National Defence Committee on Nov. 20th, 2018

[Col Stephen Strickey]

Thank you for your question.

First, the bill would give a judge the right to make court orders.

Examples would be, abstaining from communicating with the victims, non-disclosure orders, publication bans, as well as preventing an accused person from directly cross-examining the victim.

As well, the right to protection would entail three important things. The first is regarding the security and privacy of victims, as considered by military authorities, and I'll let my colleague Colonel Lortie fill in the details on that. Second, it would also provide reasonable and necessary measures to protect the victim from intimidation and retaliation. Third, as I alluded to before in a previous question, it would also identify protection and testimonial aids on request.

In all, it's envisioned that there is a cadre of mechanisms that are available to military authorities to better protect victims.

[LCol Geneviève Lortie]

In terms of the right to protection, all the rights that will be protected are recognized in the Victims Bill of Rights. Subsequently, certain mechanisms may be added to the regulations to provide information, to determine who will be able to take various tangible actions or how those actions will be taken. The regulations will subsequently contain more of that.

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

Thank you.

[The Chair, Liberal, Stephen Fuhr]

There's about 20 seconds for a question and a response. If you're able to do that, please proceed.

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

No, I'm not that fast.

[The Chair, Liberal, Stephen Fuhr]

There will be time to circle back, for those who want to add more later.

I give the floor to MP Bezan.

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

Thank you.

Colonel Jetly, as you are a medical practitioner, I want to be clear regarding 98(c) of the National Defence Act. Should we keep it or get rid of it?

[Col Rakesh Jetly]

That's not my call. I don't see it interfering with the job that our health practitioners do. I haven't seen it interfering. We care for people. I've cared for suicidal people in theatre and for different allies. As health practitioners, we look after people, victims, perpetrators and enemy combatants. We have a job to do and that's what we do.

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

I appreciate that. I just want to come back to some of the questions that we've been having.

As you know, we've had a number of recommendations that have come to the committee from Jean-Guy Perron, as well as from the Quebec bar association. To follow-up on some of the other questions that we've had here, there's a lot of concern around the issue in Bill C-77 regarding disciplinary infractions versus service infractions. When you compare C-77 to the old C-71 that was tabled back in 2015, is there any evidence that we need to lower service infractions to such a level versus the way we used to treat, and currently treat, those types of infractions today through summary trial?

[Col Stephen Strickey]

I can't really speak in terms of evidence, but what I can put forward, as all the committee members are aware, is that the summary trial reforms are intended to create a non-criminal, non-penal disciplinary system that will deal promptly with service disciplinary misconduct.

Certainly in terms of our allies, there was some discussion of that at the committee during the last meeting. We did take a look at that. In terms of Australia, I think this system would perhaps compare the closest. That system comprises of a summary scheme called the discipline officer scheme. I'm certainly not an expert on the Australian summary trial system, but just for the benefit of the members of the committee, from what we have researched, once people elect to have an offence dealt with by a discipline officer, they're deemed to have admitted to the infringement and they do not have the right to any type of representation.

It seems very analogous to the type of hearing that is proposed in Bill C-77, an administrative-type hearing. As well, as I discussed in my previous appearance before the committee, there are some analogies as well to the RCMP disciplinary scheme. Clearly, the needs of discipline, morale and efficiency in the Canadian Armed Forces are just that they are nuanced to the Canadian Armed Forces, but one can draw a rough analogy with the RCMP scheme.

I would point out—and again, I'm certainly not an expert in the disciplinary scheme of the RCMP—but that is a two-tier system, conduct authority and conduct board, and the balance of probabilities as well based on that system. As well, from the cursory research that we have done, there is legal representation only before a conduct board on the more serious infractions.

As I said, the balance of probabilities is the standard, and the infractions are also ensconced in the regulations. Whether we discuss theoretically a justice system or a disciplinary system, as you know, sir, there's no perfect system, but what is proposed here is a non-disciplinary, non-penal system.

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

Since the bill was drafted and tabled, of course we had the Beaudry decision through the Court Martial Appeal Court, and we're still waiting for the Supreme Court to pronounce on it. Have you looked at Bill C-77 since that decision through the Beaudry lens to see whether or not you feel that it cuts the mustard according to any of the changes that are being suggested in that decision?

[Col Stephen Strickey]

I think whenever there is any major decision by any court martial appeal court service—and you discussed that during the last hearing—it's the job of my division, the military justice division, to take a look at that decision in light of all of the military justice system. Certainly we do that on an active basis, not always on a daily basis, depending on the decisions, but we certainly actively look at these things. Yes, sir.

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

Thanks.

[The Chair, Liberal, Stephen Fuhr]

Thank you.

Next is MP Fisher.

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

Thank you, Mr. Chair.

Thank you very much, folks, for being here.

This may have been touched on by Mr. Spengemann, but how does the declaration of victims' rights proposed in Bill C-77 compare, how is it the same and how does it differ from the rights that already exist through the Canadian Victims Bill of Rights? Also, is the definition of “victim” the same in both?

[Col Stephen Strickey]

In terms of the comparison to the victims' bill of rights, the Canadian Victims Bill of Rights does not apply to the military justice system. As for the declaration of victims' rights, when we're at the clause-by-clause study at some point in the future, you'll see that the vast majority of the victims' rights, as laid out in those materials, mirror those rights that are purported in the Canadian Victims Bill of Rights.

That could be said as well for the term “victim”. I point out that the Interpretation Act provides that a “person” refers to both a human and a corporation, as this committee would know. The declaration of victims' rights is not meant to apply to corporations, thereby the term “victim”.

I would say, as it is laid out clause by clause, to the extent possible, the bill does mirror in principle the rights afforded in the Canadian Victims Bill of Rights. There are some differences, and I did talk about one earlier, and that is the victim liaison officer. The victim liaison officer is designed, and the role will be outlined in regulation to assist victims to understand the nuances of the military justice system. There is no victims liaison officer, to my knowledge, called for in the Canadian Victims Bill of Rights.

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

Okay.

As Mr. Bezan said, Bill C-71 and Bill C-77 are very similar, Bill C-71 being the bill that died on the Order Paper in 2015.

It seems like a minor change. Bill C-77 I think uses “summary hearing” and Bill C-71 uses “summary trial”. Is that accurate? If that's the case, on the surface it doesn't seem like a big change, but what is the rationale for making sure that all through the NDA, Bill C-77 would replace the term “summary trial” with “summary hearing”?

[Col Stephen Strickey]

Generally speaking, the term “summary hearing” would denote the fact that it is a non-penal, non-criminal vehicle to enforce discipline.

Also, in essence—and I'll let Colonel Lortie interject here with details—when we talk about a service tribunal throughout the current National Defence Act, in many instances it may mean a summary trial or it may mean a court martial. There are many technical amendments that are put forth in this bill to ensure the delineation between a court martial, which would obviously be penal and criminal in nature, and the summary hearing.

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

Okay.

I have one final thing. How are service infractions different from service offences?

[Col Stephen Strickey]

Again, sir, the service infraction would be non-penal and non-criminal in nature and designed to enforce discipline, of course, and the objectives of the summary hearing system are set forth in the bill, as the committee is aware. Summary offences are just that and are laid out in the National Defence Act.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Stephen Fuhr]

Next is MP Bezan.

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

Thank you.

I want to come back to the issue of the penalties described under Bill C-77 for summary trials. There are still very much penal consequences, such as confinement to barracks, reduction of pay and allowances and reduction in rank, yet we don't hear anything on burden of proof beyond a reasonable doubt. Is that a violation of the charter?

[Col Stephen Strickey]

Well, I want to be very careful in offering any opinion with regard to the constitutionality of any legislation before the committee, but what I can say is that the bill that is put forth before this committee vis-à-vis the summary hearing system is designed to be a non-penal, non-criminal mechanism to enforce discipline within the Canadian Armed Forces. That said, any sanctions that are put forth in the regulations would presumably take that into account, the very nature of the non-penal, non-criminal system.

Again—and I did speak about the RCMP disciplinary scheme—while not entirely analogous to the system that we have before us for the needs of the Canadian Armed Forces, those sanctions that would include demotion, loss of pay and things like that are set forth in regulations as well. The sanctions in Bill—

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

As it currently sits right now, if somebody has been found guilty and that's going to happen, first, it has to be beyond a reasonable doubt in terms of the burden of proof and how that's defined. It was defined in that way under the old Bill C-71 as well.

Plus, they had the whole concept that if they wished to, they had the option of going to a trial by their peers through court martial. Does that option still exist in Bill C-77?