National Defence Committee on Oct. 23rd, 2018

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Are you in a position to comment on where Bill C-77 places us with respect to our trusted coalition partners when we go overseas and do peace operations, for example—the U.K., France, the United States? How do their legal frameworks compare to ours? What does Bill C-77 accomplish with respect to how we stand up with our allies on these issues?

[Col Stephen Strickey]

Thank you for that question.

If I could draw a spectrum across our western allies, with the U.S. at one end and France at the other, we and Australia are somewhere in the middle. The United States has maintained the commanding officer in such a way that they can convene courts martial and things like that. They very much remain an actor in terms of processing courts martial for more serious offences.

That being said, with the changes in 1999 that Bill C-25 brought forth, essentially taking the commanding officer out of the court martial system, we have maintained that type of independence. Through a series of European Court of Human Rights judgments in the 1990s, the UK has sought to further civilianize their system.

To answer your question, the summary hearing system in Bill C-77 would roughly mirror what they call non-judicial punishment in the United States, where the commanding officer can mete out very minor punishments for very minor offences. The U.K. has a similar system, as do the Australians.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you very much.

Thank you, Mr. Chair.

[The Chair, Liberal, Stephen Fuhr]

We'll go to five-minute questions now.

The first one will go to MP Fisher.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you very much, Mr. Chair. Thank you so much for being here for this very important bill.

The Auditor General's spring report recommended that the Government of Canada ensure that cases move expeditiously through the military justice system. How will Bill C-77 specifically ensure that this actually happens?

[Cmdre Geneviève Bernatchez]

Thank you.

First, I would like to inform the committee that the Department of National Defence completely accepted and agreed with all of the OAG findings and recommendations, and developed a sound management action plan that is currently being implemented. It is not something that we're looking at over the horizon, item-by-item. We're already doing a lot about this.

As you noted, one of the issues raised by the Auditor General was ensuring that matters proceed in a timely manner within the military justice system.

Bill C-77, by introducing summary hearings and leaving minor disciplinary breaches at the unit disciplinary level, would ensure that only more serious issues are retained at the court martial level. We anticipate that keeping minor disciplinary matters at the unit level and serious ones for court martial would de-clog and streamline the system, cutting delays in a very significant fashion.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you.

Bill C-77 has an indigenous sentencing provision to ensure extenuating circumstances are considered during sentencing and, more specifically, incarceration. Does this provision address the systemic racism and discrimination often found in criminal justice systems? Can you elaborate on why this specific provision will ensure fairness for indigenous CAF members?

[Cmdre Geneviève Bernatchez]

Sentencing considerations as they pertain to indigenous people are very much in keeping with current practice, which has been implemented for years by courts martial. By enshrining these considerations in statute, the current practice of the court martial is very much guided by the 1999 decision in Gladue, from the Supreme Court of Canada. It gives formal recognition to the importance of ensuring that specific considerations pertaining to indigenous people are taken at the sentencing stage.

As with any offender, judges will have to consider the mitigating, aggravating factors that go into sentencing. In the case of indigenous offenders, they will have to take into consideration their specific circumstances.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

For those of us around the table who have not served in the military, can you explain to us how service offences differ from offences committed outside the service? What's the greater impact?

[Cmdre Geneviève Bernatchez]

To put it bluntly, Canadians have an expectation that they will have a very disciplined force. This is at the heart of democracy. It is a force that can be controlled because it is a force that may be called upon to use up to lethal force in order achieve governmental objectives. The military justice system ensures that there's a disciplined force and that these higher expectations on serving members can be effectively implemented. It ensures the discipline and the operational efficiency of that force, and also the morale, because a functioning force needs to be cohesive and needs to have high morale.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you, Mr. Chair.

[The Chair, Liberal, Stephen Fuhr]

MP Martel is next.

[Richard Martel, Chicoutimi—Le Fjord, CPC]

Thank you, Mr. Chair.

I thank the witnesses for being here today.

In the Canadian Armed Forces and in most of the armed forces of the western world, there is this concept of feigning disease or injury in order to escape one's duty.

Could you tell the committee how many members of the military were convicted under section 98 of the National Defence Act since the Second World War?

[Cmdre Geneviève Bernatchez]

The information I have does not go back to the Second World War, but to January 2000. We noted that four charges were referred to court martial under section 98 of the National Defence Act. However, those four accusations were withdrawn when the court martial proceeded.

As for summary trials, 13 charges were laid under section 98. Nine of those people were convicted. In three other cases, procedures were simply stayed. As for the last case, it did not go any further. So, that is a rather small number of cases since 2000.

As for the other statistics, we would have to see what it is possible to obtain.

[Richard Martel]

Could you possibly tell me how many of these accused persons had mental health issues?

[Cmdre Geneviève Bernatchez]

I don't have that information.

[Richard Martel]

If a military person has a recognized mental health problem before committing an offence under section 98, do the Canadian Armed Forces have the discretionary power to forego laying charges, and to instead direct the person toward the appropriate service so that they may be treated? Do you know how often that happens?

[Cmdre Geneviève Bernatchez]

I want to repeat to the committee, as Honourable Minister Sajjan said, that the issue of mental health is very important to the Canadian Armed Forces. For several years now, we have been particularly sensitive and aware of this.

The topic of section 98, paragraph (c) of the National Defence Act particularly, is indeed the intention of causing harm to oneself or feigning injury in order to escape service, as you indicated. To our mind, obviously an individual who suffers from mental health issues does not intend to escape the forces. It's a disease. It's just like having an injury to an arm or leg. It is a recognized illness that is diagnosed by military physicians or by physicians who are called upon for a diagnosis.

To answer your question, I would say that the prosecutor has discretionary power when deciding whether the charges will proceed. The chain of command also has discretionary power. An intelligent analysis must be made to determine an individual's particular circumstances. We have to make sure that all of the elements required for that offence are present.

[Richard Martel]

Would the Judge Advocate General of the Canadian Armed Forces accept changes to section 98 that would protect the ability of the Canadian Armed Forces to manage cases of malingering, while protecting members suffering from real mental health issues?

[Cmdre Geneviève Bernatchez]

In my capacity as legal counsel to the minister and the National Defence Department, as well as to the Canadian Armed Forces, I heard the exchanges that took place during the past hour. We will certainly support the committee when it does the necessary analysis before making decisions.

[Richard Martel]

Thank you very much.

[The Chair, Liberal, Stephen Fuhr]

Thank you.

Go ahead, MP Dzerowicz.

[Julie Dzerowicz, Davenport, Lib.]

Thank you so much, Mr. Chair.

Thank you so much for being here. I'm glad that we finally have Bill C-77 on the table.

I was very much impacted—and I'm sure many across this country were—by the Deschamps report that talked about the rampant sexual abuse within the Canadian Armed Forces. I know that we have Operation Honour in place. I know that we have Bill C-65. I know that this bill will also be part of helping to address some of the findings in that report.

Could you outline to me how Bill C-77 will help female victims of sexual assault? What improvements in here actually help female victims of sexual assault?

[Cmdre Geneviève Bernatchez]

Obviously, the bill aims at introducing victims' rights within the military justice system, victims being men, women or members of different sexual identification. This bill would provide victims with a right to information: a right to be informed of every single step of the process, a right to be informed about the general information, the status of the investigation, and about the offender as well while in or released from a service prison. There would be a right to protection, so the security and privacy of the victims would be considered by the military authorities.

There would be reasonable necessary measures put in place to protect from intimidation and retaliation. There would also be identity protection and testimonial aids, on request, at courts martial. The victims would have a right to participation, so it would be formally enshrined in legislation that they would be able to convey their views regarding the decisions that are made. They would have the right to present victim impact statements at courts martial. Finally, there would be a right to restitution.

[Julie Dzerowicz]

I know we talked about consultation and who was consulted in creating this bill. As part of this process, did we actually consult with those who are former victims of sexual assault?