National Defence Committee on June 10th, 2010

[The Vice-Chair, Liberal, Bryon Wilfert]

I call the meeting to order.

Ladies and gentlemen, please take your seats. This is meeting number 20 of the Standing Committee on National Defence. Pursuant to Standing Orders 110 and 111, we are considering the order in council appointment of Bernard Blaise Cathcart to the position of Judge Advocate General of the Canadian Forces, referred to the committee on Wednesday, May 5, 2010.

For your edification, Standing Order 111(2) states that: “The committee, if it should call an appointee or nominee to appear pursuant to section (1) of this Standing Order, shall examine the qualifications and competence of the appointee or nominee to perform the duties of the post to which he or she has been appointed or nominated.” That's just so you know the parameters we're dealing with.

Colleagues, in the spirit of summer, although we couldn't get a barbecue, all the food is outside. It's a venue that's a little different. I'm a new chairman and I thought I'd try something different.

The chairman apologizes. He is unable to attend, due to his daughter's graduation.

I want to welcome members of the committee. We are pleased to have with us Brigadier-General Bernard Cathcart, Judge Advocate General of the Canadian Forces.

General, you have seven to 10 minutes for whatever you want to say. Then we will go to the official opposition for the first question.

Welcome.

[BGen Bernard Blaise Cathcart, Judge Advocate General, Canadian Forces, Department of National Defence]

Thank you, Mr. Chairman and members of the committee.

Good morning. I would like to thank the committee for inviting me to appear today. I was appointed as a Judge Advocate General effective April 14, 2010, so it is truly a pleasure to have this opportunity to meet with you so early into my appointment.

As you are aware, pursuant to section 9 of the National Defence Act, the NDA, the Governor in Council may appoint an officer of the Canadian Forces who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces. According to section 9.4 of the NDA, the minimum rank for the Judge Advocate General is brigadier-general.

I am truly pleased and deeply honoured to have been named to the position of Judge Advocate General, an appointment that was the culmination of a competitive selection process involving those who met the statutorily required qualifications I have just described.

I understand that you have all been provided a copy of my biography, so my intention is to briefly identify the role and function of the JAG and then provide you with an overview of my background and experience.

As JAG, I am the legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces in matters relating to military law. In addition to this, I am statutorily responsible for superintending the administration of military justice in the CF and am required to report annually to the Minister of National Defence on this subject.

This superintendence function, which includes monitoring, reporting, and policy development, helps ensure that the military justice system meets the needs of Canadians, including the men and women of the CF who have volunteered to serve their country.

Military law is not specifically defined in legislation; however, it is evident both from the breadth of authorities to whom the JAG is responsible to provide advice and from the unique role of the office of the JAG since its inception in 1911, that “military law” captures all international and domestic law relating to the Canadian Forces, including its governance, administration, and activities. This includes operational law, which is the domestic and international law applicable to the conduct of CF operations both at home and abroad.

My military career and formal education have provided me with exposure and experience across this broad spectrum of law. I have been a member in good standing of the Nova Scotia Barristers' Society since 1989. Prior to joining the CF, I obtained a Bachelor of Arts with honours from Saint Mary's University in Halifax, a Master of Arts from the University of Ottawa in English Literature, and a Bachelor of Law from Dalhousie Law School.

Later in my career, I attained a Master of Laws, an LL.M., from the London School of Economics in the U.K., where I graduated with distinction from the Master of Laws program in public international law. I was also awarded prizes for top student in the international law program, best dissertation, and for the overall top performance at the final examinations for the LL.M. programs of all the law schools comprising the University of London.

Since joining the CF in 1990, I have served in a number of positions within the Office of the JAG at National Defence headquarters in Ottawa, have been deployed on various operations, and have held a number of positions as a unit and regional legal adviser on bases from coast to coast in Canada. These positions include: Deputy Judge Advocate, Atlantic Region, in Halifax, from 1990 to 1991; Deputy Judge Advocate, Pacific Region, in Victoria, B.C., from 1993 to 1996; and Deputy Judge Advocate, Prairie Region, in Calgary, from 1996 to 1997. In this capacity as a unit and regional legal adviser, I advised daily on all aspects of military law and also fulfilled the role of a prosecutor within the military justice system.

In Ottawa, I advised within the Directorate of Law/Claims from 1991 to 1992 and the Directorate of Law/Human Rights and Information from 1992 to 1993. This was a busy period of time of evolving charter jurisprudence in the human rights area, which had a direct impact on CF personnel policies and practices. I was also the legal adviser to Joint Task Force Two, the Canadian Forces counterterrorism special operations unit from 1997-2000.

I deployed as a legal adviser to the commander of the Canadian contingent, United Nations Protection Force, UNPROFOR, and the United Nations Peace Forces, UNPF, in the former Yugoslavia in 1994 and 1995. I then deployed again as the senior legal adviser to the commander of Canadian Task Force Bosnia-Herzegovina, SFOR, from February to September 2000.

In 2000 I was promoted to lieutenant-colonel and held the position of director of operational law from 2000 until 2003. After the completion of my LL.M. studies, I assumed the duties of director of international law from 2005 until 2006.

After being promoted to the rank of colonel in June 2006, I had the pleasure of serving as the deputy legal adviser and general counsel, military, in the Office of the Legal Advisor to the Department of National Defence and the Canadian Forces. That was from 2006 to 2007. This was a position that permitted me to work very closely with lawyers and colleagues within the Department of Justice.

From 2008 to 2009 I had the pleasure of holding the position of deputy judge advocate general in military justice and administrative law. There, I was responsible for providing DND and CF authorities with legal support in relation to military justice, military administrative law, compensation and benefits, and a number of other military personnel matters.

From 2009 until my appointment as JAG, I served as the deputy judge advocate for operations. In this position, I was responsible for the provision of all military legal advice relating to international and domestic operations.

I have always been very proud to be both a member of the CF and a member of the office of the JAG. I am even prouder today to have been extended the honour and privilege to serve in this capacity as the Judge Advocate General for the Canadian Forces.

As JAG, I exercise command over all legal officers working in the office of the JAG, including those deployed on operations worldwide, whether that be in Afghanistan, on warships, in Africa, or elsewhere around the world. These deployed legal officers work in difficult and challenging environments, providing advice to Canadian commanders across the full spectrum of military law. I can tell you that they do an excellent job under demanding circumstances.

As of June 1, 2010, there are 158 regular force and 53 reserve force legal officers serving across Canada and abroad. While most of these serve in the office of the JAG, this number also includes legal officers on post-graduate and other academic training, as well as those legal officers serving at the Canadian Forces Military Law Centre in Kingston on exchange.

Permanent legal offices are located in Ottawa at National Defence headquarters and at the four operational command headquarters, at regional assistant judge advocate general offices, and at separate deputy judge advocate offices in Canada, Europe, and the United States.

Mr. Chair, that concludes my opening remarks. Again, it is a true pleasure to be invited here today. I look forward to answering your questions.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you very much, Brigadier-General. We appreciate your attendance. We also want to acknowledge the work that you and all of your colleagues do on behalf of the Canadian Forces.

We will go to the first round of seven minutes with Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Welcome, sir. Your credentials are impressive, and obviously you do a great job for Canadians.

I may have just a couple of questions, because what can one ask a brand new Judge Advocate General about the past?

I'm assuming you're familiar with the question of solicitor-client privilege and parliamentary rights of members of Parliament or Parliament as a whole. I don't know whether you had the opportunity to read the testimony of your predecessor when he came here. When we asked him questions, he raised solicitor-client privilege as essentially a complete shield from answering any questions.

I'm wondering if you have a view as to whether or not your office enjoys solicitor-client privilege or the shield of solicitor-client privilege vis-à-vis Parliament.

[BGen Bernard Blaise Cathcart]

Thank you, Mr. Chair, for that question.

I am familiar with my predecessor's appearance here. It was a very lively debate, as we all recall. That whole issue obviously is a very challenging one for government lawyers before parliamentary committees. I'm certainly bound by solicitor-client privilege. That obviously comes from my professional responsibilities as a member of the bar--in this case, the Nova Scotia bar association or bar society--and to that extent, when answering questions before any body, including this body and parliamentary committees, I have to be very conscious of that.

I will undertake always to do my very best to answer all questions that I'm able to, but at the end of the day, I hope folks will understand, Mr. Chair in particular, that as a government adviser I am in a difficult and challenging position and I hope that the committee would take cognizance of that when posing questions.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

If one looks at the Speaker's ruling, it's quite clear that the government really has no privilege, can't really hide behind solicitor-client privilege, so if your client has no privilege, how are you bound by solicitor-client privilege?

[BGen Bernard Blaise Cathcart]

Mr. Chair, this is not the forum in which I would want to debate--

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I'm really asking for my own information, because if you come before us in the next few months on a more important issue where we might have to ask you serious questions, I'm trying to get a sense of where we might go.

[BGen Bernard Blaise Cathcart]

Understood, Mr. Chair, and it's obviously a very logical approach. It can be a frustrating issue to deal with for all sides.

Having said that, the current state, as you'd indicated, Mr. Chair, is that the privilege issue is with the client, not with me. I don't waive it. Currently, and until the law and/or my directions change, I would be bound in my responses by that privilege. Having said that, I reiterate that I will do my utmost to be able to answer every and all questions put to me.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you. Because of your impressive credentials, those are the only questions I have. My colleague might want to raise some.

[The Vice-Chair, Liberal, Bryon Wilfert]

Mr. Martin.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Thank you, Chair.

General Cathcart, thank you for being here. When you were originally appointed, I read your resumé. It's wonderful to have someone with your history in this position, so thank you very much, and congratulations.

What do you see as your biggest challenges as a JAG?

[BGen Bernard Blaise Cathcart]

That's a very good question. My biggest challenges are twofold. One is to continue the history and the legacy built before me by my predecessors, by the folks who had come before me, to provide my clients--the minister, the CF, the department--with operationally relevant and timely legal solutions to their legal issues.

The second and most important aspect is the welfare and care of the folks in my command. As you can draw from my comments, we are a small office, the office of the JAG, and if anybody in this room is familiar with our colleagues to the south, they know that they're an extremely large organization militarily. That includes their individual legal shops, so when we compare ourselves in terms of numbers, we pale in comparison, to use a phrase.

However, I use the phrase often and with accuracy that we're a low-density high-demand asset within the Canadian Forces and the Government of Canada, and we punch well above our weight. My folks, who I've worked with as colleagues and now as their leader, continue to do that on a daily basis, so when we're providing that operationally timely and relevant legal advice, because we do so under very extremely stressful circumstances...

Many of you have just returned from a trip to Afghanistan. We have seven legal advisers deployed to Afghanistan currently, and they're at the right hand of the commander for every decision the commander is making that requires legal advice, and that's not in a comfortable office at 10 o'clock in the morning over a coffee.

Those are extremely demanding circumstances, so when we're providing that advice, whether it's here in Ottawa, which can equally be stressful at times, or across the country, or on deployments, I have to make sure that my people are taken care of and that they're not burned out as well.

Those are my two biggest challenges, Mr. Chair.

[The Vice-Chair, Liberal, Bryon Wilfert]

Mr. Martin, you have about 50 seconds.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

So what you're saying is that the JAG office is very efficient, which is great to hear.

[BGen Bernard Blaise Cathcart]

It is.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

I'm not a lawyer, so forgive me for questions that might seem simple. When there's an allegation that one of our personnel is contravening international humanitarian law, in trying to adjudicate that issue, where do you come in?

[BGen Bernard Blaise Cathcart]

Again, that's a very good question, Mr. Chair.

There are different avenues in which I may play a role. You used the term “adjudicate”. That's a broad term.

Obviously, as command, and command over my folks, I have to make sure that my own folks are properly trained, equipped, and educated to be able to deal with those issues, because they provide legal advice, as I've said many times, which I think is commonplace knowledge now. They provide advice primarily to CF, but to the department as well, so we have a constant process of providing advice in a solicitor-client privilege scenario. During that interaction, whether at the lowest levels or at my high levels in Ottawa, we're always very cognizant about the rule of law, the importance of the rule of law, and ensuring that all CF operations, domestic and international, comply with the rule of law.

So we come in on a daily basis in terms of advice. As a superintendent of the military justice system, I play a superintendent's role, so that if there are cases that end up involving a Canadian Forces member for violations of the law of armed conflict--also known as international humanitarian law--I may play a role. That's largely with the independent prosecution service and defence and judge, but again, if there's a particular aspect that looks like it's going off the rails, to put it in basic terms, I may have to play a public role to intervene at that point.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you very much.

Monsieur Bachand, vous disposez de sept minutes pour vos questions.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you, Mr. Chair.

Welcome, Mr. Cathcart.

I want to discuss the issue of solicitor-client privilege. Your predecessor, Mr. Watkin, made it clear that he could not answer some of our questions because he had to protect his client.

Nevertheless, I am trying to find an approach that would allow Parliament to exercise its authority to determine whether the government has been effective and efficient. Unless I am mistaken, it even says in the Constitution that the entire opposition, not just the official opposition, must ensure that the government is administering and spending tax dollars appropriately.

But, sooner or later, we seem to hit a brick wall. I would like to know what kind of agreement we can reach to break through that wall. I will explain.

You said that, as things stand now, you can tell the committee that you cannot answer certain questions. In your opinion, what needs to be different in order to change the way “things stand now”? Would it take an amendment to the National Defence Act, a constitutional amendment, a regulatory amendment? What would compel you to answer the committee's questions today in full?

[BGen Bernard Blaise Cathcart]

Merci, monsieur le président. C'est une bonne question.

Again, I'm here to speak to my qualifications. Your question invites me to speculate on possibilities of making what are essentially legal changes to the current state of the law.

With respect, Mr. Chair, that's not my role. Even if that were the object of this particular inquiry, which it's not, I could not address that specifically.

There are many complicating factors. There are policy decisions and, more importantly, from my perspective, legal precedents. As you may be familiar with, Mr. Chair, much of this issue of solicitor-client privilege has been dealt with and is constantly dealt with in the courts across Canada, and the Supreme Court of Canada has spoken on it frequently.

I think the most recent significant case, called the Blood Tribe case, clearly outlined that from the court's perspective the existence of the solicitor-client privilege is alive and well both in the private and the public practice of law and that it is something to be truly protected.

Perhaps we can debate the policy reasons behind that in a fair and open way, Mr. Chair, but again, that is not my role today. Frankly, I doubt the government would give me that honour to do that debate in the future either.

[The Vice-Chair, Liberal, Bryon Wilfert]

Mr. Bachand, I read this out at the beginning, and the chair is giving some latitude here. Just to remind members, under Standing Order 111(2), the call for the witness is based on the following: “The committee, if it should call an appointee or nominee to appear pursuant to section (1) of this Standing Order, shall examine the qualifications and competence of the appointee or nominee to perform the duties of the post to which he or she has been appointed or nominated”.

I am allowing some latitude here, but again, the purpose is that the individual in question was appointed and we are here to review or comment on that. You may pursue some angles, obviously, in terms of his role, but again, we don't want to go too far outside the purpose of this invitation.

I won't take that off your time, Mr. Bachand.

[Claude Bachand, Bloc, Saint-Jean, QC]

Thank you very much. I must admit that out of all the qualifications required to become Judge Advocate General, meeting regularly with the members of a parliamentary committee is, in my opinion, a qualification that also needs to be examined. I do not have much to say about the competencies of the Judge Advocate General. But if there was a conflict between him and the members of Parliament, if he lacked diplomacy, it would raise questions in my mind.

I must reassure you, Mr. Cathcart, that that is not the case so far. I thought it important to ask that question.

Furthermore, you said you had legal officers on duty in oversees contingents. You mentioned that seven legal advisors, I believe, were in Afghanistan. Are those advisors in charge of court martials, for example? Does that take place in the theatre of operations when it is necessary?

[BGen Bernard Blaise Cathcart]

That's another very good question, Mr. Chair.

No, the officers who work for the office of the JAG don't control the courts-martial process. They provide advice to the chain of command within the process.

As you're familiar with--and I know the chair is as well--the military justice system has two main components, one called the summary trial system, which largely deals with disciplinary matters and charges before commanding officers and chain of command, and then a more formal court martial, where we have a military judge, defence counsel, and a prosecutor.

My folks advise the chain of command as incidents occur. Either there are charges laid, or charges are contemplated during the investigatory stage and during the process are laid, but once this enters formally into the courts-martial process and it's handed over to the director of military prosecutions, that office is essentially an independent actor and makes its own decisions in terms of whether charges proceed or not.

Likewise for the accused, defence counsel, when they're appointed, could be from our defence counsel services, which are uniformed legal officers. They could also be civilian if they accused so chooses. I don't control it. It's an independent office. I can have aspects of personnel issues, but as far as their decisions and actions vis-à-vis their client, the accused, are concerned, I have no role in terms of providing advice on that. Similarly, of course, the judges are independent.

[Claude Bachand, Bloc, Saint-Jean, QC]

Is there a specific procedure for generals? As you know, General Ménard was accused of accidentally discharging his gun, and the entire investigation was conducted in Canada.

Is that the usual procedure, or is that exclusive to generals? Is there a different procedure for the other soldiers? I would like you to explain that, please.