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
Col Geneviève Lortie
In the military system, we have the inclusion of all Criminal Code offences, but there are other typical military offences that are only of a military type that, depending on the facts that are proven, could be laid.
The names are escaping me right now.
Lcol Matt MacMillan
There's disgraceful conduct and a slew of offences in the code of service discipline that would be available. If a matter were investigated by the military police and they determined that there was a reasonable basis for laying the charge, yes, they could do that. Whether they investigate it is a question mark, based on their jurisdiction to investigate. It would really depend on the facts of the case.
Conservative
Cheryl Gallant Conservative Algonquin—Renfrew—Pembroke, ON
If the victim was definitely assaulted, and there's evidence of assault, but because it's a sexual assault and the prosecutor cannot find reasonable chance of conviction of a sexual assault.... Are you saying, then, that it would go through the military system and the individual would be court-martialled and go through for assault?
Col Geneviève Lortie
The prosecutor could look at it as assault, and the military system would maintain jurisdiction for pure assault charges under the Criminal Code. It's not one that is proposed to be excluded here, so yes, if it's what is discovered in the evidence, the investigation body can discuss it. That's when a file could make its way back into the military, when we're talking about investigations, to complete the investigation and lay charges on something for which the military has jurisdiction.
Liberal
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
Thank you very much, Chair.
I have two questions. I know that Justice Arbour met with hundreds of victims and spoke to them. In the previous Parliament, the Standing Committee on Veterans Affairs also did a study with respect to military sexual trauma among veterans and issued a report to the House of Commons entitled “Invisible No More”. In that report, which was voted on in the ACVA committee and tabled in the House, it said very clearly in recommendation 40 that jurisdiction for military sexual assault investigations and prosecutions should be moved to the civilian system, which is part of the reason this bill came about.
One issue you mentioned in terms of the concurrent systems is the Jordan principle. You mentioned that, should a victim go forward in one system, start the process and then decide to move to the other system, the victim would have to start over. Is that correct? This could cause problems vis-à-vis the Jordan principle in that, every time there is a change in venue, there is an additional length added to this process.
Is there a risk at any point that, should this happen, a perpetrator could walk free under the Jordan principle?
Col Geneviève Lortie
There's a clear potential for a breach of the Jordan delay, considering that the way the motion is drafted, it starts with a charge that has already been laid. It means that the jurisdiction has already been decided. The way it's being proposed now, it starts in the civilian system.
As soon as a charge is laid in one of the systems, if you have already entered a plea, you need authorization, or leave of the court, to withdraw a charge. It's on the prosecutor to do that. When you get it—let's say leave is given by the court—you transfer the file to a military police member. They now need to completely understand the file to have a reasonable belief that an offence has been committed. It's not necessarily a question of an hour or two; it may take time. At that point, they don't have the jurisdiction to continue the investigation further, so they have the file that they have.
If they lay a charge—because civilian authorities don't have jurisdiction to lay a charge in the military justice system—it goes to the director of military prosecutions. Before they lay the charge, they need to get legal advice, because the nature of the offence will require them to. When they believe an offence has been committed, they lay the charge and transfer it to the director of military prosecutions, who needs to review the file, do the referral and get it to the court martial. That system takes time.
I've been a prosecutor. I've faced unreasonable delay charter applications. That's certainly a case where, because the timing starts from the laying of the charge.... It doesn't start from the laying of the charge within the military; it would start way back under the civilian justice system. In 18 months, you can certainly get there, and that could be challenged. If we end up with an unreasonable delay, the court martial could declare a stay of proceedings on those charges.
Liberal
Conservative
Scott Anderson Conservative Vernon—Lake Country—Monashee, BC
We've talked about theoreticals and potentials for delay. I want to read a quote from retired Colonel Michel Drapeau, who said, “Most courts martial normally don't take such a long gestation period to see the light of day. In the civilian courts, sometimes it's going to take four, five or six years before it comes to trial.” We can talk about hypotheticals, but in fact, that's it.
I'd like to go on and read some quotes from Minister McGuinty himself. He said, “This is about a suite of targeted amendments to help bolster confidence in the military justice system.” That is a statement by the minister. He also said, “one of the reasons we're here is that we're very open to hearing more from all members about how to improve this bill.”
We've heard from a lot of people. All the victims, save one, say they would like a choice. All the experts say they are in accordance with choice, and that choice furthers the independence of the victim and the feeling of.... I can read those quotes as well, if you wish.
The point is, if we're trying to make it better for victims and make a fairer system, we don't want to off-load on to the civilian system, when the civilian system is saying it doesn't want it and can't deal with it. This is simply downloading problems on to them so that we, at the federal level, don't have to deal with them anymore. That is not good for the victims; that's good for us. I would argue that the victims have spoken very loudly and the experts have spoken loudly.
I don't think there's even a choice. I don't think there's even a debate to be had. We can go into technicalities, which we've been doing, and hypotheticals, but that's as far as the case can go on the other side. I think choice is imperative here.
Thank you.
Liberal
The Chair Liberal Charles Sousa
Mr. Bezan, it's up to you. We can probably go into a vote after that, folks.
Mr. Bezan.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
First of all, I want to say again that we heard multiple witnesses.
A written submission by Jessica Miller says:
[The] approach [of Bill C-11] does not recognize the unique nature of military sexual trauma (MST) or the institutional structure of the CAF.
Jurisdictional transfer risks reducing accountability, weakening discipline, lowering conviction rates, and failing to deliver justice to survivors—while removing responsibility from the CAF chain of command.
Christine Wood says:
Limiting survivors to a single pathway to justice weakens our agency rather than strengthening it....
To be clear, I'm not defending the status quo. The military justice system also failed me. However, replacing one system that's broken with another system that completely and consistently fails victims of sexual offences does not create justice. It simply relocates the problem, and it removes the responsibility of the CAF for fixing it.
As we heard from other witnesses, the problem here is that CAF needs to provide leadership on this issue and not just pass the buck, and that's what we were looking at with this.
I wouldn't mind first getting a quick interpretation, because the Bloc mentioned that they believe their BQ-1 provides a better balance than CPC-3. If that's in order, I'd like to get your interpretation of BQ-1—since they overlap—in order to have a comparison on whether BQ-1 actually does provide it.
In this situation, my understanding is that if we're already in the civilian system, the military police has already not done the investigation, and it's going to be the civilian court that will have to send it back to CAF or a court martial under the amendment in clause 8. There's that privilege in BQ-1.
Col Geneviève Lortie
If we look at BQ-1, some of the same issues would come back. When we discuss the possibility of an unreasonable delay under the Jordan principle, we could end up in the same place, considering that it's starting under the civilian justice system.
It also goes against a principle in which the civilian system and the court martial system have been recognized as being separate but equal in nature. That motion would propose to have the civilian system decide for the military. I think it's certainly something that could be challenged. We'll look at it, but there are issues that had been identified about the authority—
Liberal
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
I believe that we're not supposed to be discussing an amendment until it has been moved. BQ-1 has not been moved. I think it's a little premature to have that conversation. I don't know if they're going to move it.
Liberal
The Chair Liberal Charles Sousa
Yes. We are talking about the amendment put forward by Mr. Bezan.
Mr. Bezan.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
On that point of order, I'll just refer everybody to chapter 16 of our brand new House of Commons Procedure and Practice. I encourage everyone to read it. It's riveting, especially chapters 16 and 20.
On page 645, it says, “the Chair may permit debate to range over several other amendments which are interconnected or which raise different aspects of the amendment under consideration.”
These are definitely connected, and I see that the law clerk is also nodding yes, so I would like to have this debate.
Liberal
Liberal
The Chair Liberal Charles Sousa
Well, CPC-3 is identical to NDP-1. The Bloc's amendment is slightly different, but—
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
They are interconnected. It all deals with choice.
Liberal
The Chair Liberal Charles Sousa
That's understood.
I will proceed to complete Mr. Bezan's discussion, and then we'll move on to Mr. Kibble.
Conservative