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

Resuming debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Nolin, for the third reading of Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act.

Hon. Serge Joyal: Honourable senators, I rise today to speak at third reading of Bill S-3 because of the seriousness of its subject matter. Bill S-3 deals with women in the army who are victims of sexual assault and whose offenders have been recognized as such. The bill would create a special regime to allow male members of the Armed Forces not to be registered in the sex offender registry and their names not to be disclosed to police forces should other allegations of sexual assault arise.

This matter is serious, honourable senators. We know that the Canadian Armed Forces are currently recruiting to meet new recruiting requirements. I do not need to expand on that because many honourable senators have read about those recruitment objectives.

Essentially, what are we talking about when we talk about women in the Armed Forces? The latest statistics of women's participation in the Armed Forces show that 13 per cent are in the regular Armed Forces, 23 per cent of whom are in the reserve forces. The 13 per cent are distributed within the army ranks.

I thank the Chair of the Standing Senate Committee on Legal and Constitutional Affairs, Senator Oliver, for his chairmanship throughout the study of Bill S-3. The committee heard testimony from two credible and, in my opinion, important witnesses: Ms. Karen Davis, a defence scientist at the Canadian Forces Leadership Institute in Kingston, Ontario, who served in the army for many years as a personnel selection officer; and Dr. Marcia Kovitz, professor and Chair of the Department of Sociology and Anthropology at John Abbott College, an affiliate of the McGill Centre for Research and Teaching on Women. Professor Kovitz earned her Ph.D. on the study of the plight of women as victims of sexual offences in the army. She authored the first chapter, "The Roots of Military Masculinity," in the book, Military Masculinities: Identity and the State. The testimony of these two important witnesses provided the committee with the most up-to-date information on that issue. According to the latest statistics, the percentage distribution in the army is as follows: 72 per cent of the women are nurses; 73 per cent of medical doctors are men; women comprise less than 4 per cent of pilots, combat officers and soldiers, and maintenance-and engineering-related trades. Those numbers show that women continue to be employed in positions that reflect traditional gender structures in the workplace. However, that gender structure does not prevent women from losing their lives on the battlefield. All honourable senators will remember that on May 17, 2006, Captain Nicola Goddard, 26 years old, lost her life in Afghanistan.

We know that when women join the first rank of combat forces, they face exactly the same responsibility as the men. However, when women join the army, they face an additional obstacle: they are women and, being women, they enter a male-dominated world, where they become, to some males, objects.

I refer honourable senators to the report of that special study. The conclusion clearly summarized that the male culture and associated ideology in reference to the social and sexual behaviour of women coupled with the low power status of women in the military provides its own definition of "harassment," "fraternization" and social and "sexual behaviour."

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Women who come forward with allegations of harassment may already be perceived as a problem. Speaking up may only serve to confirm this perception. Not only are women running a risk in the army, but, if they come forward, they are perceived to be troublemakers and individuals who cannot make it.

If a woman finally succeeds in her complaint of sexual harassment to have the person, a male — without any reference to rank — convicted, she faces the situation of continuing to work in the same unit for operational purposes. This creates an additional plight for women who have gone through the legal military system.

Honourable senators, there are two important issues. If we are to create an exception that allows the military not to register persons who have been found guilty of sexual offences, the system must be transparent. We have to know what it is all about because we would create the perception that a man responsible for a sexual offence is protected in that his name will not be in the sexual registry. We need a strict and well-framed regime so that the perception is not created that we are establishing a cloud of protection for a person, a male in the army who has been found guilty of a sexual offence.

When we studied that bill and heard those two witnesses, they came to specific conclusions, which I would like to read to honourable senators. They are very simple.

Professors Davis and Kovitz concluded that the sections of the bill which deal with those exemptions of registration in the sexual registry provide unwarranted suspension. They are not sufficiently precise in identifying what constitutes an operational reason not to register the name in the registry. They are not sufficiently precise in determining the overall length of time that the operational reasons allow the name to not be put in the registry. Finally, they allow for the potential employment of an offender in an environment that presents real or perceived risk to the victim.

Honourable senators, we had to wrestle with those four preoccupations: When is the suspension of writing the names in the registry warranted? What are the conditions for which the names should not be in the registry? How long can the names be excluded from the registry? How do we deal with a member of the Armed Forces who has been recognized as a victim and would be compelled to work in the same environment that would bring her close to the offender?

We have heard the representative of the Canadian Armed Forces. There is no doubt that there has been improvement in the conditions for women compared to 15 years ago, but there are still major problems. The ombudsman of the army, in his November 2005 report, concluded that a number of improvements have to be implemented for victims as to how they are treated during a criminal investigation in relation to a sexual offence. In other words, the system is not yet perfect.

Transparency is a key issue for the military justice and military police system. Senator Nolin will remember that when we went through the amendments to the National Defence Act, we reviewed the report of former Chief Justice Lamer, published in September 2003, which was essentially a follow-up to former Chief Justice Dickson's report that highlighted the importance of independent oversight of the military police and the military justice system. I would refer honourable senators to pages 77 and 78 of that report.

I recognize that Bill S-3 has been improved from the original script of Bill S-39 a year and a half ago. I praise the Minister of National Defence, who has given some protection of civilian control over authorizations not to register the name, but there must be a further step. It is important that Parliament be informed when such an authorization has been given. A November 2005 letter from the Deputy Judge Advocate General, Military Justice, to the clerk of our committee established clearly, in a chart, the court-martial date, the rank of the member of the Armed Forces who was the offender, the charge, the details of the charge and then the administrative procedure. Of course, we have no name and no details of where the offence took place so that we protect the privacy of the victim and the civilian context of the situation. However, we can have those other details.

I humbly submit to honourable senators that this bill should require the Minister of National Defence, in his annual report, to report to Parliament exactly the same details that we receive from the Deputy Judge Advocate General so that we would know on a yearly basis how many exceptions were created to not place in the registry the name of the sexual offender in the army.

Motion in Amendment

Hon. Serge Joyal: Following those points, honourable senators, I move:

That Bill S-3 be not now read a third time but that it be amended in clause 4,

(a) on page 14, by adding after line 24 the following:

"(1.1) If the Chief of the Defence Staff is considering making a determination, he or she shall notify the Minister before making the determination.

(1.2) The Chief of the Defence Staff may make a determination only if he or she is of the opinion that the operational reasons are of such an exigent nature as to outweigh the public interest in applying the provisions of this Act that would, but for the determination, be applicable in the circumstances."; and

(b) on page 16,

(i) by adding after line 3 the following:

"(6) The Chief of the Defence Staff shall, every 15 days after making a determination under this section, consider whether the operational reasons continue to apply and, if they do not, shall revise the date on which the operational reasons cease to apply accordingly.

(7) Subsection (6) applies until the date that is provided in the notice under subsection (4) as the date on which the operational reasons cease to apply, unless a revision is made under subsection (6).

(8) If a revision is made under subsection (6),

(a) the Chief of the Defence Staff shall, without delay, notify the Provost Marshal of the revision;

(b) the Provost Marshal shall, without delay, notify the person who is the subject of the determination of the revision;

(c) in the case of a determination made under paragraph 1(b) or (c), the Provost Marshal shall, without delay, notify the persons referred to in paragraph 5(a) or (b) of the revision and of the revised date on which the suspension of the time limit or proceeding ceases to apply; and

(d) a person who registers information for the Provost Marshal shall revise the date that was registered under paragraph 8.27(a) of the Sex Offender Information Registration Act as the date on which the suspension of the time limit, proceeding or obligations ceases to apply.", and

(ii) by adding after line 31 the following:

2.27.171(1) The Chief of the Defence Staff shall, within 30 days after the end of each year, submit a report to the Minister on the operation of sections 227.15 and 227.16 for that year that includes

(a) the number of determinations that were made under each of paragraphs 227.15(1)(a) to (d) and the duration of the suspension of the time limit, proceeding or obligation resulting from each determination; and

(b) the number of determinations that were made under subsection 227.16(1) and the number of persons who were exempted under subsection 227.16(4) as a result of each determination.

(2) The Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.

On motion of Senator Oliver, debate adjourned.