National Defence Committee on Nov. 1st, 2018

[Pascal Lévesque]

That is the understanding of the Quebec bar. In cases where members of the military are facing serious penal consequences, removing such elements as the possibility of a criminal record and detention does not change the fact that, if the matter is brought before a judge, problems could arise and the Canadian charter could be violated.

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

In Bill C-77, the elective of going to a court martial is no longer available if it's considered a non-criminal offence. Is that right?

[LCol (Ret'd) Jean-Guy Perron]

Correct. That is also very problematic, because there's a lot we don't know about the consequences of Bill C-77. The infractions will be defined in regulations. The procedures will be defined in regulations. There's nothing in the bill that tells us exactly where we're heading from an infraction point of view and procedure point of view, other than a “balance of probabilities”.

If we use, presently, the five minor offences as the standard for what should be a disciplinary infraction, we would use a process that would be quite similar to a summary trial. Presently in a summary trial, if the accused may be subject to a fine that's more than 25% of basic monthly pay, detention or a reduction in rank, that gives the accused the right to elect for a court martial. This you will not see in Bill C-77 should the infractions be basically the minor offences of today. This option would not exist.

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

I don't know if you've read the Auditor General's report from the spring, an analysis of the military justice system that was very critical of the JAG. Have you seen that report?

[LCol (Ret'd) Jean-Guy Perron]

I read it, but many months ago.

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

It was very critical. I guess one of the concerns is the Jordan principle and that there are a lot of delays in the judicial process. I'm unsure whether it's a shortage of lawyers or whether it's a shortage of investigators, but things aren't moving down the pipe in a timely manner.

Of course, now we have the Beaudry decision from the Court Martial Appeal Court, which suggests that these issues be tried in civilian court rather than through a court martial if they're committed in Canada. Of course, we have the delays in the civil system as well, mainly because of the lack of judges in some jurisdictions.

How do we get around this issue of delays? Does Bill C-77 fix that? I know the Canadian Armed Forces believes it does take off some of that pressure, because commanding officers will be making more decisions than military judges.

[LCol (Ret'd) Jean-Guy Perron]

Based on the statistics from the JAG annual reports over the last 10 years on summary trials, I do not see how Bill C-77 would change the landscape that greatly, considering the nature of the offences tried at the unit level and the sentences—the punishments—handed out at the unit level. Eighty per cent of trials are by delegated officers. They're not even by COs. They're by a major or a captain in the unit. COs do 16%.

The unit handles the minor disciplinary infractions, so I don't understand how Bill C-77 changes the landscape.

[The Chair, Liberal, Stephen Fuhr]

I'm going to have to move on to MP Garrison.

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

Thank you very much, Mr. Chair.

Thank you to all the witnesses for appearing today.

I want to assure the Quebec bar association and Lieutenant Colonel Perron that we'll look at the detailed recommendations very carefully.

I think that the presentation from Ms. Fynes today, for me, illustrates that when we talk about bills, we sometimes get to the technical or the lofty levels, and we sometimes forget the real impacts on people.

I've had the privilege of getting know to Ms. Fynes and her family as constituents. I wish it would have been for better reasons, but it's still been a honour for me to get to know you.

I noticed this morning that the Canadian Legion has selected Anita Cenerini as its 2018 National Silver Cross Mother. This will be the first time that a Silver Cross Mother has been one who has lost her child to suicide.

I wonder, Ms. Fynes, if you would like to say something about the significance of that decision by the Legion.

[Sheila Fynes]

It's probably one of the most important inflection points for us. It's been a journey for us to bring attention to the issue of soldier suicide. She made a comment—it was in the paper—about how they're the forgotten soldiers. I think that putting a Silver Cross Mother of a soldier who took his own life on the national stage like that is awesome. I do.

My heart just.... I almost cried. We were having breakfast, and it was it like.... Today of all days.... It was great.

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

I know that you focused very much on the positive strides that the Canadian military has made, but I think it's important that we acknowledge that some of that progress is the result of efforts by people like your family and the Cenerinis to get a different treatment.

[Sheila Fynes]

There are a lot of us out there, actually. There are a lot of families. Some choose to keep it down, to keep it within their family unit, but we strongly feel that it's just too big an issue. As I said, they're not disposable assets. These are people who are just so proud that they get to serve their country. We just have to do everything we can to support to them.

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

When you and I have talked about paragraph 98(c), I think that in our discussions and my discussions with senior military leadership locally, they all acknowledge that the use of it is infrequent. However, what I hear you saying to me, both before and today, is that although the military is trying to remove barriers, it has left this in the code of conduct.

[Sheila Fynes]

I was astounded that it even ever existed. It just so goes against.... The right thing to do is to help somebody who is not well, regardless of what they do for a living. When you told me about that, you know, I was like, “What? No, that can't be.”

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

I think you're quite correct. If you look at section 98, paragraphs 98(a) and (b) talk about the traditional concerns of discipline: malingering, or faking or prolonging illness. However, paragraph 98(c) is peculiar in that it singles out self-harm.

[Sheila Fynes]

I understand paragraphs 98(a) and (b)—I really do—but paragraph 98(c) is the logical extension of this scenario: If you don't get what you want through paragraphs 98(a) and (b), then if you take that extra step, we're going to take that step as well.

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

I think we talked about the 161 families, and I don't want to demean the individuality of each of those cases. However, what you have said to me before—and I know you feel very strongly—is that some families haven't been able to take this and turn it into something more positive.

[Sheila Fynes]

It's hard. It is really hard. You think you have it under control, and time goes by. People think, “Okay, it's been a year”, or “It's been three years”, or “It's been five years.” When we were putting this together, it was yesterday. It never goes away. For some families, it just is easier to not deal with it in that way. For me, I'm a doer. If there's an issue, I kind of meet it head-on. That's how I cope. That's how I hope to make a difference.

As I said, I saw that in the paper this morning, and I thought, “I know this family. Maybe because we came forward in a very public way, we aired it all. Maybe it made a difference somewhere to some families along the way, and they will deal with it however they choose.”

[The Chair, Liberal, Stephen Fuhr]

I was just in discussion with the clerk. Before I move to the next speaker, given our tardy arrival from votes and the fact that many of you have travelled to be here, I'm going to forgo committee business and let the questioning go to the top of the hour.

The next seven-minute question goes to Yves Robillard.

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

Thank you, Mr. Chair.

I'd like to thank the witnesses for their excellent presentations.

My first question is for Lieutenant-Colonel Jean-Guy Perron.

What are the best practices for recognizing and respecting victims' rights in a military justice context?

In your view, does the proposed addition of the Declaration of Victims Rights to the Code of Service Discipline respect established standards and best practices in this area?

[LCol (Ret'd) Jean-Guy Perron]

I can't really comment on the Declaration of Victims Rights provided for in the bill. I had a look at it, but I didn't examine it in depth.

I agree in principle with including victims rights in the National Defence Act, to be sure. By the way, I agree with what Mr. Lévesque said about certain elements of the bill. I can't really comment any further.

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

I see.

How does Canada compare with other countries, such as the United Kingdom, France and the United States, in recognizing the rights of victims of service offences?

[LCol (Ret'd) Jean-Guy Perron]

I can't answer that.

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

Very well.

My next questions are for Ms. Haddadi and Mr. Lévesque.

Bill C-77 provides for the designation of a victim's liaison officer at the victim's request. That person's job is to assist the victim during the process.

Would victim liaison officers be able to provide legal advice to the victims they are responsible for assisting?

[Pascal Lévesque]

If the victim's liaison officer belongs to a provincial bar association, they could. The department and the Canadian Forces could set out a regulatory requirement that victim liaison officers be members of a provincial bar association. They could be military lawyers on secondment, for instance, and a special unit could be created solely to assist victims. That would be the prerogative of the executive branch.