Evidence of meeting #13 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 civilian.
A video is available from Parliament.
Senior Legal Counsel, As an Individual
All the research I've done is in English, so I'm going to answer in English, if you don't mind.
Senior Legal Counsel, As an Individual
Just to dovetail on the topic of cherry-picking, Justice Fish's recommendation 68 is a temporary measure, and it reads as that. The idea is that the jurisdiction of those Criminal Code offences of a sexual nature is removed from the military justice system until the declaration of victims' rights is in place. I would submit that the declaration of victims' rights was put in place in, what, 2021? The report came out in 2021. I would further submit that military justice, with those important safeguards, was not given a chance to actually demonstrate how it can handle those Criminal Code offences.
Of course, as we know, history happened, a declaration was made in public, and so on and so forth.
Col (Ret'd) Bruce MacGregor
Thank you, Mr. Chair.
I want to reiterate that. Afton makes a very important point about recommendation 68 and the follow-on in terms of the victims' rights bill.
The other thing that has to be pointed out is that the SMSRC now has funding to have legal representation in court on certain in-court and pretrial applications. That's not universally provided from province to province and territory to territory. These are things that we can have through the military justice system that would be consistent in all 13 other jurisdictions.
That wasn't considered back in 2015, and it doesn't seem to be considered as a factor in putting this bill forward today. I think there has been a lot of water under the bridge. There's a huge reliance upon the fact that the civilian justice system is still far in advance of the military justice system in victim protection.
Liberal
The Chair Liberal Charles Sousa
Thank you, Mr. MacGregor.
Mr. Anderson, you have up to five minutes.
Conservative
Scott Anderson Conservative Vernon—Lake Country—Monashee, BC
Thank you very much.
My first question is for Colonel MacGregor.
You mentioned triaging cases. Triaging is a perfect word for it, I think. I ran into some statistics that say that almost a quarter of the cases that have been transferred to civilian have been thrown out or not carried forward. Is this bill going to exacerbate that problem?
Col (Ret'd) Bruce MacGregor
Who knows what's going to happen in the future? As was stated earlier, not all cases of sexual violence are considered a high degree of violent action. That's always a difficult way of characterizing it, but you're not going to get the kiss on the cheek in front of a provincial court judge or a superior court judge in any of the provinces or territories. We will, because there is a heightened problem with doing that within the military justice system and within the military milieu.
From a triage perspective, they don't have the time and they don't have the resources to put that ahead of other cases and what they're dealing with within their own jurisdictions. That is a real problem.
Another real problem that has not been discussed is the triaging. When you have witnesses from all across the country who are scattered all over the place, there is a cost factor to bringing them in to do the trial, and there are prosecutors and police who are maybe unwilling to proceed with certain cases of a more minor nature as a result of those concerns.
Conservative
Scott Anderson Conservative Vernon—Lake Country—Monashee, BC
Thank you very much.
Ms. David, right now there's nothing I see in the bill that requires communication between civil and military authorities. That, to me, is a prima facie problem right off the bat.
You suggested a liaison. Do you think a liaison is going to be sufficient for that, or should there be a requirement for reporting? I'm going to reference an actual example from my riding, where an accuser and accused were both sent home on the same bus because the case was transferred to the civilian side but there was no communication back to the military. Situations like that are bound to arise if there's no communication.
In your opinion, is a liaison sufficient, or should there be something in this bill?
Senior Legal Counsel, As an Individual
On the sufficiency, I'm not sure. I wish I had a crystal ball so I could figure that out, but what I would suggest is that something in the bill—some sort of provision—would absolutely be necessary. I think it would be a good first step as a liaison officer to have some sort of kind of requirement for communication between the civilian authorities and the military authorities in the chain of command, at the very least.
I would suggest that it would also provide the accused, and the accused's chain of command, the information we need. As you heard, another one of my recommendations is some sort of provision that would forbid statutory decision-makers, but for potential operational requirement issues, from taking irreversible and permanent decisions about the accused's career.
I think that could potentially operationalize that other recommendation in addition to making sure that epic fails like the one you just described don't happen.
Conservative
Scott Anderson Conservative Vernon—Lake Country—Monashee, BC
Thank you very much.
Dr. Breeck, thank you very much for appearing today. I have a young daughter who's training to be a pilot, and I applaud your courage in that.
You said that low-risk events should remain in the military; I think we've heard the reasons for that from Colonel MacGregor, but I'd like to, first of all, delve a bit into the culture of the military, because that's very specific. I think there may not be the same understanding; on the civilian side, things are pretty straightforward.
Can you talk a little about the culture in the military and how that may decrease reporting and cause issues when they arise?
Medical Doctor, As an Individual
There's a lot there to potentially unpack.
Again, if we assume that the real problem we're here today to solve is to minimize any form of sexual misconduct in the military, knowing that we will never be 100% successful, then it's knowing that we have the right supports in place for when it does happen and that we learn lessons from it so that it doesn't continue.
When we look at the research that has been done, especially in the U.S., it has shown over and over again that these significant sexual misconduct-related issues don't ever pop up out of nowhere. They always start at the lower end. People find that they are in a permissive environment where either the victim doesn't push back when that first little thing happens or, if the victim does push back and go to the chain of command, the victim is blown off and not believed, so nothing happens. That's a signal for them to keep going up the chain.
This is why those smaller events that may seem minimal—we know over and over again—are the key to helping prevent the larger sexual misconduct cases. It's by not allowing that permissive environment for bad behaviour in the workplace. This is exactly the unwanted kiss or the unwanted touch. The unwanted harassment makes it really the area to be focusing on to probably have the biggest impact on a positive culture and to minimize sexual misconduct moving forward.
In a military culture as well, unlike in a normal job.... I think of so many examples where I could not have done what the mission required without the help of others. If you're doing sea survival, you're in a poopy suit, and you're trying to get into the lifeboat, you ain't getting in on your own. You are grateful that anyone can grab any part of your body that they can grab and get you into the boat. That kind of scenario is not uncommon in the military.
Let's continue it one step further. You're in the plane, and there's turbulence. You're on the ship, and there's turbulence. People bump into each other and touch each other on a frequent basis that you don't see in a normal workspace. We have to be able to trust each other. We have to be able to understand that 99 times it's a normal touch that just happened, but there's that one time when it's not normal.
We need a system in place whereby we can actually identify it and address it without suddenly being told, “Oh, no, no, that's now considered a sexual assault because he accidentally groped a breast, even though he says he tripped and that it was nothing.” Things are not black and white. We have this grey area where the best place to be addressing that is still in terms of professional discipline in the military context. This takes that away from us.
Liberal
Liberal
Chris Malette Liberal Bay of Quinte, ON
Thank you.
Through you, Chair, I'm going to direct my question to Dr. Breeck.
In testimony before this panel on November 6, Megan MacKenzie made a point of spelling out.... If I'm finding it correctly, Professor MacKenzie said:
I would just reiterate that the idea that having a choice is somehow better for survivors is actually [I would say] inaccurate for most of the victims and survivors that I've spoken to. In the moments following an incident of sexual violence, it is very difficult for a victim to understand the consequences [of that] and the complexity of that choice. The default position for many survivors is to work within the military justice system, not because they think it's [a] better [system] but because that's the system they're in. It's the institution they trust.
Many survivors, after that process, wished that they had been given a different option and are not satisfied with the choice.
We know, from the same research that she mentioned here, that there needs to be clarity for the victim and a regaining of their trust in the ability of the military system to deal with criminal offences.
Do I take it to understand that you, however, believe that having that choice is fundamentally somehow better for the complainant in these cases?
I don't mean to pit you against another witness.
Medical Doctor, As an Individual
Well, I think a really important part is the importance of words and the importance of definitions of words, being really clear about what we're talking about and what we're not talking about, because that's where we get confused.
Megan, of course, has written a book, Good Soldiers Don't Rape. By definition, a lot of the people she will have talked to are.... When we talk about the spectrum of what sexual misconduct could be, that would be a different spectrum.
I would like to suggest that the vast majority of the cases that meet the definition of sexual offences are at the lower end, so what kind of sexual offences are we talking about? Again, because, by the definition, it is any unwanted touching on a sexualized part of our body, it's a very low requirement for it actually to be a sexual offence. Again, I think it's important when we look at this bill. There were 28 different sexual offences. I learned about a whole pile that I didn't even know existed.
Just so we are clear here, we're not talking about children, which again, to me, would be an entire other conversation that is worth having for the issues around cadets, but assuming that we're not talking about cadets and children, and assuming that we're not talking about animals or children or anything—that we're just talking about non-violent, non-injurious sexual events—to me only three out of those 28 fall into that category, which would be at the low end of the sexual assaults, such as voyeurism at the low end, where it's just been opportunistic and there are no recordings or anything of that nature or publication of intimate items.
Those are three areas that, even as a medical officer, we would see routinely in terms of variations of this on deployments, the very common areas that we get involved with in terms of how to address them. Again, we need to be able to address those lower-end ones versus the more significant cases that I think we all agree need to go forward. It's that idea of pushing ourselves to be comfortable in the grey zone, instead of considering everything as black and white, if that's helpful.
Liberal
Chris Malette Liberal Bay of Quinte, ON
Thank you.
My next question, then, would be for Ms. David.
What challenges do you foresee in coordinating evidence collection and handover, then, between military investigators and civilian authorities? How can the bill be strengthened, in your estimation, to manage that?
Senior Legal Counsel, As an Individual
If I'm being honest, I'm not entirely comfortable answering that question, only because I haven't looked into it or researched it. The last thing I want to do is provide you with incorrect or inaccurate information.
What I would suggest is that perhaps Mr. MacGregor would be a better person to answer that.
Liberal
Chris Malette Liberal Bay of Quinte, ON
I was just going to say that perhaps Colonel MacGregor....
I'll redirect that question, then, to Colonel MacGregor, if I may.
Col (Ret'd) Bruce MacGregor
What has to happen is that the evidence has to have proper continuity. The continuity is vital to make sure that it's not tainted, it's not lost and it's documented all the way through. There are computer programs that deal with that. I know that the military police—the national investigation service—have been working on that for years in terms of keeping all of that together.
Then what would have to happen is that there would be probably a liaison officer in each and every province and in each and every major city to deal with the NIS or the MPs as to—the NIS, more than likely—a local prosecution office, but this continuity of evidence is vital, and it has to be strictly documented. Otherwise, you can lose cases right from the get-go.
Liberal
Bloc
Simon-Pierre Savard-Tremblay Bloc Saint-Hyacinthe—Bagot—Acton, QC
One of the things that has come up the most so far is the transfer of appointment power. It makes perfect sense that the military justice system shouldn't regulate itself or decide such matters. General Vance's comments are actually what spurred this study. He said he was untouchable because he controlled the whole process.
However, transferring that power to the Governor in Council does raise questions about whether the process is being politicized. Is the government replacing one bad thing with another? That is the question.
What do you think, Ms. David?