Thank you, Mr. Chair. I appreciate the opportunity to speak to you and to the committee.
You have my bio before you. I won't go over that. I'll get right to my points.
The independence of the director of military prosecutions, as Mr. Justice Fish has noted, is imperative going forward and is in line with the Cawthorne decision in the Supreme Court of Canada, of which I was a part a number of years ago. The appointment for a non-renewable term of seven years is appropriate and is consistent with that of the director of public prosecutions of the PPSC.
A GIC appointment is an appropriate level for the appointment, but the bill should be amended to ensure that the DMP annual report be tabled before Parliament each year, similar to the “JAG Annual Report”. This will ensure that the DMP has transparency and unfettered access to illustrate any encroachment on his or her independence from the chain of command, the JAG or the minister.
The disciplinary committee for the DMP has proposed that if the DMP is found to have acted inappropriately, the committee should recommend removal, not suspension—nothing else. The DMP is a commanding officer in the Canadian Forces. If he has acted outside the professional bounds of his duties, he cannot do that job and must be removed, not suspended.
An acting DMP requires more than 90 days, for various reasons—operational, health, etc.—so the power should be given to the minister to grant an extension with written notice to the GIC for any extended period for an acting DMP.
The power to give instructions to the DMP by the JAG on individual cases should be transferred to the minister and should be gazetted. The minister's prosecutorial role is confirmed in the Cawthorne case, in which I also had a part.
With respect to Justice Arbour's recommendation number five, the removal of jurisdiction on sexual offences, I have to note that Justice Arbour's recommendation is not entirely consistent with the previous recommendations of Justices Deschamps and Fish, in Deschamps recommendation number eight and Fish recommendation number 68.
Bill C-25, back in 1998, provided jurisdiction to prosecute sexual offences in the military, but the power to investigate by the military police was already extant. This recommendation takes away the military police power that has existed for decades. Admittedly, the military justice system has flaws with respect to protecting victims and has been slow to move, but it has made significant strides since the Deschamps report, which is much more consistent with the equally flawed criminal justice system.
The expectation that victims would be completely satisfied with the criminal justice system is aspirational and not realistic. Many allegations of sexual assault—if not most—within the military are what we would characterize not as rape but as what may be considered as a lower level of physical violence. Saying this is in no way an attempt to minimize the impact on victims.
The criminal justice system is overburdened and fraught with delay and lack of funding, which causes civilian police and prosecutors to triage cases, which will not guarantee military cases going forward, no matter how important the case is to the victims and/or to the military discipline.
The criminal justice system has a different purpose from the military justice system. The military justice system's purpose, as recognized by the Supreme Court and in the National Defence Act, is to promote discipline, efficiency and morale in the Canadian Forces and to make it more operationally effective.
Cases heard in the civilian courts are physically away from the bases or units where the incidents happened and out of view of the Canadian Forces members who need to hear the evidence and the sentence, if applicable. By having them away, it reduces the goals of discipline and transparency. Cases that do not go ahead in the civilian justice system will likely be dealt with administratively versus in public, significantly reducing the minister's goal of transparency.
The stories of victims will not be heard in the environment where the victims wish to return and to be treated with respect, casting a shadow over their return. Taking the choice away from an informed victim is paternalistic and a further disenfranchisement of a victim who has already been rendered powerless by the perpetrator. The DMP and their team of prosecutors are more available to victims throughout the process, as can be seen by the DMP's pre- and post-charge policies and by the DMP's personal history of sharing knowledge and training with the SMSRC and victims' groups.
The SMSRC has been provided significant resources and is a Cadillac support for victims going into the system, both before and in court, which will not be dealt with consistently across all civil courts across the 10 provinces and three territories.