Evidence of meeting #21 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 choice.
A video is available from Parliament.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
You also mentioned trauma-informed training. Have you taken a trauma-informed training course?
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
You have. That's excellent. I have as well. I'm glad to hear that. It's very wonderful.
One thing they talk about is choice—freedom or being constrained. This would be a legal restriction, and it would certainly feed trauma by taking away choice from a victim or survivor. Would you agree with that?
Lcol Matt MacMillan
In relation to this aspect, it's a question of whether a victim can participate in making the determination. Ultimately, when we're speaking about this motion, it purports to make a choice—the sole choice—for the victim. That's a concern with the motion because it's not how the system functions, as we spoke about earlier, in relation to prosecutorial discretion.
Conservative
Jeff Kibble Conservative Cowichan—Malahat—Langford, BC
Thank you.
I find that interesting. In relation to what you said, we know that the Canadian Association of Chiefs of Police provided a written submission to us. It read:
The proposed provisions in Bill C-11 would deny victims and survivors the ability to express a preference as to how their complaint might be investigated. This approach departs from the victim-centered and trauma-informed principles that underpin best practices in policing.
This sounds very contrary to that, and it certainly speaks to choice.
I think it's worth repeating, as well, that as my colleague Mr. Anderson stated, the overwhelming majority of survivors we've spoken to, as well as the witnesses we've spoken to.... Of course, Justice Arbour, in her report from many years ago—10-plus years ago, at a different time—stated otherwise, but the survivors and the witnesses we heard, who gave up-to-date information and testimony in this very room, spoke to choice. I think that's the way forward in our time.
You said multiple times that it's about telling the stories. They'd have to tell it once in a military format, and then if they switched, they would have to tell it twice. From what I've heard from an overwhelming number of survivors, and from personal experience, I can say that a victim or survivor would be telling their story multiple times just within the military justice system, at each level, as they progress and as they report.
There are these claims that they're going to suffer more because they have to say the story twice. They tell their story over and over. They want to get their voice out and told—so much so that they come to committee and share their story here or write about it in a book. They tell their story over and over, so I think it's a false flag argument to say they're going to have to tell it twice. They're survivors who want to make change and see improvement, and they come forward and tell their story over and over. As heartbreaking as it is for them, they feel compelled to do that, so I don't think it is an undue burden.
I'd like to conclude with a quote from Heather Vanderveer, who also gave a written submission after speaking to us here. She said, “Survivor autonomy is one of the strongest predictors of recovery after institutional betrayal and sexual trauma. Bill C-11 risks creating a system where survivors feel processed through the system rather than empowered within it.” It's that empowerment, that choice, that speaks to trauma-informed theory, and that comes from trauma-informed training, as we've heard from the Canadian Association of Chiefs of Police, so while you state that, I think the overwhelming testimony clearly indicates this.
Thank you, Mr. Chair.
Liberal
The Chair Liberal Charles Sousa
Thank you.
MP Idlout has her hand up at this point. I think we require consent from the committee to allow her to speak. Is that correct? Do we have consent to allow Ms. Idlout to have her say?
NDP
Lori Idlout NDP Nunavut, NU
Qujannamiik.
Thank you to the committee.
I would have spoken to these issues, given that CPC-3 is exactly the same as NDP-1, so I appreciate the opportunity to speak and ask questions regarding CPC-3.
Specifically, we share the criticism that this bill didn't have enough direct consultation with victims, so I'm glad we heard testimony from several victims—and from veterans regarding procedural matters. I want to make sure that I recognize the testimony we heard from veteran and Ph.D. candidate Hélène Le Scelleur and from Christine Wood, who both spoke to the importance of making sure that victims can have a choice as to which court hears them. I wanted to mention those two during this committee as we consider the amendment.
I also want to ask the witnesses, if that's okay...because we've now seen the Liberals table Bill C-16. Bill C-16 looks to make an important amendment to the Criminal Code regarding how some procedures happen, especially those with regard to criminal harassment. The current bill has the potential to be impacted by Bill C-16 if that bill passes, given that Bill C-16 would amend the Criminal Code with regard to harassment provisions. We know that the current harassment provision, section 264 of the Criminal Code, has both a subjective and an objective requirement.
Bill C-16 would make a change to that so that when it's obvious that a victim has been harassed criminally, she herself doesn't need to prove in criminal proceedings that she feared for her safety. I wonder if you have had a chance to look at Bill C-16 with regard to criminal harassment, at whether Bill C-16 would have an impact on this bill and at how victims could use Bill C-16 as a way to protect themselves.
Qujannamiik.
Col Geneviève Lortie
With regard to Bill C-16, the Department of National Defence has been implicated in the drafting and the work until the tabling of the bill. There's a specific amendment under the National Defence Act, and we are fully aware of what Bill C-11 is bringing to the table for amendment under the National Defence Act, so that's been considered.
When we're talking about an amendment for an offence or the way to prove the offence under the Criminal Code, those things only get incorporated under the military justice system under one of the provisions that incorporate all the offences under the Criminal Code and the ways to commit offences. Not every provision needs to be amended. We don't have a copy of everything under the National Defence Act, but we were fully aware of and completely participated in the work and the amendments being proposed for the National Defence Act that are incorporated under Bill C-16.
Liberal
The Chair Liberal Charles Sousa
I have you on the list, yes.
I have Ms. Lapointe and then Mr. Bezan and Ms. Gallant.
Liberal
Viviane LaPointe Liberal Sudbury, ON
Thank you, Mr. Chair.
I wonder if you could tell us how important it is for investigators to know, right from the outset, which system has jurisdiction in the case they're about to investigate.
Col Geneviève Lortie
At the first step, when the investigation starts, they may not necessarily know which evidence will be able to prove which offences. It's really a two-step system. Depending on what they're looking at, they will consider who has jurisdiction. In that case, what's proposed is to have an investigation under the civilian justice system.
Liberal
Viviane LaPointe Liberal Sudbury, ON
Can you tell us what kinds of issues can arise in an investigation if the jurisdiction isn't clear from the outset?
Col Geneviève Lortie
They need to know if they have jurisdiction to maintain. This is because, as soon as they start an investigation, they need to know if the evidence will be maintained, if it will be admissible and that all the actions they take can be justified. They need to have jurisdiction to get to the next step. This needs to be determined early on, as the first step.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
We talked about the prosecutor having control over the direction in which a charge is laid, whether it's civilian or in the military court.
We heard from the director of military prosecutions, Colonel Kerr, who said, “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.”
He went on to say, “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.”
That's from your own director of military prosecutions.
We also had Brigadier-General Hanrahan, who is the provost marshal general, and she said:
At any point in the process with concurrent jurisdiction, there's an ability to have a choice change. A victim, for example, in the beginning may ask for a military police investigation or, vice versa, a civilian police investigation, and during the course of that investigation they may change their mind and ask for something different. Concurrent jurisdiction allows us, from an investigative perspective and a prosecutorial perspective, to work with the victim to help them work through those choices at any point along that process.
There you have the provost marshal general and the director of military prosecutions saying that we need to have choice and that there need to be concurrent roles in both. If they want to go civilian, let them go civilian, but if they want to stay within the military justice system, let them stay there. That's what we heard from victims: They want this choice.
The best place—rather than going with the Bloc motion, which is in clause 8—is clause 7, which is a place where you can give choice early on, right off the bat, with the investigation with direction to military police, defence counsel services and the director of military prosecutions to ensure that choice is available right from the get-go. Clause 7 is the best place for this to take place.
We heard from multiple witnesses, both in writing and in testimony. We even heard from the CDS, General Carignan, who said, “It's ensuring that victims are enabled and that they keep agency over their own process and how they want to go about their own complaint.”
Even the CDS said that when she appeared on Bill C-11, at the very first meeting we had on this. This is reading right out of her quotations from.... The staff are shaking their heads, but I'm reading out of the minutes from the meeting. We can circulate them to you, because it's right there.
If you want to make sure that we are providing choice, if we're standing up for victims or if we're going to make sure the military justice system works.... Are we going to keep jurisdiction when they're out of Canada but then wash our hands of it? It doesn't make any sense.
I think, as we heard from witnesses as well, they believe this is the department, the Canadian Armed Forces and those in leadership wanting to pass the buck rather than actually having a system that works for them.
I encourage everyone...if we're going to do the right thing and if we're going to stand up for witnesses and for what they said here as victims of military sexual trauma, then we had better pass this amendment and give them the choice.
Conservative
Cheryl Gallant Conservative Algonquin—Renfrew—Pembroke, ON
Thank you, Mr. Chair.
If a charge is laid but the prosecutor decides there is not enough evidence to go forward—even if it's evident that something happened, but they can't get a decision from the judge in the civilian courts—does that mean the perpetrator is off the hook, or is there a fallback whereby the military would investigate, take the evidence and still make some type of charge militarily?
Col Geneviève Lortie
For some offences, as a prosecutor, you may lay a charge of sexual assault, but you can prove—
Conservative
Col Geneviève Lortie
If there's a charge laid of sexual assault, the lesser and included charge could be that someone is found guilty of assault. When there's one element that is not proven in court, that's one of the possibilities.
If a prosecutor decides not to go further because they don't have a reasonable prospect of conviction and the charge is withdrawn, then yes, it's possible that other types of offences could be looked at.