National Defence Committee on Dec. 13th, 2022

[The Chair, Liberal, John McKay]

This meeting is now in session.

Colleagues, I apologize for the shuffling, but this has been a very difficult two hours to put together.

I want to particularly commend our clerk and others who have worked hard to make sure this happens. It's possibly not in the ideal order that we would have wished it to be, but it is what it is, and we thank everyone for their accommodation.

I see that Madam Justice Arbour is on the line and has the proper headset, which, shall we say, has been an internal joke.

Before I ask you for your statement, Madam Justice Arbour, I want to express a personal admiration, as a former practising lawyer, for your work. Over the years, you've been a real credit not only to your profession as a justice but to your profession as a lawyer. I want to express that because I am a big fan of Madam Justice Arbour. Thank you again for your service to our country.

With that, Madam Justice Arbour, as I said, this is not the optimum order, but it is the order. I look forward to what you have to say for the next few minutes. Then we'll turn to rounds of questions.

Thank you.

[Louise Arbour, Lawyer, As an Individual]

Thank you very much, Mr. Chair.

Mr. Chair, committee members, thank you for inviting me to answer your questions concerning the report I submitted to the Minister of National Defence last May dealing with sexual misconduct and leadership in the Canadian Armed Forces.

I stress these two aspects because they are equally important. These two issues are also interrelated.

The extent of sexual misconduct in the Canadian Armed Forces, including in senior ranks, was already well documented in sources that include the report by my former colleague Justice Deschamps, the numerous surveys carried out by Statistics Canada, the reports of the auditor general, the Heyder and Beattie class actions, and the many reports in the media. My efforts to update this issue, including by listening to the testimony of numerous members of the Regular Force and the Reserve Forces, active and retired members, provided unambiguous confirmation of the state of affairs and, unfortunately, the scant progress made to date to remedy the situation.

The second part of my report dealt with leadership development in connection with the persistence of assaults, abuse and all sorts of forms of sexual harassment and discrimination in the organization. That aspect, which had not yet been the subject of any comprehensive external review, became an extremely laborious task consisting of studying detailed, complex practices and procedures relating to recruitment, training, human resources management and, in particular, the performance evaluation and promotion process.

The last area I examined, having regard to previous recommendations on this subject, was the question of external oversight and the accountability of members of the chain of command to civil authorities.

I would like to stress the finding that I feel to be the most important to come out of my review.

Greater openness to the outside world would be a win-win for the Canadian Armed Forces. This is a necessary culture shift, to which there truly seems to be a lot of resistance.

The forces need outside support in many of the functions that are [Technical difficulty—Editor] not unique to [Inaudible—Editor] effective requirements. I am referring, for example, to education, the justice system, and certain aspects of human resources management.

Integrating women into the military in Canada shows how difficult it is for the forces to evolve at the same pace as society on fundamental issues that are, in fact, part of Canada's constitutional framework. History is unfortunately repeating itself for the other underrepresented groups.

The cultural forces that shape the evolution of Canadian society are very slow and can be seen in an organization that is rooted in homogeneity, uniformity, tradition, and autonomy. The hypermasculine and hypersexualized culture whose prevalence in the forces has been exposed by many others is the product of that environment. In fact, in areas in which their performance can be compared to the performance of equivalent civilian actors, the forces do not distinguish themselves particularly laudably.

In this regard, I recommended that criminal sexual offences be prosecuted in civilian courts. I will come back to this in a few minutes. I also recommended that the forces facilitate their members' recourse to the Canadian Human Rights Commission and improve the independence and effectiveness of the services offered to victims.

As a final point, I will tell you about my recommendation concerning the future of the military colleges. I did not have the capacity to examine that issue in depth, but my review identified serious concerns regarding the viability of this model for training military leadership in the modern world, in particular.

Comparing these colleges with the civilian universities, where over half of officers are actually trained, shows a lack of diversity and an orthodoxy that is hardly compatible with how our society is evolving, and, in my opinion, this provides a poor foundation for the basic training of future officers.

Mr. Chair, I was informed that the minister tabled in Parliament this morning her response to my report. I was provided with a copy of that report yesterday, while I was in New York for meetings at the United Nations, including with the Secretary-General, but you will be pleased to know that they were on matters totally unrelated to what is before you today.

I've had a short opportunity to look at the minister's response to my report, and I have several concerns.

The first thing I want to signal is that I recommended that the minister report to Parliament before the end of this year on which of my recommendations she did not intend to implement. This may have seemed an awkward way of phrasing it. I could have just recommended that she report on all of my recommendations. The reason I phrased it that way, to be very candid, is that I was concerned that my recommendations would find their place in the graveyard of recommendations, which is heavily populated in the Canadian Armed Forces and the Department of National Defence. There are decks and charts of the numerous recommendations, both internal and external, that have been made over the years. None of them seem to be the object of a flat-out refusal, but they seem to linger in perpetuity before various task forces, tiger teams and other types of committees.

In response to my report, the minister states that she intends to recommend all of them. I am somewhat concerned when I get into a little more detail about some of them. Let me share a couple of my more specific concerns. I would, of course, be very happy to take your questions if I—

[The Chair, Liberal, John McKay]

Excuse me for a second, Madam Justice Arbour.

Generally, we allocate five minutes for the initial presentation, but in this particular instance, when we've had to move the order around, I'm going to exercise the chair's discretion to allow a greater period of time for the witness. Please feel free. I see from nods from colleagues that it's exactly what they would like to have happen.

Please continue, Madam Justice Arbour.

[Louise Arbour]

Thank you, Mr. Chair.

I'm very grateful for this additional opportunity. In fact, this is very much in response to a document that was provided to me just yesterday—a very short time ago—and I hope that these additional brief remarks will address some concerns that you and the members of the committee may already have.

My first concern is with respect to the minister's response to my recommendation that all criminal sexual offences that are currently within the concurrent jurisdiction of both civilian courts and the military justice system should go back to the exclusive jurisdiction of civilian courts, as they were prior to 1998.

Military justice is an exceptional form of justice, and it rests on the assumption that it is necessary to enhance efficiency, discipline and morale in the armed forces. No rationale was ever advanced in 1998 to give concurrent jurisdiction to the military justice system—the court martial and summary trials—over sexual offences, which until then had been—like murder still is today—within the exclusive purview of civilian courts.

This was supposed to be necessary to enhance efficiency, discipline and morale. Frankly, the last 20 years, I think, have demonstrated not only that it did not improve efficiency, discipline and morale, but, if anything, that the prosecution of these sexual offences by military courts has served to erode efficiency, discipline and morale. Therefore, I see no basis for the Canadian Armed Forces to retain jurisdiction over sexual offences. In my view, that jurisdiction should be vested exclusively with the civilian courts.

As long as concurrent jurisdiction remains, the evidence so far indicates, frankly, that the CAF will continue to consider itself the primary jurisdiction, and surprisingly, civilian authorities seem very happy to decline to exercise their own jurisdiction.

Removing the competence of military courts over these offences requires an act of Parliament, but simply yielding to the concurrent competence of civilian courts doesn't require an act of Parliament—it requires, essentially, an operational policy decision. It's very obvious to me that those involved in that process are dragging their feet.

On the military side, not prosecuting sexual offences would considerably reduce the workload, both on the investigation side of the NIS and the military police and on the prosecution side in what were then summary trials and courts martial.

On average, the military justice system handles approximately 30 sexual offence cases per year. Therefore, this actually would, if transferred to the civilian system—which, across Canada, handles about 2,300 such cases per year—be a minimal additional burden, if one can call it that, on the civilian system.

The administration of criminal justice in Canada is actually a provincial competence under our jurisdiction. I find it very surprising that some provincial authorities seem reluctant to exercise their constitutional power. Frankly, apart from some possible posturing over resources, I don't understand the need for the kind of extensive negotiations that the minister's response to my report envisages, such as a deputy minister-level series of federal, provincial and territorial consultations. There's nothing complicated about that. The civilian jurisdiction already exists. It's just a question of exercising it.

The second matter that causes me some concern deals with the abolition of the duty to report. This has been the subject of extensive consultation and discussion. There's an existing working group in CAF and DND looking at the problem caused by this “duty to report”, which puts an unfair burden on not only victims but also their friends and those in whom they want to confide. It is not enforced. Failure to report is never prosecuted. There is no reason not to abolish duty to report.

The minister's response points to an initiative that had already taken place before I finished my report: an amendment to the QR&O. This shows that it's not all that difficult to do something when a decision is made to go ahead. However, it only touches on a very small portion of the problem, in the context of the restorative justice exercise. For most members of the Canadian Armed Forces today, that duty still exists and, in my opinion, should be removed.

My last comment, Mr. Chair, is on the minister's response to my recommendation that military colleges should be the subject of a very detailed, profound examination, led by educational specialists. It's now seven months after the production of my report—probably nine, if you look at March, when I provided the leadership of CAF and DND with a draft of my report—and we're still at the stage of examining parameters, terms of reference and so on. All of that is against the backdrop of a suggestion that military colleges, as they exist, are superior institutions. It doesn't suggest the kind of open mind with which, I think, this kind of exercise should be undertaken.

The good news, Mr. Chair, is that the minister has appointed an external monitor to oversee the implementation of my recommendations. It looks as if it will be a lengthy process. Looking at the response from the minister—which creates a large number of internal reviews, and further task forces and tiger teams—I hope the external monitor has a full decade ahead of her to oversee these efforts.

Overall, I find that all the reviews suggested in the minister's response are, for the most part, internal. Therefore, they entirely miss the central point of my report, which is the need for CAF to open up to a lot more external scrutiny and input.

Thank you very much for your patience, Mr. Chair.

[The Chair, Liberal, John McKay]

Thank you, Madam Justice Arbour.

We're now at 20 minutes after 11 o'clock. I think we'll cut the first round back to five-minute questions, anticipating that we'll want to get a second round of questions in, at least.

With that, you have five minutes, Mrs. Kramp-Neuman.

[Shelby Kramp-Neuman, Conservative, Hastings—Lennox and Addington, ON]

Thank you, Mr. Chair.

Thank you, Justice Arbour, for being here with us today.

Given the robust investigation and all the detailed work you have done, what can you share with survivors, who have been waiting so long to see the change? You acknowledged, in recent days, that they need to be patient. We recognize that the changes won't happen overnight.

Could you speak to the survivors on how long they've been waiting for this, and what happens next?

[Louise Arbour]

First of all, as I mentioned in my report, I think the credit for the progress that will take place—eventually and slowly—on these and related issues in the Canadian Armed Forces goes, largely, to the victims and survivors who have come forward.

Frankly, if there's a lesson in all this, it's that the most significant progress came when these survivors took the initiative themselves. The Heyder Beattie class action, which you may recall and which led to some 20,000 claims being filed, speaks more loudly than any external scrutiny of these issues might have, had that taken place. I admire and I'm somewhat surprised by how patient many have been. There are women still writing to me today, after the publication of my report, recounting things that happened to them decades ago, in some cases, and throughout their career.

It is their initiative, particularly the class action and their engagement now internally in CAF, that I think deserves all the credit for progress that has yet to fully materialize.

[Shelby Kramp-Neuman, Conservative, Hastings—Lennox and Addington, ON]

Thank you.

Further, were you consulted on the report while the defence minister was preparing it? Was there any consultation during it?

[Louise Arbour]

I'm sorry. When the minister was preparing her response to my report...?

[Shelby Kramp-Neuman, Conservative, Hastings—Lennox and Addington, ON]

Was there any consultation with you throughout the process?

[Louise Arbour]

During my examination, my review, I made extensive requests for documentation. I received some 4,000 documents. I received both testimonials and comments by people who reached out to me, and I of course reached out. During the course of my review, I spoke to the CDS, the VCDS and the deputy minister. I reached out. I visited some of the bases and wings.

I'm not sure if you meant after the publication of my report as the minister was preparing her response. No, I have had no contact with anyone.

[Shelby Kramp-Neuman, Conservative, Hastings—Lennox and Addington, ON]

Okay. Thank you.

Further, with regard to your comments about the movement to civilian courts, you touched on a couple of different things with regard to the efficiency, discipline and morale.

My question is, do you believe that moving all sexual assault cases to the civilian side is achievable, or might we wait years just to find out that it's not achievable? I'm fearful of the backlog. Could you speak to the civilian side of it, please?

Thank you.

[Louise Arbour]

Yes. Thank you.

I have all the figures inside my report in terms of the number of investigations and prosecutions—and I'll distinguish between these—that the various provinces can expect if they take on, if they actually exercise, a jurisdiction they already have to prosecute sexual offences committed by CAF members or on CAF bases and wings, including outside Canada. It is minuscule compared to the general scope of the prosecution of sexual offences in civilian courts.

We're talking about.... Look at the most serious cases, the ones that are more resource-intensive, and look at CAF. In 20 years, from 1999 to 2001—they received jurisdiction in 1998—they had 134 court martial cases. Distribute that across Canada. This is for the most serious cases. Without getting into all of the nitty-gritty details—obviously there would be a few more cases in Ontario, for instance, than in other provinces—on average you're looking at about 34 prosecutions for sexual offence cases per year across Canada, so the idea—

[The Chair, Liberal, John McKay]

Okay. We are going to have to leave the answer there.

I apologize. We're running a tight clock here, Madam Justice Arbour, but it is what it is.

With that, five minutes go to Ms. Lambropoulos.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

Thank you, Chair.

Thank you, Justice Arbour, for being here to go into a few more details and answer some of our questions on this very important report.

My first question is in regard to some of the comments you made in your opening remarks. You went into detail when speaking about the fact that sexual offences should go to civilian courts exclusively. You mentioned that there are two specific acts that could be done in order to make this happen. You spoke about one being a policy decision and one being an act of Parliament.

I'm wondering if you can specify and go into a little more detail, so that when we're writing up these recommendations—hopefully, they won't end up in the cemetery of recommendations, as you mentioned earlier—we can be as specific as possible.

[Louise Arbour]

Thank you for giving me an opportunity to clarify that.

Currently, as the law exists, without any change being needed, both the military justice system and the civilian courts have equal competence over these issues. Therefore, all that needs to happen today is that the military system stops and the civilian side takes on the investigation of sexual assault and other forms of sexual offences committed by CAF members or on CAF bases or anywhere. That requires no change whatsoever. It's just that the military side stops and the civilian side takes it on.

Because there is very little appetite on both sides for this—there's no appetite in the military to let it go and no appetite on the civilian side to take it on—what I recommended, then, beyond that, requires an act of Parliament to take away altogether the jurisdiction of the military courts and bring the law back to what it was prior to 1998. Amend the Criminal Code and the National Defence Act to make criminal sexual offences the exclusive jurisdiction of civilian courts.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

Okay. Thank you.

You also mentioned that you had asked the minister specifically to let you know, by the end of the year, which recommendations she would not be going forward with. She mentioned that she would be going forward with all of them. But you said that you had concerns, with these three in particular that you mentioned afterwards.

Given that you think there is a way forward for all three of them—otherwise, you probably wouldn't have recommended them—do you think, in her saying that she would go forward with all of them and would not reject any of them, that perhaps she's there for the right reasons and has the political will and wants to see these being implemented no matter what it takes?

[Louise Arbour]

I cannot impute any intention to the minister or to anybody else. The reality is that on each one of the recommendations where the response is that they will be implemented, the method of implementation is the business as usual of sending it back to another review, another committee, or another study or task force, while in fact many of these recommendations....

The duty to report is a clean-cut example. It just needs to be abolished. It's been studied. There was a working group on that before I started. Now the recommendation is to send it back to that working group to articulate the policy framework within which it will be done. When there's an operational need for something to be done, funnily enough, the actual capacity to implement....

This is an organization that is heavily self-regulated. Much of what I recommend, except for a few things that require an act of Parliament, requires internal decisions, not further review and further analysis. That's my concern.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

Thank you.

I have only a minute left, so you won't be able to answer the whole question, but maybe one of my colleagues will take over.

In terms of the military training and military colleges, you mentioned the fact that education specialists should be involved in changing the way in which those colleges are run. Could you give a little bit more detail? You also mentioned in recommendation 28 that the cadet wing responsibilities should be abolished. Could you dive a bit deeper into that?

[Louise Arbour]

Yes. With military colleges, I think the one thing that's really important to remember is that not all the officer cadets and naval cadets are trained in military colleges. In fact, probably half of them are educated in civilian universities and receive their military training and their physical fitness and so on along the way, as they go along, and they become very successful officers in CAF.

The problem with the military colleges is that they are small subcultures. I'll give you one example—the presence of women. I understand that there is sexual misconduct on civilian university campuses. I don't deny that. But when you're educated in an environment where at least 50% of your colleagues are actually women, it's very different from when you're educated in an environment, as in the colleges now, where they're barely 25%, in a culture that is heavily masculine. That's quite apart from....

I can't judge the quality of the education in what are, actually, university degree-granting institutions. I think everything has to be looked at together. I'm very concerned about the responsibility that is imposed on cadets over junior cadets. Some people have—

[The Chair, Liberal, John McKay]

We're going to have to leave the answer there.

Thank you, Ms. Lambropoulos.

Madame Normandin, you have five minutes, please.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you, Justice Arbour. It is a pleasure and an honour to have you with us.

I would like to continue talking about your recommendation that sexual assaults be completely removed from the jurisdiction of courts martial.

A year ago, when you made the interim recommendation to transfer those cases to the civilian authorities, of the arguments made, two stand out. The first argument was that transferring cases that were initiated a long time ago might cause problems in relation to the Jordan decision. The second was that the victims might not want to relive the entire process, to have to testify again to civilian police and start the investigation of their case over from zero.

Under your suggestion that the jurisdiction of courts martial in this area be eliminated, there would be an automatic transfer of cases to the civilian authorities. I would like to know what you think about those arguments, which might be unfounded.

[Louise Arbour]

Thank you for that question.

It is very important to distinguish between transferring existing cases that are at the investigation or prosecution stage and initiating new investigations or prosecutions, whether for offences committed in the present or for offences committed a long time ago for which charges are now being laid. When we talk about transferring cases, we are talking about current cases.

On the question of the Jordan decision, I said very clearly that no case that is already before a court martial should be transferred, for example, because additional delay would risk jeopardizing the prosecution. However, for existing cases in the Canadian Armed Forces that are at the investigation stage, judgment should be exercised. If the investigation has just started, the case should probably be transferred to the civilian courts. However, if the investigation is almost completed and the victim has been questioned several times, it might be appropriate to allow the case to take its course before the military authorities, for the reasons you have mentioned.

With that said, when it comes to all new cases, we are not talking about transfers; the call must be placed to 911 immediately so that the civilian authorities can initiate the investigations.

Leaving the choice up to complainants or victims is extremely problematic, in my opinion. If their commanding officer or their chain of command asks them whether they prefer their case to be heard by the military authorities or the civilian authorities, that puts undue pressure on them to choose the military authorities, which is not in their interest, in my opinion. Even a lawyer would find it very hard to explain the ins and outs of each of the two options.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you so much.

My next question may fall a little outside the scope of your report, but it follows on your recommendation to eliminate the jurisdiction of courts martial.

As we know, the accused's guilt must be proved beyond a reasonable doubt, so a judge may well tell a victim that they believe her, but have to acquit the accused anyway. If cases are heard by the civilian courts, what would be done with people who were able to themselves acquitted of sexual misconduct charges and wanted to be reintegrated? That is something we are already starting to see, and I would like to know, broadly speaking, what you could recommend on that subject.

[Louise Arbour]

First, the burden of proof is exactly the same in the military courts: that is, the facts must be proved beyond a reasonable doubt. In fact, some studies have shown that there were more convictions, in general, in civilian courts than in courts martial. The difference is not enormous, but that means that if the judge believes the complainant but has a reasonable doubt, they will acquit the accused in any event, whether the prosecution is in a civilian court or a court martial.

However, in the military justice system, criminal sanctions are not the only ones available. The Canadian Armed Forces have disciplinary powers they can exercise for conduct that civilians are not bound by. It is thus very possible, even following an acquittal resulting from reasonable doubt, for example, for the accused to be subject to disciplinary proceedings of some other kind within the armed forces. There are codes of conduct and prohibitions on their members' conduct that do not apply to civilians.

In my opinion, however, when we are talking about crimes, the same standard should apply to everyone.