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Bill S-3 to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act -Second Reading

Hon. Serge Joyal:

At the time, we heard about a statement by then Conservative critic Gordon O'Connor, who is now Minister of National Defence. I quickly reread the bill before us today. If there is no objection, I would like to repeat the statements made by the critic at the time. This is an article from the National Post dated October 11, 2005, when the Senate was considering the previous bill.

[English]

But Conservative defence critic Gordon O'Connor said offenders convicted of all but the most minor sexual offences should be ejected from the ranks as a matter of course. "Military people who are found guilty of this...are out, and I don't care if it's war or peace," argued the retired brigadier-general who spent 32 years in the Canadian Forces.

Mr. O'Connor does not accept the rationale that the professional skills or expertise of some sex offenders might be so indispensable that they should be retained.

"I can tell you right now there isn't a skill in the entire armed forces that is that key that we have to have sex offenders," he said. "Nobody is that valuable. The military is set up so that...everyone can be replaced in every operation."

[Translation]

Does this bill include provisions to the effect that, depending on the seriousness of an offence that he or she confesses to or is found guilty of, a member can be ejected from the ranks immediately — to borrow the expression used by the Minister of Defence when he was opposition critic for the issue of sexual offences in the army?

[…]

 Senator Joyal

[English]

Suspension of time limits, Proceedings and obligations

[Translation]

That is the title. One of our concerns was as follows: the clause specifically states that it is at the sole discretion of the chief of the defence staff to decide whether or not a member of the military convicted of a serious sexual offence will be included in the registry. There was not, in Bill S-39, what we currently call civilian oversight. In other words, the matter remains within the army. Because we are dealing with serious criminal offences, common law offences, when the then minister, his representatives, legal counsel and the chief of the defence staff appeared before us, we specifically questioned this shortcoming. In our opinion — at least in my opinion — when the chief of the defence staff suspends the application of the Criminal Code, the minister responsible should be informed and there must be a means of striking some balance with a decision that may be taken for important strategic reasons. The bill stipulates the circumstances under which the suspension may be made, regardless of what the minister at the time believed. Beyond this particular situation, there is not a balance between civilian control and the prerogative accorded to the chief of the defence staff to suspend the application of the Criminal Code. We considered the possibility of amending the bill in order to re-establish the authority of the minister over that of the chief of the defence staff so that, one way or another, the public would know that there is some sort of system, as you said yourself, an extraordinary one outside of common law.

Did the honourable senator consider the possibility that the Senate could amend this bill to address the concerns we had last fall about this provision?

[…]

 Senator Joyal:

(1530)

This is intended to ensure Parliament retains control over exemptions to the common law and, specifically, to the provisions of the Criminal Code, which are so essential to the law and order of a society. Would the honourable senator be prepared to consider that this manner of making the decision more public would not give the greater guarantees sought with this bill?

[…] 

Senator Joyal:

I agree with this aspect. I do not share the view of the minister, when he was critic, that an individual convicted of a sexual offence should be automatically ejected from the army. I am satisfied with the response of the honourable senator. Nevertheless, the information can be made public. It should be noted that it can have a dissuasive effect on other personnel as well, even if the name and the circumstances do not need to appear making it impossible to find out who within the military was convicted of a sexual offence and thus put operational security at risk.

Honourable senators, I simply want to draw to the attention of the honourable senator the fact that, when the committee examined the bill, in a November 21, 2005, document it had before it the decisions of court martials from 2001 to 2004 involving sexual offences. In the documentation given us, we had detailed information on sentencing in sexual offences in court martials: date, rank, offence and details of the offence. It is possible to have public information. This document was public. It was given to us by the Office of the Judge Advocate General at National Defence Headquarters. It was not a document in plain brown wrapping the committee considered, but a public one. Accordingly, there is a way to make the information public without creating a security risk. Honourable senators, on the issue of notifying the minister, one of the recommendations we were considering at the time — obviously, the committee had to stop its work — was to formally list cases where determinations of the type referred to in clause 227.15 were made in the annual report of the Minister of National Defence, so that Parliament would know that an exemption from the Criminal Code had been granted and not only the minister but Parliament would be notified of the determination that had been made.: My second question is as follows: When we studied the bill last fall — and as I have mentioned several times, the committee held more than six sessions on the predecessor to this bill — one of the most important questions concerned former clause 203.14 of Bill S-39, which is now clause 227.15. On page 14 of Bill S-3, it is clause 227.15 at the top of the page 14. Honourable senators, I would like to ask the Honourable Senator Nolin a question. Along with several colleagues, I participated in six meetings of the Standing Senate Committee on Legal and Constitutional Affairs, which studied the previous Bill S-39, the forerunner of the bill we are considering today.