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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 - Senator Joyal 'speech during the Second Reading - Senate Debates

Hon. Serge Joyal: Honourable senators, your minds have been solicited on many important issues this afternoon. There was the issue raised by Senator Corbin with regard to the status of Aboriginal languages in this place. There was the issue raised by the Honourable Senator Oliver in relation to parliamentary privilege, which is a difficult and important issue. There were the issues raised by Senators Atkins, Tkachuk and Mercer on the issue of the role of the second chamber in a democratic Parliament where the founding principle is that of responsible government.

I know that our minds are boggled with many difficult and abstract concepts already, but I will now speak on Bill S-3, an act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act.

I normally do not take the time of the chamber to speak on issues related to the National Defence Act. There are senators who are better versed than I in the reality of the Armed Forces. Senator Kenny and the members of his committee from both sides deal with that extensively in their work.

However, honourable senators, this bill, with its very innocuous title, deals with a very serious issue. It deals with women in the army who are the victims of criminal offences. This bill seeks to give to the Chief of the Defence Staff sole authority to decide whether the name of the member of the Armed Forces who has committed such a crime will have his or her name in the registry of such offenders which exists under the civilian common law.

Honourable senators will remember that we adopted that legislation three years ago.

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This bill aims to give to the Chief of Defence Staff the sole discretion to decide if the name of a person will not be put into the registry on the basis of:

...national security, international relations or the security of an operation...

What does this bill do in practice? Normally, the power to decide who will be in the registry is in the hands of a judge in the common law court, who decides on the basis of representation from the lawyers or attorneys of the defendant if the name of the accused who has been found guilty, will be in the registry. A judge decides that. In the context of the army, the army will makes that decision.

The first issue that comes immediately to mind is this: We must be sure that there will be a fair process in the army. We know that in civilian society there is a fair process. There is the capacity to argue, the capacity to rebut and the capacity to rely on a neutral arbitration, a neutral decision.

Honourable senators, we received this bill last year. This bill is the second incarnation of a bill that was in the previous Parliament as Bill S-39, which we debated in the chamber. We sent it to the Standing Senate Committee on Legal and Constitutional Affairs, chaired at that time by the Honourable Senator Bacon, and we met more than eight times on that bill. We found that the bill had, among other flaws, that very issue. There was no oversight of the army decision to not put the name of a sex offender into the registry for, as I said, "national security, international relations or reasons of national security."

Honourable senators will understand that when we had that bill in committee we felt it should be amended to give the capacity to have oversight of the army decision. Why do we need oversight of the judicial power that the Canadian Forces has over the conduct of its members?

I will quote from the former Chief Justice Brian Dickson, who wrote in his report in 1997 on the administration of justice in the army. The report is entitled, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services. In his report, Justice Dickson said:

What we believe is most necessary to restore confidence in the military justice system is increased transparency, accountability, and equality in the application of justice among all ranks.

I repeat, honourable senators: "transparency, accountability and equality in the application of justice among all ranks." I thought we were discussing Bill C-2 when I read that sentence. In other words, when you take decisions, whereby the rights of the person are at stake, it is essential that the process be transparent, that the authority be accountable, and that there be equality of rights in the justice system.

That was the report of Justice Dickson and he continues:

An institutionalized process of oversight and review is required to ensure accountability for and transparency of the military justice system within the Canadian Forces community.

That report of 1997 — or its conclusion — was restated in 2003 by another former justice of the Supreme Court, the Right Honourable Antonio Lamer, who was at that time the chief justice of the court. What does he state about the necessity of transparency and accountability? I quote from page 78.

Independent oversight is especially important for the military police and, in this regard, civilian oversight of police forces is particularly instructive.

In other words, if this bill, the original bill, was to give to the Chief of Defence Staff the final authority to decide if the name of a sex offender in the army is not placed on the registry, who is the civilian oversight over the Chief of Defence Staff?

The government, in introducing Bill S-3, made an amendment to the original Bill S-39. I commend the government for that. The Honourable Senator Nolin, as sponsor of the bill, when he introduced the bill, read clause 227.15(3) at page 15 of the bill, which states:

The Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.

In other words, the Chief of Defence Staff shall notify the minister without delay. That is what the bill requests. In other words, in the Bill S-39 the Chief of Defence Staff made the decision, as one would say, in chambers, without anyone knowing about it. Now in Bill S-3, he will have to notify the minister.

I submit to honourable senators that this step is not the last in ensuring civilian oversight. When the Chief of Defence Staff notifies the minister, the minister should have a way to report to Parliament. Parliament, which is both Houses, should have the capacity to be informed that a special derogation to the common law system has been determined necessary for the benefit of national security, international relations and other military operations.

Why? In previous years, when there has been discussion about the status of women — victims of sexual offence in the army — the military gave the following conclusion:

Compounding questions around the abuses are the dismissive and/or repressive responses of military authorities. They include interference from superiors in military police investigation into sexual assault, attempts by superiors to keep sexual assault charges out of civilian courts, the quiet removal of perpetrators from the base where the assault took place, and pressure on victims to remain silent.

In other words, if you leave the sole authority within the army ranks, there is a tendency in the system to draw a blanket over the issues. This issue is important because it has an impact on the attrition rate in the army. Honourable senators might think that this issue is of limited importance, and that it concerns only a limited number of people. In fact, it concerns the whole women's contingent in the army.

I will tell honourable senators how many women there are in the Canadian Forces. At present 13 per cent of the armed forces is constituted of women, and 23 per cent of the reserve is women. On the regular combat armed forces, 1.9 per cent is made up of women.

I invite honourable senators to look at the paintings around this chamber. Look at the women in those paintings. Those paintings no longer represent the Canadian reality. The first painting, which is on the far end of the Senate, is entitled, "Landing of the First Canadian Division at St. Lazar" painted in 1916. The women are in the back with the children.

Look at the painting at the front of the chamber. The women appear totally in the back, as nursing sisters. They depict the status women had in the 19th century and the beginning of the 20th century.

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The one above my head depicts women as victims of war. In none of those paintings are women in the Armed Forces. In none of those paintings are women in combat division. You will all remember that the first woman who died in combat division was the late Nichola Goddard, just over a month ago. The reality now, honourable senators, is that women are part of the Armed Forces. They are part of the Armed Forces in a very difficult context. Why? Because the army is a man's world; women are the gender minority in the army.

The traditional virtues of the army were the virtues of masculinity. Karen Davis, a defence scientist recently transferred to the Canadian Forces Leadership Institute in Kingston, Ontario, and one of the leading authorities on the status of women in the army informs us that research suggests that women's experiences within organizations too often include issues of discrimination, which are both sexual and based upon their gender. That is what women face when they join the army.

In other words, when a woman joins the army, she is joining the boys' club. When you enter the Armed Forces, you are told that it will make a man out of you. That is the reality. Women entering the army have to face that context.

Honourable senators, I refer you to another article, which I read with interest. The article is included in the Canadian Woman Studies: Women in Conflict Zones and is entitled "The Enemy Within: Female Soldiers in the Canadian Armed Forces." It is written by Marcia Kovitz. The title of her PhD dissertation at Concordia University was entitled "Mining Masculinities in the Canadian Forces." She is presently a teacher at John Abbott College in Quebec.

What do I want to tell you, honourable senators? I want to tell you when a woman enters the army, she runs the risk of being the victim of a sexual assault. Senator Cools asked a specific question on that subject, when we debated the bill the first time. Senator Cools pointed out that there should be a capacity to seek redress for women. At that time, we asked the question, who is defending the women in the army who feel aggrieved? The answer we received was "the ombudsman."

Honourable senators, last week you received the annual report of the ombudsman, titled Dedicated to Fairness. In that report, you will find that among the top five complaints in the army, harassment comes fifth. It is still a reality. It is not something we can close our eyes to and think that it does not exist.

Honourable senators, on Saturday, June 3, La Presse reported a case whereby a young recruit, with 12 other men, went out on an expedition with two other female recruits. When they returned one of them laid a charge of sexual assault. The case is in the court. If you think this issue means nothing, or that it is just something that is part of the old days, the reality of all the documentation you have received shows the contrary.

As I mentioned to you when we were studying the previous incarnation of the bill, we asked the simple question, what is the compensation system for a woman who is the victim of a sexual offence in the army? Of course, a soldier who is wounded or dies in combat has compensation. However, a woman who is the victim of a sexual offence in the army does not have a compensation regime. She is by herself.

We received from the Deputy Judge Advocate General, Military Justice and Administrative Law, the following answer to what is the compensation regime for a woman who happened to have been the victim of a sexual offence. I quote the report that we received at our request, on November 25, 2005:

With respect to a Canadian Forces policy on the compensation of victims of crime committed in the context of the Canadian Forces, while a formal policy does not exist, there are two mechanisms by which members may seek compensation in such cases.

First, the victim of a crime can pursue a claim against the Crown to receive compensation for any damages suffered as a result of that crime. In such cases, the liability of the Crown will be assessed on a case-by-case basis and a determination made on the payment of damages.

Second, members and former members of the Canadian Forces who have been the victim of a crime, and who, as a result of the incident, suffered a mental or physical disability, as defined in the Pension Act, may be eligible to receive a disability pension under the Pension Act. It should be noted that the Pension Act is administered by Veterans Affair Canada and not the Department of National Defence....

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Senator Joyal: Thank you, your honour and honourable senators.

...and therefore it is Veterans Affairs Canada who determines when an individual is eligible for a benefit under this act.

In other words, there is no compensation for victims of a sexual offence in the army.

Honourable senators, I think that when we look into the overall objective of increasing the level of military to 20,000, as was announced by the government, one has to look at the attrition numbers. Who is leaving the army more than anyone else? The numbers show that women leave the army in greater numbers. You ask why? Women leave the army because it is a man's world. Women are harassed more than any other soldier, and women who take the risk of lodging a complaint of sexual harassment have a slippery slope to climb.

We asked the witnesses how many times the person was found guilty and we learned that 17 soldiers have been found guilty since 2000.

If you want to know, honourable senators, what we are talking about, here is some information on sexual harassment in the Forces. On November 15, 2001, a corporal exposed his genitals to a female corporal. On January 22, 2002, a private with the intention of offending a private, exposed his genitals to her. On March 9, 2002 a male soldier invited the complainant to accompany him to a washroom and removed all of his clothing in her presence. Honourable senators, you can read more of the details in the report we received from the army.

What I want to tell you, honourable senators, is that it is a very difficult issue. We have to be sensitive to the reputation of the army. The army is now recruiting, and they want to recruit more women than the statistics I gave to you. Only 13 per cent of army personnel are women, and only 1.9 per cent of the women in the army are in combat forces. We want to increase that percentage.

If we want to increase that percentage and be effective, we have to have a system whereby a woman in the army who is the victim of a crime can rely on a compensation system, the same way she can in civilian society.

Honourable senators, I know this is not an issue that attracts a lot of attention, but I think that in such a bill, whereby those two principles are at stake, the Standing Senate Committee on Legal and Constitutional Affairs has to look into that bill with sober second thought. This bill was first introduced in this chamber and not in the other place, on the basis that it was housekeeping. When you brush the floor, or you lift a carpet for housekeeping, sometimes you find things that need a good vacuuming. I feel that this is the case with this bill especially after the lengthy debates of this afternoon. The principles that are at stake in this bill are paramount. They deal with transparency, accountability and equality. I rely on the good attention of honourable senators, to proceed with this bill.

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