Thank you, Mr. Chair, and I'll echo my colleague's thanks for the invitation to appear before you today.
Bill C‑11 is presented as a solution to military justice problems relating to sexual misconduct in the Canadian Forces. I contend that not only will it fail to solve the actual issues that the Canadian Forces face, but it will generate additional problems.
The principle challenge faced by the Canadian Forces, not just in terms of sexual misconduct but in terms of military justice broadly, is impunity arising from deficiencies in enforcing accountability. Removing jurisdiction over select criminal offences in select circumstances will not aid in improving accountability. Instead, it will provide a convenient excuse for inaction or, alternatively, overreaction. It will lead to further impunity. It will undermine fairness and access to justice for all members of the Canadian Forces.
We have been down this road before. Prior to the enactment of Bill C‑25 in 1998, the code of service discipline did not have jurisdiction over sexual assault when it was alleged to have occurred outside Canada. There was outrage about the Canadian Forces' seemingly inability or lack of motivation to address this issue and, following a variety of studies, including by former justices of the Supreme Court of Canada, Parliament amended the National Defence Act to remove that limitation.
The purpose of the code of service discipline is to maintain the discipline, efficiency and morale of the Canadian Forces. For over 30 years, the judge advocate general and the director of military prosecutions have campaigned through policy development and litigation to encourage the adoption of a broad application of the code of service discipline. They successfully eliminated the military nexus test. The military justice system has jurisdiction over criminal offences that have little or no connection to the Canadian Forces save the identity of the accused. Parliament has reinforced that broad application of jurisdiction, and the Supreme Court of Canada has upheld it.
Now, however, we are told that the jurisdiction should be curtailed, but only for sexual offences and only when they are alleged to have occurred in Canada. This is incongruous with the theory underpinning military justice in Canada. Jurisdiction will remain where such allegations arise outside Canada, even though military judges, prosecutors, defence counsel and military police will now have less experience investigating, prosecuting and presiding over such matters. Those prosecuted for such offences before civil courts of criminal jurisdiction will no longer have access to the defence counsel services free of charge, which fetters access to justice.
Why are the current government, the leadership of the Canadian Forces and the justice advocate general abandoning this principle in a piecemeal fashion? Why is the code of service discipline fit for function and fit for purpose for other forms of criminal misconduct but not for sexual misconduct? Why is it fit for purpose for allegations arising outside of Canada?
If the core problem is a lack of accountability for CF decision-makers, there has been no credible explanation as to how these jurisdictional changes will improve accountability. That is because they won't, because they can't.
If the prevailing wisdom is that CF leadership cannot be trusted with enforcing discipline relating to sexual misconduct, then how can it be trusted with leadership generally? How can it be trusted with applying administrative measures where sexual misconduct arises? How is this supposed to improve accountability? How does this jurisdictional change encourage or empower leaders to act? How will it ensure that they act fairly, in a timely fashion and reasonably?
A consistent theme in the discourse that followed the Arbour report was that CF leadership consistently failed to create an environment in which victims of sexual misconduct felt safe to raise concerns and complaints and that the same leadership consistently failed to take appropriate action. Bill C‑11 will not correct that problem and may well set conditions to perpetuate or aggravate it by passing the fault to the civilian system as opposed to attacking the source of the problem.
The written submissions that I have provided to the committee, which I believe are still in translation, focus on the myths and mis-characterizations upon which many of these problematic recommendations have been predicated. These include incongruity between the proposed amendments and the purpose of the code of service discipline and the myth of the greater benefit of supposed greater independence for select actors. It also identifies the lack of safeguards regarding implementation of those changes.
The problem the Canadian Forces face is not the jurisdiction of the code of service discipline. The problem does not arise from the tools that are available to CF leadership. The problem is a failure of leadership and a failure to hold leaders accountable.
Junior CF personnel are routinely admonished in administrative and disciplinary processes for a failure to uphold the Canadian Forces' code of values and ethics. Ironically, CF statutory decision-makers have frequently failed to uphold those same values and ethics when punishing subordinates for such failures.
As is detailed in my written submissions, there are some positive elements that arise out of Bill C-11, such as removing judges from the jurisdiction of the summary process. However, ultimately, this isn't just about sexual misconduct. The central issue is accountability. Bill C-11 does not improve the mechanisms to hold CF leaders accountable for inaction or bad decision-making. On the contrary, it provides them with a convenient excuse to avoid action.
Thank you, Mr. Chair. I await your questions.