Evidence of meeting #45 for National Defence in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cases.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Louise Arbour  Lawyer, As an Individual
Bill Matthews  Deputy Minister, Department of National Defence
Wayne D. Eyre  Chief of the Defence Staff, Canadian Armed Forces, Department of National Defence
Jennie Carignan  Chief, Professional Conduct and Culture, Canadian Armed Forces, Department of National Defence
Frances J. Allen  Vice Chief of the Defence Staff, Canadian Armed Forces, Department of National Defence

11:30 a.m.

Liberal

The Chair Liberal John McKay

Thank you.

We'll have Ms. Mathyssen for five minutes, please.

11:30 a.m.

NDP

Lindsay Mathyssen NDP London—Fanshawe, ON

Thank you, Justice Arbour.

I really appreciate the clarity that you bring not only with recommendations but, ultimately, to the overall problem that we've consistently seen in terms of getting at this issue. It's something that I've also heard throughout my short time in Parliament studying these issues.

Many of your recommendations referenced the Deschamps report and the inability of the government or the inaction of the CAF and the government to enact those recommendations. A lot of it also references Justice Fish's recommendations.

Our concern, of course, is that now—and you mentioned this in terms of that graveyard of recommendations—the government has entirely missed the point. The 19 recommendations or responses that we could see talk about further working groups and policy reviews, and a lot of that work is internal.

Maybe this links to the external monitor. That's a lot of work to be done, for that one office. There wasn't, as far as I remember, a deadline for the creation of an external monitor and how quickly they could also provide a response.

Could you maybe put forward a recommendation on that in terms of what we need to see from that external monitor on some of the actions that need to be taken that the government has now placed internally that should never have been internal?

11:30 a.m.

Lawyer, As an Individual

Louise Arbour

Yes, I believe in my report I recommended that the external monitor.... Now I forget if I put a time frame, but I certainly recommended that there be periodic public reports by the external monitor.

I am extremely concerned, as I mentioned before, about how long it seems to take to do something rather than say flat out, “We don't intend to do it”—so to just further review and.... They are small discrepancies. I could give the example of the report by Justice Fish. His report, of course, is a statutorily mandated exercise that has to take place periodically to look at military justice—not specifically sexual offences but military justice, the performance of the grievance system and so on. He did a very thorough review of that. I refer to it extensively in my own report.

On the question of sexual offences, he recommended, when he made his report, that these offences should be prosecuted totally in the civilian system until the Victims Bill of Rights was implemented in the military system. The Canadian Victims Bill of Rights was implemented for all Canadians in 2015. It took until 2022 for it to become applicable in the military system. His report also suggested that victims should have a say in the choice between the two systems.

There's a difference of opinion. I believe that the jurisdiction should fall exclusively on the civilian system. As I said, the minister doesn't have to agree with me. However, I think if they don't agree, they should say so. I am concerned that this issue is now the subject of further discussions and considerations. It makes it look very complicated.

It's not complicated. If you want to abolish that jurisdiction, put an act of Parliament. It's not hard. It's a matter of decision, not further reviews.

11:35 a.m.

NDP

Lindsay Mathyssen NDP London—Fanshawe, ON

Thank you.

I don't have much time, unfortunately.

We've certainly seen the problem, in the past, in terms of the provost marshal being able to look at and investigate those who are higher up and those who are in charge of advancing his career. We've seen that consistent loophole being repeated. A lot of what you try to get at is, ultimately, that it all goes to the minister.

One of the concerns I had was.... Your belief is that the minister herself—or himself—is external to this system and that this provides a lot of the accountability. However, we saw very clearly in the past, with General Vance, that that can be problematic and that political oversight isn't perfect either.

Could you explain more in depth about why you came to that conclusion? There are so many advocating for reports from the ombudsman, from an inspector general, to go to Parliament directly.

11:35 a.m.

Liberal

The Chair Liberal John McKay

Unfortunately, Justice Arbour, Ms. Mathyssen has run out of time. If we're going to get in a second round of questions, I have to cut back as it is. If you could work your response into another question, that would be appreciated.

With that, I'm going to turn to the second round. We have roughly 20 minutes, even though the clock there is not correct. I'm going to do four-minute rounds. We'll have four, four, one, one, four and four. By that time, the minister will have arrived, and I'm sure there will be some enthusiasm to ask the minister questions.

Mr. Bezan, you have four minutes.

11:35 a.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

Thank you, Mr. Chair.

I want to thank Justice Arbour for her hard work, for her report and for her candour today.

Madam Justice, when we are looking at the issues around the transfer of all of these cases, to be clear, you're talking about cases going forward, not the historic cases that are already within the Canadian Armed Forces being transferred to the civilian court. Is that correct?

11:35 a.m.

Lawyer, As an Individual

Louise Arbour

I'm talking about two things. I'm talking about cases for which complaints have already been made to the military police and to the provost marshal. They're cases that are currently being investigated. If it's early enough, that should stop and they should be transferred to the civilian system. This could be for offences that were committed a few months ago, or it could be for offences that were alleged to have been committed 20 years ago. If it has started, we'll talk about a transfer.

I'm also talking about any new case—any complaint that is made today—whether it's about an event that took place yesterday or 30 years ago. There's no talk of transfer. That should be initiated right from the beginning in the civilian system.

11:40 a.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

Thank you, Madam Justice.

When we are looking at the transfer of cases from the Department of National Defence and from the Canadian Armed Forces military justice system over to the civilian courts, as well as civilian police forces, some of the posturing by the provinces and municipalities is around who's going to pay for it.

Is this covered under existing resources, or should the federal government be increasing transfers to provinces to help pay for the cases they're going to have to deal with that are coming out of the Canadian Armed Forces?

11:40 a.m.

Lawyer, As an Individual

Louise Arbour

To be very candid, I find that argument a little disingenuous, particularly when it comes from provincial police forces that can expect no more than a handful of cases every year, if that. If they don't have an army, air force or navy base in their jurisdiction, they're not likely to get a lot of cases.

Interestingly, again, because there's concurrent jurisdiction, you may be surprised to find out—although it's in my report—that the military system doesn't prosecute driving offences. They let those be prosecuted in civilian courts. If it's a matter of resources, why don't they just switch? The military can say, “We're going to take all of these driving offences of impaired driving under the influence and all kinds of related offences committed by CAF members on the roads of the provinces. We'll take those off your hands and free up some resources, and you'll take the 30 or so sexual assault cases that are likely to come your way across the country in one year.”

If it is really a question of resources, and if provinces need more money from.... They have jurisdiction of the administration of criminal justice. That's the Constitution. You have to pay for responsibility.

11:40 a.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

Okay. I appreciate that.

Before my time runs out.... We're all legislators here. You're talking about the changes we need to make to legislation, so you're talking about the National Defence Act and the Criminal Code, which would probably need some amendments to accommodate the transfer of all these charges of sexual offences that are being laid from members of the Canadian Armed Forces.

Exactly which sections do we need to abolish or amend so that we can do this quickly? I understand that recommendation 5 is where we have to move the yardsticks, and this is where it seems the government got tripped up here.

11:40 a.m.

Liberal

The Chair Liberal John McKay

Answer very briefly, please.

11:40 a.m.

Lawyer, As an Individual

Louise Arbour

I'm afraid I don't have the exact provisions at my fingertips but, essentially, there may not even be any need to amend the Criminal Code. I'm just not sure right now.

The jurisdiction has to be taken away, probably just in the National Defence Act. The provisions have to come back to what the law was prior to 1998. It's exactly the same for murder. The court martial system doesn't have jurisdiction over murder or over some offences involving children. These are within the exclusive jurisdiction of the civilian courts under the Canadian Criminal Code.

Whether it's both the Criminal Code and the National Defence Act, frankly, the Department of Justice could probably give you that answer in a few minutes with the provisions you need.

11:40 a.m.

Liberal

The Chair Liberal John McKay

Okay.

We're going to have to leave it there.

Madam Justice Arbour, if, upon reflecting on this, you have an answer that is different from what you just gave, which is that it can pretty well be done by the justice department today if they wished to, we would appreciate any amended commentary you might wish to make, given that you don't have your fingers on the Criminal Code as we speak. Thank you for that.

Ms. Vandenbeld, welcome to the committee. You have four minutes, please.

11:40 a.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

Thank you very much, Mr. Chair.

It's good to be back on the defence committee after the extensive study on this in 2021.

Justice Arbour, I am very pleased to see you here, especially because of the voice that you've given to the survivors. I know that in the beginning there was some question, even on this committee, as to whether your report would be necessary. I think we've proven that not only was it necessary, but also incredibly value-added. Thank you so much for that.

I note that the key takeaway from your report is that the Canadian Armed Forces is not able to make these changes and change the culture by itself. There needs to be external help and external accountability. There was a lot of speculation that this would require an outside monitoring and accountability mechanism, like an inspector general.

My first question is, why did you choose not to go that route with your report?

11:45 a.m.

Lawyer, As an Individual

Louise Arbour

Thank you.

I think my report deals quite extensively with that issue.

I'm very conscious that this suggestion goes right back to the Somalia inquiry and has been extensively discussed in the literature. When you come to articulating it, if you look, for instance, at the Australian model, the inspector general's function there was overwhelmingly to oversee, for instance, criminal prosecutions of sexual offences. My recommendation was to take that out of the CAF altogether.

What would remain within the ambit of an inspector general in the Canadian system that has already created an ombudsman, or an Auditor General? Since these recommendations were made 20 years ago, we now have several mechanisms of civilian oversight. I was concerned about trying to carve out an additional civilian oversight role for functions that are currently exercised, in particular, by the Auditor General. The Auditor General's office has produced several excellent reports on a lot of these issues.

I was very concerned about having a lot of duplication of functions, so I saw no need for that. I think the existing oversight that is exercised by Parliament through these mechanisms, and through this kind of committee, has all the capacity.

The problem with CAF is not just oversight, which is after the fact, but civilian input into the process—in the justice system, in the education system and in the management of human resources. Oversight after errors have been made is helpful only to a point, but getting oxygen into the system throughout, I think, would be much more helpful.

11:45 a.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

Thank you.

As you mentioned, a lot of these changes are things that have to be done internally. We know that within CAF there are change-makers, some of whom have been fighting for decades. They know what the solutions are; they've been putting them forward, but there have always been barriers. In many ways, they've been losing steam.

How do we make sure that those change-makers, the ones who are committed to doing this, are the ones who are empowered and are in leadership within CAF?

11:45 a.m.

Liberal

The Chair Liberal John McKay

That's a challenging question. It's particularly challenging with six seconds left.

Again, I'll have to invite you to respond in the course of other questions.

With that, Madame Normandin, you have one minute, please.

11:45 a.m.

Bloc

Christine Normandin Bloc Saint-Jean, QC

I am going to do what I can in the minute I have left.

Justice Arbour, you talked about including civil society more in the services offered to the armed forces, whether for recruitment or for education.

I would like to hear your thoughts on the question of health services and social services. We hear stories where a social worker or a doctor of another professional refuses to provide a diagnosis because it seems to be just a reason to get a release.

Should the door be opened to more services from the civilian world when it comes to mental health and psychological support for the armed forces?

11:45 a.m.

Lawyer, As an Individual

Louise Arbour

I have to tell you I was very concerned about everything having to do with health care, but that was not entirely included in my mandate. As well, I simply did not have the capacity to look into that aspect. In fact, the reason for this is the same as why I was unable to take the issue of the military colleges any further. On the other hand, leadership training itself was part of my mandate.

Health care, including mental health care, has to do with the issue of the duty to report. It is a small aspect, but people told me that they didn't know whom to go to, because they were afraid the person would be obliged to report what they said to the chain of command. That is a distinct aspect of the quality of the physical and mental health services offered to women.

So, honestly, I think this should be the subject of an external review or, at least, a much more thorough examination.

11:50 a.m.

Liberal

The Chair Liberal John McKay

Thank you, Madame Normandin.

Ms. Mathyssen, I cut you off last time. I'm interested in how you will use this minute.

11:50 a.m.

NDP

Lindsay Mathyssen NDP London—Fanshawe, ON

Thank you, Mr. Chair.

In terms of your report, you did a lot more focusing on the armed forces themselves, a little less on DND.

One of the recommendations was in terms of that externalizing of processes. A lot more folks from the CAF could be worked into the department itself. However, lots of the problems we have seen are about how they see that authority and how they see that chain of command and so on, and how it implicates the workers in the department.

Can you talk about that?

11:50 a.m.

Lawyer, As an Individual

Louise Arbour

Yes. In fact, when I talk about bringing external oxygen into the system, I think it's important to recognize the importance of the work of the Department of National Defence, with the deputy minister heading that part of the operation. There have been some concerns expressed to me that even there sometimes there are not enough external sources. For instance, lots of retired CAF members end up working in DND. It remains sometimes too internal. There is not enough input from other branches of the civil service or, as I've recommended, secondments, including from the private sector.

I understand that's very difficult in a force that is understaffed presently. Recruitment is a huge challenge. I have lots of recommendations about the slow pace of recruitment.

I think anything that can be done through DND and through other, civilian, external actors to inform the working of the CAF would be welcome.

11:50 a.m.

Liberal

The Chair Liberal John McKay

Thank you, Ms. Mathyssen.

Mrs. Gallant, you have four minutes, please.

December 13th, 2022 / 11:50 a.m.

Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Thank you, Chairman.

If Canada were to halt sexual assault cases and transfer them to civilian courts, what measures need to be taken to safeguard the integrity of the evidence provided by the victim, for example taped interviews?

11:50 a.m.

Lawyer, As an Individual

Louise Arbour

Well, I think it would be essentially the same as it is for all prosecutions in the civilian system. There are some instances where it is possible that the military police would be what I would call the first respondent. Possibly if offences are committed abroad, before you could dispatch civilian investigative authorities, it might be that the MPs would be the very first ones.

This is the case in any criminal offence committed anywhere in the country. If it's committed on a site of employment, the employer may have been the first person to talk to the victim. Exactly the same rules would apply for proper investigative methods, including trauma-informed questioning of victims, of witnesses.

The civilian system is not perfect. I don't want to overstate my case, but it's the system that all Canadians are equally subjected to and protected by. I think that should apply to CAF.