National Defence Committee on Feb. 6th, 2013

[Tarik Brahmi, NDP, Saint-Jean, QC]

Thank you, Mr. Chair.

My first question is for Mr. Dugas.

When we discussed jury makeup and the selection process for court martials, I sensed some disagreement with your neighbour there. It had to do with the fact that jury makeup or selection for a military court is different from that of a criminal court in the civilian justice system. Since you didn't really get an opportunity to explain your point of view versus your neighbour's, you can do so now.

[Jean-Marie Dugas]

I wasn't actually disagreeing with his comments on the makeup. My neighbour was saying that the role was different. As I see it, panel members have the exact same role as jury members do in criminal court. They show up, they sit down, they listen to the evidence and they deliberate on whether the person is guilty or not.

[Tarik Brahmi, NDP, Saint-Jean, QC]

In a criminal matter, however, the whole idea of rank comes into play as far as selecting panel members goes, and that is not the case in the civilian world.

[Jean-Marie Dugas]

Yes, that is kind of what I was saying earlier. That is the big reason I have reservations about the current process, although I do agree it is an improvement over the previous one. This isn't the first time people have said it was impossible to do certain things in the Canadian Forces. But, ultimately, once they're done, they work quite well.

For example, there was discussion about the possibility of having a court martial in Afghanistan. One was held in a murder case. That shows that there is indeed room for improvement.

I quite appreciated another comment someone made earlier, one that supports my views on selection. Again, I am not questioning the court martial administrator's honesty, but the process isn't transparent. It's all done in his office or on his computer. Depending on the rank of the accused, the panel must include a general, a colonel or a lieutenant-colonel, and it can go to the rank of captain currently. But if you limit it to only soldiers, corporals, master corporals and even sergeants now, you exclude over half of Canadian Forces members.

The process is not about being judged by one's peers, although the principle should be the same. This is a slightly more British system where officers had oversight authority over just about everything that went on in their army corps. Today, we are a professional force, and as I said, I knew and still know people with master's degrees. Some have even gone after their Ph.D.'s, and yet they're corporals or master corporals by choice because they wanted a more stable position owing to their families.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Do you know of any cases where jury selection was poorly done, precisely because of the problem you pointed out?

[Jean-Marie Dugas]

In Capt Semrau's case, keep in mind that one of the requests made at the beginning of the proceedings had to do with the selection process. If you read the court record, you will probably see we went through all the steps in those proceedings.

Once again, the problem lies in the fact that it's not possible to know more about the panel members. You have the ability in other courts to determine if the members have an interest of some sort. So although there were five members on the panel, it ended up having just four members for the remainder of the proceedings because one member was absent owing to an illness we were not told about. Otherwise, we probably would have done a lot more to ensure that a replacement could serve as a fifth member. But there was no way for us to know if that person was absent for medial reasons. Therefore, we weren't able to make any inquiries as to whether the person would be able to sit on the panel until the end of the proceeding, which lasted a good three or four months.

That was what I meant about the process. Was it honest? Was there a reason for our not having that ability?

[Tarik Brahmi, NDP, Saint-Jean, QC]

Thank you.

I have a question for Mr. Hamel about the board's membership.

We understand that you're against allowing someone who has served in the military to sit on your board. Conversely, as you said in your opening statement, having a military background provides for more pointed questioning and a better understanding of the military's distinctive nature.

You say in your report that some cases are assigned to just one board member. So isn't there a possibility that cases are handled differently? When only one member of the grievance board handles a case, isn't it possible that a civilian would approach things differently than someone with a military background would?

[Bruno Hamel]

Thank you for your question. It's an excellent one.

It comes back to our education or training process, if you will, when a new member is appointed to the board.

Generally speaking, files are assigned to a single member. But, when a member is new to the panel, whether that person has military experience or not, the chairperson usually puts two members on the case, to help the new member learn and fully understand the process. There is a training period.

The other thing to bear in mind is that, although a member sits on the panel alone, they are supported by a team, a bit like a judge has clerks. Every case has a legal advisor. We also have a team leader and a grievance officer. These are people with years of experience working for the board. We have former members of the military, civilians, sociologists and lawyers who do not work as such.

We surround members with a good team to ensure the board's approach is a consistent one. Although every member makes decisions independently, there is still a collective effort. On top of that, members are always available to help another member who may have questions. We have procedures in place.

To my mind, it's an asset, not necessarily a prerequisite. I am for diversity, but not a quota. I believe in appointing the right person, at the right time, to the board, in order to achieve the best review, the best recommendation to the Chief of the Defence Staff and the best possible resolution for soldiers whose grievances the board is reviewing.

I don't want a board made up solely of civilians or former members of the military. I want to see the right person appointed. I am against quotas.

[The Chair, Conservative, James Bezan]

Mr. Brahmi, the time has expired.

I would ask the witnesses to also keep their comments as brief as possible. We are going over schedule.

Mr. Norlock, you have the floor.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair, and through you to the witnesses, thank you for appearing.

My first question is for Dean Holloway. I'm going to respect the chair and ask you to abbreviate some of this because it could be a little expansive.

Dean Holloway, you referred to the Australian military justice system during your testimony before this committee on Bill C-41. You said, and I am paraphrasing, it was, or is, much more visceral and much less reflective than our approach in this country.

Given that we have two independent reviews by former Chief Justices Dickson and Lamer, along with a 2011 independent review by Chief Justice LeSage, all supporting the military justice system, does this not reinforce your view that here in Canada we have had time to reflect and make recommendations that suit our military justice system? My constituents, and I think most Canadians, like to compare us to our allies. You did Australia; I wonder if you could just make a short reference to the U.S. and Great Britain.

[Dr. Ian Holloway]

I'm not sure I can do much on the U.S.

In terms of Great Britain, our histories have diverged. They have a person called the Judge Advocate General, as do we, but he fills a very different role in the United Kingdom than our JAG does. Our JAG is, among other things, the adviser to the government on issues relating to military justice. The JAG in Great Britain does more than this, but largely his role is to appoint military judges. It's a very different role.

As with so many things in the United Kingdom, their system of military justice is being challenged by the process of Europeanization. It's a live question whether Great Britain is going to remain in the EU because of the pressures they feel, the potential incompatibility between the common law way of doing things and the continental way of doing things, as is embodied in the EU.

That's a brief answer.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Good. Thank you very much.

My next question is for Mr. Hamel. Subsection 29.16(11) of the National Defence Act requires members of the Grievance Board, before commencing their duties with that office, to take the following oath:

I, ..........., do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Canadian Forces Grievance Board in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Canadian Forces Grievance Board

Do you feel that members of the board take this oath seriously? I'm sure you do, but it's a rhetorical question. In your opinion, is there any reason to believe that former members of the Canadian Forces who take the oath and then become members of the board take it somewhat less seriously than people with only civilian experience? I'm referring to conflicts of interest here. Do you think that former members of the CF are capable of functioning objectively when they perform their duties as members of the board?

[Bruno Hamel]

Thank you for the question, Mr. Chair.

There's a number of sub-questions in that question. I'll try to be brief.

The question of bias is one that has been raised and discussed in the House of Commons. I look at myself as a board member over the last four years. The issue of bias, whether real or perceived, was never raised once by a soldier whose grievance I was reviewing, or by a Canadian Forces authority, which decision was also reviewed, or by any legal counsel representing a CF member in the grievance process. It was never raised.

There is an objective test to be done by the decision-maker when an issue of bias is raised. In the last four years, I've never had to do this test. Before coming here, I asked my vice-chairperson about it. He has been in the position for eight years. The question of bias, real or perceived, was never raised for his attention in any files. In one way, that speaks for itself.

Yes, we do take an oath, and the oath is taken absolutely seriously. If you look at the last page of my opening statement, you'll see that I've put there some statistics from over the last five years. That will show you the trend of the board's decision-making powers and ability, because at the board we make decisions, and our decisions become recommendations.

When a board member sits on a case, he or she makes the decisions. You will see that the tendency is actually going the opposite way. Over the last two years, 55% of the time on the board, with previous military experience for board membership, we recommended totally or partially in favour of the member, versus 45% where we stated to the chief that the institution made the right call. If you look at the three years before that, the ratio was reversed: it was 55% and 45%.

Historically, we're currently now at 50-50, really, and we're not there to advocate for the complainant or the CF. As a tribunal, we take the oath seriously. We look at the facts. We apply the rules. We apply the law. We apply the jurisprudence. We make what we believe is the most appropriate finding and recommendation to the decision-maker. It just happens to be that we're close to 50-50, but the last two years at 55% and 45% are an indication.

I do not think that having a military person's experience hinders your ability to be neutral. Actually, as I referred to in my opening statement, it allows me, when I ask questions, to know where to go. I know what to ask. I know who to ask. I have a kind of sense if what I get as an answer is really the answer or not, and I'm not afraid to go back, because I know how to do it. Also, I'm surrounded by a good team.

[The Chair, Conservative, James Bezan]

Thank you very much.

The time has expired.

You have the last question of the second round, Mr. Strahl.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I will be giving my time to Mr. Alexander.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thank you, Chair.

I'd like to go back to this, seeing as how I didn't have a chance to put a question the first time. We've discussed in previous exchanges the difference between a civilian jury and a court martial panel, but I think it's particularly important for the committee and for Canadians to understand it. In fact, as one of my colleagues has already mentioned, the charter recognizes court martial panels at paragraph 11(f).

Building on your previous answers, I'm wondering if you could remind us of what the difference is between a civilian jury and a court martial panel and why that nuance—and there is a difference of principle as well—is of such fundamental importance to understanding the military justice system. It is protected by our charter and has been upheld by successive reviews so far, and actually by all the assessments that we heard, international and otherwise, as an exemplary system, albeit one that needs consistent, continuous updating.

[Dr. Ian Holloway]

Thanks very much, Mr. Alexander.

You know, this language has been used several times by members of the committee, that is, sort of slipping from panel to jury, jury selection, and so on. We mightn't like what the Charter of Rights says, but it's the Charter of Rights we have. The Charter of Rights clearly enshrined as a constitutional principle the notion that a court martial is different from a civilian jury trial. So it would be wrong, and I say this with respect to all of you, to take a view that the job is to deform the constitution, the clear language used in section 11 of the charter.

It boils down to the premise upon which the system of military justice exists, and that is something other than just the maximization of individual liberty. That's what the purpose is of our civil society in Canada. The purpose of military society is to maintain unit cohesion, discipline, and the willingness of people to place themselves in harm's way, and that's just different from what we expect.

There are people who know much more about the mechanics of the court martial than I do. I would happily defer to them. But in terms of the premises of the system of courts martial, I think just saying that we really have to make sure they're just like juries, and in fact we'll even slip into that language, would be contrary to the constitutional principles on which our country is founded.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thank you.

Monsieur Hamel, you're aware, as I think the committee is, of Order in Council 2012-0861 of June 19, 2012. We on the committee were reminded of this by our researchers regarding ex gratia payments by the CDS in the context of the grievance process.

The operative component of that order in council is this:

The Chief of the Defence Staff may authorize an ex gratia payment to a person in respect of whom a final decision is made under the grievance process established under the National Defence Act.

Could you comment on how this change, assuming the right Treasury Board authorizations are received, obviously, will represent, could represent, should represent, an improvement to the grievance process?

[Bruno Hamel]

Thank you for the question.

There's absolutely no doubt in my mind that this is an improvement on where we were years ago. However, in my view it's a limited advancement. It's somewhat limited.

I can tell you that since June, because I listened to what the Judge Advocate General said, and the VCDS, the other day, we have used this particular provision twice so far. In two cases we have made recommendations to the Chief of the Defence Staff that the ex gratia payment provision could be used, in our view, in two cases. These two cases are still pending, which is why there have been no decisions yet. So I can say before this committee that we've used it twice.

However, I must reiterate that, in our view, it is short of the Lamer recommendation to provide financial payment ability...like in tort, and ex gratia; it's somewhat limited.

I'm not a lawyer, but the way I understand ex gratia is that if there is a rule, if there is a regulation, that cannot be used to circumvent or to fill in a gap. So if Treasury Board has decided to limit in the CBI a specific benefit, ex gratia cannot be used to complement it, restrict it, backfill it, etc. It's limited to those rare exceptional circumstances where no other remedy is available.

So it is a pace forward. It is short, in my view, of the Lamer recommendation, but I cannot say it's a move backward. In all honesty, it's a move forward. We've used it twice so far.

[The Chair, Conservative, James Bezan]

Thanks. Time has expired.

We do know that the bells are going to ring sometime in the next five to ten minutes. We also have some committee business that we need to deal with. In light of that, I have time for only one question per party. I'd ask each person to keep their question very short.

Mr. Harris, for the NDP.

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

Thank you, Chair.

To Dean Holloway, I'm not going to play lawyer with you, even though we're both lawyers and we both have Q.C.s, etc., but I will ask you to answer one question about the Charter of Rights, because you brought that up in the context of the issue of the right to trial by jury.

That's excluded in one part of section 11 of the Charter of Rights, only one section, where it says “except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury”. You don't have the benefit of trial by jury, but the implication—and this is a legal implication—is that all the other rights you have in section 11, or in any other part of the charter, are available to you.

Would you agree with that?

[Dr. Ian Holloway]

That's subject to section 1.

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

Everything in the charter is subject to section 1.

[Dr. Ian Holloway]

Yes, but—