National Defence Committee on June 10th, 2010

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

Very well.

Usually when I speak in English, I can say stupidities because I always pretend that it's not my mother tongue, so...bonn

[Voices]

Oh, oh!

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

Now I would like to discuss the procedure for grievances. Not only is justice important, both to you and to everyone else, but so is the appearance of justice. You probably advise the chief of staff when the grievance reaches his level, which is the final step in the grievance process.

In your opinion, should the current grievance system within the Canadian Forces undergo changes? It seems odd to me that when a soldier files a grievance against his superior, the first step in the procedure requires him to try to solve the problem with that superior. I have a hard time seeing the justice in that. The appearance of justice seems to be lacking, as well. Do you think that we, the members, should try to amend the National Defence Act to make the grievance process more fair?

[The Vice-Chair, Liberal, Bryon Wilfert]

General, you have about 30 seconds.

[BGen Bernard Blaise Cathcart]

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

In very short order, of course, I leave it to the wisdom and the discretion of parliamentarians to look at all our systems and the grievance system in particular to determine if the latter actually operates in a fair and equitable fashion or appears to be operating in such a way.

From my perspective, like any system, it's a system that has to be constantly reviewed and updated to keep up with the law and policy changes. But one thing I would ask all parliamentarians to keep focused on when you're thinking about things in the military—not only military justice, but grievances as well—is that there always has to be a balancing.

It can never be exactly the same in all circumstances, as might exist on a civilian side. The chain of command has to be involved. If you take all of the responsibilities from the chain of command, even though it may have looked like an injustice... Because the grievance involves a chain of command, if you take it out of there and give it to outside individuals, the grievance might be settled in a certain way, but you've then eroded significantly, in my opinion, the impact and the role of the chain of command.

[The Vice-Chair, Liberal, Bryon Wilfert]

You're finished...? Okay.

Mr. Boughen.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Chair.

General, to you and your staff, we appreciate your being with us this afternoon and taking time out of your busy schedule to share a thought or two with us.

Speaking of sharing, could you share with us what the difference is between military and civilian law? My background is not in law. I know that is the background of some of the members, but it seems to me that there are some differences in there and it would be very nice to hear what they are.

[BGen Bernard Blaise Cathcart]

Thank you.

How much time would I have for that, Mr. Chair?

[The Vice-Chair, Liberal, Bryon Wilfert]

You have about four minutes.

[BGen Bernard Blaise Cathcart]

Thank you very much for that question.

Again, as I've said, it's part of my mandate for the next four years to try to assist everybody within and outside the Canadian Forces in better understanding military law and military justice.

The military justice system is a stand-alone system of justice, separate from the civilian system. It's recognized constitutionally, like any justice system. You'll note that the Canadian Charter of Rights and Freedoms highlights that jury trials don't apply to the military justice system. The real heart of it, at the end of the day is about discipline. The CF is different from the civilian population because of that important aspect. Without discipline, you don't really have a functioning, efficient, and agile operational force.

In order to give the tools to the chain of command to maintain discipline, there are many tools, and one of them is a separate system of military justice. Within that military justice system, as has been recognized by the Supreme Court of Canada in a case called R. v. Généreux, discipline is the heart of the system.

Therefore, the reason, the rationale, for having a separate system in which you have players who are also members of the military is extremely important. It helps to bring a context to people so they understand the proper context. Not that civilian judges don't understand the law, of course, but do they really understand the context?

As members of this panel who have gone to Afghanistan recently, I'm sure you perhaps saw a different context from your understanding of it just sitting here in Ottawa... It's the same with military justice. You have to understand the rules, the regulations, and the context in which soldiers, sailors, and air-persons operate to bring that difference to it.

So when you focus on it and you want to look at it, really, the heart of it is discipline. That separates us from the civilian justice system.

[Ray Boughen, Conservative, Palliser, SK]

I have just one other question, Chair.

How do you balance your workload? You have a very small staff in comparison to the number of people you're dealing with. There are, I'm sure, internal as well as external pressures. How do you manage to get it all done?

[BGen Bernard Blaise Cathcart]

Thank you for that question, Mr. Chair.

Of course, it's a challenge. Like many folks, you equally are very busy in terms of balancing, and I'm blessed, frankly, with two great support systems.

My people are number one We have outstanding lawyers, not only regular force lawyers, but reserve force lawyers who are essentially private practitioners and who step up to the plate and provide services. Not only do they provide services in terms of, say, backfilling for regular force lawyers in Canada when they deploy, but we also have reservists who deploy to places like Afghanistan. We currently have a lieutenant-colonel in the reserve deployed to Afghanistan. So we have a number of great people, including my civilian staff. Nationwide, we have about 100 civilian support staff, some of whom are paralegals.

So all of those folks, as I said, answer the bell each and every time they step up to the plate. I do have to watch it, because many of them, frankly, will burn themselves out; they're so dedicated to the cause in supporting the Canadian Forces and the Government of Canada that they will do that.

My second main support system is my lovely spouse. She puts the reality check on my time and space at the end of the day.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you.

Now, as we enter the ninth inning, Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Well, I thought I might make a contribution as well, as others continue to ask questions.

I want to put this question purely for its logic on the solicitor-client privilege, so that you can get yourself on the record. I'll only ask two questions and this is my second. According to how you describe the solicitor-client privilege, the essence of that is that it is the client's privilege. Therefore, you are able to maintain that privilege if the client is, in the first place, able to assert it legally.

The Speaker's ruling in parliamentary law would tell us that no one in Canada has the capacity and the power, including the government, to assert solicitor-client privilege as a shield before Parliament. Therefore, your privilege, your right to assert that privilege, doesn't arise when you're before Parliament.

I would just like you to comment on that.

[BGen Bernard Blaise Cathcart]

Thank you, Chair.

Again, there is a lot to debate on that issue, without question. I simply can't engage in that debate at this moment. I am bound by the privilege, the solicitor-client privilege. When I say that, I mean I will honestly do my best to answer every question that parliamentarians or other folks put to me, but if part of that answer requires the invocation of solicitor-client privilege, until I get direction from the client, I have to respect that.

It's not only within my role as a government lawyer, but it's also my role as a member in good standing of a bar association. I have to be concerned. Members of the committee who are members of bar societies and law societies have to know that any breach or perception of a breach of the solicitor-client privilege will be challenged by the bar society.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Would you say, then, that if you answered the question the way I would like it answered by you, implicit in that answer would be a potential perception of the breach of that privilege on your part if the circumstances ever occurred or arose? Is that why you're hesitant about answering?

[BGen Bernard Blaise Cathcart]

Of course, Mr. Chair. I have to guard any actual breaches...and the perception, because it's my bar society that will be asking me, “Is this true or is this not true?”

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you, General.

Ms. Gallant, I believe you have a question.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chair.

I'm very pleased that you've had a chance to put your statements on the record. Most Canadians have no idea of the complexity and the planning that goes into a military operation. Despite this being some type of fishing trip, your presence here has been very helpful.

My first interaction with a JAG was in Bosnia, in 2001. Every little operation, even getting armaments from hidden caches, had a lawyer from the JAG there to ensure that all the rules of law were followed.

Earlier you described the role of the Office of the JAG: that prior to an actual charge or court martial, the change of command is advised by people in your department, but also that defendants may be represented by defence lawyers from the JAG. What mechanisms are in place to ensure there is no influence by the advisers to the chain of command over the defence attorneys in uniform?

[BGen Bernard Blaise Cathcart]

Again, thank you for that question.

As I said, the structure of the defence counsel services is such that they are independent. The appointments in terms of the people are made by the minister, not by me. There's constant consultation between the director, who currently has a rank of lieutenant-colonel, a commander in the navy rank... They often have majors and captains working for them. I leave the consultation process in terms of the skill sets and what training they need with the director. I support it when they need resources and money.

If it came to an issue that I would have to give direction on, such as, say, personnel issues that might affect the people working in DDCS, defence counsel services, I would have to make that a very public statement so the director could talk about it publicly and, if required, challenge the JAG and his function openly.

I think the Canadian Forces, parliamentarians, and Canadians writ large can be very well assured that there are many mechanisms and processes in place that allow the defence counsel services, and indeed all the players—prosecutors, and importantly, the judges—to act fully independently of my thinking and my decision-making.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.

Thank you also for explaining why it is more important that the person in the position of judgeship or legal counsel has the best understanding of the law at the forefront as opposed to the linguistic ability. That's really important in other work we're doing here in the House of Commons as well.

What role does the JAG fill, if any, in determining which rules of engagement are to be used in a given operation or mission?

[BGen Bernard Blaise Cathcart]

Thank you. Again, that's another very good question in the operational law area and my sense is that most Canadians would not understand it. One of the reasons, in fairness, is that a lot of issues surrounding rules of engagement are classified. Specific rules of engagement are classified.

But I can tell you that the process is one in which the rules of engagement are ultimately approved by the Chief of the Defence Staff, so it's always an operational issue to do the rules of engagement. Despite what people may have heard, or television shows, it's not the lawyer who says “this will be the rule of engagement for the mission”. We just provide advice.

Again, from the planning process, no matter what type of mission it is, an international mission, a domestic mission in support of law enforcement, as we did recently in Vancouver at Op Podium... By the way, in dealing with that, I'll take the opportunity to remind folks that we had 13 legal officers providing advice, largely on the ground in Vancouver, but back here in Ottawa and with NORAD as well.

So right from the very beginning, it's just like any other aspect of those familiar with what we call the operational planning process: when the chief is tasked with a mission, we immediately start looking at all the legal issues involved, including the rules of engagement. And if you were to go online on the operational side... I haven't checked it this week, but often they have the unclassified part, the front part of what we call our use of force manual, and that lays out the guiding principles and definitions that the Canadian Forces uses for creating rules of engagement in use of force. In that, it describes the rule of engagement creation project or process, which involves operators, intelligence officers, policy officers, all the people you would expect to be involved, including legal advisers, who create the legal framework in which the operators can then say, “We need to use this level of force, so can we use it from a legal perspective, yes or no?”

It's a very detailed process and is one that is followed each and every time rules of engagement are created, for each and every operation.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you, Ms. Gallant. Thank you, General.

That concludes the second round. I want to remind members that we have a number of items in camera, so I'm seeking your cooperation. If there are no further questions, I would suggest that we recess.

Mr. Harris?

[Jack Harris, NDP, St. John's East, NL]

Yes.

You mentioned the distinction between the chain of command discipline action and a court martial. Is that an alternative method? I'm just thinking of General Menard, where we're talking about what might be a fairly regular occurrence, some sort of accidental discharge of a weapon or something like that. I don't know whether one considers that minor or major. Maybe it depends on the circumstances. But the misuse of a firearm may be something fairly common within the military from time to time.

Are there certain types of actions that are dealt with simply by a commanding officer disciplinary hearing and others that go to a court martial? And how is that decision made?

[BGen Bernard Blaise Cathcart]

Thank you for another good question.

I'll just start by making a quick statement about discipline. As I alluded to earlier, it involves not just the military justice piece, which, as I described, is summary trial and courts martial. It involves other tools, administrative tools like removal from command, for example. So the term “discipline”...I just think it's important for people to understand it doesn't just end itself within the military justice system. It applies to all the tools available to the chain of command.

Regarding the specific question, yes, in terms of the system under the code of service discipline, which is a part of the National Defence Act and lays out the process and the offences to be charged under the code of service discipline, it breaks it down as you break it down through the NDA and through the Queen's Regulations and Orders to a number of charges that are only triable by summary trial by the chain of command. Those are often considered to be less serious charges.

Then you have a set of charges that are tried only by court martial. Those often would be considered the more serious charges. Then there are some that may appear to be not so serious in terms of the act itself, but depending on the circumstances, the chain of command may feel that the punishment that might be contemplated might be in the level that's higher. In those cases and for other reasons, they offer an election to the accused to go either to summary trial or to court martial.

So once you're into that zone--and there are a number of charges that fall into that category of electable charges--it's by that choice. We've had recent changes to the NDA from the case I mentioned earlier, R. v. Trépanier, from the Court Martial Appeal Court, that now make it much clearer that the accused makes the choice in certain circumstances in terms of what offence they made. Or the chain of command may simply say that it is going to be too serious a matter. As you know, members of the chain of command are not legally trained as lawyers and judges, so they don't have the competency, for example, to deal with—nor should they and nor do they want to, frankly—charter arguments. That's left for the courts martial.