National Defence Committee on Oct. 23rd, 2018

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

You moved a motion.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

It was to table a notice of motion.

[The Chair, Liberal, Stephen Fuhr]

It was a notice of motion.

Mr. Garrison, you have the floor.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

It's good to see the minister here today. I too was disappointed that he didn't make the Maritime Security Challenges conference in Victoria last week.

Let me say that there are two clear improvements over the previous legislation, and I want to acknowledge both of those. One is recognizing the special circumstances of aboriginal members who served in the forces and may come into conflict with the code of conduct. The second is adding to the section on crimes motivated by hatred, gender identity and expression. I do thank the minister for those two improvements.

It's a little ironic that the minister comes to us and asks for timely passage of the bill when it's taken three years to get here, but I don't want to be churlish, so I'll just set that aside at this point.

We've had a very long process to reform the military justice system. It's taken nearly 20 years to do. It took a bill in the last Parliament, and this bill completes a lot of that, especially when it comes to improving victims within the system. I want to acknowledge that this is a very important part of what the bill does.

There's one piece that I think both bills have missed in the overhaul of the military justice system and adjusting offences and penalties. This is particularly evident to me in light of the new suicide prevention strategy that was introduced a year ago. We still have members of the Canadian Forces dying by suicide at a rate of just over one a month. I appreciate that the chief of defence staff and the minister are both saying that zero is the goal. I acknowledge that.

The Canadian military has tried to remove barriers to getting help for those who are contemplating self-harm. The military ombudsman identified that there are a lot of obstacles to getting even the help that exists. The families of those who died by suicide have identified one barrier, which is that self-harm remains a disciplinary offence under the military code of conduct.

I will, as I told the minister, be moving an amendment to delete paragraph 98(c), which makes self-harm a disciplinary offence. I've spoken with members of the Canadian military at all levels, and it passes the nod test with them, especially because the disciplinary sanction isn't really used. It's not seen as something effective at this point. The families point out that people are still trained to this code of conduct that identifies a possible disciplinary action as a result of self-harm. What I'm proposing does not remove the section on malingering or exaggerating illness to deliberately avoid service; it would simply remove self-harm as a disciplinary offence.

I asked the minister in the House, and he said he would consider it. I'm going to ask him again today if he will support the amendment to remove self-harm as a disciplinary offence from the military code of conduct.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I appreciate the thoroughness of how you brought this forward. I think it's very important for us in making sure that we look at any potential barrier that will prevent a member from seeking help, especially at their time of need. That's something that we are going to be looking at.

However, at the same time I do need to make sure that I take a look at all aspects when it comes to the reasons that some of these provisions were in there.

I remind members and Canadians that we have a tremendous Canadian Armed Forces, and that the military is also designed to serve at a time of outright conflict. Some of our military justice system is designed on that.

Absolutely, I take your point regarding making sure we remove any barriers, even perceived barriers. This is something we need to have a greater discussion on.

[The Chair, Liberal, Stephen Fuhr]

I'm going to intervene for one second.

You have about three minutes left on the clock. We had an agreement to keep you only to the top of the hour. Minister, if you need to leave now, that's fine, or you could finish with this member for three minutes. I'll leave that to you, sir.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I want to finish with Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Minister.

The concern you raise is precisely why I'm suggesting removing paragraph 98(c), which deals with self-harm, and not tampering with the other two sections, which deal with the things I think you're referring to: in the heat of combat, someone not doing their duty, malingering or exaggerating illness would place others at risk. I acknowledge that.

I believe if you consult the experts on this, the military commanders would still have full powers to sanction those deliberately avoiding service. It simply removes that reference to self-harm as being a disciplinary offence automatically.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

If I had the full military advice and we felt this was the direction to go, we would do it right now, but at this time I need to have a much more thoughtful, thorough conversation within the military chain to make sure we go in the right direction and at the same time take into account your careful consideration of this issue.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

With respect, Mr. Minister, if we don't do this as part of this bill, we risk.... This Parliament will die. This will not be removed legislatively in the foreseeable future. We're talking a three- or four-year delay if it's not part of this bill.

I would ask, Minister, to seek that advice in a timely manner and get back to us as soon as you can so we can consider this as part of this bill.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

Thank you.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.

[The Chair, Liberal, Stephen Fuhr]

That takes us past the time. Thank you for staying a few extra minutes.

I'm going to adjourn to see the minister off and to put new witnesses in the chairs so we can continue.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I want to say something for the record. We all know that this important bill is about our looking after our members. I try to take partisan politics out of the things we do. I just ask members, my colleagues here, to take this into account, to not use this as an opportunity to delay something that is very important and that, as you know, was placed at the end of the 41st Parliament. It is in all our interests to make sure we look after our people.

Thank you.

[The Chair, Liberal, Stephen Fuhr]

We're suspended.

Welcome back.

I'd like to acknowledge Colonel Strickey, Deputy Judge Advocate General; and Lieutenant-Colonel Lortie, director of law, military justice and policy. Thank you for joining us.

We'll resume questioning. I'll yield the floor to Mr. Spengemann for a seven-minute question.

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

Thank you very much.

My thanks to all three of you for your service and for being with us. It's good to have you back, Commodore.

First of all, I want to say that I'm excited about this bill. I think this bill solves some issues and closes some gaps, specifically regarding the fundamental premise that the Canadian Forces should be an employer of choice for all Canadians.

I am wondering what your thoughts are on this bill being ultimately used at the recruitment stage to engage young Canadians who are considering the armed forces, especially with military law not being something that's very visible or well known. With some fundamental support and provisions, especially on victims' rights, do you see this as being a door-opener, if you will, at the recruitment phase for Canadians to consider the armed forces as a safe workspace in the sense that everybody is included and is being treated equally before military justice?

[Cmdre Geneviève Bernatchez]

I think it's been said, and it needs to be reinforced, that any inappropriate sexual behaviour is something that is not acceptable in the Canadian Armed Forces or in any military.

There are a variety of tools that we're currently using to eradicate such behaviour. Operation Honour is one of them, and it brings to bear the action of the chain of command, the Sexual Misconduct Response Centre, and the strategic response team regarding sexual misconduct.

Another of the tools being put at the disposition of the chain of command is the military justice system and what it does to ensure that such conduct is appropriately addressed.

With this bill, we are now keeping pace with the rest of society. This bill would provide us with an opportunity to give victims of inappropriate sexual behaviour the type of support that they want and that they deserve within the military justice system.

I think that needs to be communicated, not only internally in the Canadian Armed Forces, but also outside to all Canadians. What we are doing today is very much a part of that process: We're talking publicly about the system and what it does, not only for the Canadian Armed Forces but also in meeting the expectations of Canadian society as a whole.

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

And how it connects with Canadian values as well.

[Cmdre Geneviève Bernatchez]

Absolutely.

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

Thank you very much for that.

The minister, in his opening remarks, stated that the bill seeks harsher penalties for crimes motivated by bias, prejudice or hate, based on gender identity or expression. To the extent that you are able to ascertain and maybe even put some numbers on it, prior to this bill's having been introduced, how much of a problem were those kinds of crimes—bias, prejudice or hate—either leading to full offences or even below that threshold as misconduct incidents?

[Cmdre Geneviève Bernatchez]

I will pass this on to one of my two expert colleagues. I do not believe that we have specific data on how many of these offences have been dealt with within the military justice system.

What that section of the bill would do, however, is align the military justice system with the rest of the civil and criminal justice systems, and it's a reflection of section 718.2 of the Criminal Code of Canada.

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

Thank you.

[Colonel Stephen Strickey, Colonel, Deputy Judge Advocate General, Military Justice, Department of National Defence]

To add to what the Judge Advocate General has mentioned, the aggravating factors do mirror section 718.2 of the Criminal Code.

I would add as well that traditionally we have done research in the JAG annual reports on breaking down various offences, so as the JAG alluded to, we're not clear if this has had a significant effect. Those are certainly things we will look at now that the provision is in place.

As a little bit of history on the provision, I can tell you that the addition of sexual expression as an aggravating factor in section 718.2 was part of Bill C-16, which, at that point, did not take into account Bill C-77. What this does in effect is, as the JAG mentioned, mirror section 718.2 to track the current language in Bill C-16.

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

Thank you very much. That's helpful.

[Cmdre Geneviève Bernatchez]

If I may add, I think this is very much in keeping, from a legal policy perspective, with our efforts to ensure that we have a force that is free of these types of behaviours, one that is based on honour, honesty and integrity, so this is very much aligned with the military ethos as well.