National Defence Committee on Oct. 23rd, 2018

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chair.

Welcome, witnesses.

How does the Judge Advocate General work with the Sexual Misconduct Resource Centre to ensure that victims are supported?

[Cmdre Geneviève Bernatchez]

Thank you very much for the question.

Dr. Preston and myself have collaborated very closely since my appointment to harmonize the services provided by her centre and those provided by the military justice system.

As to the support given to victims by the Canadian Armed Forces, the military justice system is...

[The Chair, Liberal, Stephen Fuhr]

Excuse me. Please hold it there for a second. We have an interpretation problem.

Please continue, Commodore.

[Cmdre Geneviève Bernatchez]

To summarize, there is a great deal of collaboration between the Sexual Misconduct Resource Centre and the office of the Judge Advocate General.

Regarding services for victims, we also must reflect on the nature of those services and the whole range of services that can be provided to victims. We have to see whether it is well-founded to provide legal representation to the victims during the proceedings they face, which are just as difficult in the military justice system as in the civilian one. We also wonder whether process or mechanisms derived from reparatory justice or other systems could be incorporated into the military justice system.

Dr. Preston's team and myself are in constant contact to improve the situation and ensure that the services provided to the victims make up a coherent whole.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

We know that the military justice system can be hard to understand. In what way will the designation of a liaison officer, as set out in Bill C-77 to help victims navigate the military justice system, help to guarantee that those victims' rights will be respected?

[Cmdre Geneviève Bernatchez]

I think that the whole military justice system can be very intimidating to a victim, not only because of the legal formalism, but also because of the procedures themselves. People who are not familiar with it will probably not be comfortable. The liaison officer will thus ensure that the victim understands all of the ins and outs of the military justice system, as well as the different steps to be followed; he will ensure that the person receives the necessary support all through this process.

I'd like to add that the Sexual Misconduct Resource Centre also stated in its annual report that it would soon be putting in place case managers to support every victim, not only in the context of military justice proceedings, but as long as the person's file is open. Case managers will be there from the time when the victim experiences sexual misconduct that must be disclosed, right up to the resolution.

The liaison officers and case managers will thus co-operate and complement each other.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

How will Bill C-77 improve the speed and fairness of the summary trial system for minor infractions to military discipline? Will this have an impact on the delays mentioned by the Auditor General in his spring report?

[Cmdre Geneviève Bernatchez]

Bill C-77 is attempting to put in place a summary proceeding system where the units would maintain their responsibility for settling the most minor breaches to the Code of Service Discipline. This means arriving late for work or not wearing an appropriate uniform, for example; the list of these infractions has not yet been drawn up. As these infractions would be handled by unit commanders or their delegated officers, the procedure would be simplified. Only the most serious cases would be referred to court martial, which would simplify the process and reduce delays. This would be a direct response to one of the concerns of the Auditor General.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Thank you very much.

[The Chair, Liberal, Stephen Fuhr]

Thank you.

MP Garrison is next.

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

Thank you, Mr. Chair.

Given that we have limited time today, I want to make one remark on your testimony, on the section considering the circumstances of indigenous people. It is that I had some questions and concerns, but your testimony has already reassured me on those grounds.

I want to return to section 98 and ask two different things.

Given that Bill C-77 is about reforming the justice system, that changes some infractions and adds some penalties. Would you think that removing proposed paragraph 98(c) would be within the general purposes of this bill? In other words, would it fit in this bill in reforming military justice, or not?

[Cmdre Geneviève Bernatchez]

You will be hearing from a lot of expert witnesses throughout the analysis of this bill. I think it is for this committee to arrive at a determination of the legal policies that should be taken into consideration.

For sure, a bill like C-77 presents an opportunity to address Parliament's preoccupation and considerations to ensure that the military justice system remains on pace with Canadian laws and values.

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

Thank you very much.

There are three paragraphs in section 98. There's paragraph 98(a), which says simply “every person who malingers or feigns or produces disease or infirmity”, and then it goes on to paragraph (b), making that an offence; paragraph 98(b) talks about aggravating or avoiding cures. Only paragraph 98(c) talks about willful self-harm.

Maybe you can't answer it today; it may be you're giving us advice. What I see and what families see is that singling out willful self-harm becomes a barrier to treatment. The aim of this legislation is to prevent avoidance of service, and that would be covered under paragraph (a) “...malingering, feigning, or producing disease or infirmity”. In other words, there's still adequate power there for commanders if someone is deliberately avoiding service. Taking out self-harm simply removes that perceived barrier to treatment. It wouldn't leave a legal gap.

I wonder if you have an opinion on that at this point.

[Cmdre Geneviève Bernatchez]

My Deputy Judge Advocate General for military justice may want to add a few things.

We have a paucity of information right now as to the past usage of section 98 and whether it affected those who clearly suffered from mental illnesses and prevented them from seeking appropriate treatment. We would have to look at this for sure.

[Col Stephen Strickey]

Just to add very briefly to what the JAG mentioned, as you know, sir, having looked at the provision, it is a specific-intent provision. Legally speaking, the bar of paragraph 98(c) would be somewhat higher than that found in paragraphs (a) and (b).

That's from a legal perspective.

However as the JAG and the minister mentioned, if the JAG asks her experts to look at this section—and I'm sure she will—we'll certainly do so in consultation with our other subject matter experts to get back to this committee as soon as we can.

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

Thanks very much.

On the question of evidence, what I heard from families of members who died by suicide is that they clearly believed this section was a barrier. In particular, a family in my riding whose son twice attempted suicide believed he did not seek help because of this section, believing that he would automatically disqualify himself from service if he admitted to self-harm or an intention to self-harm.

Quite apart from the legal intent—and I understand what you're saying by creating a high bar—this may have been put in there for positive reasons. In the anecdotal evidence I'm hearing, the effect it seems to be having is exactly the opposite. In the perception of members of the forces, it creates a lower bar—that if they do confess to having these kinds of thoughts, they will automatically be sanctioned. That's what families are telling me they hear is the barrier. People don't want to seek any help because of this section.

[The Chair, Liberal, Stephen Fuhr]

I'm going to have to leave that with the member and end the formal questioning, as per our agreed upon time.

We do have time on the clock, though. At least two members indicated they wanted to question.

I'll give Mr. Bezan the floor for five minutes, and then Mr. Spengemann. There will still be a little time left, so if someone wants more time, get my attention, please.

Go ahead, Mr. Bezan.

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

Thank you, Mr. Chair.

Commodore Bernatchez, in your comments back and forth with Mr. Martel, you mentioned that you were going to provide information on how many people have been charged under section 98. Could you also provide greater clarification, if it's possible, of how many were under paragraphs 98(a), 98(b) and 98(c)—malingering, feigning and so forth—just so we have that picture? Also, it would be useful for the committee if you could give us information on paragraph 98(c), as to whether or not those individuals were offered treatment for mental health challenges they may have been dealing with.

We talked a little bit about the impact of Beaudry, and I did ask you this question yesterday with regard to the Auditor General's report. It was a very critical analysis of how military justice has been carried out. Under Jordan, justice delayed is justice denied. Now that we are, as Ms. Gallant said, sitting in limbo until we find out what we're doing with Beaudry, my concern is with how we are going to determine whether or not the principles of Jordan are being respected under military justice.

I thought you gave a good explanation yesterday about how Bill C-77 will help streamline processes and reduce the backlog that has caused problems during the time frame that the Auditor General did his analysis.

[Cmdre Geneviève Bernatchez]

What I want to repeat here, as I said yesterday, is that I've given my personal commitment to see through the implementation of the management action plan, because it is extraordinarily important for me that the military justice system remain a system that is not only in fact legitimate, in fact answering the requirements of the Canadian Armed Forces, but is also seen as extremely important.

Regarding how Bill C-77 would address the issue of timeliness and the issue of delays, what I want to say again is that keeping at the unit level the minor disciplinary breaches removes the penal, criminal consequences that are currently attached to the summary trial process, which triggers a series of rights for the accused in accordance with Canadian law and with the Canadian charter in order for the summary trial to be the legally sound system that it is. To simplify the process, we remove the penal and criminal consequences from these types of infractions. We ensure that there is no criminal record associated with them. They are simple, basic disciplinary issues addressed at the unit level.

What does that mean? It means that we do not have to offer the right to election to the accused person. It means that we can streamline the process and decide at the outset that it will be one forum or the other. As a result, it cuts the time that it takes for a matter to get resolved, so we answer directly the Auditor General's preoccupation about the overall timeliness of the military justice system.

If it gets addressed by a summary hearing quickly or goes to court martial to start with, you remove all the delays that are associated with election, referral of charges from one level to the other, review of charges by legal officers and the legal advice that needs to be provided in that process. You remove the time taken for that, streamline the process and reduce delays.

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

Is there any potential criticism around the summary hearing that could possibly border on whether it has fairness in it for the accused?

[Cmdre Geneviève Bernatchez]

It is a system that has been thoughtfully and carefully analyzed in order to ensure that it complies with all of an accused's rights. It would remove the penal and the criminal consequences and ensure that presiding officers continue to receive the appropriate training for determining that there are limits of procedural fairness and that it requires going in with a view that the person in front of you is innocent until proven otherwise on a balance of probability. All these procedural safeguards will remain there for that specific process.

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

Would—

[The Chair, Liberal, Stephen Fuhr]

You're well over, Mr. Bezan.

Go ahead, MP Spengemann.

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

Thank you, Mr. Chair.

All of my questions have been touched on. In fact, witnesses, on the first one, Mr. Bezan just engaged with you. I wanted to follow up for the perception of the committee and of Canadians.

When you push disciplinary dispute resolution to the unit level, there is a risk that there are different cultures of discipline emerging across units and branches of the armed forces. In your last answer, you commented on the fact that there are procedural safeguards that would prevent that.

Can I just zoom in a bit more and ask you what potential for discretion there is in the treatment of offences that from the systems perspective may be considered to be minor, but from the perspective of the person involved may not be so minor—especially if it's repeat offences—to prevent the disparate cultures of discipline within the armed forces?

[Col Stephen Strickey]

Certainly the bill is designed to.... As some of the members may recall, Chief Justice Dickson, when he reviewed the military justice system, stated that the commanding officer is “at the heart of...discipline”. Certainly, the esprit—the spirit, if you will—of the summary hearing system is that the commanding officer indeed remains that.

Of course, with any new system there will be training given and regulations drafted through our Queen's Regulations and Orders that will outline specific details relating to the summary hearing system. Much like the current summary trial system, there is a back-and-forth in terms of the legal officers who provide advice to the commanding officers. That could in fact be the case with the summary hearing system.

When the JAG testified yesterday before the public accounts committee, she gave the analogy to the summary hearing system as the RCMP disciplinary system or a disciplinary system within the public service. I think that is a very good analogy to reinforce to this committee—that in fact the summary hearing process will very much look like that, with the particularities that we require to maintain good order, discipline and morale in the Canadian Armed Forces.