National Defence Committee on Oct. 30th, 2017

[Gordon Venner]

Actually, all three—the United Kingdom, Australia, and New Zealand—did comprehensive defence policy reviews in about the year and a half preceding the launch of ours. They were all very generous with their time in helping us, and we learned some important lessons from each of them.

The thing we learned from the Australians that was particularly useful was the necessity to have a credible third party do outside verification of all of our costings, because we were looking at an extremely long period of time, 20 years, and we knew there would be a lot of expenditures over that time. We knew we would need to have outside experts, so we did. In fact, when we talked to the Australians about it, they said this is the accounting firm we used to do that process, and we recommend you use the same ones. When we talked to that firm, they said they could not only do the same thing for us as they did for the Australians, but they could actually give us the same accountants, and so they gave us the same people to do a lot of the work on the program.

From the New Zealanders we learned a lot about the consultation process. In fact, if you look at our original consultation document, you will note there's a strong resemblance in format to the one the New Zealanders used to launch their process. They were the ones who told us a lot about how to run that exercise.

The United Kingdom was also extremely useful. Theirs was perhaps the broadest and most comprehensive exercise.

We did talk to the Americans as well, but their system traditionally has been much more different. They have a legislatively mandated quadrennial defence review. It's a different exercise, and of course the scale is just entirely different.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

That's all I have.

[The Chair, Liberal, Stephen Fuhr]

That's what you have.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you very much for taking my questions.

[The Chair, Liberal, Stephen Fuhr]

Mr. Garrison is next.

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

Thank you very much, Mr. Chair.

Thank you to all of you for appearing before us today.

Welcome back to the deputy minister now. As I was joking with her earlier, the last time we were here, we were trying to discover which parts of the organization charts she was in charge of. Today that's a lot easier.

I'm not going to ask too many questions. I have complete confidence in your record in the Canadian Coast Guard to start with and now at the Department of National Defence, and I know you'll get very good work out of Mr. Matthews and Mr. Venner.

I'm going to focus my remarks on Commodore Bernatchez. We don't often get to talk about military justice in this committee. It's a favourite topic of mine, but first I want to congratulate you on your appointment.

[Cmdre Geneviève Bernatchez]

Thank you.

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

You're not only the 15th Judge Advocate General; you're the first woman to hold the office. However, that's not why I'm going to ask you some of the next questions. I think it's a milestone in a more diverse Canadian military to have you in that office, so it's very good to see you there.

I know that you've served about 20 years in the Judge Advocate General's office. Is that correct?

[Cmdre Geneviève Bernatchez]

Yes.

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

Then we know you have the experience to do the job.

One thing your predecessor was sometimes uncharitably criticized for was the failure to fully implement Bill C-15, the law that was passed more than four years ago on reforming military justice. I'm wondering whether this will be a priority and if you can give us any estimate of when the act would be fully implemented.

[Cmdre Geneviève Bernatchez]

As we know, Bill C-15 represented significant modernization of the military justice system and had several clauses and several aspects to it that need to be implemented once the bill received royal assent in 2013. The bill incorporated recommendations that had been made by the Right Honourable Antonio Lamer in his 2003 report, as well as recommendations that had been made by the Senate committee in 2009.

It presented a gargantuan task for lawyers to be able to draft the regulations that would put Bill C-15 into force, and our team at the Office of the Judge Advocate General worked relentlessly over the course of the last several years to try to not only draft the regulations that needed to be put in place as a first order of business but also to look at the second, third, and fourth degrees of effect of having legislation that was modifying other aspects of the regulatory scheme of the Queen's Regulations and Orders.

I'm very pleased to tell the committee today that this gargantuan task, this adventure, is coming to fruition. We're looking at the finalization of this process. We remain extremely committed to seeing it come into force in the next little while.

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

That's great. Thank you.

Recently we had reports in the media, based on a small number of cases, about the number of prosecutions for sexual assault that resulted in a guilty verdict in the military justice system as opposed to the civilian system. I acknowledge they are small numbers, and we must be careful of percentages.

What do you think explains the difference? Can things be done that would improve the record? Does it take more training of prosecutors in bringing the cases forward, or a change in attitude within the military? Why is there a big difference?

[Cmdre Geneviève Bernatchez]

Thank you so much for allowing me to present a more complete and detailed picture of what the statistics actually look like.

The first thing I want to say is that like every crime against a person, crimes of a sexual nature present a real human trauma. The judiciary aspect is only a single facet, a very small facet, of how this entire problem needs to be looked at. We in the military justice system play an important role in addressing the issue, but this issue is addressed more broadly by our institution, the Canadian Armed Forces. I want to reiterate that it remains a priority to address these issues and ensure that a profound cultural change actually occurs within our organization.

You will have heard from the media last Monday that 23% of charges that pertain to crimes of a sexual nature were concluded by a finding of guilt. I was away from the city when this news hit the media, and my immediate reaction was that it didn't sound correct. I went back to my military justice division and asked the director of military prosecutions for his input.

What they were able to provide to me was that when charges are brought that pertain to a crime of a sexual nature, there are a number of charges that can be laid. Some of them will be for sexual assault, but in the precise military context, we also have access to charges that are not available in the civilian system, such as disgraceful conduct, drunkenness, and abuse of subordinates. These charges are often brought as an alternative to the sexual assault charge under the Criminal Code of Canada.

It is quite possible, then, that either one of two things is going to happen. In the military justice system, as in the broader criminal courts, those who are accused have rights. They're entitled to a vigorous defence, and the verdict is based on the evidence adduced before the courts. It's quite possible that the evidence will not fully support the charge of sexual assault but could support the lesser charges I just mentioned. This is what usually happens when there is a finding of guilt. In fact, when we look at the statistics from 2014 to March 2017, there were 18 cases related to sexual assault in the Canadian Armed Forces, which resulted in 10 convictions, so the statistic is more like 56%.

Convictions or findings of guilt are not necessarily the proof of a healthy and functioning system, so I want to caution here that this is only one indicator of how the system is functioning. It doesn't give the entire picture.

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

Thank you.

[The Chair, Liberal, Stephen Fuhr]

Ms. Alleslev is next.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Thank you very much. If you'll indulge me for a moment, as a former air force officer, I can't tell you how incredibly proud I am to have you in front of us today and for you to be the reflection of our Canadian Forces and our civilian Department of National Defence. This shows a system that is working extremely well, and it is something to be proud of.

We have a great policy now. We've looked at putting in some significant money. We have chosen senior executives who reflect the new priorities. Among these could be foreign policy by other means, which is the military, and that requires someone who understands the integral relationship between foreign policy and the Canadian Forces, particularly at a time when we're finding unprecedented global instability. Our military will be called on increasingly in this environment. We've given more priority to money and equipment, and now it's more about execution, program management, and accountability.

We have someone who is more than capable of delivering on that. We have someone who's going to ensure that all the balls in the air get looked after, someone who'll ensure that our military justice system is moving forward into the 21st century.

I would like to leverage some of the questions that my honourable colleagues asked, particularly in light of the military justice system. I understand that there was a significant review of the code of service discipline, particularly in summary trials. A report was developed, or so I understand. Was there in fact a report recommending what the significant structural changes in the summary trials should be, and if so, where are we in that process?

[Cmdre Geneviève Bernatchez]

Thank you for this question.

My predecessor mandated a court martial comprehensive review. It pertained to the court martial system, and extensive consultation occurred. The team that carried out the review also did a fantastic job at comparative analysis.

When I took on the position of Judge Advocate General, I had an opportunity to look at the draft report with my military justice division. There were some aspects of it that I wanted to have clarified, because I was brand new at the job and needed a little bit of time to better understand certain aspects. The team was mandated to provide to me on July 21 a draft interim report for me to review.

We are currently in the process of reviewing this report, which I think will not only form the basis of a great opportunity to engage in a dialogue with parliamentarians, the Canadian public, and members of the Canadian Armed Forces as to what the Canadian military justice system is and where it should go, but will also enable me to formulate policy and legal analysis recommendations to the Minister of National Defence and the chief of the defence staff toward the modernization of this piece of the military justice system.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

With respect to Commonwealth colleagues such as the U.K. and Australia, I understand that we're possibly a little bit behind in terms of the modernization of our military justice system. Is that an accurate statement?

[Cmdre Geneviève Bernatchez]

It would be difficult for me to look at it that way. I think that we all have different legal frameworks that apply and different regimes that will allow us to do things in a certain manner, so I don't think that we're behind. I think we have differences, and there are reasons for those differences.

What we need to look at now is whether the court martial system and the wider military justice system continue to respond to Canadian laws and to Canadians' expectations of what their military justice system is to deliver.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

When can we look forward to perhaps seeing a report?

[Cmdre Geneviève Bernatchez]

I would very much like to be able to put as much of it as possible on my website soon. There are certain aspects of the report, though, that I think will be classified under solicitor-client privilege because they contain either legal advice or policy analysis for recommendations to the minister.

My default position will be to communicate as much as possible to the public, to engage them in that dialogue, and to ensure that we get the feedback we require in order to advance in it while protecting the pieces of it that I need to protect because of professional obligations.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

If you had to highlight the single greatest challenge that you see at the moment to the Canadian military justice system, what would you say that is?

[Cmdre Geneviève Bernatchez]

What is the greatest challenge to the military justice system?

This may be a reflection of the newness of my experience in the position, but my sense is that it's a system that is not widely understood, so the challenge, really, is to ensure that there's a comprehension. I think that comprehension can only happen through my ability to come to you and to have a conversation with you to answer the questions that pertain to that system, and to do the same with the Canadian public and internally within the Canadian Armed Forces.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

There is a perception out there, though, that there's a challenge with respect to access to justice for the victims or the people bringing forward a charge.

How would you respond to that?

[Cmdre Geneviève Bernatchez]

With respect to this perception, we're really trying hard to ensure that it is not the case. Especially since the Deschamps report, we've learned a whole lot over the last several years as an organization, as a wider department, and as CAF, but also as a military justice system.

The director of military prosecutions has put in place a series of new policies in order to enable access to the military justice system. He will, as a matter of priority, ensure that those trials that pertain to sexual offences get treated first. He will explain the process to victims. He will ensure that victims are consulted as to the jurisdiction that will be taken. He will also ensure that victims have the ability to present the impact that the matter has had on their lives.

I think that we're doing more and more. We're learning not only from other jurisdictions, the civilian jurisdictions, but also from growing and maturing.