Evidence of meeting #12 for National Defence in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was forces.
A recording is available from Parliament.
Col (Ret'd) Michel Drapeau
As a first step, I recommend creating an inspector general position.
Second, there should be an additional legislative procedure that clearly indicates who is responsible for conducting investigations and following up on complaints of sexual assault in the Canadian Armed Forces outside the country.
Liberal
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Thank you.
As we dig in on this, one of the definitions in here is the superintendency of the judge advocate general. Does that still exist when everyone who currently is underneath the JAG is now going to be reporting directly to a minister?
Who's actually in charge? Was it just the minister, or is that going to create a conflict within our military justice system for the other crime investigations they're going to be carrying out?
LCol (Ret'd) Rory Fowler
Part of the problem with the judge advocate general's superintendence of military justice, under section 9.2 of National Defence Act, is that “superintendence” is not defined. The judge advocate general views this as supervising how the code of service discipline is used. For 20 years, “military justice” was not defined under the National Defence Act, and under Bill C-77 we defined “military justice” as the code of service discipline. We're using one statutory term to define another statutory term for whatever reason, but what that has meant for the last 25 years is that the judge advocate general will supervise in a public fashion the actions of not only legal advisers advising on military justice but the director of military prosecutions.
You have to remember that if the JAG is going to issue direction to the director of military prosecutions, the default is that it's going to be public and it's going to be in writing, which is why it's problematic when the minister issues direction to the director of military prosecutions directly, because that bypasses the role of the judge advocate general.
A lot was said in the 10th meeting of this committee about having the minister give direction directly to the director of military prosecutions, akin to what the Minister of Justice and the Attorney General does in the Department of Justice. The difference is that the Attorney General is a law officer, the chief law officer of Canada. While the current Minister of National Defence is a lawyer and past ministers of national defence have been lawyers, and it's very easy to advise them when you're a military lawyer, that's not always the case, nor are they a law officer.
The reason why the JAG would give direction to the director of military prosecutions is that it's a lawyer giving another lawyer direction in a very public fashion. By making the director of military prosecutions responsible to the minister—appointed by the minister, accountable to the minister—the JAG is no longer superintending military justice when it comes to military justice before a court martial, because the JAG really isn't supervising the director of military prosecutions. But we're leaving that in evidently. It's great there's an amendment that says the JAG will respect the roles of the director of military prosecutions, the director of defence counsel services and the Canadian Forces provost marshal, or whatever they're going to called, but where is the evidence that the JAG hasn't been doing that?
This is an amendment with no real consequence because there hasn't been a failure of the JAG in those terms. In fact, if we look at the influence on the director of military prosecutions, we don't see the chain of command influencing Colonel Kerr, who's the director of military prosecutions. We don't see that kind of influence going on. There's no evidence of that kind of influence. What does influence those decisions is media scrutiny. For example, I am still trying out the reasoning behind the decisions in the prosecution of Lieutenant-General Whelan, who was prosecuted by court martial. I'm still trying to figure out what was going on there, and I was following it closely.
If we are concerned about the influence of those decisions-makers, if we think the director of military prosecutions is being influenced by the chain of command or by the JAG, I would want to see that evidence, because there hasn't been any evidence of that.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Sir, you're saying there's no evidence of that sort, but now we're going to open it up. Supposedly, the concern is that the chain of command is influencing those prosecutions. Now we're increasing that to include political influence as well.
LCol (Ret'd) Rory Fowler
Now you're making them political appointees who may or may not be appointed in time. That has been a recurring problem. Ms. Duval-Lantoine pointed out and I pointed out in my blog the length of time it took to appoint a chief military judge, and that undermines military justice.
The point is, if we're going to have the JAG superintend military justice, then removing the DMP from any actual relationship with the JAG in that regard undermines that very requirement.
Col (Ret'd) Michel Drapeau
I don't see Bill C-11 changing that. The JAG currently has superintendence over both the director of military prosecutions and the defence counsel. It remains the same, except the two individuals filling those appointments would now be GIC-appointed.
Conservative
LCol (Ret'd) Rory Fowler
I disagree because it also allows for the minister to give direction to the director of military prosecutions. You have a non-lawyer—the current minister might be a lawyer, but it's not a legal office or position—giving direction to the director of military prosecutions.
That, I would contend, is problematic if you still expect the JAG to superintend military justice.
Liberal
Viviane LaPointe Liberal Sudbury, ON
Thank you, Chair.
Mr. Drapeau, I want to continue our discussion on the changes that are needed to ensure the independence of the systems.
What measure do you think would ensure that independence is not only structural, but also perceived as such by victims and the public?
Col (Ret'd) Michel Drapeau
Public perception is fundamental. I think the public will welcome the changes to the legislation because they are the result of a long process. Academics have been talking about this and making proposals about it for about 10 years now. Justice Fish and others have made recommendations along the lines of what we're discussing today.
I think that's a normal, logical outcome. This will give confidence not only to the female personnel currently serving in the forces, but also to the mothers and fathers whose daughters are considering a career in the forces.
It's a very noble career. Their safety may not be guaranteed, but if a serious incident of a sexual nature occurs, there will be an independent process through which qualified and experienced people will be empowered to receive complaints and conduct an investigation.
This is very good news in terms of recruiting and retaining women in the forces.
Liberal
Viviane LaPointe Liberal Sudbury, ON
That's a good point, Mr. Drapeau.
You have long called for those involved in the justice system to be isolated from the chain of command.
How do the Governor in Council appointments provided for in Bill C‑11 contribute to this objective?
Col (Ret'd) Michel Drapeau
I'll give you an example. The judge advocate general is a Governor in Council appointee who does not report directly to the chief of defence and the vice-chief of defence. His career is not dependent on them.
It instills confidence in the public and in the person in that position. The fact that a person is appointed by the Governor in Council makes them much more independent from the chain of command and less vulnerable to pressure that could be exerted in the performance of their duties.
The same reasoning applies to the Governor in Council appointments that are provided for in the bill.
Liberal
Viviane LaPointe Liberal Sudbury, ON
Thank you.
Professor MacKenzie, Bill C-11 ensures that victims have consistent access to liaison officers and clear information about their cases.
We could assume that's effective, but could you tell us how effective this kind of survivor-centred approach is in encouraging confidence in coming forward and participating in the process?
Prof. Megan MacKenzie
I'm sorry. I didn't hear at the beginning whether it was for Ms. Duval-Lantoine or for me. I think she'd be very capable of answering this as well.
I do think that the victim advocate is a very important resource.
I actually think Ms. Duval-Lantoine would be a better person to answer this particular question.
Liberal
Vice-President, Ottawa Operations, Canadian Global Affairs Institute
Thank you very much.
It's very important for victims that there be a liaison role. In fact, the change of jurisdiction presents a complexity, since the decision on the liaison position is supported by the chain of command.
Under the authority of the chain of command, the commanding officer will help the victim to choose someone to support them during the judicial process. The person chosen will not perform this role full time; it will be in addition to their existing duties and responsibilities. This is a very important form of support, because when someone is traumatized, they may not necessarily have the cognitive abilities necessary to follow the administrative procedures involved in a legal action.
These are necessary services, but we have to make sure they meet the needs of the victims before we meet the needs of the chain of command.
Liberal
Viviane LaPointe Liberal Sudbury, ON
Culture change is successful when there are clear mechanisms for accountability, responsibility and transparency.
What opportunities does Bill C‑11 offer to increase transparency and show members of the Canadian Armed Forces and Canadians that we are building a more accountable organization?
Vice-President, Ottawa Operations, Canadian Global Affairs Institute
Having public debates on this allows us to identify our disagreements on certain aspects of this bill, which is very useful if we want to improve it.
I would say that, in terms of transparency, as recommended by former Justice Fish, any directive issued by a minister to the director of military prosecutions should be published in the Canada Gazette so that the information becomes public. I think that's very important.
I don't remember if it's in the bill, but it would be necessary.
Liberal
Simon-Pierre Savard-Tremblay Bloc Saint-Hyacinthe—Bagot—Acton, QC
Ms. Duval‑Lantoine, I don't know if you were already a member of the institute in 2015 when an article was published in the online magazine highlighting the lack of political leadership in dealing with misconduct.
Do you feel like we're somewhere else now?
Where are we at? It's been 10 years, after all.
Vice-President, Ottawa Operations, Canadian Global Affairs Institute
Under the leadership of Minister Anand and Minister Blair, we've seen a greater public reaction when it comes to issues like this.
I have to say that public conversations about this have declined since at least 2024. I have had no contact with the chief professional conduct and culture group since 2024. So we're seeing a bit of a decline.
Having those conversations in a public way is very helpful. However, even in the civilian world, we still live in a culture of military exceptionalism. We tell ourselves that the military must have complete control over the way it operates.
If you look at the reports that have come out on sexual misconduct, or if you look at the recent Auditor General's reports that came out a couple of weeks ago, there is a real problem with the way the military is managing the organization.
If we want to change the culture of the Canadian Armed Forces to have a much healthier culture for women and for everyone, we have to solve this problem.
