National Defence Committee on March 7th, 2011

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Harris.

Yes. As you said, your amendment NDP-3 is consequential to NDP-4, -5, -6, and -7. If the committee agrees to vote for NDP-3, it will apply to NDP-4, -5, -6, and -7. You were right in saying that.

Afterward, we will discuss NDP-6.1.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

Is this within the scope of the bill?

[The Chair, Conservative, Maxime Bernier]

Yes.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

We have no objection to that?

I'll just make a couple of points on this. It's an odd way to write an amendment. I understand the rationale, but it's a negative amendment. There's a sense of negativity there, instead of....

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

I didn't write it. You know how this works. You suggest what you do, and someone with the drafting experience puts it the way they see fit. I'd be happy to see it.... If you want to reverse it, so it's--

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I would have a problem with it in any event, because what it does is it betters the discretion of the Governor in Council on making appointments. The suggestion is--and I think you backed off from that a little bit, Mr. Harris--that you can't be impartial if you serve. Well, of course, you can. Anybody can be impartial. Having relevant experience to deal with an issue is not a detriment; it's an asset, for goodness' sake. They all swear an oath, in any event. If we put any trust in people putting their hand up and swearing an oath on whatever it is, then whoever it is, if they're qualified to serve by virtue of a variety of experience--one of them is certainly military experience, which is clearly valuable in serving on this kind of board--and they've all sworn an oath to act in accordance with the rules and regulations, then from our point of view, this amendment is simply not necessary.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Dryden.

[Ken Dryden, Liberal, York Centre, ON]

In the original discussion a week or so ago, a point was made of how, historically, the committee has often been made up of, and perhaps even usually made up of, a mix. Currently it isn't. Currently it's all former military people.

When Vice-Admiral Donaldson was here, his answer to one of my questions seemed to suggest that I had said it was inconsequential what somebody's background was. So when the discussion was over I went to speak with him to make the point that I did and about how the makeup of the committee had changed. His point was that he thought it probably evolved this way. When the Governor in Council--and I don't know the words to use--made it known that there were openings and that they were looking for people to apply, it was a whole lot easier for that notice to go out to former military people, and that was likely why the imbalance had resulted.

So then our discussion went on that it may well be the case and that's how it has played out. The question is whether that's a good thing. His point back to me was that he thought it was healthier if there was in fact a mix of people who were involved and that really part of the challenge in any situation, in any court, is that one has to be able to find a way of explaining it to somebody who has lots of other experiences but may not have this particular direct experience. One has to be able to put that person into the situation so that that person understands and gets it. Of course, in anything like this, ultimately it is a public who are determining whether something is appropriate or not, and that public is made up of lots of people who don't have any specific experience but have a “reasonable person” experience to be able to judge.

Vice-Admiral Donaldson's point--which was a point I was trying to make earlier--was how in fact it is a very healthy thing, and a necessary thing, really, for the ongoing health of the reputation of a committee such as this to have that kind of balance there. And if in fact those involved in the military cannot make the case, cannot make others understand the special nature, then in fact they have not met the challenge. So I would very much support what is in the amendment here.

[The Chair, Conservative, Maxime Bernier]

Monsieur Harris.

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

Thank you, Chair.

To answer Mr. Hawn's point directly, yes, this is an attempt to fetter the discretion of cabinet in making these appointments. It appears it's necessary to do so.

The MPCC, the grievance board, and the ombudsman all were set up in the wake of the Somali inquiry, based on the notion that there needed to be more of a role for civilians or civilian oversight with respect to the military. At the grievance board, it's frankly appeals by individual soldiers on decisions made by someone within the military. If the only recourse they're going to have is an answer from someone else in the military, then that doesn't meet this notion of having a civilian or at least a partially civilian body to deal with it.

I was here last week, and I actually commend the transcript of the debate to anyone who wants to understand the nature of the problem. I'd have to call it a debate between Colonel Drapeau and retired Colonel Hawn about the nature of how many rights you park at the doorstep when you join the military, for anybody's accommodation. It was a brilliant piece of work on both sides, I have to say, as to what the differences might be.

I have to say that what we're trying to avoid here is having a grievance board composed of old boys or old girls from the military who have that particular point of view—not only that point of view but that point of view and that experience—without the advantage or without the leavening of a civilian presence.

As to the appointments process, I think what Mr. Dryden says may well be how we got to where we are. But the fact of the matter is, the grievance board has been “militarized” to the point of having only military people present, and I think that's wrong. This is not a condemnation of the individuals who sit on the grievance board nor is it a condemnation of people who serve within the military. This committee, above all others in the House of Commons, and its members know and share a respect for the service that all military people have given. That was evident as well in that debate between Mr. Drapeau and Mr. Hawn.

Clearly this is an important point that I think we should make by insisting that this grievance board or grievances committee have a majority—maybe 60% is not the way to go, but even just say a majority, but 60% is there and 60% is what we're voting on—of people without military experience who represent civil society and don't have their own experiences to bring to this table.

I think that's a valuable effort to ensure that, to a certain degree, at least, there is a civilian oversight of this level of grievances. It's not the biggest thing in the military obviously, but this is important to all those who have grievances. To know that it's not only military people who are making these decisions, that your appeal can be broader than military, I think is desirable.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

I'll give the floor to Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

I have a couple of things. Again, those who sit on these committees all swear an oath to be impartial and operate and so on. There's nothing to say that civilian members can't be appointed to the committee, nothing at all. I'm not sure it needs to be enshrined in the legislation that they must be in some proportion or other.

The other thing is that the ex-military people are just that; they are now civilians. They've been out of the military for some period of time. They've gained experience through other jobs or other careers and so on that they've gone on to. So there is a mix in fact of military outlook and civilian outlook in the same person. There is nothing to say that a properly qualified pure civilian couldn't be on the board at all. That's not restricted at all. They can appoint whoever they want.

As Mr. Dryden said, probably over time it has evolved to totally military or ex-military at this point. Again, I go back to the fact that these ex-military will have been civilians for some period of time and will bring that broader perspective.

I don't think enshrining this so that we must have this number or that number is the way to go in legislation. But I'll defer to our subject matter experts for some advice.

[The Chair, Conservative, Maxime Bernier]

Colonel Gleeson, do you want to add something?

[Col Patrick K. Gleeson]

There's not a whole lot to add, Mr. Chair. I think the discussion has been fairly inclusive.

I would point out that, as was noted at the start of the discussion, the proposed amendment does two things. The focus has been on the 60% number, but it also excludes any officer or non-commissioned member from being appointed, which deals with the provision in the act that I think Mr. Hamel raised when he was here, saying that it's something he would like studied and had some concerns with.

Obviously, there has been no internal policy discussion within DND or with the grievance board on that issue. Obviously, it's within the prerogative of the committee to do as it wishes in that regard. But I just want to make clear for all the members that it is doing that, as well as dealing with the 60% number with respect to the numbers of the members on the committee who must not have had previous experience. Again, I don't think I'm going to say anything that hasn't been said, but I'll just run through these points in case something has been missed.

First of all, the notion of using legislation to prohibit experience is unique. We actually talked to the holders of the federal statute base, and they were not aware of any provision that actually prohibits experience when talking about qualifications to fill a position. They generally prescribe what experience is necessary if they think it's relevant to the job. Again, that's based on that feedback.

The other point I would make is that these are four-year term appointments. They certainly are renewable, but they aren't automatically renewable. Generally speaking—again, this is a practice across the appointment structure within the federal scheme—it's the appointment authority that has the responsibility for considering and striking that balance, and it can rebalance that. That's why these appointments are made for defined and fixed terms.

If the balance has fallen out of whack, then one would presume that the appointment authority—in this case, that would be GIC—would be in a position to rebalance that as appointments come up for renewal or reconsideration. That point is out there for your consideration.

There was some suggestion that perhaps CF members or retired CF members were becoming aware of these appointments more than other members of the public. I can't really speak to that, except to say that it's certainly my understanding that notices of appointment or openings within these bodies are advertised in the same way as any other GIC appointment is and that they're advertised to the general public.

I'm not sure how that would favour CF members, but I'm not quite sure what the context of that discussion was. I'll leave that out there.

The final point I would note is that even the grievance board chair himself, when he appeared, noted that there was any infinite number of combinations and permutations with respect to experience that could work on the board, that certainly he didn't see it as being within his purview to indicate what would be the right balance, but he noted that there are a number of balances that probably are right and work. As we prescribe a specific balance in this piece of legislation, we seem to be moving towards a right answer, and that may be a bit of statement, because I see that it says “at least 60%”, not 60%. It leaves some leeway.

Anyway, I throw those comments on the table for your consideration, and I'll leave it at that, Mr. Chair.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Dryden. After, we have Mr. Harris.

[Ken Dryden, Liberal, York Centre, ON]

Just to throw the comments back, I understand how in fact the process may well be made available to everybody, that notice may go out generally. The point the vice-admiral was making is that given how the process goes out, it is much more likely that former military people are going to be much more sensitive to the fact that these appointments may exist and will be much more aware of them and much more likely to respond to them. I think that was the point he was making, and that is a significant consideration: that even if in fact the notice is general, how that plays out is really the test.

What is also the test is that in terms of rebalancing, the rebalancing could be going on all the time. The fact is, what we have now is a situation where all of the people are former military people. That rebalancing could have happened at any point that appointments would be made. That didn't happen. And I think the message of this is to say this is a serious consideration, and clearly those who are making those decisions were not responding in that particular way, that they would probably be aware of the fact that more former military people were responding to the notice, and second, they would certainly be aware of the fact of where the appointments came from.

Mr. Hawn makes the point about impartiality. I have no question that all of these people, whatever their background is, would be impartial. That is their job. They take their job seriously. I understand impartiality. I also do understand one's own sets of experiences. Yes, later on, these people are former military and they would have some experiences outside of the military, but I'm also aware of the kind of formative experiences that one has through that time of one's career, the kind of pride one would have had to join up, the pride one would have had in order to do what they have done, the pride that one sees all the time in people who are members of the military or former members of the military. So it is not a question of impartiality. It's just trying to balance the experiences that one has, and of generating the kind of test that all of us need, in whatever our fields are, to be able to explain why all of this is a separate and special set of circumstances and the determination should go this way rather than another. If that isn't there, in the end we all find ourselves off track often down the line.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Harris, and after that, Mr. Hawn and Colonel Gleeson.

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

Thank you.

I realize it may be a little inelegant to be specific here.

[Ken Dryden, Liberal, York Centre, ON]

Mr. Harris, I have just one last thing.

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

Go ahead.

[Ken Dryden, Liberal, York Centre, ON]

I wouldn't see 60% as any magic figure. As Mr. Harris already said, I would look toward a majority and whatever that number would be—but a majority, not necessarily 60%.

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

I don't know how many there are. If there are five, it would have to be three; if there are eight, it would have to be whatever. The idea is, I don't think there are dozens of people on this; 60% would guarantee a majority, and it's a question of figuring that out.

I realize this amendment is a bit inelegant, and I agree that the qualification issue is one.... But if I were writing the legislation, I'd do it differently. I'd say this is part of civilian oversight, and we'd define civilian—blah, blah, blah—and talk about a majority of civilians.

I've got fairly limited scope here in amending this legislation, so this is the route to go. The fact is, how do we get civilian oversight if we are not specific as we are here? Let's remember what this is about. The grievances board is dealing with how members of the CF are being treated when it comes to issues of medical treatment; when it comes to issues of fairness in promotion; when it comes to issues of discharge from the military and what conditions are they being discharged on. The notion is that the grievance is to decide whether you are being treated fairly by the military.

We're suggesting here—and it was suggested as part of the creation of these boards—that there needed to be a system for that. What has happened, by default perhaps—I don't know how it happened, but we've got retired senior officers...we've got people moving into retirement, leaving the forces to go to the grievance board. They're not necessarily people who have been out there in the world for 10, 15 or 20 years having other experiences.

There's no way of controlling that, and yes, it's a control of discretion. I don't make any apologies for that, and if there's a better way of doing it, presumably at some later point.... There's a five-year review of this legislation supposed to be taking place imminently, and if someone comes back with a better method or a more elegant solution, then I think this committee would be happy to consider it when it comes before it. But as it stands right now, this is a proposal to challenge the existence of the exclusive dominance of this grievance board by military and ex-military, and I stand behind that.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

Again, I think we're all trying to do the right thing here. I'll ask a question of Colonel Gleeson in a second with respect to satisfaction rate with the grievance process, if we know that. Also, perhaps, to Colonel Gleeson, I don't know of anybody who retires to actually go on the grievance board.

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

We were told that.