National Defence Committee on Nov. 1st, 2018

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

Thank you very much, Mr. Chair.

Thank you all for being here.

Mrs. Fynes, thank you for your testimony. It was so moving, but it was so important. I want to thank you for being a doer. Don't give up.

[Sheila Fynes]

I won't.

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

I have a few general questions for you, based on some of the things you said.

You talked about great advances since 2008. You're seeing progress. You're seeing the culture change.

I see the culture change outside the military, as well. Ten years ago, nobody would talk about mental health. Now, with Bell Let's Talk and many other things, it's at the forefront in today's society.

Maybe I'm wrong about the 10 years; it might be eight, but it's there. It's definitely happening. That culture change you stated is happening.

Now, as a doer, because in my past life I used to be a doer—just a joke—how frustrating is the pace of this culture change? You woke up this morning and you read the story about the Silver Cross. Are you frustrated daily, and is that what continues to drive you? Are you happy with the pace of this culture change, these advancements?

I would like to hear a little bit more. I was rivetted when you were speaking, but you didn't go into too much depth on that.

[Sheila Fynes]

I think the change is happening faster and faster. It's accelerating as we go.

I think there was a time when it was almost shameful. The word itself, “suicide”, meant “defective”, mental illness: “What's wrong with the family?” or “Why did this happen?”

Now there have been so many public people who have come out and been involved in Bell Let's Talk. There have been athletes. Within the military, there are more and more families willing to speak out, and I think that really has made things go more quickly.

At the same time, if I could wave a magic wand, everyone would get everything they need yesterday. That's not going to happen. I am well aware that there are processes and restrictions, and while I am a doer, I am also pretty realistic about how glacial the speed can be when it comes to changing things.

Let's face it: I'm asking you to consider changing something in the National Defence Act, and that's a pretty big deal in my world. To me it's kind of a no-brainer, but maybe other people don't feel the same way. I am very well aware that I am asking you to consider a big thing. It's really not that important in the whole scheme of things to people outside of it, but to the people involved in it and the sick people, it's a huge thing. It doesn't get any bigger.

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

I think about what you said, that it was almost shameful; I think it was in fact shameful.

You used the line “de facto abuse of a subordinate”, and I scribbled that down.

[Sheila Fynes]

Yes, it was.

When our son was ordered out of hospital, there were a lot of restrictions put in place, and I was interested in what you had to say about detainment and defaulters discipline.

He had to live at the duty desk. If he left the duty desk, he had to say exactly where he was going, and he always had to have a phone number with him. He had to be tucked up in his little bed behind the duty desk by a certain time at night, quite early. It was very restrictive, and shameful, because the whole regiment knew that Langridge was under defaulters discipline.

I have to tell you that I have yet to meet a soldier who was prouder to serve than Stu was. From when he was 12, he wore a green uniform in some way or another. It was everything for him, and he was good at it. He was really good at it. He flew the Black Hawk helicopter with the ministry of defence over Afghanistan. He was chosen to represent Canada in Utah as a gunner. He was good, and he loved it.

To go from that place to this defaulters discipline was the worst thing that could have happened, and within 10 days he was dead. Just like that, it was over.

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

Is that my time?

Thank you.

[The Chair, Liberal, Stephen Fuhr]

MP Gallant is next.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.

My question is directed to Mr. Perron. It is with respect to the glaring change you've found in the legislation between 1971 and 1977—that a summary hearing is based on probabilities as opposed to reasonable doubt—and its relationship to a possible violation of the charter. In order to have that aspect of the legislation put through, would we have to make a constitutional change? Would we need to open up the Constitution to examine this?

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

No, I don't think you would be examining the Constitution.

The Supreme Court of Canada provides a two-part test to determine whether a proceeding is administrative, penal or criminal in nature.

The 2015 Guindon decision from the Supreme Court of Canada, which basically reiterates the test from Wigglesworth and Martineau, gives us the guidelines to assess a situation and to determine whether we are dealing with something that's purely administrative in nature and procedure, and therefore the administrative law applies, or whether it's criminal or penal, and therefore the higher standards apply. This, for me, is the exercise that must be undertaken when examining Bill C-77.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.

We've seen that the justice department has quietly launched an artificial intelligence experiment as the government prepares to use software to decide cases in immigration, for example, and tax law. When you raised this stark difference between probabilities and reasonable doubt, it led me to consider that perhaps this is where the government is eventually going: to use artificial intelligence in deciding cases, as it is planning to do with immigration and tax law. There, they're feeding data into the software systems and predicting outcomes based on what the outcomes of previous cases were. Indeed, perhaps the gigantic scoops of data that we've learned about in recent days may be part and parcel of this experiment on artificial intelligence.

However, we have a policy vacuum. There is currently no legislation and there are no regulations, policy positions or frameworks within the Government of Canada to govern the use of AI in Canada. Also, there seems to be an anathema within the government to even have a study on AI—for example, in this committee—on what our policy is going to be as it applies to defence.

With your having been both a serving member in the military and a military judge, if this is the direction that our government is headed in to speed up the quick resolution of cases, do you think having a software program decide innocence or guilt based on probabilities would serve the defendant?

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

I think I'm qualified also to talk about the defendant, because I've been accused and I had my summary trial many years ago. Long answer short, I cannot see the day that there will be any other way of deciding a summary trial or a court martial without having a judge and the human aspect. As far as I'm concerned, it's impossible to do it otherwise.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.

We haven't seen yet how the Jordan decision is going to play into military justice. Do you think it's possible that, for example, as my colleague mentioned, if the case has not been heard within the military justice system and if the timeline exceeds the maximum amount according to the Jordan decision, they will be unable to have that case tried in a civilian court?

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

Well, on the Jordan decision and the time delays that could lead to a decision to stay proceedings based on unreasonable delay, could that happen? Yes, of course. It all depends on that specific case. Is it transferred to the civilian system? How does it make its way through the civilian system? Then, if there's a charter challenge, what are the exact factors that come into play in determining if there is a breach of a charter right and the application of the Jordan decision? There is no definite answer that applies to every case.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you very much.

[The Chair, Liberal, Stephen Fuhr]

Thank you.

MP Romanado, welcome. The floor is yours.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you, Mr. Chair.

First of all, I'd like to thank everyone for being here.

Lieutenant-Colonel Perron, thank you for your service.

Mrs. Fynes, my deepest condolences to you and your family on the loss of your son.

I too am a military mom. I have two sons serving, and the reason I am sitting in front of you today is that I decided to run for office because I wasn't too happy with how we were treating our military and our veterans, and so, what better way than...? Don't tick off a military mom, right?

I'm a fellow doer. I want to thank you, because they say when a member serves, their family serves right along with them, and I know that to be true, so I offer my deepest condolences to you and your family.

As I said, I have two sons serving, one who is deployed as we speak. I've had to accompany him to funerals as well, funerals of classmates and fellow soldiers who unfortunately lost their battle with mental health.

You talked a lot about...and I wrote this down: “It is a mental health issue, not a crime.” I was speaking with my colleague Randall on the way here, and we were talking about the fact that the Royal Canadian Legion has now recognized a Silver Cross mom who lost her son to suicide.

We've made strides. I previously was the parliamentary secretary to the Minister of Veterans Affairs and Associate Minister of National Defence, up until two months ago, and I was with the CDS and our two ministers for the joint suicide strategy announcement.

We are asking our men and women in the Canadian Armed Forces to come forward and say they're suffering. We've heard a lot about universality of service and the fear of coming forward and then not being able to serve. Do you think that having paragraph 98(c) still in force for universality of service is what is preventing people from coming forward and asking for help, in your opinion?

[Sheila Fynes]

I believe that as soon as you put your hand up, your career is pretty much toast. Maybe it's not so much the case now, but it definitely was when Stu was serving. You become “that guy”.

I think what makes a really good soldier is the pride attached to what they do. As soon as you take that away, you truly have stripped them of everything important to them.

I think that you do have to be deployable, absolutely, but I do believe that there's a responsibility on the part of the employer, and that would be DND, to help you with that, right? If you step up and....

I do think it's changing. We had reason to cross paths about a year ago with someone who was an officer in Stuart's regiment, and he offered his condolences. He knew Stuart. It meant the world to us. It just stripped away so much negative stuff that we'd been feeling. I think that just as there is a responsibility on the part of the serving member to do everything they can to be deployable and well and valuable and all of that, there is an equal responsibility on the part of the military to help them when it kind of goes sideways.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you.

Colonel Perron, you mentioned—and I'm not a lawyer, so please correct me—that there are service offences that result in criminal records—for instance, insubordination, absence without leave, drunkenness, conduct, and so on—that are not found in the civilian world. In your opinion, should somebody who was in the Canadian Armed Forces have a criminal record for one of these offences? Once they leave the Canadian Armed Forces, should that criminal record follow them? Is there something that we should be thinking about with respect to that?

You mentioned that when they leave the Canadian Armed Forces, they would have difficulty finding a job, crossing the border, and so on and so forth. Should an offence that is unique to the Canadian Armed Forces or that field carry forward into the civilian world, and is that something we should be looking at, or should we just be abolishing completely a criminal record for offences that are found strictly in military life?

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

In the discussion concerning a criminal record, for me the basic question is why someone who is found guilty of absence without leave or insubordination, which have no equivalent in civilian life, should suffer the consequences that a criminal record brings. It makes no sense to me. Should certain offences under the code of service discipline result in a criminal record? Quite possibly, but we need to examine this so we don't punish individuals who should not be punished—I say “punish” in a wide sense, a criminal record.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

That brings up a really good point in terms of transition.

When people leave the Canadian Armed Forces and are trying to go on to a civilian life, if they have a criminal record for going AWOL, for instance, and try to find a job after they leave their military service, but the job requires.... We see a lot of folks going on to work in security fields, but that requires a criminal background check, and you now have a criminal record for something that you would absolutely not have a criminal record for in the civilian world. Are we hindering Canadian Armed Forces members who are transitioning out of the Canadian Armed Forces to be able to find gainful employment by having this record follow them?

[The Chair, Liberal, Stephen Fuhr]

If you can answer that in a sentence or two, I would appreciate it.

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

I feel it does happen.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Okay.

[The Chair, Liberal, Stephen Fuhr]

Mr. Bezan wanted to add one point.