. Part of my protection is that I have a right to know what the charge is against me and who is making it. Of course, that is not a guarantee, but it is one measure that can be used to discourage wrongful accusations. With respect to statistics on it, I do not have them here. We might be able to find them. If you would like, we can look into it.
With respect to women in sexual offences, again, I am not an expert. I can tell you, as someone who used to teach the troops about harassment, for example, that we used to be gender-biased. We did, as you say, assume that it was only one way. We assumed that it was men on women.
It is different now, and it is not just a function of gender. It is a function of sexual orientation. Now we say there are four possibilities: a man harassing a woman, a woman harassing a man, a woman harassing a woman or a man harassing a man. We look at the possibilities. We take this seriously because this type of activity is so corrosive.
In our business we joke that the CDS has limited powers with respect to pay and other things, but it can send us to our death. When the relationship is so serious, we cannot tolerate abuses. Sexual harassment and sexual exploitation are examples of the worst type of abuses, particularly in a hierarchal organization.
We have the Code of Service Discipline not because we like it. We have it because it is functional. Can you think of anything more ridiculous than ordering somebody to charge a machine gun? I think the other thing more ridiculous is that somebody actually obeys that order. We take people and we socialize them, and that socialization process requires us to train people to work sometimes against their own instincts of self-preservation. Unless they can work against their own instincts, they cannot do the jobs that the Government of Canada calls upon them to do.
The Code of Service Discipline, and sexual offences are a subset of the Code of Service Discipline, is one of the behaviour control tools to socialize people to behave in a fashion that allows them to perform the difficult missions that we call upon them to perform.
Senator Cools: I was aware of sexual harassment, but I was also going a bit farther where individuals were being falsely accused of having assaulted someone. In the old days the language used to be rape. Now, I am not so sure what sexual assault is. I was looking for that sort of thing, where somebody has pointed a finger at a guy or a gal in the military, saying he or she has sexually assaulted me. Upon investigation, you discover that he was off 20 miles away, or she was off 20 miles away.
A couple of years ago, I read a judgement in which a particular judge said there was no sex and no assault, so how could there be a finding of sexual assault? However, another judge set that aside and made a finding of sexual assault.
One of these days, perhaps this committee should undertake a study of the operation of those parts. I keep suggesting it because when the terms ``rape'' and those kinds of related terms were set aside in favour of sexual assault, it was precisely because the creators of this legislation at the time were attempting to look towards the assault more than the sex. That is not what has happened. Sexual assault can now mean anything from a pinch of the whatever, to grievous frightening stuff.
On the question of plea bargains, I would be interested to know how plea bargaining operates in this process. I would also like to say, chairman, and I have suggested this before, that there is an area of activity within the criminal justice system that is begging for a parliamentary study. There has not been a parliamentary study on plea bargaining for a long time.
In the old days you could not plea bargain homicide charges away, and now that is happening. There is a host of things. In the old days certain kinds of murder cases could not go in front of a judge alone either. These things are happening without any study from us.
I throw it out. A plea bargain is a place we should look. Having said all of that, we can revisit it, and if you have any anything else, send it along.
Senator Ringuette: What is the longest period of time that an army person can be posted outside of Canada?
Col. McAlea: Do you mean in the context of an operation or a posting?
Senator Ringuette: Both.
Col. McAlea: They are different.
Senator Ringuette: Yes, an operation is shorter than a posting.
Col. McAlea: That is correct.
Senator Ringuette: What is the longest period of time for a posting, to your knowledge?
Col. McAlea: We aim towards six months, but they are often longer, maybe as long as seven or eight months. This period is unlike the practices during the Second World War where you could be gone for six years. For family reasons, for professional development reasons and for the benefit of the troops, we normally speak in increments of six months. That is the rule.
Senator Ringuette: On a practical basis, if a troop is posted in Afghanistan, and we always take the Afghanistan example, for six months, we do not pick them up in Canada and parachute them to Afghanistan. There is a constant back-and-forth of travelling, bringing supplies and so forth, it there not?
Col. McAlea: Yes, that is correct.
Senator Ringuette: I have to be honest with you. I have difficulty with regard to the delay, and maybe delay is not the right word. I have difficulty in regard to the Chief of the Defence Staff authority. We were told last week by your department and the minister that this legislation is supposed to mirror the Criminal Code and the Sex Offenders Act.
Clauses 203.15 and 203.16 from my perspective do not mirror and are not necessary either because of an earlier example.
[Translation]
In French, we have a saying that says a lot: the pope is replaceable. I think an officer can be replaced in order to obey the law, like all civilians have to see to it that they obey the Criminal Code.
[English]
Col. McAlea: I think I can allay some of your concern and explain other parts. I do not know if I can address it completely. If I can invite you to look at clause 203.2 at page 19 of the draft bill, that clause contemplates the Governor in Council making regulations with respect to several things.
One thing involves the designation of registration centres. For example, we hope to designate centres outside of Canada. If someone goes to Afghanistan, the CDS would not need to exercise its authority under clause 203.15 to suspend: they could comply in Kabul or Kandahar.
That will not always be the case. They may have to go to a place where there is no designation centre, but we hope to reduce the number of cases where it does not occur, as much as possible.
[Translation]
The pope is replaceable, you are right. I agree.
[English]
There is also another aspect. If someone is convicted of a sexual offence and ordered to register, then this individual is looked at by the administrative authority to see whether the individual is suitable to remain.
One condition is that every soldier has to be able to perform every duty that the soldier is lawfully required to do. If we say you are on the register, you do not deploy. That means somebody else has to leave their family to deploy in their place. The question would be, ``Are they really suitable?''
Senator Ringuette: There is a 15-day period here. That is a lot of flexibility already.
Col. McAlea: It might be. If the order comes into force when a soldier is in Afghanistan, for example, if someone is subject to a sentence when this bill comes into effect, then the soldier could face an application by the provost martial to register, and the relevant time periods may occur while they are out of the country.
They do not get a chance to challenge it or they might not even be in the country when the order is made or when the order comes into effect. For example, I am under sentence on date ``X'' and date ``X'' is when Bill S-39 comes into force, then the Canadian Forces provost martial has a year to give me a notice and I have a year to answer.
If I do not answer, then the law will operate to give me an obligation to report and that may happen while I am out of the country. I may not even be in the country to report. As I said before, that problem may be obviated by the Governor in Council designating reporting centres outside of Canada.
They may say Bosnia or Afghanistan. I hope that we do not take this out of perspective. We are dealing right now with seven people out of 86,000 adults. The chance that they will be out of the country is low.
Senator Ringuette: That is within the military. That might also be in regards to court martial but there might also be situations where your military person is not going to the court martial but is going to the civilian system, and they would be subject to the registry.
Col. McAlea: Yes, they would.
Senator Ringuette: That is why I say that if we have a mirror legislation, then it would have to be mirror legislation because you might have a situation where two military persons, one under the court martial and the other one under the civil court, are accused of a similar offence but they do not have to comply to the same rules and regulations.
Col. McAlea: The only answer I can give you is to repeat what I believe Senator Pearson and Minister Graham said. We are trying to apply the same rules and regulations to the Canadian Forces while recognizing the special operational exigencies. The problem is right now none of these people go on the registry. We have people who commit sexual offences and there is no ability for a court martial to order them to register. These people are invisible to police forces right now.
The policy choice has been made, a sound one I suggest, that they ought to be brought in. In bringing them in, we create a conflict between two federal legislative regimes. The provisions that have been created are the vehicles for de- conflicting those conflicts. I agree with you that the obligations are not identical. We suggest that this proposal does de-conflict the competing obligations.
[Translation]
The Chairman: Thank you for giving us so much of your time. As you can see, there are still many questions that need to be answered. Thank you for being here today.
[English]
Senators, we asked the Canadian Bar Association to appear before us. They said no. We asked Barreau du Quebec. They said no. We asked the Canadian Professional Police Association. They said no, I guess, because of the Canadian Forces.
We had William Trudell yesterday. We have a written statement by Mr. Sullivan from the Canadian Resource Centre for Victims of Crime and the John Howard Society of Canada. We asked the John Howard Society, and they said no. We will ask the military ombudsman to appear before us.
Next Wednesday, as you know, the Prime Minister of France is here in the afternoon, with an entourage. They have asked to meet with the members of Canada-France Inter-Parliamentary Association committee and other members who are available. Other senators cannot be present. I have a list of five here. I think we should not deal with the clause-by-clause review on Wednesday. We will not sit on Wednesday. We will sit on Thursday morning and hear from the ombudsman, if he can appear before us Thursday.
We will see if we are ready then to deal with the adoption of the clause-by-clause review. I ask the people who appeared before us today to be present, if available, whenever we can deal with the adoption of the clause-by-clause.
Senator Joyal: Mr. Hoover has been listening attentively. Sometimes the silence speaks more than any explanations. I wonder, Madam Chair, if it would not be better instead of waiting to be on the clause-by-clause, that we have Mr. Hoover assist us in going through the section dealing with the Criminal Code so that if there are any points that need further discussion among us or reflection, we would have the time before the explanation of Mr. Hoover.
The Chairman: Are you available next Thursday, Mr. Hoover?
Mr. Hoover: I would happy to be here.
The Chairman: Thank you.
The committee adjourned.