Evidence of meeting #14 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 victims.
A recording is available from Parliament.
Liberal
The Chair Liberal Charles Sousa
Thank you for your opening statement.
I will now go to the brigadier-general for five minutes.
Thank you.
Brigadier-General Vanessa Hanrahan Canadian Forces Provost Marshal, Canadian Armed Forces
Chair and members of the committee, thank you for the opportunity to appear before you today. I would like to introduce three points that I believe are significant to the discussion regarding Bill C-11.
Independence of the military police is a legal safeguard and a practical reality. The Canadian Forces provost marshal operates under statutory independence, provisions which are afforded for in the National Defence Act and are reinforced by both training and internal culture. As of 2011, all members of the military police fall under full command of the Canadian Forces provost marshal, meaning that the Canadian Forces provost marshal has sole authority to direct the actions of the military police.
In fact, proposed amendments presented in Bill C-11 will further emphasize this independence, causing the Canadian Forces provost marshal to be responsible to the Minister of National Defence for the delivery of a policing capability to DND and CAF while removing current clauses that afford authority for the vice chief of the defence staff to give written general instruction to the CFPM. Should the military police believe they've been interfered with, they may file a complaint directly with the Military Police Complaints Commission. It is the Military Police Complaints Commission that has sole authority to investigate such matters.
Let me now address military police professionalism. The military police are peace officers as defined under the Criminal Code. We exercise the same statutory and common-law powers as our civilian counterparts, including the authority to lay charges in the civilian justice system. We also have unique authorities related to the enforcement of the National Defence Act, allowing us to investigate and lay service offence charges in the military justice system, which supports the maintenance of discipline and morale in the Canadian Armed Forces.
Our military police are highly trained. Military police-specific training matches and often exceeds that of our civilian counterparts both in duration and scope. Furthermore, military police undergo a variety of specialty training, much of it taken alongside our civilian counterparts.
Like all other police agencies in Canada, the military police have a robust accountability framework to address allegations of misconduct, which aligns with national policing norms and reinforces public confidence. Part IV of the National Defence Act, modelled on the RCMP, provides a legislative framework to address conduct complaints for members of the public concerning any member of the military police. The Military Police Complaints Commission, a civilian review body, plays a vital role in this framework.
Additionally, the military police have a military police professional code of conduct, which establishes the professional standards by which I hold all military police accountable.
I would now like to turn to a trauma-informed, victim-centred approach. This concept at its heart speaks to the need to place a victim or survivor at the forefront, providing the support needed as they manoeuvre through both the investigative and prosecutorial processes.
Speaking through a policing lens, the removal of choice from a victim or survivor does not embrace this approach. Through the removal of concurrent jurisdiction, this legislation is removing possible options that could best address allegations of Criminal Code sex offences. Concurrent jurisdiction speaks to the overlapping jurisdiction of the civilian and military police and affords the flexibility for police agencies to transfer investigative files accordingly. It allows the investigative authority to invoke victim and survivor agency. In simple terms, it permits victims and survivors a choice to be part of the equation, which is in line with the Canadian Victims Bill of Rights.
Often, in cases involving CAF personnel, there are unique issues that must be addressed, one such issue being multi-jurisdictionality. This refers to the fact that many investigations involve offences that took place in multiple policing jurisdictions and involved persons located across the country and even around the world, mainly due to the mobility requirements of the Canadian Armed Forces. In such cases, victims and survivors could be required to report to multiple police agencies, thereby bringing an element of retraumatization that does not exist in the conduct of the military police investigation. Military police are stationed and operate coast to coast, making us uniquely poised to conduct multi-jurisdictional investigations, often in collaboration with our civilian police counterparts.
In addition, with an average of approximately 150 files per year, the military police are positioned to triage files differently from most civilian police counterparts. Moreover, we apply public interest factors tailored to the operational realities of military service, the seriousness, the nature and gravity of the offence, and the impact that this can have on the good order, discipline, operational readiness, unit cohesion and morale of the Canadian Armed Forces.
We are uniquely poised to look at the elements of criminal and service offences within one investigation to determine how to most effectively deal with the situation at hand. We have seen renewed confidence in the abilities of the military police as evidenced by victims and survivors requesting that investigations be conducted by the military police.
For example, since December 2021, 735 incidents of alleged Criminal Code sex offences were reported to the military police, of which 270 were retained by the military police for investigation at the request of victims.
Furthermore, using pre-charged legal review protocols to ensure that decisions meet both reasonable and probable grounds and public interest thresholds prior to proceeding with charges, the military police frequently lay CCSO-related charges. Since 2021 we have laid these charges mainly in the civilian justice system. Nearly 40% of our files have resulted in charges or charge recommendations, with over half ending in some form of justice. This rate is consistent with that of our civilian police counterparts.
The military police, like Canadian police agencies, are professional, independent and accountable, meeting national standards and adapting to reforms that prioritize victim rights and victim choice. Canadian legislation should be trauma-informed, victim-centred and an advocacy to empower victim survivors. The retention of concurrent jurisdiction for CCSO accomplishes just this.
Thank you for your attention. I welcome your questions.
Liberal
The Chair Liberal Charles Sousa
Thank you for those opening remarks.
Colonel Ahmed, you have up to five minutes.
Colonel Nooral Ahmed Director of Defence Counsel Services, Canadian Armed Forces
Good afternoon, Chair and members of this standing committee. Thank you for inviting me to appear here today.
I'm the current director of defence counsel services. My mandate is to provide, supervise and deliver defence lawyer services to the Canadian Armed Forces members.
In essence, defence counsel services functions as CAF's legal aid program, ensuring that all members—and civilians, in certain circumstances—regardless of rank, have access to free representation when facing charges under the National Defence Act or the Criminal Code.
We represent the accused before courts martial, the Court Martial Appeal Court and the Supreme Court of Canada. We also operate a 24-7 duty counsel line 365 days a year.
Despite the absence of clear statutory independence, our team is committed to fearlessly and competently defending the accused.
My remarks focus on three aspects of the bill. First is the independence of the director of DCS, which is my position at the current time. Second is the necessity for the independence of the defence counsel services lawyers who work in the unit. Third is the transfer of the Criminal Code sexual offences to the civilian system.
Bill C-11 enhances the independence of the director by providing, in clause 40, that the director will be appointed by GIC, rather than the MND. This is a step toward greater institutional independence.
The bill also proposes to enhance the independence of the director by stating, in clause 2, that in the exercise of their superintendence, the JAG “respects the independence” of the DDCS. This provision has a limited practical effect. As Justice Fish noted in his report, “independence cannot be left to the strength of their personalities: it needs to be protected by structural safeguards.”
Relying on the goodwill of the JAG to respect the director's independence—or on the fortitude of the director to resist influence from the JAG, the minister or the chain of command—is not a meaningful safeguard.
This concern is compounded by the fact that the bill leaves unchanged subsection 249.2(1) of the National Defence Act, which currently states that the director “acts under the general supervision” of the JAG, and subsection 249.2(2), which states that the JAG “may issue general instructions or guidelines” to defence counsel services.
These provisions grant the JAG broad authority over the director. The proposed legislation does not meaningfully limit the potential for interference in the director's mandate. Without structural statutory independence, the perception and potentially the reality of independence remain at risk. On this point, I submit that consideration should be given to repealing section 249.2 of the National Defence Act.
On the independence of the lawyers who work at defence counsel services, these are the individuals who hold the direct solicitor-client relationships with the members. This required independence has never been granted any legislative safeguards.
Under the current regulations, the JAG retains command authority over all officers in positions within the office of the JAG and has the authority to determine and assign duties to all of these legal officers, including those assigned to defence counsel services. The JAG has the authority to post legal officers to and from defence counsel services. Postings can significantly affect career progression and quality of life, and can have a direct impact on the quality of services that defence counsel services provides.
The JAG also has a role in personnel evaluation processes of defence counsel members. This may raise a perception of conflict or bias because defence counsel lawyers are often required to challenge CF-related legislation, directives and orders that have often been reviewed by lawyers at the office of the JAG. Additionally, during trials, defence counsel find themselves in the position where it's required to challenge the credibility of witnesses, which may include senior officers.
The defence counsel's professional obligations place them in direct opposition to the very institution that determines their career progression. This may undermine both the perception and the reality of independence and, by extension, the confidence of CAF members and the public in the fairness of the military justice system.
The current JAG has demonstrated a commendable respect for the independence of the director of defence counsel services and its lawyers. However, as identified by Justice Fish, this has not always been the case, as leadership changes regularly.
On the points of independence for the lawyers, I submit that consideration be given to creating legislation that places the military defence counsel lawyers under the sole command of the director of defence counsel services and/or to establishing a military defence counsel services office that's not subjected to any outside influence.
Perhaps the most consequential aspect of this bill for CAF members is the transfer of the prosecution of Criminal Code sexual offences to civilian courts.
While the transfer itself, from the point of view of the director of defence counsel services, is not problematic, it is the practical impact that is significant. CAF members who are charged would no longer be eligible for legal representation through our offices. They'll have to represent themselves or personally fund their defence, assuming they can afford it.
This point was brought up before this committee by Lieutenant-Colonel Fowler, Afton David and Dr. Breeck.
As our society has agreed—
Nooral Ahmed
Okay, I'll wrap up.
As our society has agreed, individuals are presumed innocent before proven guilty. Justice Fish emphasized that access to free legal counsel is a fundamental benefit extended to CAF members in recognition of their extraordinary duties, including the principle of unlimited liability, and he cautioned against interfering with this without compelling justification, as echoed by Madam Justice Arbour.
On this last point, it is respectfully submitted that if the Criminal Code sexual offences are transferred, consideration be given to understanding the impacts on the access to justice for CAF members who face charges.
Thank you.
Liberal
Colonel Dylan Kerr Director of Military Prosecutions, Canadian Armed Forces
Thank you, Mr. Chair.
I've served in the Canadian Armed Forces for over 30 years, first as a signal officer in the Canadian Army, and for the past 15 years as a military prosecutor. I've appeared at all levels of court, including three cases before the Supreme Court of Canada involving significant constitutional challenges to the military justice system.
In June 2021, I was appointed by the Minister of National Defence to a four-year term as the director of military prosecutions, and was subsequently reappointed to serve a three-year term. As director of military prosecutions, I'm statutorily responsible for preferring charges for courts martial and for conducting those prosecutions. I also act as counsel for the minister in respective appeals before the Court Martial Appeal Court and the Supreme Court of Canada.
In order to fulfill these duties, I lead an organization of 30 military prosecutors and civilian staff, collectively referred to as the Canadian military prosecution service. My team includes six reserve force military prosecutors, who are all civilian Crown prosecutors with extensive criminal law experience, including in the prosecution of sexual offences. I sit on the federal-provincial-territorial heads of prosecutions committee, and I have arrangements with several prosecution services across Canada, whereby regular force military prosecutors may be seconded to civilian prosecution services to gain experience with criminal prosecutions and to build relationships between our services. All of my prosecutors, regular and reserve force, are well-trained professionals, with a deep commitment to justice. I have the utmost confidence in their ability to prosecute cases of Criminal Code sexual offences and to advise military police in the investigation of those offences.
In November 2021, in response to Madam Arbour's interim recommendation, I directed our prosecutors to stop exercising jurisdiction in respect of new allegations of Criminal Code sexual offences. I made that decision in consideration of Madam Arbour's concerns about a mounting crisis in public confidence in the military justice system, along with numerous reports, during the summer of 2021, alleging sexual misconduct by our senior-most leadership.
At the time, I expected that direction to be temporary. Work was already under way to implement the recommendations from Mr. Fish's report, and I believed that once that work was completed, along with addressing any additional concerns for Madam Arbour in her final report, we would be well placed to resume exercising jurisdiction. I did not anticipate that Madam Arbour would recommend removal of jurisdiction or that the government would accept that recommendation.
Since November 2021, significant improvements have been made to the military justice system and to victim supports within the CAF. We have implemented the Declaration of Victims' Rights. The sexual misconduct support and resource centre now provides independent legal advice and representation for victims. The federal-provincial-territorial heads of prosecutions committee has adopted a statement of principles and presumptions for the exercise of concurrent jurisdiction by Canadian prosecuting authorities.
These steps, along with CAF's broader culture change and administrative reforms, have positioned us well to be able to restore public confidence and address sexual misconduct, including Criminal Code sexual offences, in a meaningful and effective manner. If it wasn't for the tabling of Bill C-11, I would already have rescinded my direction to stop exercising jurisdiction in these cases, and I'm fully prepared to resume accepting appropriate cases in the military justice system now. I believe victims in the CAF are better served by retaining a concurrent jurisdiction over these offences. Victims deserve a say in where their cases are heard, and I am concerned that some cases will not be heard if jurisdiction is removed.
More tools to address sexual violence are better than fewer. I recommend that clauses 7 and 8 of the bill be struck and that jurisdiction to investigate and prosecute be retained. I applaud the bill's strengthening of the position of the DMP, and I support the change to a seven-year, non-renewable term aligned with that of the director of public prosecutions, but I am concerned about the proposed disciplinary framework for the DMP. In my view, the only appropriate remedy for a DMP found to have committed misconduct is removal. This would also align with the framework of the DPP.
I recommend clause 15 of the bill be amended to provide for removal as the only remedy. Alternatively, I recommend that the disciplinary framework proposed in clause 15 of the bill be replaced with the language contained at subsection 5(1) of the DPP act. I also have concerns about the acting DMP provisions. Bill C-11 would currently limit the minister's ability to appoint an acting director to 90 days, beyond which GIC approval is required. It is imperative that there is always someone who can act as the director. The power to prefer and prosecute charges by court martial is given to the director by statute, and the length of time for which the minister could appoint an acting director needs to be extended, or the provision should be amended to simply require notice to the GIC where the minister has authorized the longer term.
Thank you, and I look forward to your questions.
Liberal
The Chair Liberal Charles Sousa
Thank you all for your opening testimonies.
We're going to start our first round of questioning.
You have up to six minutes, Mr. Kibble.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Thank you, Mr. Chair.
Thank you, Chief Wilson, for joining us, and congratulations on your appointment as the chief of Victoria police.
Could you confirm for me, for the record, that CFB Esquimalt, which is the third-largest base in Canada and has approximately 4,500 uniformed personnel, falls primarily within your jurisdiction?
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Thank you.
In 2022, Canadian Armed Forces reporting stated that approximately 3.5% of members report sexual assault offences. That equals a potential of up to 155 cases that year at CFB Esquimalt.
You mentioned earlier that approximately 11 cases would be beyond your capacity. Is this something that your department could handle, if all cases are diverted to civilian authorities such as yours?
Cst Fiona Wilson
One of the things I mentioned was the average of 11 cases. That was from a letter that was dated November 23, from Major Todd Walsh, who was then the commanding officer of the military police in Esquimalt. However, I acknowledge that this number may have changed, and I'm not sure of the parameters under which that number was drawn.
There's absolutely no chance that VicPD could take on that number of additional files.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Just to confirm, when you say, “that number of...files”, are you referring to the 11 in the letter from a few years back, or the approximately 155 cases based on percentages and the number of personnel at the base—or either?
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Okay.
You mentioned hundreds of man-hours per case for your department. Could you also quickly address beyond time, the costs and other factors for investigating both major and minor cases?
Cst Fiona Wilson
Absolutely.
I was a detective in the sex crimes and child abuse unit when I was at the Vancouver Police Department. I've been a police officer for over 27 years. Sexual assault investigations are anticipated to frequently include a number of different investigative avenues that are very expensive and time-consuming—forensics, computer forensics, medical assessments, victim services, witness protection sometimes, transcription, travel costs. It's difficult to say, on average, how much these files cost. However, I can say that I've certainly worked on sexual assault investigations that have gone from $50,000 to several hundred thousand dollars to investigate, and then everything in between.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Recently in the news, I noted that you're fighting hard for funding for your department, just to deal with the other issues going on in Victoria. Would this put an incredible stress on the capacity of your department, not to question your capability?
Cst Fiona Wilson
To be clear we do not have any additional capacity right now, and it's not just about the money. It's about human resources.
As you well know, police agencies across this country are struggling with recruitment and retention, and VicPD is no exception to that. I am lobbying very strenuously with councils both in Victoria and Esquimalt for additional resources, just to cover off the basics. We do not have the resources to take on any additional sexual assault files at this time.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Have you or has your department, in the past, ever been contacted, or has anyone reached out, with regard to potential federal government funding or financial support to take on these additional cases?
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
You mentioned evidence earlier, and challenges. Could you better describe some of the challenges in sharing evidence and custody, or the chain of evidence and custody?
You also alluded to different systems. Could you explain that a little bit more for us, please?
Cst Fiona Wilson
Absolutely.
In terms of the chain of evidence and custody, often it is the case that we will have to write production orders, warrants, to gain access to evidence that we require in these cases, as I say, when it comes to computer forensics, physical forensics, things like victim services, psychiatric assessments, medical documentation. Also, particularly with these types of investigations, it may be the case that people who are involved in the incident have moved nationally or perhaps even internationally. There's significant cost associated with that as well.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Thank you.
Are you aware of any cases from, say, 2024 or 2023 in your department—statistics—that were transferred from CFB Esquimalt, and you dealt with?