THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS
EVIDENCE
OTTAWA, Monday, June 8, 2026
The Standing Senate Committee on National Security, Defence and Veterans Affairs met with videoconference this day at 4 p.m. [ET] to study Bill C-11, An Act to Amend the National Defence Act and other Acts.
Senator Marty Deacon (Chair) in the chair.
[English]
The Chair: Welcome, everyone. I’m Marty Deacon, senator from Ontario and chair of this committee. I’d like to begin today by offering my colleagues the opportunity to introduce themselves.
Senator Al Zaibak: Mohammad Al Zaibak, Ontario.
[Translation]
Senator Carignan: Thank you very much. I’m Claude Carignan from Quebec.
[English]
Senator Patterson: Rebecca Patterson, Ontario.
[Translation]
Senator Youance: I am Suze Youance from Quebec.
[English]
Senator Cardozo: Andrew Cardozo, Ontario.
Senator McNair: John McNair, New Brunswick.
Senator Boehm: Peter Boehm, Ontario.
Senator Yussuff: Hassan Yussuff, Ontario.
Senator Dasko: Donna Dasko, Ontario.
The Chair: Thank you. We will have some folks joining us as we proceed throughout the evening. We have a full slate ahead of us, finishing, hopefully, shortly around eight o’clock.
I would like to acknowledge and thank our colleagues on SECD who were in Lithuania last week. It’s a SECD form of advocacy and NATO meetings. We missed you, but we were following your messaging and the work that you were doing. Thank you for that.
Today we begin our consideration of Bill C-11, An Act to Amend the National Defence Act and other Acts. Sensitive subjects, including trauma related to military service, sexual misconduct and harassment, may be discussed. This may be triggering to people in the room with us as well as those watching and listening to this broadcast.
Mental health support for all Canadians is available by phone and text at 988. If you’re a member of the defence community, including Canadian Armed Forces members and veterans, you can call the Defence Community Support and Resource Centre at 1-844-750-1648 for guidance and services.
Senators and parliamentary employees are also reminded that the Senate Employee and Family Assistance Program is available to them and offers short-term counselling for both personal and work-related concerns as well as crisis counselling.
Today, we will hear from four panels of witnesses. For our first panel this evening, we’re pleased to welcome Lieutenant-Colonel (retired) Rory Fowler; and by video conference, the Honourable Marie Deschamps, Independent Authority, External Review Sexual Misconduct and Sexual Harassment CAF 2015 and Former Justice of the Supreme Court of Canada.
From the bottom of our hearts, thank you for being here today with tight notice. We will begin by inviting you to provide your opening remarks, to be followed by questions from our members. I remind you that each of you has five minutes for your opening remarks. We will begin with Justice Deschamps.
Welcome. Please proceed when you are ready.
[Translation]
Hon. Marie Deschamps, Independent Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces of 2015, and former Justice of the Supreme Court of Canada, as an individual: Good afternoon, Madam Chair and members of the committee. Thank you for inviting me to participate in your committee’s study.
As you know, more than 10 years have passed since I submitted my report. Over the past 10 years, I haven’t had enough regular contact with the Canadian Armed Forces to comment on any changes in culture or processes that may have taken place. Moreover, that’s not the direct focus of your work.
The bill you’re studying concerns several aspects of military justice. The aspect I assume you want to ask me about is the transfer of all cases of a sexual nature or with a sexual connotation from the military justice system to the civilian justice system.
Two reports more recent than mine have addressed the topic of military justice to an extent that was largely outside the scope of my mandate. The legislative changes that you’re considering are, in fact, based on the recommendations of those reports, those of Justice Fish and the justice we can now proudly call Her Excellency the Right Honourable Louise Arbour.
Their recommendations differ from the position I took in my report. I recommended leaving it up to the victim to choose which justice system would handle their complaint.
There were several reasons for that position. First, military justice was largely outside the scope of my mandate. I couldn’t recommend removing all jurisdiction over sexual assaults from courts martial. More importantly, such a transfer carries risks, and that’s what I suggested to the members of the House of Commons standing committee.
Indeed, many cases of misconduct fall at the lower end of the severity scale and are unlikely to be prosecuted in civilian courts. Such impunity can have harmful consequences. Unpunished minor assaults create a sense of invulnerability, and that can serve as a stepping stone to more serious assaults.
I therefore continue to believe that a full transfer is not desirable. In a context where the Armed Forces want to improve the human environment and sanction inappropriate behaviour, the likelihood of intervention by the Canadian Armed Forces is greater than it would be if cases came solely under the jurisdiction of the civilian justice system.
I’m aware of the challenges you face. It’s difficult to define precisely what constitutes minor misconduct. That’s why the option of letting the victim choose remains valid. However, I see another challenge looming, a strategic one: An amendment was accepted by the House of Commons standing committee but was subsequently rejected by the House. The bill you’re currently studying maintains the full transfer.
There may be a path forward. Several witnesses before the House of Commons standing committee suggested a cautious approach that might allow you to move forward while limiting risks. This involves a time limit provision on the obligation to transfer all files, known as a sunset clause. A rigorous information-gathering process, combined with a sunset clause, would allow you to do two things at once: obtain evidence-based data to evaluate the new process and limit risks.
Thank you for the opportunity to share my views. I’m ready to answer your questions.
[English]
The Chair: Thank you very much.
Next we will listen to Lieutenant-Colonel Rory Fowler.
I would like to welcome Senator Henkel, from Quebec, who has just joined us.
Lieutenant-Colonel (Ret’d) Rory Fowler, Lawyer, as an individual: Thank you, Madam Chair and senators. I will be uncharacteristically brief.
While discrete criticism may be offered regarding select provisions in Bill C-11, I wish to address the central thesis of the proposed legislation and its underlying inherent flaw: that offences of a sexual nature must be removed from the jurisdiction of the Code of Service Discipline when those offences are alleged to have occurred only in Canada.
That proposition is predicated upon recommendations from a report with methodological shortcomings, including confirmation bias and a lack of transparency. The government’s inflexible reliance on the ad hoc review by the Honourable Louise Arbour stands in marked contrast to how successive governments, including the current one, have responded to three successive statutory independent reviews on military justice, military police, and remedial mechanisms. The current government insists that Madam Arbour’s recommendations must be accepted and implemented, while past recommendations regarding remedial mechanisms have lain fallow or been ignored.
The scope of inquiry by Madam Arbour has been grossly misrepresented by select Members of Parliament before the House of Commons. Select MPs have asserted that Ms. Arbour — or, alternatively, the Chief of the Defence Staff — interviewed 14,000 members and victims. That is demonstrably untrue. Ms. Arbour indicates that she received input from approximately 350 people, and the data she collected has remained anonymous and unanalyzed by any other reviewer.
The proposed course of action is inherently contradictory. It is predicated upon the assertion that the chain of command of the Canadian Forces, and the military justice process, cannot be trusted to address allegations of sexual misconduct when they arise in Canada, but they can be trusted when those same allegations arise outside Canada.
A basis of the proposed legislation is that military justice actors — military judges, prosecutors, defence counsel and military police — do not perform their functions adequately. So, their jurisdiction, supposedly, must be removed from such allegations arising in Canada. However, they will retain jurisdiction over the same types of allegations when they arise outside Canada but will perform those functions with markedly reduced experience and exposure to such offences.
How will that improve military justice and confidence in military leadership? The answer is it won’t.
The legislation will also create a loophole for military police to exercise jurisdiction regarding offences alleged to have arisen in Canada, and that loophole presents a risk of arbitrary abuse by an agency that has repeatedly shrugged off criticism by the Military Police Complaints Commission of Canada.
The proposed amendments will remove not only authority and jurisdiction from the chain of command and the Canadian Forces generally, but also accountability. Over the past several years, there have been repeated assertions that the chain of command failed victims of sexual misconduct. The proposed response is to remove from the jurisdiction of that same chain of command the tools and mechanisms by which they were expected to respond to such complaints. That is a remarkably counterintuitive approach.
Rather than holding senior leaders accountable for their failures, Parliament now seeks to dispossess the leadership of the Canadian Forces of those very tools.
If I may offer an illustrative metaphor, if a soldier demonstrates the incompetent handling of a service rifle — and I’ve seen that happen with my own eyes — should the soldier’s supervisors then take the service rifle away and fault the soldier for failing to perform the soldier’s duty, or should they instead correct the failure, train the soldier to use the rifle correctly and supervise the soldier? If you believe that the latter approach is the more appropriate approach, then I suggest you cannot support the legislation that has been placed before you.
It represents an abandonment of accountability. It sets conditions for at least two possible courses of action: Either the chain of command will wash their hands of such matters, since the punishment will fall to civil authorities, or they will employ ill-suited mechanisms such as administrative reviews to adjudicate allegations that inevitably turn on the credibility and reliability of evidence. The central legislative proposal invites impunity and the miscarriage of justice.
When an institution that must govern itself fails to govern itself properly, the solution cannot be to selectively remove the means to do so. The solution is to hold accountable those who fail to perform their functions appropriately.
You cannot legislate good leadership, but what Parliament can do is ensure the means are available to hold leaders accountable.
Thank you, and I await your questions with great enthusiasm.
The Chair: Thank you very much. Our guests will be with us here until 4:55. We’ll do our best to allow time for each member to ask a question during this time.
With this in mind, four minutes will be allotted for each question, including the answer. The shorter your question, the longer the answer.
I’d like to offer the first question to our deputy chair, Senator Al Zaibak.
Senator Al Zaibak: My question is to Lieutenant-Colonel Fowler. We received your written submission and went through it thoroughly. In your submission and opening remarks, you identified problems in the proposed legislation. You have not, though, identified solutions other than what I hear from you calling for rejecting the legislation totally. I don’t know if that’s really what you are asking for, or if you have some amendments in mind that you can propose for us to consider improving the legislation.
LCol. Fowler: Thank you, senator. That’s remarkably like questions I used to get from my commanding officer whenever I would point out flaws. They would say, “Thank you, Rory. You’ve pointed out the problems. Now give me a solution.” And that’s generally what I often did.
I would suggest, senator, that the principal solution is not to proceed with the legislation. But I am not naive. I’ve been around the block once or twice, and I know that the government is intent on proceeding with this legislation.
What I will suggest from the outset is: If this honourable committee and the Senate and Parliament in general disregard everything that I say — and you’re certainly free to do so; I’m simply a member of the electorate — the one thing I would insist that you consider is what Madam Justice Deschamps has already mentioned: reintroducing the sunset clause that was proposed at committee.
Because I will state right now that when these proposed amendments fail to deliver that which people are seeking and mark my words, they will fail to deliver; people will continue to be disappointed by the outcomes of criminal prosecution. This will force Parliament to reconsider and re-examine whether or not this legislation is the appropriate course of action, and it will allow Parliament to do so within the context of the independent review that is going to have to be conducted.
As most of you are probably aware, section 273.601 of the National Defence Act requires an independent review, just like the review that was done by Justice Fish, and before him Justice LeSage, and before him the late Chief Justice Lamer. Every seven years, an independent review must be conducted. That clock gets reset if the National Defence Act is amended. So if it gets amended this year, it will go another 7 years, and Justice Fish’s report was done 5 years ago, so it will be 12 years between independent reviews. But if there is a sunset clause of four or five years — I would suggest anything less than four years is insufficient — a four- or five-year sunset clause will not only permit but oblige Parliament to revisit this legislation and to do so before the deadline for the next independent review, which will be conducted seven years after this amendment is put into force.
And I would thoroughly encourage this committee to consider reintroducing a sunset clause. Thank you.
Senator Al Zaibak: Thank you. Do you mean you will be comfortable with the bill as is, provided that a sunset provision of four years can be introduced?
LCol. Fowler: I still wouldn’t like the legislation, senator, but at the very least there would be an obligation on Parliament to revisit what I consider to be manifestly bad legislation.
Senator Al Zaibak: Thank you.
[Translation]
Senator Carignan: My question is for Justice, or former Justice . . . I’m sorry, I don’t know what the proper title is for you.
Ms. Deschamps: I’m now a lawyer.
Senator Carignan: A lawyer. I’ll therefore call you Ms. Deschamps.
Ms. Deschamps: Yes.
Senator Carignan: Isn’t it odd that the government wants to transfer sexual abuse cases to the civilian courts, when there are a lot of problems with delays, unlike the military justice system, which is much more efficient? It would therefore be advantageous for both the victim and the accused. In fact, when someone isn’t guilty, they hope for a speedy decision.
In 2020, a report on rebuilding trust, entitled Rebâtir la confiance, came out in Quebec, and it contained 190 recommendations for improving the judicial system, because victims had lost trust.
Isn’t it unusual to send military cases to the civilian system, where an effort is under way to rebuild trust? It seems to me we’re going in circles.
Ms. Deschamps: To a certain extent, I think it’s good to have the more serious cases handled by civilian courts. It’s like when you go to the hospital — at least in Quebec — when it’s a serious issue, you’re taken care of.
Civilian justice has a lot of experience with serious sexual assault cases. My biggest issue lies with sexual assault cases that are less severe. In fact, when I wrote my report — and I have no reason to believe things are different now — at least 50% of all cases of sexual assault were already being dealt with in the civilian justice system.
For example, all intimate partner and domestic violence cases are already dealt with in the civilian justice system. Also, if I remember correctly, whenever a victim was not in the Armed Forces, the case was dealt with by the civilian justice system. Currently, it’s a hybrid system, since both systems have jurisdiction. What the bill does is transfer all jurisdiction to the civilian justice system for almost all offences of a sexual nature.
This transfer to the civilian system is not entirely out of the ordinary, at least not for serious offences.
My main concern is for less serious offences. For example, consider a situation where someone supposedly touches a person’s buttock or breast by accident. If it happens once, twice or three times, that’s no longer an accident. However, when it’s not punished, such behaviour leads to a very dangerous slippery slope.
Senator Carignan: Mr. Fowler, in Quebec, the recommendations in the Rebâtir la confiance report included the creation of a specialized court to deal with sexual assault cases, which was established in 2025. Could this kind of improvement be made in the military system, while keeping the cases within the military system?
LCol. Fowler: Thank you, senator. I’d like to answer in English.
Senator Carignan: Go ahead.
[English]
LCol. Fowler: In fact, there was a recommendation by the Honourable Morris J. Fish with respect to the judiciary and creating a specialized judiciary within the Federal Court system that would encompass not only judges for courts martial but also judges who would preside over a number of administrative processes, and those are the things Ms. Deschamps is referring to with respect to these lower-level matters. There are certain lower-level matters that will not be dealt with in the criminal justice system. They may not even be dealt with in the Code of Service Discipline, particularly for repeated conduct. Those would be dealt with in administrative matters. If we’re talking about the sort of legislation I would want to see to improve not just the Code of Service Discipline but also the administration of the affairs of the Canadian Forces, the creation of a specialized judiciary that deals with not just the Code of Service Discipline but also the administration of the affairs of the Canadian Forces writ large would be an improvement.
I regularly find myself before the Federal Court, arguing applications for judicial review that deal with both administrative matters and Code of Service Discipline matters, and it is a bit like playing roulette to find a judge who understands the Canadian Forces. Sometimes, I’ve been fortunate. I’ve had a Federal Court judge who also sits on the Court Martial Appeal Court of Canada and who understands the Code of Service Discipline, so if we’re talking about specialized courts, rather than unloading a burden on provincial courts, which are already stressed, how about we improve the military judiciary and the judiciary that deals with the Canadian Armed Forces?
Senator Cardozo: Thank you both for being here. My question is for both our witnesses, but I’ll start with you, Madam Justice Deschamps.
If I can go back to the beginning of the discussion, not just today but overall, why do we have a military justice system in the first place, and is it your conclusion in your presentation today that the military justice system is somehow less capable of dealing with sexual misconduct? Is that the premise of the bill?
Ms. Deschamps: Yes, for cases that are more severe, I think that the military justice system is less prepared, just due to the sheer number of them and all the processes within the military. The witnesses keep moving. The victims are not necessarily in the same places, so moving people around the country does not make the process easier. However, in the civil justice system, they have a larger number. They can call witnesses, and they’re always at one location. The witnesses are not necessarily in the same location, but the justices are. They get to hear many more cases in a year.
I just recall processes that were in place in 2015. They had a system of investigation where they had developed specialized investigators. But this team was so small that they had to be flown across the country in order to be able to cover all the cases.
In the civilian justice system, the numbers are higher, so they get to develop more expertise.
Senator Cardozo: Is there any sense that the military justice system, in any way, protects its own and isn’t as tough on them as they should be?
Ms. Deschamps: This is an observation that I made in my report at the time. I don’t want to say that nothing has changed because I have not been there, and I know that a lot of effort has been put into changing the culture, but this is an observation I made in 2015.
Senator Cardozo: Thank you.
Could you comment on the same thing, Lieutenant-Colonel?
LCol. Fowler: This committee is going to hear from Colonel Dylan Kerr and Colonel Nooral Ahmed, director of military prosecutions and director of defence counsel services, respectively. They are in a better position to explain everything they’ve done to improve their systems since Ms. Deschamps wrote her report ten years ago. You’ll also hear from the Canadian Forces Provost Marshal, who will talk about changes to military policing, and I will leave it to them.
I would suggest there have been significant improvements since Madam Deschamps wrote her report. On top of that, I would also suggest that when people suggest that the Canadian Forces go easy on their own members when it comes to sexual misconduct, I will be blunt. I don’t know what they’re talking about when they say that because, from my perspective, I have seen people accused across the rank spectrum from private to general and admiral, and I’ve represented people from private to admiral. I’ve seen the Canadian Forces come down on those people like a tonne of bricks, often, in a procedurally unfair fashion, certainly in an unreasonable fashion.
Back in 2019 to 2022, people of all ranks in the Canadian Forces were being denied the right to elect trial by court martial when charged under section 129, and they were doing so, I would state very clearly, based on the advice of the Office of the Judge Advocate General. That was found by the Federal Court not just to be incorrect — that’s a high threshold — but also to be unreasonable, which is a deferential level.
When people suggest people are not being dealt with sufficiently severely in the Canadian Forces, I don’t see that. I see the opposite. I see an abuse of power, particularly when they are using administrative processes, not the Code of Service Discipline. That’s what’s going to happen when you start outsourcing discipline to the civilian criminal justice system. The chain of command will fill that gap — because they can’t use the Code of Service Discipline — with administrative processes, and they will do so in an unfair and unreasonable fashion.
I will make a lot of money off of that. I’m going to be blunt: I’ll have people knocking down my door to represent them. I would prefer not to be in that position. I would prefer that the Canadian Forces have the tools to deal with these matters fairly, reasonably and in a timely fashion, which is what they have now.
Thank you, senator.
Senator Cardozo: If that were the case, we wouldn’t have a problem today.
LCol. Fowler: But I would suggest that the problem has been exaggerated in the same way that certain members of Parliament have suggested that Madam Justice Arbour interviewed 14,000 people when she clearly did not. It’s being exaggerated.
Are there going to be —
The Chair: I’m afraid I have to pull that for now, but thank you very much. It’s appreciated.
Senator Patterson: Ms. Deschamps, thank you so much for the work you did in 2015 with your report. It was a catalyst that put the Canadian Armed Forces — I was going to say “on alert” — on a path to where we are today with the ongoing changes, so I wanted to thank you for that.
I would like to come back to your recommendation about taking a cautious approach — time-limited, et cetera. At the end of the day, we do not want to cause more harm, particularly to those who have been victimized in the system.
Please, are you able to expand on that? What would that look like to you in terms of the accountability of the political class, who are ultimately responsible and accountable for this, and how can it better protect victims? Thank you.
Ms. Deschamps: More precisely, a sunset clause would mean that you have to have in place a mechanism to collect data. That means that people still have a place where they can go in order to file a complaint. That might mean not just going outside to the civilian system; that might mean that there has to be some kind of mechanism where people can go in confidence and lodge a complaint.
Once you collect the data, then, after so many years — it can be four or five years — you see how many of those complaints have been pursued, how many have been resolved, how the victim was cared for and protected, if there were any sanctions made, et cetera.
The basis of a good sunset clause, in order for the government to be able to assess it, has to be based on data collection. Then, at the end of the period, there is a mechanism so that people will assess the data and be able to make a recommendation as to whether the transfer will be pursued.
Senator Patterson: Thank you.
Lieutenant-Colonel Fowler, this one is for you. You talked about how — and I may have to agree with you — sexual misconduct, non-criminal in nature, is not being overlooked; it has been a unique experience, to say the least.
Within the military justice system, especially on the defence side, what currently exists? If I remember correctly, there were a number of papers out there on the civilian and military side that said that the lack of proper defence usually ends up in conviction. What is it that is different that we will be losing in the military justice system to begin with? Also, I would like to know what your recommendations would be as we transfer into the civilian sector in order to ensure that we actually serve justice to all people.
LCol. Fowler: Senator, you’re talking about access to justice. Right now, under the Code of Service Discipline, if a member of the Canadian Forces is charged with a service offence, they are represented free of charge by the outstanding counsel at Defence Counsel Services. As I said, they are outstanding counsel. I have mentioned some of them before, and I’ll mention them again: Commander Brent Walden and Major Francesca Ferguson are outstanding counsel. They perform that service free of charge. That is a service that costs tens of thousands of dollars.
When these charges — and we’re presently seeing this — are being laid in the civilian justice system, members of the Canadian Forces have to pay for their counsel themselves. If you are a major-general, you can afford top-notch counsel. If you are a lieutenant-general, you can afford big-name defence counsel. If you are a corporal, you cannot.
However, you are also not eligible for Legal Aid in most, if not all, provinces of Canada. If you look at most thresholds for Legal Aid, it’s between $25,000 and $50,000. A corporal makes far more than that — even a brand new base-level corporal. They won’t be eligible for Legal Aid, which means they have to pay out of pocket, even though they can’t afford it.
That’s a big change, and they will lose access to justice.
One of the things I have suggested before is that perhaps the conviction rate in the military justice system is a bit lower than the civilian justice system because members of the Canadian Forces have better access to justice. If we are going to shift all criminal prosecutions to the civilian criminal justice regime, then I would suggest that, for those women and men who put their lives on the line for this country, we need to have in place some form of Legal Aid funded at the federal level instead of the provincial level because they are going to lose representation from Defence Counsel Services when we do this.
That is a big factor. When they are charged with these offences, we are going to lose soldiers, sailors and aircrew who are not going to be available to do their jobs when they are charged. If they are facing criminal charges, they are not going to be given primary tasks; they will be put to the side.
The Chair: Thank you very much. We appreciate that.
[Translation]
Senator Henkel: Thank you for being here, Ms. Deschamps and Mr. Fowler. This is a very important topic for me.
My first question is for you, Madam Justice Deschamps. When you issued your report in 2015, you described a toxic environment. Eleven years later, the parliamentary debate mainly concerns the jurisdiction of the courts. In your opinion, are the main obstacles to the safety and trust of Armed Forces members today legal or cultural?
Ms. Deschamps: I’ve already stated that I haven’t been part of a recent investigation in the past 10 years. I didn’t follow up on my recommendations. It would be inappropriate for me to talk about how the culture has changed, but I clearly remember telling a group of 25 generals I was presenting my report to that it would take a generation to change. A generation is now considered to be less than 25 years, but I told them it would take about 25 years to completely change the culture.
It’s been 10 years. We now have a woman as Chief of the Defence Staff. In my report, I stressed the importance of appointing women to leadership positions. I see that some steps are being taken. I hope that the sexualized culture I observed is changing as well, but that won’t happen overnight.
Senator Henkel: My next question is for Mr. Fowler.
The bill provides that sexual offences committed in Canada will now fall under the civilian system — that’s the intent of it — while those committed during operations abroad will continue to be handled mainly within the military system.
How do you explain the different approach?
[English]
LCol. Fowler: That’s part of the problem. Technically, there is jurisdiction under the Criminal Code to prosecute members of the Canadian Forces before civil court for offences that arise outside Canada. That has been done in a couple of recent discrete cases involving the Canadian Forces recently, including in Kingston.
There is a lack of logic in suggesting that the military justice system is fit for purpose for offences arising outside Canada, but it’s not fit for purpose for offences arising inside. It boggles the mind.
One of the reasons why they want to maintain that jurisdiction is because it’s difficult to prosecute such matters using civil courts because of the unpredictability of what happens outside Canada. What you will probably hear from the Judge Advocate General is that they need to maintain the capacity to conduct a court martial outside Canada, much as we did back in World War II.
I question whether that is ever going to happen. When people are charged with criminal offences when they are serving outside of Canada, one of the first things that happens is they are repatriated back to Canada. Most deployments take between 12 to 16 months. Courts martial are not convened within six months. The courts martial are conducted back here in Canada.
I question whether that is even necessary. The reason that’s being maintained is for that flexibility, but it undermines the central premise of this proposed legislation, which is the military justice system isn’t fit for purpose, and people don’t have confidence in it. If they don’t have confidence in it when it happens in Canada, why would they have confidence when the allegations arise outside of Canada? How are the chain of command, military prosecutors, defence counsel, military judges and military police supposed to improve their capacity and ability if you’re going to take away two thirds or three quarters of the circumstances when they would exercise those powers?
The Chair: Thank you very much.
Senator Yussuff: Thank you to both witnesses for being here.
I’m trying to get my head around what we’re asked to determine given the history of the Canadian military and processes to bring justice to victims of sexual violence in the military.
I’m more confused now than when we started this process. I say that out of respect because I know the folks who have tried to craft it; Justice Arbour, her report. The report was supposed to give us some sense of direction as to how we can improve the system. Let me start back, maybe at the first instances.
If the culture in the military is not the primary objective in changing attitudes and behaviour, aren’t we trying to deal with the symptoms of the culture after the fact, rather than, if you join the military, these are the contexts in which we expect you to conduct yourself? Why is it that we have to wait until they violate the principles of their recruitment in joining the Canadian military to figure out how we are going to solve it?
My second question I will ask to go with that: Prior to the system that is being now asked to be put back into place, exclusive jurisdiction was also under civilian authority before 1998. Was the remedy any better before 1998 than we are today? We’re going back to the system, supposedly.
I will end with this last point and get you to comment because your observation is important. The civilian system is not exactly perfect if you ask many women in this country. They will tell you that while it is the justice system, they would argue that it hasn’t served them in a profound way, especially when they are facing sexual violence in this country.
How are we to believe that we’re putting something better in place that will serve women, whom we desperately need in the Canadian military, when the system itself seems to not give them what they are expecting?
LCol. Fowler: I’ll answer, if I may, senator your second question first.
I agree. When I joined the Canadian Forces, which was prior to 1999, the jurisdiction over sexual offences, although it wasn’t as comprehensive a list, sexual assault and the various types of sexual assault were with the civilian justice system. Several reports were done throughout the 1990s. We went through the same thing in the 1990s that we have gone through in the last decade when we said, “Look, the Canadian Forces aren’t dealing with sexual misconduct because they don’t have the tools. Let’s give them the tools.” Now we’re just going back to the future, if you will, to a system that was unacceptable prior to Bill C-25.
I think the crux is what you have just said; that there is no perfect system. The military justice system will not be perfect. I will guarantee you it will not be a perfect justice system.
The civilian criminal justice system is not a perfect system. Our civil justice system is not a perfect system. It’s important that we always try and improve that.
I don’t think we’re gaining anything. If anything, we’re losing something. As Madam Deschamps said in her opening statement, if we want victims to be able to choose — and right now, technically, the first decision maker in the military justice system is the victim or complainant. They are the ones who decide, but for policy choices that have been made recently, whether they are going to turn to civilian police or military police. That is what precipitates whether it’s going to be a military police investigation or a civilian police investigation. It gives them choice. My understanding of most justice systems is the more you give the participants choice, the better the system is, particularly when we’re talking about victims.
To answer your first question, we have to remember that all of the systems we have for the governance of the Canadian Forces are holistic systems. They do not operate in isolation. They are not separate silos.
My nephew joined the Canadian Armed Forces a week ago, and he is going through basic military qualifications. There is a positive indoctrination process. Hopefully, positive for him. That is where we culturalize members with respect to the values and ethics of the Canadian Forces. Those are reinforced with the Code of Service Discipline, with leadership and with administrative measures. All of these things work together.
A question asked earlier was: What is the purpose of the Code of Service Discipline? The textbook answer is: To maintain the discipline, efficiency and morale of the Canadian Forces. That’s said what the statute says. That’s what it is there for.
It is not the only system that maintains the discipline, efficiency and morale of the Canadian Forces. Culturalization through training, culturalization through camaraderie, shared experiences and shared challenges, the use of administrative measures and the use of the Code of Service Discipline — all of these things contribute.
The Chair: I will have to cut you there.
LCol. Fowler: Understood.
The Chair: Thank you very much.
Senator Duncan has joined us. Welcome.
Senator Boehm: I would like to thank our witnesses for being with us today.
Lieutenant-Colonel Fowler, I listened carefully to your concerns. Given your concerns, particularly around accountability, how do you think the changes proposed by Bill C-11 will impact the much-needed recruitment and retention efforts currently under way in the Canadian Armed Forces? Indeed, how does this legislation impact the very culture it was meant to address?
LCol. Fowler: That’s a huge question, senator.
Senator Boehm: I know.
LCol. Fowler: It’s not going to improve recruiting and retention. Recruiting and retention are currently a problem.
If members of the Canadian Forces don’t feel that they are going to be dealt with fairly and equitably — and I mean everybody across the spectrum: complainants, victims, witnesses, the accused or respondents in these matters — the systems that they have in place must serve all of them. If they don’t feel they are being served — and, certainly, the accused aren’t going to feel they are being served, and I rather suspect victims are going to be disappointed as well — it is not going to improve recruiting and retention.
Sorry, I have lost my train of thought. The second part of your question, senator?
Senator Boehm: The overall impact on the very culture that it was meant to address. I realize this is something you could maybe see over time. I don’t know.
LCol. Fowler: It would take time. As Madam Deschamps said, if you’re going to change a culture, it takes at least a generation.
If you’re not holding leadership accountable for their failures, you’re not going to change anything. If you’re not empowering the leadership to hold their subordinates accountable and to do so in a fair and reasonable manner, then you’re not going to achieve that.
The whole point is the entire machinery of the Canadian Forces is a complex machine, and all of these parts work together. What this legislation proposes to do is to yank out part of that part. They are going to yank out the catalytic converter, and they are going to expect the engine to run okay, and that’s not going to happen.
Senator Dasko: Thank you, witnesses. Lieutenant Colonel Fowler, I have some questions for you. You are a critic of the legislation, but you said that you would suggest a sunset clause to deal with your concerns. As a critic of the legislation, what would you be looking for in this period of the sunset clause? What are the indicators, whatever the indicators are, that would give you data to say thumbs up or thumbs down to the continuation of the civilian system, shall we say.
What are we looking at, actually, timelines? That’s my first question.
LCol. Fowler: Madam Deschamps has already indicated some of those indicators.
Senator Dasko: She did.
LCol. Fowler: We’re going to track prosecutions and the outcomes of those prosecutions, but it’s not just the outcomes but also the nature of the prosecutions, the nature and quality of the evidence that was presented, the nature and quality of the investigations that were conducted, who conducted the investigations because, as I have said before, we’re going to see the military police continue to conduct investigations within that loophole.
We’re going to have to examine how those investigations are transferred if they are transferred to civilian agencies. And that’s going to require somebody who is going to be able to reach beyond just the federal level because we’ll be talking about provinces and municipalities.
The single-most important factor with respect to the collection of the data is it has to be somebody who does not have a dog in the fight. It has to be somebody who is going to be objective and who doesn’t have an interest in the outcome. It needs to be somebody who is going to conduct a comprehensive examination of all of those factors. The quality and nature of the investigation, the quality and nature of the prosecution and the quality and nature of the alternative measures that are used because there are going to be alternative measures used by the Canadian Forces.
Would anyone like to guess what the number one mechanism the Canadian Forces is using right now to deal with sexual misconduct is? It’s compulsory release. That’s the tool they’re using to punish people. They are not using the Code of Service Discipline because those are being referred downtown and to the civilian justice system. They use an administrative review that leads to compulsory release. I have dealt with clients who have been the subject of an investigation by the military police for alleged sexual misconduct, started an administrative review process, they were kicked out and then the investigation was concluded and no charges were laid because it served its purpose: the administrative mechanism.
Those are things that must be tracked. It can’t be just the prosecutions in the civilian justice system. It can’t just be criminal or Code of Service Discipline prosecutions. It has to extend to the administrative mechanisms used by the Canadian Forces to deal with these allegations and to examine how they are being dealt with because we don’t have visibility on that.
Another thing we should be examining is access to justice. Whether these members of the Canadian Armed Forces are being represented by counsel, or if they are not being represented by counsel, and the extent to which counsel are permitted to represent them, because I’ll tell you right now, when it comes to summary hearings under the Code of Service Discipline, the Canadian Armed Forces chain of command routinely refuses to let legal counsel like myself attend or participate in those summary hearings. These are all things that will have to be investigated and tracked as part that have a sunset clause.
[Translation]
Senator Youance: I have a question for Madam Justice Deschamps.
When you did your investigation, what were the statistics on non-disclosure agreements? Did they help perpetuate the culture of silence in the army? How can Bill C-11 change that culture?
Ms. Deschamps: Well, there were no agreements as such, if I remember correctly. Everything was confidential. That was the military police’s policy.
Senator Youance: Okay. Thank you.
[English]
The Chair: Thank you very much. This brings us to the end of our time with this panel this evening. First, I just want to take an opportunity — this is obviously a very sensitive topic, and that we have to garner our highest of respect, respect for and ensure we balance significant testimony. I want to thank you both for the work that you have done and carry on doing and reporting today. Thank you very much to Justice Deschamps and Lieutenant-Colonel Fowler for taking the time to meet with us here today and send in submissions.
For the next hour, we have the pleasure of welcoming the Honourable David McGuinty, Minister of National Defence. The minister today is accompanied by General Jennie Carignan, Chief of the Defence Staff, Lieutenant-General Paul Prévost, Chief Professional Conduct and Culture and Major General Rob Holman, Judge Advocate General and Martin Gravel, Chief Operating Officer, Defence Community Support Resource Centre.
Thank you all for joining us. Not much going on the Hill today, so it’s nice you had the opportunity to join us this afternoon.
We’re going to begin by inviting you to provide your opening remarks, to be followed by questions from our members.
Welcome Minister, I wonder if you could take a moment to open your message.
Hon. David McGuinty, P.C., M.P., Minister of National Defence: Thank you, Madam Chair, and honourable senators. It is good to be back. Twice in one day, I feel like I’m at home.
A big day today, and congratulations to all of you, of course. I know you play a very important role in the future of the Governor General — her responsibilities, as she acquits them, it’s going to be important, so thank you for your service.
Thank you again for having me back and allowing me to speak to Bill C-11. I want to begin by thanking, of course, all the women and men of the Canadian Armed Forces. I’ve had the pleasure of meeting, I think, roughly 15,000 to 16,000 of them in town halls in the last year. And I just want to thank them for their outstanding commitment, their dedication and their service. In the year that I have been minister, I have discovered that this is a remarkable group of Canadians, and so this bill is, as a result, even more important.
I also want to acknowledge, before we begin, that the topics we are raising in these proceedings are of a sensitive nature. The Defence Community Support and Resource Centre has a 24‑7 hotline. For anybody watching or participating, if you feel the need, please dial 1-844-750-1648 for assistance at any time.
As I was saying, colleagues, the personnel of the Canadian Armed Forces represent the very best of this country. Day after day, they put on their uniforms, they answer the call at home, abroad and in conditions most of us will never face and, frankly, never see.
[Translation]
Members of the military deserve an organization that matches their commitment. They deserve a safe workplace based on dignity, responsibility and trust.
[English]
It’s about creating a work environment where every member of the Canadian Armed Forces, regardless of rank, gender or background, can serve with dignity and respect, and trust the institution.
[Translation]
That’s precisely the purpose of this bill.
[English]
For too long, survivors of sexual misconduct within the military have navigated a system that was not designed with their needs in mind.
[Translation]
Canada’s new Governor General and former Supreme Court justice, Louise Arbour, made this clear to us, and Justice Fish confirmed it. These weren’t partisan conclusions. They were independent, rigorous and unambiguous.
[English]
We owe it to every person who came forward and every person who could not, to act on them. Bill C-11 does exactly that.
The most significant change this bill makes is the removal of the military’s jurisdiction over sexual offences committed in Canada, placing that responsibility exclusively in the hands of civilian authorities.
This is a change our government believes is long overdue, and one that sends a clear message about accountability. This is a direct response to Justice Arbour’s recommendation, and it is, in my view, the right call. Survivors should have access to the same legal protections and processes available to every other Canadian.
Beyond that, this bill addresses eight specific recommendations from Justice Fish’s third independent review. Bill C-11 modernizes how senior positions within the military justice system are appointed, introducing fixed, non-renewable terms and greater transparency. This would ensure that those who oversee justice within our ranks are held to the highest standard of independence.
It affirms the independence of key authorities within the military justice system, a principle that cannot be stated, in my view, again, often enough. It expands who can file an interference complaint, and it renames the Canadian Forces Provost Marshal to Provost Marshal General, aligning that designation with the seniority it carries.
The bill also strengthens the support available to victims. Building on the foundation laid by the Declaration of Victims’ Rights, the legislation extends access to victim liaison officers beyond the victims themselves to those acting on their behalf. This is a meaningful expansion that acknowledges the reality of how trauma is often carried and navigated.
Additionally, the bill aligns the military justice system’s provisions on offender information and publication bans with amendments already made to the Criminal Code in 2023. Consistency between the military and civilian systems on these protections is not just a technical matter; it’s a matter of fairness.
[Translation]
It also expands the support available to victims, strengthens publication bans and aligns the system with the amendments already made to the Criminal Code.
Overall, these aren’t merely minor adjustments. These measures represent a significant shift in our military justice system, bringing it in line with the values that Canadians expect it to embody.
[English]
Alongside these reforms, CAF members who experience sexual misconduct or gender-based discrimination can now bring complaints directly to the Canadian Human Rights Commission without first exhausting internal grievance processes. This is a good thing.
We have modernized clothing requirements and worked to remove barriers that have historically discouraged women and racialized Canadians from joining and staying in the forces.
Members who do not meet conduct requirements will be released.
These are all connected efforts, and they all point in the same direction: Completing the work that Justice Arbour and Justice Fish set out is not optional; it’s an obligation to survivors, serving members and Canadians who trust us to get this right. Passing Bill C-11 is a necessary part of fulfilling that obligation.
Madam Chair, I look forward to the committee’s examination of this bill, and I welcome your questions. Thank you very much.
The Chair: Thank you.
We will proceed with our questions. Before that, though, I would like to welcome Senators Hay and White, who have joined us for this session.
The minister will be with us until about six o’clock. As always, we’ll do our best to allow time for each member to ask their questions. Four minutes will be allotted for each question, including the answer, and I ask that you keep your questions as concise as you possibly can. I’d like to offer the first question to our deputy chair.
Senator Al Zaibak: Thank you, minister, for your leadership on this file. Welcome back to the Senate and to this committee.
Minister, Justices Deschamps and Arbour both emphasized that legislation alone cannot change culture. Beyond Bill C-11, what additional measures is the department taking to create lasting cultural changes within the CAF to prevent the occurrences of these violations and offences?
Mr. McGuinty: Senator, that’s a profoundly important question, one I don’t have enough time to fully answer. However, I’ll give you a few things.
If we’re able to pass Bill C-11 and make these big legal changes in terms of removing these offences from inside the CAF to the civilian court system, we will then have implemented 48 of 48 recommendations in the Arbour commission of inquiry.
There are a few other changes that I think will have a profound effect. One of the most important is the changes being made to the probationary periods that recruits are being put through now in terms of their time in. It used to be that you were on probation for the basic nine weeks of training, and then you entered into the training for your specific trade in the forces. We have said now that you will be on probation effectively until the end of your training for your skill, so if you’re coming out of nine weeks of basic and then spend a year training as a technologist for a particular role, you’ll be on probation until the end of that training. We’ll be assessing your behaviours, conduct and fit within the forces.
That’s one that has made a big difference in terms of the culture.
The other is that we have made it easier to remove members of the Canadian Armed Forces.
I’ll be watching this very carefully. We have an ongoing, tight watch over the cultural changes that are being implemented. Other members on the panel here today can give you more details, but there have been many changes brought forth. Also, when we recruit now, I believe Canadians deciding to join the forces understand what they’re getting into. This is going to become an even more modern, high-tech, AI-driven organization, and we need the best.
We’re working very hard. We are encouraged by the 61% increase in applications, year over year, and the 13% increase in acceptances, year over year, in terms of folks joining the Canadian Armed Forces.
Those are some of the measures, but there are a lot more to do.
Senator Al Zaibak: Thank you, minister.
[Translation]
Senator Carignan: Thank you, minister. My question is about your role. We’ve spoken about this. You have procurement, the military, the army, education and justice. That’s almost everything the government does, all within the Canadian Armed Forces. You also partly assume the role of Minister of Justice and Attorney General.
I’m referring to the power that the bill grants you to issue directives, under which you can establish guidelines and give instructions with respect to a particular prosecution. How do you envision exercising that power? How will you exercise the power, while ensuring the independence of criminal prosecutions?
Mr. McGuinty: My first response, senator, is that the difference in this bill with respect to the role of the minister is that the minister reports to Parliament. That’s not the case, for example, for the judge advocate general of the Canadian Armed Forces.
Secondly, if a minister decides to give such directives, they would be made public. Thirdly, this follows the reasoning of Justice Fish, who said that it would help with transparency.
The idea that a minister would get involved in this kind of case is difficult to imagine. It’s possible, but it would be done in a very transparent way. I’m confident that the balance we’re trying to —
Senator Carignan: Do you have any examples in mind of situations where a minister would exercise this kind of power?
Mr. McGuinty: No.
Senator Carignan: When the bill was drafted, I imagine they considered possible scenarios?
Mr. McGuinty: No, not necessarily. At the moment, I don’t have any practical examples. We’ve been talking about it for a few weeks, and I think it’s rather difficult to foresee. At this point, I can’t answer you. However, maybe Mr. Holman can.
Major-General Rob Holman, Judge Advocate General, Department of National Defence and the Canadian Armed Forces: Senator, the only thing I’d add is that this possibility is provided for in the Director of Public Prosecutions Act. This power now applies to the judge advocate general. However, it has never been used since the amendments adding that power were made.
Senator Carignan: If no examples of situations come to mind and if you can’t picture a scenario where this power could be used, then why provide for it? It could send a message to victims or the public that there’s a lack of independence.
MGen. Holman: I’d say it could be for operational reasons. It would be for prosecutions related to operational security or the resources needed to support a prosecution or trial. Such situations are possible.
We have examples in the civilian justice system. In fact, the SNC-Lavalin case from 10 years ago comes to mind. That’s an example of the possible involvement of the minister or the Attorney General of Canada in a prosecution.
[English]
Senator Cardozo: Welcome, minister, and the entire team here.
My question is regarding sections 7, 8 and 60, the core of the bill in some senses, where you’re moving various offences from the military courts to civilian courts. It begs the question in some ways: Why not move all the issues to the civilian system? Why do we have a military justice system? Is part of what you’re doing a sense that maybe the military justice system has, in some ways, protected its members and not been severe enough when required?
Mr. McGuinty: There are a number of Criminal Code provisions that are not handled by the Canadian Armed Forces judicial legal system: murder, manslaughter, child offences, child abduction. This would be an additional category. This stems from the fact that based on the work done by Justice Fish, then Madam Justice Arbour, the work done by General Carignan, the Chief of the Defence Staff, on a previous suite of responsibilities where she heard from 14,000 members of the Canadian Armed Forces — hundreds of hours of testimony, written submissions, witnesses galore who appeared before and many who did not.
There’s a fundamental belief that the chain of command makes it very difficult to pursue the prosecution and investigation of Criminal Code sexual offences by the legal system within the Canadian Armed Forces. There’s much evidence to substantiate that fear, I believe. We have an opportunity here to correct it. Does that mean that the entire judicial system in the forces is not working? No. There are many offences that can be dealt with and are being dealt with on a daily and weekly basis. But this has had a very profound impact on the culture and trust inside the Canadian Armed Forces. It is something that we have to deal with, in my view, head-on, especially if you want to recruit more women and other Canadians who are vulnerable who want to come in and serve. We need to make sure that they feel they can trust the system.
Hence the very difficult call was made by Madam Justice Arbour, one that we looked at and decided to move on it, to be able to build more confidence and more trust in the system.
Senator Cardozo: For the rest of the military justice system, are you saying as Minister of National Defence that you have confidence in that system —
Mr. McGuinty: I do.
Senator Cardozo: — to continue with the areas that they are adjudicating?
Mr. McGuinty: I do. I think we have a very strong team. I think this issue, though, is one that transcends justice. This is a question of culture and a question of habit in some ways, and it’s a habit that we’re breaking, and it’s a culture that we are reversing. I think we’ve made major progress in the last several years. Many of the recommendations — I think 198 in total between all the different commissions of inquiry — 140 some have been implemented.
This is of a level, in my view, of seriousness, and morale — and frankly, I also think this speaks very much to continuing support from Canadians for the investments we’re making in the Canadian Armed Forces and defence. We have to get this right, and that’s why we’re lifting these Criminal Code sexual offences out of the organization and into the civilian courts.
The Chair: Thank you, minister. I appreciate that.
Senator Patterson: Thank you very much for being here. Minister, I’m going to go back to some of the discourse in the other place, concerning — it’s about getting it right. One thing that Justice Arbour, or Governor General Arbour, had spoken about was accountability and putting accountability back into ministerial hands, partly codifying it, which is part of what we are seeing here. But one of the elements that we’ve heard both from written submissions as well as from previous witnesses is not doing more harm to people who have been victimized by the system.
There was an exchange of conversation between yourself and Anita Vandenbeld concerning making sure that this exchange to the civilian sector, above all else, doesn’t cause additional harm to victims. You thanked her for her work, saying it’s important to codify this key recommendation, but that you would also be open to the Senate looking at a sunset clause in order to make sure the proper assessment is done to ensure, above all else, we’re doing no harm.
I wonder if you could expand on that a bit. I realize details aren’t available right now, but can you talk about protecting those who have been harmed and also listening to the voices we heard, both in the other place, as well as through testimony and written reports we have here, and specifically linked to this amendment?
Mr. McGuinty: You’re right; I have said clearly that the government remains open to an amendment in the Senate to include a sunset clause that will strengthen the bill. Your role here is important in the parliamentary process, and we respect the constitutional responsibility you have to examine the legislation. We’re hopeful that if you pursue that, that we want to hear more about that sunset clause possibility, what it looks like and what the language says.
Objectively, what we’re trying to do here is to address a problem that has been in the Canadian Armed Forces for a long time. It is one that has been, I recall, previous to my arrival as a minister, it was surfaced publicly in a deliberate way and important way. I remember Madam Justice Arbour’s final press conference at the time and her frustration — her visible frustration — about what she was hearing, what she had heard, what the submissions indicated and what the victims were telling her both in public and behind closed doors, if I recall.
We’re open to improving the bill. I think the sunset clause is a real possibility, but we have to do something here. I’ll be very direct and say to you that when you have 24,000 members of the Canadian Armed Forces who have been compensated for problems, we have a problem. We’ve got to deal with this. It’s very important to be able to do this to work our way forward to continue to have a lethal fighting force — which is the objective of having Canadian Armed Forces — that is able to recruit and to retain. We can’t have people looking over their shoulders. We can’t have them dealing with a rearguard action that involves folks in the forces who are, frankly, conducting themselves inappropriately.
I’m sorry, but we have to get over this and move forward. When I talk to Canadians in church basements, school halls and town halls about what we’re doing in defence, they want to know that we’re dealing with this. They’re prepared to support the Canadian Armed Forces. They want to reinvest and rebuild. They want this, but they also want to know that any kind of lingering challenges on this front are dealt with. That’s why I think this is so important. Thank you.
Senator Yussuff: Minister, I’m going to ask you some tough questions in regard to where we’re at. I say this only in the interests of what we’re trying to attempt to solve here.
Prior to 1998, the civilian courts had exclusive jurisdiction, and we moved it back into the military, and here we’re doing it again. From my perspective, sitting here as a senator, I’m scratching my head and wondering, okay, are we supposed to have any more confidence this time than we did the last time? Let me finish. In the context, of course, of the victims, which ultimately we want to resolve for them that they’re going to get the justice that they’re seeking, and of course, you just said that, in certain aspects of the military with regard to sexual misconduct, we shouldn’t trust them.
If that’s true, the question is: Why is one part of sexual misconduct still being left to the military to deal with from outside the country, as opposed to inside the country, stuff that happens abroad? The point that my colleague just raised in regard to the sunset clause is fundamental for me. What data are we going to collect if we do have a sunset clause? Do we produce one that lacks data? We want to know: Are we tracking the right thing? Will it reveal itself overtime?
Maybe you could also comment on this last point because your colleagues are also here. For two years now, we have been under this so-called civilian system, where folks have been using the civilian system. How much data have we collected in the last two years that can point to some degree of confidence that we’re making the right decision here?
As you said, if we were to pass this legislation and implement it, this would complete the last of Madam Justice Arbour’s 48 recommendations.
I know that’s a lot of questions, but they are all relevant to the broader question we’re asked to consider.
Mr. McGuinty: I’ll tackle the sunset clause data first. I can’t prejudge what it will look like. I can’t prejudge the language or what it might call for. That’s very much in the hands of anybody who is thinking of making or proposing a change.
Regarding the question of what has been going on for the last several years with the —
Senator Yussuff: The last two. You’re thinking of civilian assistance.
Mr. McGuinty: The last two years, basically, were when all matters were moved to the civilian court system. The best example of information we have now is the memorandum of understanding with Ontario, which is a good one in terms of an agreement to, for example, provide ongoing, transparent and timely coordination of information sharing between us and the province. That’s happening: cooperation, coordination and information sharing.
There is additional information I can get to you, senator, in terms of what is collated. We are regularly in touch.
What was the third issue?
Senator Yussuff: The third issue is about the confidence you have or don’t have in military leadership.
Mr. McGuinty: In country or out of country?
Senator Yussuff: One part of this requires the use of civilian courts in Canada, but outside the country, the military will still be responsible.
Mr. McGuinty: Major General Holman, you can handle this one.
MGen. Holman: Thank you, Madam Chair. The rationale behind keeping concurrent jurisdiction outside of Canada is due to a couple of things. One, it recognizes that the military police are going to be better equipped and better able to sustain themselves in doing investigations in what may be fairly austere environments. The military police are trained to do investigations in that space.
But when we think about a Canadian Armed Forces that might have to deploy to conduct combat operations in armed conflict outside of Canada, we want to ensure that we avoid the possibility of impunity for our Canadian Forces members alleged to have committed these sorts of offences in countries where there may not be effective governments and effective justice systems that can deal with them within the territorial jurisdiction of those countries.
There may also be requirements under various Status of Forces Agreements — technical arrangements we have with other countries, where we need to give them assurance that we will take effective measures to deal with indiscipline, including criminal indiscipline, in the Canadian Armed Forces as a way to build trust with the allies and the folks that we’re dealing with outside of Canada.
[Translation]
Senator Henkel: Welcome, Mr. McGuinty, general and distinguished witnesses. My question deals with civilian investigations that take place in remote areas and the fact that the bill transfers investigations of sexual offences to civilian authorities. First, how can the government ensure that civilian police forces across the country have the necessary expertise to deal with cases that take place in very specific military contexts? Second, are there already national protocols with the provinces, or will it be up to each police force to develop its own expertise?
Mr. McGuinty: Thank you, senator. First, as I mentioned, there is already a memorandum of understanding between the department and the Government of Ontario, a model that is currently being shared across Canada for closer cooperation in this area, with respect to support and necessary resources.
Second, I disagree with the idea that civilian police forces will not have access to the necessary information or evidence, or that it will be more complicated than usual. What I experienced as a criminal lawyer long ago is that, on the contrary, our police forces are extremely sophisticated and know how to work on bases. They’re able to get the required legal permissions to obtain the evidence they need to continue their investigation. You could ask the same question about capacity without even talking about the military issue in Canada.
This is an issue we will continue to discuss with the provinces. For our Canadian Armed Forces to improve in terms of trust, we believe we have no choice but to move forward. We need to work with our civilian forces and trust that they will do their job. We reached that decision after thousands of conversations and submissions. For us, it’s the next step to complete the work of Justice Arbour.
Senator Henkel: Minister, the bill provides that sexual offences committed in Canada will now fall under the civilian system, while those committed during operations abroad will continue to be dealt with primarily within the military system. How do you explain that difference in approach? Above all, is it based on a difference in principles or operational constraints?
MGen. Holman: I would say that operational constraints will have a legal impact, meaning that our allies and partners must trust that we will take investigations and trials seriously and punish those who engage in misconduct during operations. That’s an important aspect of trust and interoperability among allies and partners, and that helps.
[English]
The Chair: Thank you.
[Translation]
Senator Youance: Welcome, minister. We’ve received questions and observations from the Quebec bar. I’d like to follow up on two of them.
The Quebec bar is in favour of establishing a permanent military court, independent of the chain of command. The Quebec bar also suggests clarifying the scope of the act, conduct, disorder or neglect to the prejudice of good order and discipline. The second part refers somewhat to Justice Arbour’s recommendation, in which she noted the risk that more serious sexual misconduct might be considered minor. What do you think about this?
Furthermore, with respect to clarifying the scope of the act, if Bill C-11 is passed, would the process for qualifying sexual misconduct be clearly identified?
Mr. McGuinty: If I understand correctly, senator, the two observations you raised are part of Justice Fish’s recommendations. We’re working on it and exploring options.
To begin, we still believe that we must move forward and make the important decision to transfer those cases from the Canadian Armed Forces to the civilian courts. General Carignan might have some comments on that.
General Jennie Carignan, Chief of the Defence Staff, Department of National Defence and the Canadian Armed Forces: I think it should be clarified that the intention of transferring this jurisdiction to civilian courts is a deliberate step. It has nothing to do with the competency of the military police, or any shortcomings or lack of qualifications. It’s about clarifying the jurisdiction for victims.
It’s to make sure that victims clearly know where they need to go, because concurrent jurisdiction creates grey areas. Also, transferring files back and forth sometimes leads to revictimization.
All of this is to clarify jurisdiction. When we talk about international deployments, again, there are specific aspects because of the environment, but even on deployment, in a theatre of operations, victims can still bring these cases before civilian courts.
Ultimately, the military police have the discretion to make the best decision to support victims.
Senator Youance: What about the definition of sexual misconduct itself?
Lieutenant-General Paul Prévost, Chief, Professional Conduct and Culture, Department of National Defence and the Canadian Armed Forces: Thank you, Madam Chair. It was part of Justice Arbour’s first three recommendations to clarify the definitions related to sexual misconduct, namely sexual assault, harassment or workplace harassment, so they’re closer to the civilian definitions.
There was inconsistency between the military definitions and the civilian definitions in the Labour Code. The fact that these definitions have been aligned with the Labour Code and the Criminal Code will make the work of civilian investigators easier.
Senator Youance: Thank you.
[English]
The Chair: Thank you very much.
Senator Boehm: In my previous career, I had the opportunity to discover that it’s not just the Canadian Armed Forces, the CAF, that have difficulties with sexual violence and misconduct. To what extent, in the implementation of the recommendations, some of them already under way by you, minister, or General Carignan, have been guided by what other jurisdictions might be doing, specifically the removal into the civil sphere but also on practical things like training, recruitment and the probationary period that you mentioned, minister?
I don’t know if there are any shining examples out there that you can highlight that may have influenced decision making.
Mr. McGuinty: That’s a profoundly important question and observation about the comparative approaches elsewhere. I picked up some information over time during the last year. I know that colleagues here would have even more. I have seen, in countries like Germany and the Scandinavian countries, that they’ve also been wrestling with this challenge for some time.
I wish I could point to a jurisdiction that has gotten it better at this stage. I just don’t have enough comparative experience, but it’s one that I’d like to see more of in terms of information.
General, do you have anything in terms of what you have seen over the years?
Gen. Carignan: We have conducted extensive consultations with various partners and allies as we were standing up the Chief Professional Conduct and Culture and as we were standing up various initiatives like restorative engagements.
Of course, as we were going through it, the same or similar reports were coming out of Australia, the United Kingdom and Norway as well.
I have to say, as we stand up many new tools and initiatives, we are way ahead. I can say that with a lot of pride. We are way ahead of all of our NATO allies, per se. Some attempts to stand up an organization like Chief Professional Conduct and Culture have failed. It is extremely difficult, and it needs a lot of support, including the kinds of support that we got from both the Canadian public and the government. That’s the type of support that was needed to actually stand up and do the types of things we are now doing with a lot of initiatives under way.
Senator Hay: Thank you all for this. This is incredibly hard work; there’s no question about it. I want to extend a thank you to the survivors, the victims, those who came forward and those who haven’t, just for the epitome of courage and bravery that they are.
I also thank you for speaking about the help line that’s available. If I may, there is a 24-7 adult text crisis line, confidential and free, at 741-741. It’s available 24-7, as is 988. For youth and children who are also impacted by this, again, a confidential and free text number is available 24-7 at 686-868.
From my experience, and as you pointed out, trauma is often long-lasting, silent, hard to see when it’s going to come and has many triggers to it. It doesn’t just turn off and you say, “Oh, phew. The trauma’s over. We’re good.”
Sexual assault is in a different kind of category as well on trauma and retraumatizing, and I appreciate you pointing that out.
My questions are along the lines, if I may, of, “Do no harm.” How will you know if you have done no harm? Here are my questions. What tracking, if that’s the right word, happens once the case is off-loaded or moved over to the justice system? How is that individual supported during that transition into yet another intimidating environment that could be retraumatizing?
I’m trying to understand. Please, help me understand the support there. Again, I’m just thinking about that one person who still is working with the CAF or within the military, and their career is important. What happens at work for protection and psychological safety and so that career advancement doesn’t get sidelined? Thank you.
Mr. McGuinty: I will respond quickly, senator. On several occasions, I have been in town hall situations on bases across this country. At the end of the town hall meetings, I noticed that one or two members — usually one individual member — were waiting to speak to me.
That person pulls me aside and talks about exactly the trauma you’re talking about, which I then bring back to feed into the system to make sure they get the support they need. It’s real. It’s live. It’s out there. I will be very honest with you; it infuriates me.
In terms of the supports, General Carignan and Lieutenant General Prévost have put a whole series of investments into the system. They can give you more details. I would ask them to give you that, to give you some comfort on the investments and more liaison officer support.
General Carignan, do you want to speak about that?
Gen. Carignan: The first basic principle is that each survivor will be different. Each survivor will require a different support or different action. We have learned that we need to adapt to that reality. Depending on the need, there is a suite of supports available, both from a chain-of-command perspective in terms of supporting the member’s environment and climate, and, also, for personal and confidential support that is offered by the Defence Community Support and Resource Centre.
That is our tailored approach when incidents of sexual assault or misconduct happen.
LGen. Prévost: I’ll fill in a bit, but General Carignan is absolutely right there and maybe to Mr. Gravel after.
The fact is, with Bill C-11, the jurisdiction was switched to fill civilian courts hasn’t changed. The support that the chain of command poses to the member provided that a member comes forward to the chain of command about the terrible events so the chain of command will have the same responsibility. We do have training starting in our schools and in command courses on the trauma-informed approach and how to deal with victims. So education is the same, and our obligation to do a duty of care will be the same regardless of where the offence will be tried.
Same thing as General Carignan mentioned about the Defence Community Support and Resource Centre that Mr. Gravel directs there, regardless of where the offence will be tried moving forward in this world. The mandate remains the same. Mr. Gravel?
Martin Gravel, Chief Operating Officer, Defence Community Support Resource Centre, Department of National Defence and the Canadian Armed Forces: Thank you, senator. Thank you for bringing forward the other resources that are available to victims.
As mentioned already, yes, the Defence Community Support and Resource Centre will, regardless of whether a case goes through the civilian system or the military system, offer the continuum of supports and services to victims, free of charge, trauma-informed, confidential and independent from the chain of command. It ranges from everything from a 24-7 line, a counsellor and a case coordinator to accompany them through the whole process, as well as independent legal assistance, direct lawyers working directly with the victims and liaison directly with either the military system or the civilian system in the same capacity.
That is the continuum of services and supports that we offer to victims that will be available again in the same capacity as it is right now.
Senator Hay: Thank you.
Senator Duncan: Thank you, minister, and your staff for being here, and to my colleagues for allowing me to enter into this debate.
I have heard a lot of mention about a sunset clause. I believe there is a bit of a risk of a legislative void if Parliament were to prorogue or if there was a period of time when Parliament wasn’t sitting. As an alternative, would you comment on whether the government would be open to a clause requiring a statutory review of the transfer of cases from the civilian system rather than an outright sunset clause?
Mr. McGuinty: We’re in your hands. We’re open. This is with the committee, with the Senate. We are looking to improve. We’re looking to deliver this recommendation, recommendation 5. We’re looking to see it implemented. How we treat it over time is something I would love to hear more about. If there is a proposal to make, it should be made. We can obviously deal with it when it comes back.
Senator Duncan: Thank you.
Senator Patterson: Thanks, Madam Chair. This is very specifically linked to the military police and the victim support services they provide as part of their services. Given that there is going to be a transfer of certain cases into civilian jurisdictions, where do you see these services evolving to? Are they still required or will you reinvest in other areas?
Mr. McGuinty: Madam Chair, did you want to take all the comments or just —
The Chair: I want the question and then the second question and then the answer.
Senator Yussuff: Changing culture is not an easy challenge. Some would argue that changing the culture of the Senate has not been an easy challenge either. We’re not here to judge. We’re just observers in the context of the challenge we all have.
The Canadian military is part of our family as a nation. If we don’t have them, our sovereignty will be jeopardized. Recognize, we choose a lot of people through the recruitment process, and no different than the rest of us in society. We are not perfect human beings. Working on changing that culture will take a lot of investment over generations.
This is my number one question to you, minister: Are the support and resources going to be there for generations yet to ensure we achieve the greater objective, where the culture and the military do change, so we don’t have to seek civilian courts or a military court to deal with sexual misconduct in the military going forward?
With that also too, our country is very diverse. It’s not one. And given the diversity of this country and the recruitment we’re attempting to build our military to represent Canada, how do we deal with the racial challenges we also face in the military at the same time?
The Chair: We have two questions, and then a sneak return from Senator Carignan. What would you like to add?
[Translation]
Senator Carignan: I’d like something clarified.
You cited the figure of 14,000 victims or people consulted, and Mr. Fowler said that wasn’t the correct number, so we have two witnesses with different figures. I’d like some clarification on that.
Gen. Carignan: Various groups participated in the consultations that were held over a period of more than a year.
The 24,000 number refers to the people who are part of the class action. The 14,000 figure refers to the people we met with in more personal meetings.
That includes smaller discussion groups, about 9,000 people. Other people participated in larger groups, for a total of 14,000. There are another 3,000 people, so 17,000 people were formally consulted to implement various initiatives.
Senator Carignan: The figures were contradictory. Thank you very much.
[English]
Mr. McGuinty: Mr. Gravel, did you want to respond?
MGen. Holman: I’ll do one quickly. There are still going to be victims of other types of offences, so the military police will continue to need to do victim services for the victims of those offences as well, and while they may not have jurisdiction to investigate after the bill comes into force, they may still receive complaints, and they may have people who would require the services for sexual offences in those cases as well. The Provost Marshal is appearing after we are and might be better positioned to give you more detail.
Mr. Gravel: What I’ll add to that, again, going back to the victim’s support for legal assistance — again, going to the civilian system — the independent legal assistance we provide within the centre will continue to be available. So we provide legal information, legal advice as well as legal representation for certain matters to victims. Again, with cases going to the civilian systems, those services will continue to be available free of charge, no wait-list, confidential and independent from the chain of command.
LGen. Prévost: I’ll take the question for Senator Yussuff. Yes, senator, culture change is a long-term endeavour, but we are committed to sustain the effort. General Carignan stood up the organization I lead. That’s the big change, from before General Carignan, before 2021, we didn’t have anybody in charge of culture in the department. We now do. I succeeded to General Carignan. Lots has been done.
We talked about 126 of the 194 recommendations right now are complete. We’ll continue to work on those efforts and education, the most important part of it. We’re changing structure, but we’re changing education as well over time. Much has been done if you read the report of Madam Jocelyne Therrien, who was the external monitor for the minister here. She summarized that we had the genuine will to change, and we’re making impactful changes, but we recognize there are still incidents ongoing. We recognize there are some challenges. It’s a bureaucratic institution that takes time. We don’t have enough data. Someone mentioned data; we don’t have enough data. Maybe we have enough data, but we don’t understand it all, so we have to work on this.
Mr. McGuinty: Senator, we have no choice but to make progress. There’s no choice here. It’s part and parcel of the work-in-progress called Canada.
We owe it to the members of the Canadian Armed Forces. We owe it to the recruits. We also owe it to Canadians who are supportive and growing in their support to make improvements.
I’m not saying we’re starting at zero, because we’re not. Huge progress has been made. One of the mantras I live by is sometimes the best way to start is just to start.
We’re well down the path to making improvements. We have more to go and do. This is a big part of finishing up some of the early work. I’ve been very encouraged in the last year in terms of seeing the speed with which we’re moving on cultural issues and small things that add up.
Here is one: We’re going to get women their own uniforms. I’ve been told that women have been waiting 40 years for uniforms. We’re going to do that. We’re close to it. We’re going to keep making these changes and improvements, which will make it a safe, reliable, trustworthy place to come to work in the morning.
You want to bring your service and your passion for Canada and your belief in something bigger than you. We owe it to the people who work there. We owe it to the women and men of the Canadian Armed Forces to improve this situation.
Certainly, it’s a big priority for me. I know it’s a big priority for the leaders of the Canadian Armed Forces in the department and the Prime Minister. We’re hitting these singles one by one. We’re hoping to get Bill C-11 through. We’ll go back at it again and find out what other changes we have to make to accommodate on the diversity and recruitment side, for example.
I was at a cadet event on the weekend with 160 cadets. It’s a thing to behold, a marvel to behold. It was beautiful, every colour of the rainbow, every background, kids from everywhere, remarkable.
Sixty-two thousand kids now across the country in the cadet movement are putting something bigger than themselves forward, which is why we have to get this better. It’s a work in progress. With your help, we’ll be able to get Bill C-11 through.
Then we’ll go back at it again. We have more recommendations to implement, Madam Chair. I want to thank you all for your service and insight. The fact you’re taking time to look at this as seriously as you are, it is very encouraging for us as we continue to rebuild, rearm and reinvest in the Canadian Armed Forces.
This is an important moment for us. Thank you so much.
The Chair: Thank you to everyone who is here this evening. You’ve talked about safe, reliable, respectful environments. As a committee, we’re here to serve in this role so that our CAF, every single one, has the best tools to be successful. This is an important juncture in time. We thank you for being here this evening and taking the time to meet with us.
We just heard from the Honourable David McGuinty, Minister of National Defence, General Carignan, Lieutenant-General Prévost, Major-General Holman and Mr. Gravel. General Carignan, Lieutenant-General Prévost, Major-General Holman and Mr. Gravel have graciously agreed to stay with us until seven o’clock to answer any remaining questions we might have.
[Translation]
Senator Carignan: I’d like to come back to the directives that the minister can give to the director of prosecutions. The area is a bit technical in terms of transparency. The bill says the instructions or guidelines will be made available to the public, but as the director of prosecutions, you have the power to delay making an instruction or guideline public.
Do you not see that as being contradictory to transparency? The instructions and guidelines themselves are problematic when it comes to independence, including the ability to delay making them available to the public, with all the potential impacts that may have —
MGen. Holman: Thank you for the question, senator.
There are two considerations here. First, the power to delay publication rests with the director, since the director is best placed to assess how the public and those subject to the director’s discretion perceive that independence.
Second, the idea is to strike a balance between public trust — which is well served by transparency — and having enough flexibility to deal with contingencies when someone needs to be responsible. The judge advocate general is currently responsible, but if the bill becomes law, it will be the minister.
Such situations are possible. It may be easy to say that the power should be removed, but I’m sure it wouldn’t take long to identify a situation where it would be better to have some flexibility. This is not something that will be used on a regular basis, but I think it’s important, for flexibility and operational support, to have a way to issue directives.
Senator Carignan: I understand. I don’t want to take up too much of my time, because I have another question. Thank you very much.
I have a question for General Carignan. Throughout the evidence we’ve heard, witnesses have frequently cited Justice Fish and former Justice Arbour, who is now the Governor General of Canada. There are also the recommendations of Justice Deschamps, a former Supreme Court justice who did extremely valuable work and said that we should keep this option.
In 2020, an expert panel issued a report in Quebec containing 190 recommendations. The title of the report was Rebâtir la confiance, and among other things, it dealt with victims of sexual assault in the civilian system. I’m having a bit of trouble because we are trying to rebuild trust within the Canadian Armed Forces, but we are sending these cases to civilian courts, which are experiencing the same crisis of confidence. Don’t you think that it would be a good idea to keep this option?
Gen. Carignan: This is an extremely important question because the issue concerns group dynamics within the Canadian Armed Forces. The difference in our environment is that we work together; we work and live in the same place where we live, ultimately. The teams work very closely, especially on deployment, so that aspect is different.
The bill establishes independence within the chain of command, which works very closely with all members of the Canadian Armed Forces. It is really essential to create that independence. I don’t think any justice system is completely without fault; all systems make mistakes and face challenges. In our case, the priority is to create that independence within the military chain of command, precisely so that people can have trust in the system because it’s separate.
Victims still have a lot of options when an incident occurs. For example, they can decide not to inform the chain of command at all and have their case dealt with separately in the civilian system. Some victims prefer to notify the chain of command so it can intervene. There are a lot of choices that victims and survivors can make under the type of law we want to implement — hence the importance of having a civilian system for sexual crimes.
Senator Carignan: Thank you.
[English]
Senator Cardozo: General Carignan, thank you for being here. I noticed that, today, during the ceremony, you had to stand the whole time. I’m glad we could find a chair for you today. I want to assure you, you will always have a chair and be welcome at our committee.
I wanted to thank you for clarifying the numbers as you did in the previous session because the previous witness had suggested, as I understood him, that Justice Arbour had heard from 14,000 people, or, at least, he heard that from somebody at the committee. There are a whole lot of people who were heard from. I think you clarified that it’s DND and CAF who have heard from that number of people.
Gen. Carignan: I was speaking to the numbers I have been compiling. These are the numbers that we did, as we initially consolidated the work in 2021.
I believe Justice Arbour’s methodology is front and centre at the beginning of her report. From memory, I can’t recall what the exact number is.
Senator Cardozo: In your discussion with Senator Carignan, you talked about military justice having independence from the chain of command. Forgive me, but I find it a bit concerning that the military justice system doesn’t have independence from the chain of command. Could you clarify that?
Gen. Carignan: The military justice system is administered by independent actors, but it responds to a need for us to have the ability to discipline personnel when they misbehave and conduct themselves inappropriately. That is kind of what we are seeing here.
There are independent actors as part of the military justice system, but because of the various dynamics that we sustain within the military, the creation of an independent mechanism where victims can go and get their charges administered via the civilian system, for us, as per Madam Arbour’s recommendation, was the best possible avenue.
Senator Cardozo: The people adjudicating are judges in the military system; are they independent of the chain of command?
Gen. Carignan: They absolutely are. The theme of Bill C-11 is to create more independence for the military justice system, but also modernize various mechanisms that we have to ensure that we stay in lockstep with what is being done in the Criminal Code of Canada as well. This is not something that we do totally on our own. The military justice system needs to remain aligned with what is being done in Canada as well.
Senator Cardozo: Why do we have a military justice system as opposed to having everyone go through the civilian system?
Gen. Carignan: We probably need more than 10 seconds for this one.
Senator Cardozo: Thank you.
The Chair: It may reemerge. Thank you very much.
Senator Patterson: It may vaguely reoccur here. We actually know that sexual violence or any violence within the military is analogous to family violence, because you, as the Chief of the Defence Staff, are responsible for both the victim and the accused, and that is something that really distinguishes us from the civilian sector. People don’t just go off and go somewhere else.
When you’re looking at discipline from a chain of command and what you need, you must be able to address fairly, equitably and justly both the victim and the accused. That’s laying some of the groundwork.
The question is: With this transfer of criminal sexual behaviour to the civilian system, how will that help you better balance the needs of both the victims and the accused within the system? We know that the soldiers, sailors and aviators are watching every move the chain of command and the justice system makes in how we treat it, and we can divide a force just as easily by being unjust with the accused as being unjust with the victim. How do you see this helping you on that front? Thank you.
Gen. Carignan: The way this helps me. Within the National Defence Act, the role of the Chief of Defence Staff is the control and administration of the Canadian Armed Forces. That’s what my job description is. A military justice system allows me to do just that, and it allows me to basically look after both a victim and the aggressor. This is incredibly important on top of the issue that we don’t necessarily operate in Canada, where things are fairly stable, but we also operate in a very volatile environment, and we need to have the mechanisms and the tools to be able to discipline our personnel.
How this bill will help overall is to create and modernize the military justice system with more independence and, again, standing on a more solid foundation in that way.
The second piece is recommendation 5 of Madam Arbour, which transfers the Criminal Code sexual offences under civilian control. How that helps is that it clarifies the jurisdiction. It removes the grey area, where at times things could go from one to the other. It clarifies jurisdiction for everybody.
Where we have that specific area is when we deploy, where we will keep concurrence of jurisdiction, but again, the military police’s discretion can be applied still, depending on the situation, to transfer the case to the civilian authorities as well.
From my perspective, it offers more choices as well to the victims in terms of how they want to manage their own situation, either with the chain of command or not at all. That allows them to have complete discretion on the civilian side if they don’t want to.
Senator Dasko: Thank you for staying and taking our questions. There’s a long timeline here of studies. It looks as if it started with Madam Justice Deschamps’ report in 2015, in which she described a highly sexualized culture in the Armed Forces and the need for cultural change. She was able to describe it that way in 2015, and we should be able to know whether it has changed. Here we are, 11 years later. Could you comment on that?
As well, in terms of incidences of sexual assault or sexual claims, you must collect such data. I would be very interested to know how that has changed over time. I know it can be subject to different interpretations. More people can feel free to claim in a better environment and so on, but I wonder if you have anything to say about the incidences and what that is.
Gen. Carignan: One thing that we have learned is not to declare victory when the numbers look good. This is a hard lesson that we have learned over the years, because we understand the dynamics are very complex for reporting. There are a lot of complexities behind members deciding to come forward or not. We have been working for some time to develop a way to measure and monitor ourselves. The idea here is to remain very vigilant about our personnel and go out and measure in various ways and consolidate that information.
I’ll pass it on to Lieutenant-General Prévost.
LGen. Prévost: Thank you for the question. General Carignan is absolutely right here.
You cited 2015 and today and what has changed. In 2015 and Madam Deschamps’ report, we didn’t elect at the time to put somebody in charge, to form a team to look into the issue. That’s what changed in 2021, when General Carignan was appointed. That is a change.
In terms of data, General Carignan is right. We have to be careful with data. I’ve mentioned before that we do collect data. Right now, what we have seen consistently since 2021 is a reduction in reporting every year by about 50. We started with around 500 cases in 2021, and we’re down to about 350 now. There’s a consistent decline in the number of cases reported.
Senator Dasko: From 2021?
LGen. Prévost: From 2021 to today. There’s a reduction every year in the number of cases.
This is always where we have to be careful. Is this because those things are still happening but are not reported?
At the same time, we collect other data that shows that the confidence from our members in reporting incidents is increasing, in the 80% range, which is a drastic range from 2022 to 2024. So more confidence in reporting incidents, more confidence that the chain of command will do something with the information, and more confidence in the fact that there will be no reprisal. The confidence of the members is increasing, and the reports are going down.
We don’t have all the data. Mr. Gravel will see the other side of the coin, where members go to the Defence Community Support and Resource Centre, or DCSRC, because they do not trust the chain of command.
We’re not mature enough in terms of data to put all that together to be able to say we’ve fixed the issue, but at least the trends are positive: more confidence in reporting and fewer reports coming in.
Also, one data we measure very well is when General Carignan started this, it took the CAF about 622 days — I remember the number, actually — to solve a case. Today it takes 100 days, 3 months, to solve a case. Half the cases reported are reported within one week of the incident.
You can see that we’re on the right trend, but like General Carignan said, we’re not celebrating yet. There’s still much work to be done.
Senator Dasko: It fits into your analysis of culture change.
LGen. Prévost: Yes. We have been really — Gen. Carignan started the work, and 500 people are studying the problem.
We mention in the other session we’re ahead of our allies and many of our sister departments in town. We’re always researching with SMEs and other groups that are helping us through the endeavour. There is positive change, but it’s difficult to see how we’re going to measure. We have been good at measuring the work and the definitions. We’ve changed the policies we put in place; a structural change.
Now we’re turning our minds to how we can measure behaviour, which is difficult for every organization.
The Chair: Thank you.
Senator Yussuff: Let me start by thanking you, General Carignan, for the burden of responsibility for what you’re trying to do. As a woman, and, of course, in a male culture, I can’t imagine the challenges you face, but the reality, of course, I see that failure is not something that you take lightly.
Given the two years we have been using the transition into the civilian system — recognizing the data is not perfect, and you have to find different ways to analyze and collect that data — are the trend lines indicating to you something positive starting to evolve in how people are responding, but equally how they are reporting incidents with sexual violence or harassment?
Gen. Carignan: Anecdotally, the interactions I have with the chain of command — here I’m talking at the very junior level, the first level that usually deals with the incidents — the level of comfort on how to go about managing when an incident happens is increasing. The trauma-informed approach is something people are becoming more comfortable with.
I also have to talk about the restorative engagement program — Mr. Gravel can certainly elaborate — but it is an unprecedented program. None of our allies have come even close to doing something like that. We basically come together between defence representatives and survivors, and there is an exchange on the experiences. And the lessons learned from this survivor’s experience are being fed back into the system to make sure we constantly improve.
It’s not an easy process, but, again, speaking with my Australian counterpart, I think they had engaged with approximately 800 victims, but our program is much more elaborate.
I think I can ask Mr. Gravel to speak to that as well.
Mr. Gravel: Absolutely. Thank you, general. So the restorative engagement program — earlier on we mentioned the class action for sexual misconduct, the Heyder-Beattie Class Action. One of the measures in the class action was the restorative engagement program, which my centre delivered.
The restorative engagement program has come to the end now. We have concluded that piece, but we are now producing a final report. The final report is intended to bring in the insights we gathered from class members who engaged and had discussions with defence representatives as part of the restorative engagement program; insights and lessons learned.
One of the things we are looking to do with this report is not so much to produce a series of recommendations on policies and training, and so on, and system improvements. This is really to demonstrate how victims and people are experiencing policies?
Whether it’s a system, a policy, training or an initiative is one thing on paper, but what we’re trying to do right now is assess how those victims and affected persons are experiencing those types of systems.
This is what the final report is intended to highlight, and to bring some insights for the organization. Again, to continue to educate the institution on more culture-evolution initiatives.
Senator Yussuff: One final point. Have you considered doing more anonymous surveys where people could basically tell you what their experiences are in the system without having to identify who they are? That would provide a more wholesome opportunity to hear what is being considered, thinking, and not necessarily to have to be a victim in order to participate?
LGen. Prévost: A few seconds? Yes, all the surveys we conduct are anonymous to start with. We conduct them either through StatCan — it has been awhile since we have done that, but there are internal surveys, which we call “unit climate” surveys. They are all anonymous.
We also have a team called the “leadership support” team, which travels from unit to unit, gathering data anonymously but having frank conversations with the members of units as well. A lot of the reporting we do is based on anonymity.
The Chair: Thank you.
Senator Boehm: I’m really following up on my colleague Senator Yussuff’s question. For you, General Carignan, in Minister McGuinty’s news release last September, introducing this legislation, you were quoted in part saying:
These reforms will enable our operational effectiveness and support a respectful culture that will ensure our institution continues to earn the trust of CAF members and the Canadians we serve.
So my question is about a more general consultation and communication. Can you speak to the specific measures taken to consult all CAF members — and I have heard a bit about that now — but not necessarily the victims, and how changes are being communicated throughout the system? So all the way down.
Gen. Carignan: I can start, and I think you have more on this.
As part of our normal activities, there are listening — what we call “listening sessions” organized throughout the Canadian Armed Forces, various forums and various levels. Young, junior leaders have a different reality than members and general officers, so we have a broad range of different experiences across the CAF. Those are always areas where we gather feedback.
The other feedback we are gathering is — General Prévost just spoke to it — we now have a team that intervenes with various units and formations across the Canadian Armed Forces. They have a scientific climate assessment survey they do within the unit. Based on the results, the team enables the command team, or the chain of command, to take the necessary interventions, depending on what was specifically identified. So it’s a tailored approach for different environments. It’s different if you’re at sea; if you’re on base; if you’re deployed. There are different realities, and it’s a tailored approach to basically elevate cultures within units.
All of this is about generating a high-performing culture where people are at their best. When people are at their best, they can perform better.
Senator Boehm: Thank you for that. Do you then communicate outwards by saying, this is what we have heard, and this is what we’re going to do?
Gen. Carignan: Can you speak to the feedback loop?
LGen. Prévost: Thank you for the question, senator, and Madam Chair.
Most of the initiatives we have put in place — there are 126 we have been talking about — but there are many more as well that have come from those recommendations.
There is a communication plan, internal, and most of the time when we communicate internally in the Canadian Armed Forces, it ends up being external. You may have seen last week we talked much about the new policy on personal relations inside the CAF; it was on the media.
All of our education institutions — the military colleges in Saint-Jean and Kingston, the recruit school, our school in Toronto — my daughter is a brand new student in Saint-Jean. I asked her if she talked about these things, and they do.
I personally engage with all new commanders coming into the CAF, through the command courses they follow, to discuss those new policies to make sure they understand their accountability with those new policies.
Like General Carignan mentioned, there are those listening sessions. We hear more and more in those listening sessions that they feel the vibe; they feel we’re heading in the right direction. They are asking that we continue that work. We’re talking a lot about sexual misconduct here today, and what we have to put more on our radar is discrimination writ large in society but in the CAF, as well.
The vibe about recognizing there are still some harms in terms of sexual misconduct, but people feel confident we’re on the right track. More so, they are flagging discrimination writ large.
Senator Boehm: Thank you.
Senator Hay: I apologize if this has been answered. Also, I’m probably going to get a little intense with my question.
Back to tracking and following up with individuals who have come forward — or not; I always have to add that — and your work with folks with lived experience.
In those situations, I would suspect that the trauma experienced would, in some cases, keep expanding — that sphere of trauma would keep expanding — for the individual — deep distress and retraumatization. Families are often in distress in such an environment, and they are in strife. The job itself is high stress, so there is that component. Stigma is alive and well, and I would suspect it is alive and well in the military. The length of time for resolution — and “resolution” doesn’t mean that lived experiences are now in the past.
Do you have data? We have talked about data, but are you tracking escalating mental health challenges with individuals and families? I understand this could be triggering, but there is a high degree of trauma like this in suicidality. Are you following and correlating that?
My question comes down to this: When you see the flags, if you see the flags, what do you deploy as additional resources?
Then, my final big question is for you, Mr. Gravel: What are your thoughts on Bill C-11 for a person with lived experience?
Gen. Carignan: We are really designing a tailored approach for each victim or trauma survivor. We have various avenues of support, depending upon the person’s needs. We have chaplains who offer a range of services, Mr. Gravel’s organization and clinical support, so there is a combination of all of that surrounding our members.
With the increase in defence investments last year, we have been able to baseline our health services supports, which provides a lot of stability in terms of hiring the specialists and the amount of mental health specialists we need.
So, there is a whole network of various supports available to members, depending upon their needs.
I also have to mention the Sentinel Program that we have, where we are training peers among every organization in the Canadian Armed Forces. They wear a patch and are clearly identified as sentinels. If you look around on our operational uniforms, you will see them. They have the patch.
They work with their teammates, and they have been trained to support a member who was sustaining a personal crisis or even for suicide prevention. There are enablers in another way. Often, people prefer turning to their peers before they go to see the police or doctors, but the sentinels are trained as peer support among our members.
Mr. Gravel: From our experiences with people with lived experience and victims, there is no single perspective or view on victim choice of the concurrence of jurisdiction. We are hearing time and time again about trust and the loss of trust in the system. Bill C-11 is intended to rebuild part of that trust in the system.
From our perspective and that of the people coming to us, we want to meet them where they are and empower them in the areas they have choices or options. It’s really about what you mentioned, which is meeting them where they are in their journey or recovery from a trauma-informed perspective. That is really the focus of our services. We’ll continue, whether it’s a military system or a civilian system, it will be the same approach.
The Chair: Before we go on, I will ask a question or follow‑up on something that was mentioned earlier, which is the Restorative Engagement Program. I suspect it falls along the principles and values of restorative justice in your environment.
Is it something that is done as a series of options presented to CAF members, or is it something that comes externally, and we encourage you at that point to better manage the following situation via a restorative opportunity? How does the individual have this opportunity; do they choose it, or is it part of a series of choices? How does it fit?
Gen. Carignan: There are two different things. The Restorative Engagement Program was mandated via the Heyder‑Beattie Class Action settlement, where we trained our defence representatives specifically to be able to engage in a trauma‑informed way with people with lived experience.
It was mandated, and I think we had — is it 2,600, Mr. Gravel?
Mr. Gravel: Yes.
Gen. Carignan: We had 2,600 affected class-action members who basically went through the process and engaged with a whole diversity of defence representatives, whom we had trained across the Canadian Armed Forces and the public service, as well, within DND. It is one part.
The other parts are called the restorative approaches, where they are ways to solve conflicts between individuals or to repair harms in a safe manner with professional practitioners. Again, both parties are being prepared before they can get together. It is voluntary. Mr. Gravel is leading that approach from the centre. It provides us another tool to use conflict as a way to build our teams.
That is where we want to go overall with complaints, whether they are grievances, misconduct or something different — the whole suite of complaints within our complaints system, complaints need to be a way to build teams where members can come together and then repair the harm and continue serving in a safe environment.
The Chair: It is good to hear that.
Senator Patterson: We talk a lot about the critical work that is being done at home, but our job really isn’t at home. It’s elsewhere. Can you please tell me or share with us how this work is contributing to operational effectiveness in Latvia or some other combat theatre of operations that we don’t know what the future is going to bring? How does having a just culture within the Canadian Armed Forces, where respect is there, help in the job that you do, that no other Canadians do?
Gen. Carignan: The military is all about teams coming together to conduct missions in sometimes very difficult circumstances and hostile situations.
When team members trust each other and feel that they are being supported and heard within their own teams, that increases their performance and chances of being successful at the very difficult tasks that we are giving them. This is a very difficult thing to do. Working in a group is difficult. Sometimes going alone gets you to do things faster, but doing it together gets you to do it a lot longer and a lot better. But it is a difficult thing to do. Getting humans to work together toward a common goal is really what this is about, and creating the environment where this becomes possible.
Maybe I can give a very simple example on how culture has a huge impact on lives, and getting an organization to perform in a better way is flight safety.
If you will recall, in the 1980s, there were a lot of airplane crashes where hundreds of people died in accidents. The industry then decided they were going to implement flight safety, ensuring that every time there was a mistake made, this mistake would be shared across every organization so that the same mistake would not be made four more times, with more people dying. This is why, today, it is safer to fly than to drive our own car. That’s what culture does to an organization. It increases their level of performance.
In the end, this is what we are seeking to do by having, again, a climate where people can show up to do their best when they come to work in the morning, both here at home and on deployment.
Senator Yussuff: As you’re aware, General Carignan, the civilian justice system is not a perfect one, and the military justice system is not a perfect one. But victims are looking, obviously, to be remedied when something happens. Having choice is not so much what you’re looking for; you’re looking for justice. In both systems, there will be failures. How do we counsel the victims, recognizing this is a reality? It’s a democratic system; we don’t get to pick the outcome. We put our best argument before, and hopefully, the result will resolve what you’re hoping to seek.
So recognizing the multitude of victims you have dealt with, and we’re trying to put a new system in place. How do we give them the confidence to have the strength to do this and to take the risk necessary?
Gen. Carignan: I think we will be, of course, monitoring this very closely. We also have the Victim’s Liaison Officer service that is also available to victims. Those liaison officers are trained to accompany victims throughout the process to enable a victim’s navigation through sometimes very complex justice proceedings.
We also want to have good relationships with the provincial authorities and unlock different MOUs to streamline the process as well. This will be part of the work that we are going to do to ensure the best possible response to any incident, and of course, as we move forward, initiate the proper reaction in order to best support our members who would have to go through those justice proceedings.
Senator Yussuff: We have a couple of more days to try to get through this bill, and I’m sure we are going to hear different perspectives.
Thank you for coming here, and thank you for being very candid. I know what you are responsible for, and what you’re taking on is not an easy task. Changing culture in an institution that is steeped in tradition is not an easy thing. People don’t wake up in the morning and decide that they are going to do things differently because you tell them so. So thank you for the conviction to keep at it. At some point, hopefully, in the near future, my daughter or my grandkids might benefit from your work.
The Chair: Just to perhaps jump on to that, I have a very excited nephew who has been telling his aunt that he finally got his collars. It’s really exciting, and it takes a while — the training and the beginning. It’s just interesting listening to his eyes and ears. He failed the initial medical. So there are other opportunities that abound, and it’s exciting to see that in the next generation.
This brings us to the end of the panel. I know there are four of you at the table. I really want to acknowledge all those who have stayed and who are behind you, the team and behind the team. Your service is so greatly appreciated. The work is incredibly important. It’s complex, and it’s probably never done, but the effort to improve performance and effort to improve the conditions are critical. We all play a piece in that. So thank you for that.
Thank you, General Carignan, Lieutenant-General Prévost, Major General Holman and Mr. Gravel for taking the time to meet with us today.
For this final panel of the evening, we’re pleased to welcome Brigadier-General Vanessa Hanrahan, Canadian Forces Provost Marshal; Colonel Nooral Ahmed, Director, Defence Counsel Services; and Colonel Dylan Kerr, Director, Military Prosecutions.
Welcome. Thank you for being here. We’ve had a full and fulsome meeting, and we look forward to this closing session. We’re going to start by inviting you to provide your opening remarks to be followed by questions from our members, and I remind you that you each have five minutes for your opening remarks.
We’ll begin this evening with Brigadier-General Hanrahan. Thank you.
Brigadier-General Vanessa Hanrahan, Canadian Forces Provost Marshal, Department of National Defence and the Canadian Armed Forces: Madam Chair and distinguished members of the committee, thank you for the invitation to appear before you today on Bill C-11. I’m here to provide the perspective of the military police.
Since 2011, the military police have operated under legislated independence, reporting solely to the Canadian Forces Provost Marshal and are fundamental to the integrity of the civilian and military justice systems. Amendments within Bill C-11 reinforce independence for the military police. That includes making the Provost Marshal accountable to the Minister of National Defence.
These measures strengthen public confidence, place the Provost Marshal on par with the RCMP commissioner and recognize the military police as a federal policing entity and not simply an internal Canadian Armed Forces organization. Canadian policing is based on Peel’s principles, and essential to this is community policing. Civilian police forces ensure their members are integrated in the communities they serve to better understand them and, therefore, provide a better policing service.
For the defence community, this is the military police. They spend their careers integrating into the defence team, getting to know and understand communities and, more importantly, building confidence. As such, the military police are best poised to deliver policing capability for members who serve their country and their families. Military police meet professional standards comparable to civilian police services across Canada. Their training ensures consistent investigative techniques and legal standards, enabling effective collaboration with all our civilian partners.
As noted in the letter of the president from the Canadian Association of Chiefs of Police, they report that the military police are a professional and credible police force. I believe their comments support the claim that the military police are an integral part of the mosaic of Canadian policing. The military police also operate within a robust accountability framework, just like any other police agency. Under the National Defence Act, there’s a legislative process for public complaints to include an independent civilian review body that can review and conduct independent investigations into the conduct of the military police or allegations of interference with their policing duties and functions.
Additionally, all members of the military police are held to an independent and formal professional code of conduct. The military police are the only organization within Canada with the authority to investigate Criminal Code offences and lay charges in both the civilian and military justice systems. Because of this and combined with our jurisdiction, military police have, since the interim recommendation of Madam Arbour, effectively adopted a victim-centric and trauma-informed approach to all allegations of Criminal Code sexual offences and transferring, where possible, to the civilian authorities, while investigating those who were not and laying charges in the civilian justice system when appropriate to do so.
Understanding that, through the loss of concurrent jurisdiction, the bill as currently proposed is a foundational shift in the way the military police provide a policing service to DND and CAF in relation to criminal sexual offences. We are poised to move ahead, though, as required. We will continue to ensure that the immediate personal safety of victims is prioritized and to offer them support in the referral process, within the limits that the bill imposes.
We will work diligently with our policing partners in Canada to ensure we are working to diminish, although we cannot eliminate, the impacts on those most important — the victims.
I have already issued interim direction to the military police. I directed that, effective June 15, 2026, all military police will cease accepting any new complaints involving Criminal Code sex offences or other offences of a sexual nature falling within the scope of Bill C-11.
This direction is being issued as a preparatory measure and is intended to ensure the military police are positioned to address existing investigative files to include the transition of files to civilian police, responsibly, lawfully and professionally, while prioritizing investigative integrity, victim support and transparency.
What matters now is how we respond. We will complete what we can, properly and lawfully transfer what we must, responsibly and respectfully, and continue to uphold the trust placed in us as military police by the defence community.
All justice systems evolve, and reviews are an integral part of this process; therefore, a sunset clause or statutory review would allow Parliament to reassess the impacts of these changes and potentially reconsider the investigative authorities of the military police. However, I would be remiss if I did not note that a review cannot undo the potential harm to victims whose cases may go uninvestigated or unprosecuted during this period. Nor can I assure you that the department will be provided with all of the information necessary to complete a comprehensive review at that time.
In closing, I will reiterate and I remain committed to the position that the military police are a competent and professional police force, one that always acts to maintain the morale and discipline of DND and CAF and has the best interests of all victims in mind. The military police are the only police force of the Department of National Defence and the Canadian Armed Forces. When you look to provide sage advice to the Government of Canada in regard to Bill C-11, I ask that you ensure you consider the human behind the uniform and recommend only those amendments necessary to do right by our defence communities, who deserve nothing but the best.
Thank you. I welcome your comments.
The Chair: Thank you. Next, we’ll hear from Colonel Nooral Ahmed.
Colonel Nooral Ahmed, Director, Defence Counsel Services, Department of National Defence and the Canadian Armed Forces: Good evening, chair and members of the Standing Senate Committee on National Security, Defence and Veterans Affairs. Thank you for inviting me to appear is before you today.
My mandate is to provide, supervise and direct the delivery of Defence Counsel Services to members of the Canadian Armed Forces.
In practical terms, Defence Counsel Services functions as the CAF’s legal-aid program, providing fearless, competent and independent representation to those we serve. We provide advice to members during investigations and represent members at a court martial, the Court Martial Appeal Court of Canada and the Supreme Court of Canada. We also have a 24-7 duty counsel line providing immediate legal advice to CAF members.
I will focus my remarks today on one issue: Transferring Criminal Code sexual offences to the civilian system will have a negative impact on CAF members charged with those offences because they will no longer have the right to receive legal representation at no cost.
Every person is presumed innocent until proven guilty. When CAF members face these types of offences, there is a possibility of imprisonment, and meaningful access to justice is important. As proposed, the bill at sections 7 and 8 creates a difference among CAF members charged with serious offences. Access to legal representation at no cost would depend on the category of offence charged and if the offence occurred outside of Canada.
Under the current legal framework, when a CAF member is charged with a Criminal Code sexual offence, the charge is normally laid within the Code of Service Discipline under the National Defence Act. Section 249.17 of the National Defence Act provides that the accused has the right to defence counsel services at no cost. If offences are transferred to the civilian system, CAF members would be investigated and charged solely under the Criminal Code and prosecuted in civilian courts. In those circumstances, the existing statutory right to representation through Defence Counsel Services would no longer apply. CAF members facing these serious allegations would be required to retain and fund their own legal counsel, fees of which could reach six figures. For more than 25 years, these costs have been covered through the military justice system.
Justice Fish, in his independent review of 2021, recognized that access to free legal counsel is a fundamental benefit extended to CAF members in recognition of the extraordinary obligations of military service, including the principle of unlimited liability. He cautioned against interfering with this fundamental quid pro quo. Madam Arbour, in her report of May 2022, agreed with Justice Fish’s rationale, stating that there were sound arguments for free legal assistance.
In closing, if the Criminal Code sexual offences are transferred to the civilian system, CAF members charged with those offences will no longer be eligible to receive legal representation at no cost. The requirement is to ensure discipline, efficiency and morale in the Canadian Armed Forces are not principles competing with fairness to an accused; they are mutually reinforcing. Confidence in military discipline requires confidence and access to legal representation.
Those are my opening remarks, and I look forward to your questions. Thank you.
The Chair: Thank you very much.
Finally, Colonel Dylan Kerr, please go ahead.
Colonel Dylan Kerr, Director, Military Prosecutions, Department of National Defence and the Canadian Armed Forces: Thank you, Madam Chair. I’ve served in the Canadian Armed Forces for over 30 years, first as a signal officer for the Canadian Army and, for the past 16 years, as a military prosecutor. I’ve appeared at all levels of court, including cases before the Supreme Court of Canada involving significant constitutional challenges to the military justice system.
In June 2021, I was appointed by the Minister of National Defence to a four-year term as the Director of Military Prosecutions and was reappointed last year to serve an additional three-year term. As Director of Military Prosecutions, I am statutorily responsible for referring charges for courts martial and conducting those prosecutions.
I also act as counsel for the minister in respect of appeals before the Court Martial Appeal Court and the Supreme Court of Canada.
To fulfill these duties, I lead an organization of 30 military prosecutors and civilian staff, collectively referred to as the Canadian Military Prosecution Service. My team includes six Reserve Force military prosecutors, who are all civilian Crown prosecutors with extensive criminal law experience, including the prosecution of sexual offences.
I sit on the Federal, Provincial and Territorial Heads of Prosecutions Committee, and I have arrangements with several of the prosecution services across Canada whereby Regular Force military prosecutors may be seconded with civilian Crown offices to gain experience with criminal prosecutions and to build relationships between our services.
All my prosecutors, Regular and Reserve Force, are well‑trained professionals with a deep commitment to justice. I have the utmost confidence in their abilities to prosecute cases of Criminal Code sexual offences and to advise military police in the investigation of those offences.
In November 2021, in response to Madam Arbour’s interim recommendation, I directed our prosecutors to stop exercising jurisdiction in respect of new allegations of Criminal Code sexual offences. I made that decision in consideration of Madam Arbour’s concerns about a mounting crisis in public confidence in the military justice system, along with the numerous reports during the summer of 2021 alleging sexual misconduct by our senior-most leadership.
At the time, I expected that direction to be temporary. Work was already under way to implement the recommendations from Justice Fish’s report. I believed that, once that work was completed, along with addressing any additional concerns from Madam Arbour in her final report, that we would be well placed to resume exercising jurisdiction. I did not anticipate that Madam Arbour would recommend the removal of jurisdiction or that the government would accept that recommendation.
Since November 2021, significant improvements have been made to the military justice system and to victim support within the Canadian Armed Forces. You heard about a number of those in the previous panel.
We’ve implemented the Declaration of Victims Rights. The Defence Community Support and Resource Centre now provides independent legal advice and representation for victims.
The Federal, Provincial and Territorial Heads of Prosecutions Committee has adopted a statement of principles and presumptions for the exercise of concurrent jurisdiction by Canadian prosecuting authorities.
These steps, along with the Canadian Armed Forces’ broader culture change and administrative reforms, have positioned us well to be able to restore public confidence and address sexual misconduct, including Criminal Code sexual offences, in a meaningful and effective manner.
If it had not been for the tabling of Bill C-11, I would already have rescinded my interim direction not to exercise jurisdiction in these cases. I’m fully prepared to resume accepting jurisdiction in the military justice system.
While I am neither a policy-maker nor a policy adviser, I believed it was important that the House hear the perspective of the Director of Military Prosecutions, or DMP, and the military prosecutors in their consideration of this bill. I maintain the views I expressed in the House committee.
It’s not my role to advocate for a particular policy outcome. The Canadian Military Prosecution Service remains well placed to take the system that Parliament gives us and make it as effective as they can be.
That said, I do believe that victims and the Canadian Armed Forces would be better served by retaining concurrent jurisdiction over these offences, that victims deserve a say in where their cases are heard and that some cases will not be heard if jurisdiction is removed.
More tools to address sexual violence are better than less.
I applaud this bill’s strengthening of the independence of the DMP, in particular the change to a seven-year non-renewable term aligned with that of the Director of Public Prosecutions.
I am concerned about the proposed disciplinary framework for the DMP. In my view, the only appropriate remedy for a DMP found to have committed misconduct is removal. This would also align with the framework of the Director of Public Prosecutions. I note that Justice Fish’s recommendation in this regard was to adopt the language contained in subsection 5(1) of the Director of Public Prosecutions Act.
I continue to have concerns about the acting DMP provisions. Bill C-11 would currently limit the minister’s ability to appoint an acting director to 90 days, beyond which the Governor-in-Council approval will be required.
It’s imperative that there always be someone who can act as the power to proffer and prosecute charges by court martial statutorily assigned to the DMP.
The length of time for which the minister can appoint an acting director should be extended, or the provision should be amended to simply require notice to the Governor-in-Council where the minister has authorized a longer period of acting.
Thank you. I look forward to your questions.
The Chair: Thank you, Colonel Kerr.
We’ll now proceed to the questions. This is our final panel. The team will be with us until 8 p.m. Four minutes will be allotted for each question, including the answer.
[Translation]
Senator Carignan: This is quite a representative group of witnesses. I learned that the new provost marshal of the Canadian Forces was actually a chief of police in civilian life. There’s also a defence lawyer and a Crown prosecutor.
From what I understand, you’re quite comfortable retaining the ability or jurisdiction to prosecute cases involving violence or, at least, sexual assault. All three of you have developed expertise in that area, which deals with victims. Isn’t there a risk that expertise will be lost by transferring all that to the civilian justice system? Could the few situations that might occur and that you’ll keep abroad impede the ability to manage those cases?
BGen. Hanrahan: If I may respond in English, that would be my preference.
Senator Carignan: Go ahead. It is your constitutional right. I exercise mine every day.
BGen. Hanrahan: Thank you.
[English]
From a military policing perspective, this is the first time whereby the military police will not have investigative jurisdiction over any type of offence occurring on a defence establishment, or in accordance with members subject to the Code of Service Discipline.
When we talk about skill fade, which is what you’re alluding to in terms of lack of experience, that’s something we’re absolutely going to have to consider. We are going to have to ensure that we put measures in place to allow us to maintain our level of competency to deal with any type of offence.
What works well for the military police is we have extensive training now. We will continue to do that. When you look at the heart of it, victim services and support to victims, as well as the foundational investigative techniques used, are fundamentally the same for any type of investigation.
It’s the manner in which we look at the intricacies of such things as Criminal Code sexual offences that we have to ensure that we keep that in our mindset and maintain the victim-centred trauma informed approach. I believe we can do that.
How do we do that best? Of course, by having files for which we can take action. Again, I owe the Canadian Forces, and the Department of National Defence as a whole, a police agency that maintains their capability of being able to investigate any type of offence, regardless of where that offence happens.
Though we may no longer have jurisdiction to investigate, we will still have to ensure that, if a victim reports to the military police, we can look at things such as their own personal safety. We can ensure there’s public safety and the preservation of evidence so we can then afford the civilian police everything they need to start an investigation into a Criminal Code sexual offence, even if we’re not maintaining the primacy of jurisdiction in those cases.
[Translation]
Senator Carignan: I’ll ask the same question to the prosecution and defence.
[English]
Col. Kerr: Yes. There will be a risk of skill fade among the Regular Force prosecutors. The Prosecution Service can mitigate that. I mentioned we have six Reserve Force prosecutors who are all criminal prosecutors from provincial prosecution services or the Public Prosecution Service of Canada, so most — if not all — of them at any given time have deep experience with criminal law, including the prosecution of these cases.
We can rely on their expertise in one-off cases. But, yes, there will certainly be skill fade, particularly among Regular Force prosecutors.
Col. Ahmed: From the defence perspective, we have Regular Force members. To deal with skill fade, we would enhance our training. We do a lot of training right now, taking courses.
We have professional obligations pursuant to our respective law societies. We have to meet a threshold in terms of even accepting these types of cases.
If lawyers felt uncomfortable, incompetent or not competent in doing them, then they shouldn’t be taking them. We put them in that position.
Second, we rely on Reserve Force members. These are lawyers who have private practices across the country, usually in criminal law. We rely on them.
Third, we have a provision in the act that permits Defence Counsel Services to hire civilian lawyers should there be a capacity issue or a conflict of interest. We can rely on the private criminal bar, Reserve Force members and the trained Regular Force members that we have.
Senator Patterson: I will start from a military police perspective with the loss of concurrent jurisdiction; that’s what we’re talking about. I did hear you correctly. This is the first time we’ve removed jurisdiction from the military police, or a police force, in other words, that investigative capability.
What I’d like you to talk about, please, is you are still going to potentially be first contact with victims. Most bases are not in Ottawa; they’re in Shilo and places where there are not many Canadians, or in the middle of nowhere. You’re going to be there.
What are you going to need to do to also maintain that capacity to support victims who have been impacted by sexual violence?
We don’t have numbers. What kinds of numbers are we looking at? I’m going to use one of the comments from Ms. Deschamps. Her concern is more the lower level — the ones like groping and the other components which can still be sexual assault in nature.
What kinds of statistics are we looking at that will not be dealt with now by the military police, or the defence or prosecution, that are going to the civilian sector.
I will ask General Hanrahan to answer first.
BGen. Hanrahan: Thank you, ma’am. There were many questions.
Senator Patterson: Sorry.
BGen. Hanrahan: That’s okay.
I will start with statistics. I can only speak from a military police point of view. We implemented the interim recommendation in December of 2021 from Madam Arbour whereby we still maintained investigative jurisdiction. We looked to see what could be transferred to our civilian personnel.
Since December 2021, we’ve had 879 cases, so 880 cases of Criminal Code sexual offences were reported to the military police.
Out of those, only 284 files were referred to our civilian police jurisdiction. Out of those 284 files, 208 were accepted for investigation. So 595 files stayed within the military police’s authority to investigate. There are a number of reasons, of course, why that would take place. I don’t have an exhaust list, but I’ll give you the highlights.
Out of the 595, 70 files were outside of Canada, so clearly not permitted to be referred. We have another 87 files where victims did not want a police investigation at all. They simply came forward and asked that their information be reported and recorded in our records management system. They were offered the ability to come back at any point they wished to reopen an investigation by the military police or refer it to civilians.
The bulk of our files were actually not transferred. So 227, a lot of them were at the request of our victims. When we looked at a victim-centred, trauma-informed approach starting in December 2021, unlike the Director of Military Prosecutions, we did not stop investigating investigations. We simply had discussions with the victim. We looked at the victim’s preference. We looked at public safety concerns. We looked at the investigation as it unfolded. We allowed the military police to retain them.
Over the last few years, we have seen an increase in the number of victims requesting their files remain with the military police. I certainly do not want to speak on behalf of victims, but some of the reasons they have come forward is because — again, as I alluded to in my opening comments — the military police have spent a lot of time investing in our community. They have trust and confidence in the military police. We are members of the Canadian Armed Forces, though we act independently from the chain of command in our policing function. We understand better the way of life. We understand how to work on a base. We understand the intricacies of rank. We understand what it is to live in a mess environment and how it is to operate in all facets of being in the Canadian Armed Forces, while ensuring we can reach the elements of an offence and have a proper investigation that would allow us to look at all the elements being brought forward and determine whether a military justice system or a civilian justice system is best placed to offer the victim justice, or the option of justice.
Senator Hay: Thank you all for being here. I am learning a lot. So my question will probably be one where I’m just going to ask for some filling in the blanks for me.
Colonel Ahmed, you spoke about the negative impact on CAF members and personnel who are charged, and if the file is transferred, they will no longer have the benefit of free legal support.
Because I don’t know, I reacted to that as someone who is not in the military. How is that different than anyone else charged with sexual assault in a workplace anywhere else? Maybe that’s not for this panel, but it strikes me, based on my experience, that might be retraumatizing to a victim, that their employer is paying for their alleged attacker’s legal defence. That is their employer too.
I just wouldn’t mind some clarification. I know that’s the way it is.
Col. Ahmed: If I could use Justice Fish’s words because, in his examination of a military justice system, he has concluded that the policy decision, the program, to have a defence lawyer provided to an accused is part of the social contract — if we can use that term — of being a soldier in an unlimited liability situation.
In a complete internal military justice system, you have the Crown, the prosecutor, funded by the government. We now have the victim’s counsel funded by the government, and as another role player in that is obviously the accused. The decision is to give them counsel in the context of their work. It is the employer’s situation. You can make that argument.
Certainly, in the civilian system, if you don’t meet certain thresholds with respect to income and the possibility of incarceration, you’re on your own, absolutely. But within the military justice system, that is the framework that we work in.
Senator Hay: I’ll leave it at that. Thank you for the clarification. I appreciate it.
Senator Boehm: Thanks for being with us this evening. I have a question. I would like you to elaborate a bit of a scenario where a sexual offence takes place outside of Canada. It involves a national of another country who may be working for the Canadian Armed Forces there — think of a NATO support mission or even peacekeeping or something like that. Could be an interpreter, could be anything.
How would that work if you are dealing with a citizen of another country? I’m assuming there would be a Status of Forces Agreement between Canada and the country in question, but you get into jurisdictional issues where the laws of another country would have been broken. If it is the Canadian Forces member who is at fault, is this person then removed to Canada and prosecuted there under the Status of Forces Agreement, or what is the procedure? Could you guide us through it?
BGen. Hanrahan: Yes, sir. From a military police perspective, I’m going to make the assumption that the individual, the civilian from another country, is the victim in your scenario. Is that a fair assessment?
Senator Boehm: That would be a good start.
BGen. Hanrahan: In that case, if it’s a member subject to the Code of Service Discipline, if you’re deployed with the Canadian Armed Forces, as a civilian even, your contract could afford you to be subject to the Code of Service Discipline. If you’re subject to the Code of Service Discipline, then the military police have today the investigative authority over you to investigate any offence that may take place.
In fact, recently we have had a Criminal Code sex offence that took place outside of Canada involving a Canadian Armed Forces member. We went into that theatre. We investigated the criminal offence. We actually charged — here in Canada in the civilian justice system — Criminal Code offences for sexual assault. That individual, though it occurred outside of Canada, was processed through the civilian justice system.
If the Director of Military Prosecutions were to rescind their current policy and allow those offences to be prosecuted in the military justice system, what essentially could have happened was that the military police would conduct the investigation. We would then determine if we have reasonable, probable grounds to play lay a charge. If we have the ability to lay a charge, we can lay a charge under section 130 of the National Defence Act pursuant to the Criminal Code of Canada. Therefore, we would refer the charge directly to Colonel Kerr.
Colonel Kerr would then make a decision as to whether he is going to continue with a court martial. That court martial could take place outside of Canada in order to have a deterrent effect on the forces deployed or, if required, bring everyone involved back into Canada, or a version thereof, to allow the court martial to continue.
Senator Boehm: What happens if the other country decides to press criminal charges?
BGen. Hanrahan: We’re bantering off each other.
Col. Kerr: It comes down to the Status of Forces Agreement. Most Status of Forces Agreements give primary jurisdiction to the host country when the victim is a national of the host country, but not all. Some Status of Forces Agreements give Canada the first right of jurisdiction if the accused is a Canadian Forces member.
It would come down to that Status of Forces Agreement. Even if the host nation has a primary right of refusal, sometimes depending on the circumstances of a case, they would look to the Canadian Armed Forces to take jurisdiction. They will say, “As long as you’re going to deal with it, we’re satisfied with that.” They expect us then to deal with it, then what the Provost Marshal indicated to you would occur.
Right now, we’re not prosecuting those cases. If the military police are laying sexual offence charges, they will lay them in criminal court, and the National Defence Act allows a civilian criminal court to hear that case as though it was committed in Canada.
Senator Yussuff: This bill, as you know, has been dealt with in the other place. It’s here, and we’re in the final throes of trying to get to the end. Some interesting perspectives that you are sharing with us. I appreciate it very much.
Colonel Ahmed, in the current context, if somebody is accused of something, they have the right to a defence, and you provide that defence. If it’s in the civilian system, essentially, under the new provision of Bill C-11, they will not get the financial support to protect themselves.
Given they are working for the military right now and this is going to be the new separation of responsibility, is the entire force going to be aware of this new reality wherein if they are accused of something, they will not have the opportunity to gain support any longer if they are prosecuted in a civilian context?
Col. Ahmed: Since the decision by the prosecutor — my colleague here chose to not take these cases through the military justice system, for the past two years, those individuals have certainly found out that they are on their own. We know this because they call our duty line, and they say, “I’ve been charged with an offence. I’m a Canadian Forces member. Can you give me some advice?” When they tell us they have been charged in the criminal justice system downtown, we say, “I’m sorry, we don’t have a mandate to assist you.” We then point them toward legal aid numbers across the provinces in Canada. We will perhaps give them a list or some recommendations of criminal lawyers who work in that area, and then they are on their own. It’s a difficult phone call. There is some confusion because they think that we’re there to support them.
I have to say, we have heard very little follow-up from them as to whether they had chosen to plead guilty because it was easier, whether they had made some financial arrangements for a lawyer or not. It’s hard to say what has happened to these individuals in the system.
It’s fair to say, though, that this has occurred even before the last two years in that this concurrent jurisdiction has always existed in the system.
Senator Yussuff: In the context of collecting evidence, which is fundamental to the prosecution, securing the site where the incident occurred is fundamental. Given it’s going to now be civilian investigators to investigate and secure the site of evidence, do you see any compromise there in protecting the victim’s ability to make sure all the evidence is collected in a timely manner when they are faced with something very serious? I could elaborate, but I’m not going to go there because it may create more trauma.
How difficult do you see this in the challenge of how victims’ rights are going to be protected, given the evidence is so critical for a prosecution?
BGen. Hanrahan: Military police are all trained in the rules of evidence that are consistent with all of our civilian police partners. There is no difference in how we would conduct an investigation and how we would collect evidence compared to any police agency in Canada.
Again, if the proposed bill receives Royal Assent and we implement the loss of concurrent jurisdiction for the military police to investigate Criminal Code sexual offences, we are still going to ensure that, wherever possible, we look to work with our civilian counterparts within the limitations imposed by the bill and some of the things the bill will still afford us to do. I think we will, as a matter of course, ensure the safety of the victim. We will ensure public safety, and we will have the ability to collect and preserve evidence that would be timely. For example, if it’s raining and it’s an outside incident, we are not going to wait for a civilian police agency to respond, which could take days. We will move forward and collect evidence as a professional police agency would. We would then have to ensure that the continuity of evidence is maintained between the military police and the transfer to our civilian police counterparts.
What may cause some concern, at least from a policing perspective, is not all investigations that would amount to what would be a definition of a Criminal Code sex offence currently investigated by the military police will be investigated by our civilian police counterparts. That’s not because our civilian police counterparts have different standards. It’s not because they are not going to want to look at providing support to victims. I look at this from the perspective of the severity of the incidents we traditionally deal with, the volume of the incidents we deal with and the ability for us to triage differently than our civilian police counterparts.
Therefore, my concern would be that we would collect evidence and we would propose that to our civilian police counterparts or refer a victim. That investigation would not see an investigation to the same standard that we in the military police would do. We look at what we call a military factor, which is, as I alluded to, rank and otherwise. Therefore, what do we do with that evidence?
When you talk about a sunset clause, if you were ever to reverse any decisions made with this legislation and then we wanted to reopen a historical investigation, if that evidence was not properly maintained by our civilian police counterparts, then we would have lost some ability in the future to possibly look at that, either from a Criminal Code perspective or a Code of Service Discipline service offence perspective.
Senator Yussuff: With regard to collecting evidence and preserving it, could the MOU between the province and the Canadian military forces cover off some aspects that might be gaps within the two systems that might preserve certain aspects, given you’re first in line?
BGen. Hanrahan: I believe the manner in which we collect the evidence and the continuity of the evidence will be consistent. Our rules of evidence guide and the status or where we are in terms of the investigative process guide, how long we must maintain evidence will have an impact if they determine they are not going to investigate versus we may close a file or call it a cold case and leave the evidence there. I think that’s what we will have to look at.
Right now, we’re working specifically with Ontario. The minister alluded to an MOU at the ministerial level between the Province of Ontario and the minister. We’re doing an operational protocol with all police agencies in the province of Ontario. We have been working on this for over a year now. It allows the military police and our partners to have a more streamlined and victim-centred approach to all aspects of an investigation involving Criminal Code sex offences, which will surpass the transition period into how we will do business moving forward, as long as there is no investigative authority.
Senator Yussuff: Thank you.
The Chair: In the interests of fairness, Senator Boehm, do you have a finishing probe from your first-round question?
Senator Boehm: Thank you for your generosity, chair. I appreciate it.
My only follow-on was how would this scenario apply if we’re looking at blue helmets, if we’re participating in a peacekeeping force or group?
BGen. Hanrahan: Again, from a military police perspective, it will all come down to whether or not we have jurisdiction over the individuals involved. If it’s a Canadian Armed Forces member or a civilian attached to the Canadian Armed Forces, then we would, by default, have primacy of jurisdiction, barring conditions in the Status of Forces Agreement.
I was deployed on a UN mission. I was the Force Provost Marshal. There, we would do fact-finding investigations as the military police assigned to the UN. We would refer those back to the UN and their host nation to be able to properly address whatever it is we found in a fact-finding mission. I would expect it would roughly be the same, where we would potentially have authority or give it over to the host nation to deal with appropriately. That is based on my experience on a UN mission.
The Chair: Thank you, general.
[Translation]
Senator Youance: Did I understand correctly that, for two years, the military justice system has not had jurisdiction over sexual assault cases?
[English]
Col. Kerr: It’s actually five years, senator. Since November 2021, I have stopped accepting new cases of Criminal Code sexual offences. There were a number of cases that remained in our system because they were already past the charge-laying stage. In fact, we still have, I believe, two cases that are in appellate court that are technically Criminal Code sexual offence cases, but we have completed all of the trials of those cases. Aside from a few appellate issues, we are essentially out of the profession, as it were, for prosecuting sexual offence cases.
BGen. Hanrahan: The slight difference is, for the military police, we did not stop investigating. From that perspective, the military police continue to conduct Criminal Code sex offence investigations. In fact, what that allowed us to do was gather all of the evidence pertinent to us during the course of an investigation and determine whether we have reasonable probable grounds for a Criminal Code sex offence or a service offence.
Therefore, we could look at it holistically as military police members and determine where it was and what offences were best aligned to meet the elements of an offence. Therefore, based on the determination, if it was a service or criminal offence, we could actually lay service offence charges.
For example, sometimes you start with a Criminal Code sex offence allegation, but at the end of the day, it could be that you are looking at abuse of a subordinate. The difference with the military police is we could look at that holistically and, at the end, based on the evidence collected, determine which system better afforded justice to the individual based on the information available to us.
[Translation]
Senator Youance: Does the decision not to accept new cases create a void? Is there a risk that the accused will request a confidential agreement with the victims? How could Bill C-11 address that?
[English]
Col. Kerr: With respect to the prosecution of the alleged offences, yes, I think there is a risk, and there remains a risk. If Bill C-11 receives Royal Assent, there will be a very real risk that sexual offence cases on the lower end of the spectrum will not be prosecuted by the civilian system.
One of the difficulties that I have had in answering your question about the last five years is that because we haven’t been accepting those cases, I have no visibility whatsoever. Once the military police lay a charge in a civilian criminal court, whether or not it proceeds, maybe the Provost Marshal is able to track some of those cases, but they are in the hands of the civilian prosecutors.
BGen. Hanrahan: Yes, I do have stats available in terms of charges. On average, we’re pretty consistent with our civilian police counterparts in terms of the number of files which result in charges and then successful prosecution at the end of those charges, which is around 45%. Of all the charges laid in the civilian justice system for which the military police lay charges, about 45%, which is consistent in Canada, have resulted in successful prosecution of those charges.
Senator McNair: Brigadier-General Hanrahan, you talk about the fact that the military police are a competent and capable police force. I have no doubt about that when I listen to you, but the fact that brings that home for me is when you say that, even with the loss of concurrent jurisdiction, the safety of the victim remains your first priority. I want to commend you for that. It’s really more of a comment. I congratulate you for that approach.
BGen. Hanrahan: Thank you, sir.
Senator Patterson: Because we have not asked many questions to our defence counsel, and it is an area not really well understood, as I had said to the Chief of the Defence Staff, is that within the Canadian Armed Forces, you have to serve justice to both the victim and the accused, which is very unique within our situation.
One of our previous witnesses also said that with the pay rises, there is not going to be anybody who will likely qualify for Legal Aid, and we know that bankruptcy in a serving member will affect their security clearance, so we’re creating a losing cycle.
Do you have any recommendations in terms of setting up a Legal Aid-type process? That would probably need to come under regulation, maybe not legislation.
Col. Ahmed: I would recommend a review of section 249.17. That is the fundamental right-giving provision. What would flow from that would be regulations.
Senator, if I could add, other than financial issues with respect to people who are accused, we have received briefings from Health Services, and they have also noted that members who are accused of offences, yet to be proven guilty, have a significant chance of suffering from depression or going even further with mental health issues. So regardless of which side you’re on here in terms of all the participants, it is something that affects everyone’s mental health and in a financial capacity.
Senator Patterson: Thank you.
Senator Hay: Thank you all. Thank you for that perspective on mental health.
Brigadier-General Hanrahan, you said something at the end of your remarks to us as we consider Bill C-11, to remember the human behind the uniform. I think you said that. Can you just expand on that for me? I didn’t catch the context of that.
BGen. Hanrahan: Senator, I say that because we look at a military factor, but at the end of the day, we are a Canadian citizen like everyone else. We have expectations of how our safety is guarded, whether we’re putting ourselves in harm’s way knowingly as members of the CAF, which we always choose to do. For me, it’s remembering the uniform and remembering they have the right to the same fundamental public safety and security as anybody else in Canada. That comes from having a military or civilian justice system with all of their actors having full authority to be able to respond to and take action for anything that is causing harm to them as individuals.
Though we may be tough and we can handle ourselves, fundamentally, I still expect that if I call 911, the police agency is coming to answer the call. If there are elements of an offence and charges are laid, I expect that the prosecution is able to move forward those charges. That’s what I mean in terms of being able to ensure you remember the human behind the uniform, because that’s who we are. I think our expectations of our police and our prosecution are exactly the same as anyone in this room and anyone else in Canada.
Senator Hay: Thank you so much.
Senator Yussuff: I’m trying to follow the data you have provided just now in regard to the prosecution and those who have been accused and those who have been prosecuted successfully. Forty-five per cent of those were successful prosecutions, individuals who were dealt with, but on the other side, the 55% of those who have been accused were not found guilty of the allegations. That’s my reading of the data.
BGen. Hanrahan: Sir, that would not be completely correct. There are many things that would not see successful prosecution. There could have been a stay of proceedings because of many factors, such as a victim not wanting their public records and their private information going before a court. It could have been pled to a peace bond instead of prosecution. There could be many reasons why the file did not proceed through the court system to have a successful prosecution, which would not necessarily indicate a non-guilty plea but many factors.
I have a full breakdown that we could provide in a written submission if that would be helpful to better understand.
Senator Yussuff: That would be extremely helpful for us in considering the bill, because that gives us a whole different perspective on a point that a senator has been making in regard to what we do with people who don’t have the means or the support financially in regard to allegations of how they protect themselves.
BGen. Hanrahan: Yes.
The Chair: Thank you for providing that for us.
[Translation]
Senator Carignan: A question came to mind while I was listening to the witnesses.
For me, one of the arguments in favour of maintaining the jurisdiction of courts martial is how efficient the system is, because case delays hurt both the accused and the victim.
How many stays of proceedings have there been in the military system because of the Jordan decision? My impression is that there can’t be many given your discipline.
[English]
Col. Kerr: There are very few. I can think of one in recent history, and it was an exceptional case.
Senator Carignan: Thank you.
The Chair: This brings us to the end of this panel and a great job as our fourth panel. We appreciate that this evening.
Thank you, Brigadier-General Hanrahan, Colonel Ahmed and Colonel Kerr for taking the time to meet with us today. We appreciate your testimony, but we also appreciate your lived experience and the authenticity you brought this evening, each one of you, in different ways. That’s strongly respected and appreciated by this committee. We really do thank you. There was a sense of bringing some of this impact to life. Again, we thank you for that.
This concludes our agenda for today’s meeting. Our next meeting on Bill C-11 will take place tomorrow, June 9, at eleven o’clock, at 1 Wellington, Room W120. We will continue our consideration of Bill C-11.
I want to thank senators for participating in the trauma-informed training we had last Wednesday. At tomorrow’s session, we will be welcoming our survivors — as we would think about that tonight as we prepare for our questioning tomorrow.
With that, I wish everyone a good evening. Thank you.
(The committee adjourned.)