National Defence Committee on Nov. 27th, 2018

[The Chair, Liberal, Stephen Fuhr]

Is there any discussion?

(Amendment agreed to on division)

(Clause 7 as amended agreed to on division)

[The Chair, Liberal, Stephen Fuhr]

We have NDP-1, which is new clause 7.1.

Mr. Garrison.

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

I'd like to move that Bill C-77 be amended by adding after line 10 on page 11 the following new clause:

7.1 Paragraph 98(c) of the Act is repealed.

We have heard testimony from families of those who have lost loved ones to death by suicide within the Canadian military. We continue, despite some very good actions on the part of the military and its suicide prevention strategy, to lose one member of the Canadian Forces per month.

One of the things the suicide prevention strategy sought to do was to remove barriers to seeking treatment. In my discussions with the family, and the testimony we heard in particular from the Fynes family, making self-harm a disciplinary offence in the military code of conduct has an impact on the psychology of those who are suffering from mental illness in the sense that it sends a message to them that even though this has not been used recently with any frequency, they risk the loss of their military career if they seek help.

We certainly had the example of Corporal Stuart Langridge, who twice attempted suicide before the third attempt was successful—it's a strange word. He died by suicide. Even though we did hear testimony again about the lack of frequency with what's used, it's very presence in the code of conduct, to which people are trained, creates this idea that self-harm is in fact a disciplinary problem rather than a mental illness.

What we heard also as testimony is that taking this paragraph out does not take away the powers the military needs to maintain discipline and order within the military, because paragraphs 98(a) and (b), which deal with malingering and exaggerating illnesses, would remain in that code of conduct. Any of the other situations people can imagine with self-harm are covered by other points in the code of conduct.

We have very few opportunities to amend the military code of conduct. Parliament was tasked in the last Parliament with Bill C-15, and Bill C-77 completes that task of reforming the military justice system, a very large and broad review of the system. It's taken over 15 years to come to this point.

If we do not use this opportunity to amend the bill as I'm suggesting, there will be no opportunity for the foreseeable future—and by that I'm talking about within the next two, three or four years—to actually remove this from the code of conduct.

I think there is urgency. I would cite again the testimony of Ms. Fynes, that if this removal causes only one person to seek help or prevents one death, then this is timely and worth doing.

I would urge the committee to take this opportunity to take a step towards getting better treatment for those who suffer from mental health issues that result in self-harm.

[The Chair, Liberal, Stephen Fuhr]

Mr. Bezan.

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

Mr. Chair, I want to thank Mr. Garrison for his amendment. I think this is very timely. I think it is necessary.

If we're going to reduce the stigmatization of mental health, especially for those who are dealing with suicidal thoughts, we need to let them come forward and get the help they need and not be concerned about getting charged underneath the military justice system.

As we heard in testimony from former Lieutenant-Colonel Perron and a court martial judge, there are other avenues to make sure that those who are harming others, those who are malingering, are taken care of. Paragraphs 98 (a) and (b) are very clear about making sure that those who are trying to get out of active duty by literally shooting themselves in the foot will be dealt with in the criminal justice system within national defence. I think this is something we want to support.

I know that Minister Sajjan just sent a letter to committee saying that he would love to have a study on this and brief us on the steps the department is taking, but this is a “once in a Parliament” opportunity to make this amendment. If we don't do it now, it's not going to happen for years.

[The Chair, Liberal, Stephen Fuhr]

Mr. Spengemann.

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

Mr. Chair, I want to start by thanking Mr. Garrison for raising this issue. I think it goes without saying that everybody around this table is concerned about mental health in our Canadian Forces and elsewhere across the public service and Canada. We take suicide prevention very seriously.

That said, it's my understanding that we received advice from the clerk that this is beyond the scope of the bill. Mr. Bezan mentioned a letter we received from the minister asking us to study this. There are conversations that need to happen and solutions need to be found.

Mr. Chair, for the purposes of this morning, I would ask you to sustain a ruling that this amendment is beyond the scope of the bill, but with the strong understanding that we need to further explore this issue and come to solutions that are acceptable.

[The Chair, Liberal, Stephen Fuhr]

Thank you, Mr. Spengemann.

Although this is not easy, I did spend quite a bit of time on it. We've talked about this in committee, both on and off the record, and we all care about this, but the reality is that it's outside the scope of this committee.

There are a number of ways...and I'll give you a chance to speak to this, James.

We could always rest on the fact that committees are masters of their own domain and they can do whatever they want. However, we're still bound by the book that I saw on your desk for the first year, which you kept referring to. That's House of Commons Procedure and Practice. Very clearly, on page 771, it addresses this. It is inappropriate for the committee to amend parent documents outside the scope. I could read you the ruling, but it's there. I think we all know what it says.

There are other ways we can deal with something that we all care about, but this is not the way, so I'm going to sustain that ruling. Amendment NDP-1 is out of order.

Mr. Bezan, and then Mr. Garrison.

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

Mr. Chair, I respect the ruling that's based on the rules. However, we are able, through unanimous consent, to do anything. If we all believe that this is necessary to do, I think we should do it now. I know that when we get it to the House, it will have to go through the same process. But again, through unanimous consent in the House, we can all agree to it.

I would suggest we set the tone to take it to the House. I respect that you've already ruled it inadmissible.

[The Chair, Liberal, Stephen Fuhr]

It's out of order.

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

I regret that we're missing an opportunity, and hopefully we'll have that opportunity in the House later.

[The Chair, Liberal, Stephen Fuhr]

Although technically we should move on from this, I want to hear from Mr. Garrison. I want to be fair to him.

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

Technically, I'm going to challenge the ruling of the chair.

[The Chair, Liberal, Stephen Fuhr]

I fully expected that.

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

I believe the way this proceeds is that I have a brief time to state my reasons for challenging the chair.

[The Chair, Liberal, Stephen Fuhr]

Proceed.

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

I understand the section you're citing about scope of the bill, but scope of the bill is not a very narrow concept, and in this case we're reforming the entire military justice system. This bill makes multiple amendments to the code of service discipline, and in particular, my amendment amends the service offences and punishments section. The government bill that's submitted amends service offences and punishments nine times. It amends the very section of the National Defence Act that this amendment deals with. Either large segments of this entire bill are beyond the scope of the bill, which is of course nonsensical, or this amendment has to be in order.

I'll try to summarize fairly briefly. The task we've been given is to reform the military justice system. The task is not to look at the code of service discipline or service offences and punishments section by section. Bill C-77 as originally submitted amends sections of the code of service discipline. That's the normal standard in every committee on which I've sat, for whether a parent act can be amended. It's whether that parent act and the sections of that act are already before the committee. They clearly are before the committee in this case, and then more specifically, the division—I guess division is the right word in legal terms—of the code of service discipline is already amended.

I fail to understand how this can be beyond the scope of the bill.

What we're trying to do is make the military justice system, in general terms—and that's part of what scope of the bill means—more fair and more just, and to create a more effective system for the military. Certainly what I'm trying to do in removing the section that defines self-harm as a disciplinary offence is make it possible for members who suffer mental health issues to remain within the military, to get the treatment they need and to do what they signed up to do, and that's to serve their country.

This stands in the way of doing that. It seems to me, therefore, clearly in order.

The last thing I will say is that when the judge advocate general was here giving her testimony on this bill, I asked her whether the committee could do this. She gave a very careful response in her testimony that should the committee choose to do so, this would be the opportunity.

I'm going to stress again that if the committee sustains the ruling that it's beyond the scope, this will not happen for years to come. It took 15 years for most of these sections to get to this point and to this committee today, so it is very unlikely.

Now, I have two things to say about the minister sending a letter. One, I welcome his suggestion that we do a study on mental health, and I certainly welcome further briefings on the suicide prevention strategy. Those are all very good things. However, to receive a letter from the minister suggesting indirectly that we not do something in committee is a level of interference in our deliberations that I haven't seen before in either Parliament I've served in.

I respect what the minister is saying, that he believes we have a problem and he would like to solve it. I respect that. I don't think it's appropriate for him to weigh in just minutes before the committee comes to deal with this and suggest that we shouldn't do this.

We are the masters of our own fate in this committee. I believe this clearly is within the scope of the bill, and therefore, the section you have cited for ruling it out of order does not apply.

This is really a debate about what the scope of the bill is, and the scope of the bill, for me, is improving the military justice system in general. I believe this amendment fits within that.

[The Chair, Liberal, Stephen Fuhr]

I've already ruled it out of order. I understand what you're saying.

Are you challenging—

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

I'm challenging the chair, and I'll ask for a recorded vote.

[The Chair, Liberal, Stephen Fuhr]

That's dilatory.

Shall the decision of the chair be sustained?

(Ruling of the chair sustained: yeas 5; nays 4)

All right.

There were no amendments put forward by anyone for clauses 8 through 15, so shall clauses 8 through 15 carry?

(Clauses 8 to 15 inclusive agreed to on division)

(On clause 16)

We have amendment LIB-6. Does someone on the Liberal side want to speak to that?

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

Yes, Mr. Chair. I move that Bill C-77, in clause 16, be amended by replacing, in the French version, line 1 on page 14 with the following:

b) de s'abstenir d'aller dans un lieu précisé dans l'ordonnance;

[The Chair, Liberal, Stephen Fuhr]

Is there any discussion?

(Amendment agreed to on division)

(Clause 16 as amended agreed to on division)

(Clauses 17 to 23 inclusive agreed to on division)

(On clause 24)

We have amendment CPC-2.

Mr. Bezan.

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

Mr. Chair, I move that Bill C-77, in clause 24 be amended by adding after line 19 on page 17 the following:

161.2 (1) Except in the circumstances prescribed in regulations made by the Governor in Council, a person charged with having committed a service infraction has the right to elect to be tried by court martial.

(2) If a person charged with having committed a service infraction elects to be tried by court martial, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions.

As we know, in the summary hearings, service members have the potential to receive penal consequences. That could be a violation of charter rights if there's no right for a service member to choose to be tried by a court.

We heard from a number of witnesses, in particular, the briefing documents that we received from Lieutenant-Colonel Perron and from the Quebec bar association, that there is no way summary convictions would allow soldiers to opt for that court martial or to exercise that right.

Even though there's no offence under the National Defence Act that could be considered a criminal offence, there are some of these service infractions that should be considered by court martial. I think this is a concern in that there are no definitions in here, and maybe we're going to do this under regulation later, as to what actual service infractions will fall under summary hearings versus court martial.

The big concern is that if some of these are of a penal nature, such as, confinement to quarters, confinement to barracks, reduction of rank, reduction in pay by up to 25%, those are pretty serious charges and if you look down the road at some of these amendments we have, there are no recordings. There are at least half a dozen service infractions that could actually end up on a criminal record; even though civilly they're not criminal infractions, they're going to end up on the service member's criminal record when he or she leaves the military.

We need to start providing the options to make sure that we're in compliance with the charter. I believe that the amendments that were suggested by both Jean-Guy Perron and the Quebec bar association provide that opportunity to make things correct.

I just state that because of the penalties that are in place, the Supreme Court has already stated that a conditional sentence is a form of imprisonment. House arrest is a form of imprisonment. Confinement to barracks would be a form of imprisonment. We have to make sure this stands up before the Supreme Court if this ever gets to that court.

[The Chair, Liberal, Stephen Fuhr]

Mr. Spengemann.

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

Chair, thank you very much.

The fundamental objection we have to this amendment is that it flips on its head the logic of the bill in the first place, which is to create a tier of administrative offences that are being tried and dealt with in a much more expeditious manner. Those are non-penal or less penal offences that would not be subject to the criminal justice standard. It also goes to the burden of proof, which subsequent amendments speak to beyond reasonable doubt versus balance of probabilities.

The Canadian Forces in terms of the volume of disciplinary incidents that it has to deal with needs an administrative justice system that is more efficient than that which the court martial system would allow.

That's the reason we would oppose this essential conflation of the two standards of administrative and criminal justice.