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.

On the agenda

Members speaking

Before the committee

Geneviève Lortie  Deputy Judge Advocate General, Military Justice Modernization, Canadian Armed Forces, Department of National Defence
Matt MacMillan  Director, Military Justice Implementation, Office of the Judge Advocate General, Canadian Armed Forces, Department of National Defence

Christine Normandin Bloc Saint-Jean, QC

Thank you very much, Mr. Chair.

Thank you to the witnesses.

Colonel Lortie, I have a couple of questions for you, particularly regarding what you mentioned about the two courts, martial and military, which are of equal quality and level and have no jurisdiction over each other.

If the victim’s choice to proceed with either one is upheld, could the court-martial refuse jurisdiction in the same way that the civil court could say that it considers that the case should go to a court-martial, while taking the victim’s opinion into consideration?

Col Geneviève Lortie

The way the provisions are worded, questions of jurisdiction really depend on the text of a statute. Currently, the National Defence Act does not contain any provisions dealing with a victim’s preference for one system or the other. It is really a matter of competing jurisdictions, meaning that both courts have jurisdiction. It is a question of who will exercise it depending on the circumstances.

Christine Normandin Bloc Saint-Jean, QC

For example, if the victim initially chooses to go to a civil court, then changes their mind and ultimately wants to go to a military court, could the latter refuse?

Col Geneviève Lortie

I don’t think it would be refused as such. It really needs to be clearly established in the law how to proceed if there is a choice or not.

If we take things to the extreme and say that the victim can choose, that would mean that we are not respecting independence. If we consider that the victim chooses one or the other court and that prosecutors have no choice but to go to the corresponding system, that would not respect the basic principles of independence and discretion of the prosecution. This aspect could certainly be challenged in court within the system. If we consider that victims have a choice, but that this choice is imposed and we have no choice but to go to the system chosen by the victim, there is no longer any analysis to determine whether we have all the evidence we need to proceed. If we skip this step, it is an argument that could be used.

Christine Normandin Bloc Saint-Jean, QC

I understand that, in a way, it is not possible to choose one’s forum. Is that what I should take away from your answer?

Col Geneviève Lortie

Without getting into technical vocabulary details, there is a difference between choice and preference. If we exercise a choice, we prevent other authorities from exercising their discretion. However, we must still consider the principles of fundamental justice relating to prosecutorial discretion, which have even been recognized by the Supreme Court of Canada.

Christine Normandin Bloc Saint-Jean, QC

I have another question that may seem very hypothetical. We don’t want it to happen, but it could happen in the future.

If the same event resulted in multiple victims and those victims had the option of choosing their forum, what would happen if hearings were held in parallel in civil court and court-martial? Could the two hearings proceed concurrently, against the same person, with victims in both courts and similar facts, without a person being tried twice for the same facts?

Col Geneviève Lortie

In this case, there could be no competing jurisdiction. It would not be possible to say that the trial is taking place for both civil and military offences, since these are two completely separate systems.

Within the same system, it is possible to have joint trials if there are several defendants linked to the same event; several charges can be brought against the same person if there are several victims. However, when there are two different systems, each proceeding should take place separately.

The Chair Liberal Charles Sousa

Thank you, Christine.

I have Mr. Kibble, and then we can go to a vote.

5:20 p.m.

Conservative

Jeff Kibble Conservative Cowichan—Malahat—Langford, BC

Thank you, Mr. Chair.

I will save this address for the room in general and the members opposite here.

To our experts, I appreciate the answers to our questions. Although they are here as experts to answer some technical questions, I feel that it was a lot more like testimony in support of a bill they helped to draft and in defence of that. I just wanted to put that on the record for you, Mr. Chair.

The goal of Bill C-11 is very well intentioned, and I think we all agree with that. We've seen that culture changes need to happen. We're all very passionate about this. I truly think that everyone in this room is focused on getting something right for the survivors, although we have differences of opinion. The goal is to restore trust in the military justice system and provide justice for victims and how we achieve that, but it's also to improve the culture.

I have seen improvements to the safety and the culture in the Canadian Forces, although there's more room to grow. I know that when I joined many years ago, 25 years, some of this type of culture was terrible. Okay, it has been longer than that, but I don't want to say how long ago it was. There has been improvement in recent years, but it still has farther to go, and I think that if done right, Bill C-11 can help us achieve that.

It's also to provide trauma-informed safety and choice for the survivors while restoring military justice and improving the culture but still respecting those needs. Bill C-11, without the choice that we are presenting in our CPC-3 amendment, doesn't provide a solution for the survivors in terms of minor and grey cases. It's opening a Pandora's box that could destroy the good progress the CF has made and worked very hard for in the last several years. It would reverse that.

As we've heard today, it would be forced to resort to using administrative measures versus military justice measures for dealing with minor cases that would not be prosecuted at the civilian level. We've heard much testimony about those middle, lower and grey area cases that would just be left now, as we've heard, to administrative measures, and this is not a way. It is not trauma-informed. It is not going to improve the military culture, and it certainly will not restore trust in the military justice system. These are the stated goals.

We've also heard from the civilian police that they're beyond capable. I have full trust in Fiona Wilson, the chief of the Victoria Police Department, and their capability. She stated that they have the capability to deal with major cases, but they do not have the capacity.

Her question, which I brought forward to the minister, I believe, was about how much funding would be made available for the extra police officers required. This was specific to Victoria, but I thought that was a good example, because CFB Esquimalt is in there and that's a large base.

There was no answer. This bill as it is right now, without the amendment, doesn't provide the extra funding and training that are going to be needed. A lot of money is going to be needed. We heard examples of how long these cases can take, both the investigations and the prosecutions. There would also be a lot of training. There is no plan for the training. Our amendment solves that issue. Our amendment doesn't require a solution for the minor and the grey cases because there's already a system in place that will deal with those.

I contend—and I look everyone straight in the eye when I say seriously—that the military administrative system is not designed to do this and will not be able to deliver that justice. I understand how the administrative rules and steps take.... I've applied them myself for administrative issues, not serious issues like sexual misconduct. Whether they're minor or grey, that simply doesn't suffice. Without the amendment, that is not solved.

It's not trauma-informed. I don't want to beat that one too much or bang that drum. We've discussed that. It takes away freedom. This is also one of the goals of Bill C-11 that's not achieved. I think giving that choice is going to make it trauma-informed.

I'll conclude that Bill C-11, without our amendment, CPC-3.... I'm imploring everybody to consider, vote for and support it so that we can deal with restoring military justice, like the minister wants; improve the culture and continue improving the culture, as has been going on over time; and provide compassionate, trauma-informed choice and support for the victims, as we've heard overwhelmingly.

I would love to do the math on this. Maybe for the next time we sit down, I'll do the percentages in terms of comments we heard from experts, from victims and survivors and from people who deal with victims and survivors. Overwhelmingly, that's what we heard.

In my riding, on Vancouver Island, there are many veterans, because we're adjacent to CFB Esquimalt and have CFB Comox to the north. I know that from all the people I've met, whether in this job or before. On behalf of all my constituents and the many survivors I personally know and the many survivors I've met through this job, through advocacy work with Wounded Warriors Canada and through all types of advocacy work for veterans—and I know them well—I will be voting to support our amendment, CPC-3. I would ask everyone to consider it for the reasons I gave.

Thank you very much.

The Chair Liberal Charles Sousa

Mr. Bezan, your hand is up.

5:25 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

I think the idea of transferring all cases into the civilian system is a bit of a hope and a prayer. We heard from the Canadian Association of Chiefs of Police, in their written submission, that they strongly recommend maintaining concurrent jurisdiction. The proposed provisions of Bill C-11 would significantly hinder collaboration between civilian police agencies and the Canadian Armed Forces military police.

We just witnessed the government come in with their gun grab. In that, there were several provinces and municipal and provincial police forces saying they would not participate. If they are saying no to the federal government on gun confiscation, why would they want to take the time and the extra resources to handle stuff that has traditionally been done through the military justice system?

We have, now and through Bill C-11, this duplicity in which, if it's going to happen within Canada, we're going to hand it over to the civilian courts. They are overrun and have their own problems with the Jordan framework, and lower levels of sexual misconduct aren't going to be handled. We don't know if information is going to be properly shared—the reports to civilian agencies, to the chain of command and to the military justice system—or if summary hearings can take place at the same time as civilian court cases are being heard. What happens to the administrative penalties for the accused?

We don't know how this is all going to play out, so it's a bit of a hope and a prayer. You hope the civilian system has the capacity to deal with it. You hope the provinces are going to want to participate. You hope it's going to bring justice for victims.

A comeback we've heard from the majority of our witnesses who are victims of military sexual trauma is that this isn't going to work. Donna Van Leusden said, “It's about having the choice, having some agency and recognizing there are some crimes that would be prosecuted within the military system that would not be prosecuted in the civilian system. I firmly believe it's a mixed thing, but I do think it's progress that we're looking at it.”

Christine Wood said:

I originally completely opposed the transfer of all cases to civilian court, and that was for three reasons: number one, it's broken; number two, it offers victims no choice; and number three, I believe the CAF has to maintain control over its jurisdiction and demonstrate it can be responsible for fixing its own harms.

I really think that we need to pass CPC-3. The NDP, the Bloc and the Conservatives all want to make sure that the victims' right to have a choice in how their cases are heard, investigated and tried is maintained. CPC-3 and NDP-1 are identical. CPC-4, CPC-5, NDP-2 and BQ-1 all work together, and I don't believe that any one of them passing would cause the other ones to be out of order. I think so in all cases. I've asked the legislative clerk if there are any amendments made here, with connectivity between amendments, that would force any of these to be out of order and then not deemed admissible.

The Chair Liberal Charles Sousa

A question has been posed to the legislative clerks here to determine....

Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC

I have a point of order, while they're conferring.

Given the hour, maybe we could check with the clerk to see if there's any possibility of our getting additional resources past six. It would be helpful to continue this conversation.

5:30 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

We have a hard stop.

Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC

I just want to know if it's possible for us to get additional resources.

5:30 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

I have to fly, guys.

The Chair Liberal Charles Sousa

Let's go to a vote.

5:30 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

I'm prepared to stand it, and we can come back to this. I don't mind moving through the rest of our legislation. This is an important piece of legislation. This is about standing up for victims.

Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC

Are you saying we're not?

5:30 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

No, I'm just saying that we need to make sure we get this right.

Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC

Let's stay later. I'm happy to do it.

5:30 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

I have a flight to catch.

The Chair Liberal Charles Sousa

Let's put this through the chair, please, for decorum.

Do we have a response for Mr. Bezan?

Procedurally, it's fine. If there's any content....

Should we go to the next speaker? Mr. Bezan, are you done?

5:30 p.m.

Conservative

James Bezan Conservative Selkirk—Interlake—Eastman, MB

I think we should pass these amendments as we proposed. I think that we can build in really strong choice if these amendments all carry, right through to what's been proposed, up to BQ-1.