National Defence Committee on Feb. 6th, 2013

[The Chair, Conservative, James Bezan]

Good afternoon, everyone. We're going to get on with meeting number 64.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Chairman, I have a point of order.

In light of the minister's recent announcements about changes in the senior leadership of the Canadian Forces, I wonder whether you and the committee would see it in order to offer our formal thanks to some of the people who have appeared—well, really all of them: Devlin, Maddison, and Donaldson. Donaldson was here on Monday. All have had exemplary careers. All have served this committee well in terms of our understanding of military.

We could include a corollary letter offering congratulations to those replacing them and stating that we look forward to having them appear before our committee and inform our committee. I wonder whether that would be in order, whether it would be favourably received by the committee as a formal thank you along with a secondary letter that would formally congratulate and welcome the replacements to our committee.

My suggestion would be that it be signed by you, and by me and Mr. Harris as vice-chairs of the committee, so that it is, and is perceived to be, a completely non-partisan gesture.

[The Chair, Conservative, James Bezan]

I'd say the motion is out of order. It's not on topic. There are ways to deal with motions like these, through written submissions, in both official languages, circulated to committee members.

However, based upon the good nature and goodwill expressed in the motion, I would be open, if the committee so wishes, to concur in....

Mr. Harris, on that point of order.

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

Mr. Chair, I'm taken a little bit by surprise, although I was told about it a few minutes ago, before the meeting started.

I'd certainly have no difficulty thanking those whose retirement has been announced, thanking them for their service, although I don't know if they're leaving just yet, so it may be a little premature.

As to the new appointees, we'll have an opportunity when the new appointments are made and we get notice of them, if they are Governor in Council appointees. Then we would have an opportunity to bring them before the committee and speak to them about their new roles.

I have no difficulty with thanking the outgoing vice-CDS and commander of the army, but....

[The Chair, Conservative, James Bezan]

Mr. Alexander.

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

Mr. Chair, I'm happy to concur with the proposal, if you agree with it, and to leave the details of who should receive such letters to the three of you to work out and not waste further committee time.

[The Chair, Conservative, James Bezan]

We have unanimous consent to move ahead with the letters of thanks and appreciation, and congratulations on the retirement of the outgoing generals and admirals, and go on from that standpoint. We shall do that. Thank you.

With that, let's get on with our business at hand, which is the study of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

Appearing as a witness today is Professor Ian Holloway, who is the dean of the faculty of law at the University of Calgary. From the Canadian Forces Grievance Board we have Bruno Hamel, who is the chairperson. Appearing as an individual is retired Lieutenant-Colonel Jean-Marie Dugas, who is the former director of the Canadian Forces defence counsel services.

Thank you all for appearing. I hope you can keep your opening comments to less than 10 minutes.

Professor Holloway, you have the floor.

[Dr. Ian Holloway, Professor and Dean, Faculty of Law, University of Calgary, As an Individual]

Thank you very much, Mr. Chairman, and thank you, members, for inviting me to speak to you today. I will be happy to answer questions from any of you about any of the provisions of the bill before you.

I thought that probably the most useful thing I could do is tell you a bit about myself and my own perspective on this and then talk about how I see the context of legislation like this.

As the chairman noted, I am currently the dean of law at the University of Calgary; formerly I was the dean of law for 11 years at the University of Western Ontario. I've been a member of the bar for 26 years now, and I hold the rank of Queen's Counsel in Nova Scotia.

Unusually, I think, for someone appearing before you, I also spent 21 years in the Canadian Forces, as we would say in the navy, as a rating, or in today's language, as a non-commissioned member. I had the experience of having been subject to the code of service discipline and to the apparatus of the military justice system for well over half my adult life. Perhaps that gives me a different perspective from that of some of the people you'll hear from who may have military experience but not from the perspective of an enlisted person.

I think my experience in discussing things like this with people whose background is primarily civilian is that the hurdle is not so much in the details but in appreciating the very different social contexts in which the system of military justice exists.

The purpose of a civil society, the society that we all live in, is to maximize freedom, to maximize liberty, to minimize the interference in our personal liberties by the state.

The purpose of military society is to protect civil society. To do that, we Canadians need a body of people who will do unnatural things. When ordered to do so, they will place themselves in harm's way, and when lawfully ordered to do so, will take the lives of other people, from which there is no lawful recourse. If a lawful order is given to take the life of another person, the only alternative for a service person is to comply with that order. To a civilian, that's a very unnatural way of structuring a social organization, but like every society governed by the rule of law, we need that. We need the police to protect us from within and we need the armed forces to protect us from without.

The price we pay for demanding that very unnatural commitment from members of the armed forces is that we have to be willing to accept that their values can be different from ours, not completely, but profoundly in some ways. That is they place a premium on social cohesion and on the maintenance of internal discipline and order that is alien to civilians. When comparing our system of justice, the civilian system of justice, with the military system of justice, it's very easy for us to assume that we're making an apples to apples comparison, when the underlying premise of society, this social organization, is really quite different.

I had a chance to study the bill and in my submission it represents an attempt to draw a balance between the appropriate relevant needs of the military to maintain fighting order and efficiency. Remember, even when the military is engaged in peaceful operations, it's able to accomplish them because it is a fighting force. It's a balance between the need of the military to maintain its effectiveness as a fighting force, a balance of that along with an attempt to, as much as possible, provide service people, people who make a tremendous sacrifice for us, with as much protection and liberty that is consistent with the need to maintain a fighting force.

Mr. Chairman, that's what I'll say by way of opening remarks. As I said at the beginning, I'd be happy to take questions from you or any member of the committee later on.

[The Chair, Conservative, James Bezan]

Thank you, Professor.

Next up, we're going to hear from Mr. Hamel. I forgot to mention that he is also a retired lieutenant-colonel and served for a number of years. He was deployed to both Bosnia and Zaire.

We look forward to your comments.

[Bruno Hamel, Chairperson, Canadian Forces Grievance Board]

Thank you, Mr. Chairman.

Mr. Chair, honourable members, good afternoon.

It is a pleasure to be here with you today to answer your questions concerning the role of the Canadian Forces Grievance Board in the military grievance process, given that there are provisions in Bill C-15 that directly affect us.

I would like to begin by giving you an introduction to the board.

In operation since June 2000, the Canadian Forces Grievance Board is a quasi-judicial tribunal, independent from the Department of National Defence and the Canadian Forces. It is, in effect, the only external component of the Canadian Forces grievance process

Since its creation, the board has earned a reputation as a centre of excellence in analyzing and resolving military grievances. It has developed substantial expertise on a variety of subjects relating to the administration of the affairs of the Canadian Forces. In addition to reviewing individual grievances, our work enables us to identify larger trends and areas of dissatisfaction, which we are then able to share with the senior leadership of the Canadian Forces.

In law, the board is mandated to review the grievances referred to it under the National Defence Act and the Queen's Orders and Regulations for the Canadian Forces.

Operationally, the chairperson is responsible for delegating the work among board members. Once a grievance is assigned to a member, he or she is responsible for the review of the file, as a sole member. Upon completing the review of the grievance, the board member simultaneously submits findings and recommendations to the Chief of the Defence Staff and the griever, and the Chief of the Defence Staff is the final authority. The Chief of the Defence Staff is not bound by the board's findings and recommendations; however, he must provide reasons, in writing, should he choose not to act on them.

Turning now to Bill C-15, I am pleased to note that the bill includes a proposed provision that would change the board's current name to military grievances external review committee. This may appear to be a minor matter, but it is in fact an important change, and one that has been long sought by the board.

The board has found that its current name often leads to misunderstandings and complications. The proposed name change will lead to a better understanding of the specific and unique role for which the board was created. It will also underline its institutional independence while clarifying its mandate. In his December 2011 report, Justice LeSage agreed with the board’s reasoning, and supported the name change, in recommendation number 48.

Bill C-15 is intended to be the legislative response to the report on military justice submitted several years ago by late Supreme Court of Canada Chief Justice Antonio Lamer. Therefore, I would like to reaffirm the board's support for the 18 recommendations related to the grievance process that are included in his report.

Several of the recommendations have already been implemented and others are included in Bill C-15. Unfortunately, three recommendations that specifically relate to the board and that were intended to facilitate its work do not appear in the bill. One of these recommendations proposes that board members be permitted to complete their caseload after the expiration of their term. A second would provide the board with a subpoena power, while the third calls for the alignment of the board's annual report with the fiscal year rather than the calendar year. To give effect to these recommendations, legislative amendments to the National Defence Act will be required.

The importance of these three recommendations cannot be overstated. For example, the inability of board members to complete the review of their assigned grievances following the expiration of their term has recently had negative consequences for the board directly. From file receipt, it takes, on average, two to three months for a board member to complete their review and issue their findings and recommendations report. Accordingly, last fall, I was unable to assign grievances to three experienced board members during the last three months of their tenure, despite having files that needed to be reviewed.

I would now like to turn to an ongoing matter of concern for the board, that only certain types of grievances are sent to the board for review. The National Defence Act places no restrictions on referrals to the board. However, under the regulations, only four types of grievances must be referred to the board. This represents approximately 40% of the grievances that reach the final level of the grievance process. Other grievances can also be referred to the board, on a discretionary basis.

Because of this, the majority of Canadian Forces members whose grievances reach the final level do not benefit from the external and independent review of their grievance by the board. We believe that every Canadian Forces member should, at the final level, have their unresolved grievance reviewed by the board, regardless of the subject matter. This is a question of fairness, transparency, and access, concerns that were raised by Chief Justice Lamer in his report.

As you may also be aware, the latest review of the National Defence Act completed by Justice LeSage last year made a recommendation to the effect that any grievance not yet resolved to the Canadian Forces member's satisfaction should be reviewed by the board once it reaches the final authority level.

In Justice LeSage’s opinion, the board’s review would provide a more balanced input to the Chief of the Defence Staff. The board shares this view and feels that if all unresolved grievances were reviewed by the board, Canadian Forces members and the Chief of the Defence Staff would benefit from an independent and expert review, and the board's potential to contribute to the grievance process would be optimized.

The board firmly believes in the benefits of a new model of referral, as supported and recommended by Justice LeSage. We are optimistic and hopeful that it will be adopted and implemented by the Canadian Forces.

Finally, during the debate on Bill C-15 in the House of Commons, I noted the interest of many honourable members in the makeup of the board. Some members proposed that 60% of the board's members should not have any experience within the Canadian Forces.

While the appointment of board members is the responsibility of the governor in council, as the chairperson, I would like to take this opportunity to share with you some of my experiences, as well as my concerns on this issue.

The independence of the board is essential for delivering on its mandate. The board is not part of the Canadian Forces or the Department of National Defence. It is established by statute, and board members, as mentioned before, are appointed by the governor in council. The chairperson, vice-chairpersons and board members serve during good behaviour, not at pleasure, for a term not exceeding four years and can be reappointed. The chairperson is the chief executive officer of the grievance board, supervising and directing its work and staff.

Finally, as a deputy head, the chairperson is accountable to the portfolio minister and before Parliament for ensuring that the board functions effectively and fulfills its mandate. These, in my opinion, are all safeguards already in place that provide for the independence of the board.

That being said, the independence of the board from the Canadian Forces must be shielded and preserved. However, as I testified during my previous appearance before you in February 2011, the current statute does not provide such protection. Section 29.16(10) of the National Defence Act allows for the appointment of an officer or a non-commissioned member, on secondment, to the board as a board member.

One of the fundamental reasons for the creation of the board was the provision of an external review to the Chief of the Defence Staff and to the Canadian Forces members who submit a grievance. Should a serving Canadian Forces member be appointed as a board member, the board’s independence from the chain of command would be in jeopardy. In his report, Justice LeSage recommended that serving Canadian Forces members not be appointed as board members. I agree.

I hope that through the work of the honourable members of this committee, consensus can be reached during the review of Bill C-15 so that this provision is removed from the National Defence Act. This would go a long way in ensuring that grievances are reviewed independently and externally from the Canadian Forces.

With respect to the composition of the board, after four years as the chairperson, I can attest that having a military background is definitely an asset for a specialized tribunal like the Canadian Forces Grievance Board. That being said, I also believe there is a place for diversity among board members. In fact, in his report, Justice LeSage indicated, “appointments made to the Board/Committee should reflect a variety of backgrounds, including persons who do not have a military background.”

Knowing that the board’s mandate is entirely devoted to the review of military grievances, I believe it would be a mistake to exclude potential candidates on the basis of previous military service or simply because a set quota has been reached.

Experience and knowledge of the Canadian Forces, a complex, dynamic, and unique military organization, is undoubtedly an asset. As with many other existing specialized tribunals, boards or commissions, experience and knowledge of the profession from which the acts, decisions, or omissions being reviewed have originated is always considered an asset, if not a requirement.

It is not unusual for professionals to review professionals. The profession of arms should not be treated any differently. Board members with previous Canadian Forces experience understand the language, the structure, the modus operandi, and the culture of the profession. Their knowledge allows them to understand issues faced by the griever and to put arguments in context and perspective. Their experience allows them to ask the sometimes probing questions and to question the right individuals.

In my opinion, having some military experience, especially in the context where currently all unresolved grievances, regardless of type, may ultimately come to the board for a review, should be viewed as an asset rather than an impediment or employment limitation.

In addition, imposing a quota may also delay the appointment process given that labour, employment, and regulatory law in a military setting may not be so appealing to many, particularly in the cases of part-time board members. Ultimately, it is my belief that the decision by the Governor in Council to appoint a board member should be based on competency, experience, and knowledge. Only the best candidates should be appointed, regardless of their background. Canadian Forces members, the Chief of the Defence Staff, and Canadians deserve no less.

Mr. Chair, in conclusion, the board welcomes the name change proposed by the bill, believes in the benefit of having all unresolved grievances reviewed by the board at the final authority level, requests the removal of the statutory provision allowing serving Canadian Forces members to be appointed as board members, and supports board membership diversity where competencies are not compromised.

I thank you for inviting me to speak here today. I would be pleased to answer your questions afterwards. Thank you.

[The Chair, Conservative, James Bezan]

Thank you very much.

Monsieur Dugas.

[Jean-Marie Dugas, Former Director, Canadian Forces Defense Lawyers, As an Individual]

Good afternoon.

Mr. Chair, members of the committee, I would like to thank you for inviting me to take part in the discussion on the amendments to the National Defence Act. Appearing before you is an honour, and I will do my utmost to rise to the occasion.

This year will mark the 10th anniversary of the Lamer report. There were very good basic principles in that report. Mr. Lamer said that unless there was a very good reason to have discrepancies between the National Defence Act and the Criminal Code, then the act should be as close as possible to the Criminal Code.

I intend to keep my comments brief.

I wish to make three points that I feel are very important and that I would encourage you to consider.

I fail to see any reason for panel members to exclude any ranks of the Canadian Forces at a court martial. If you look at the section, we don't treat officers the same way as we treat privates. When you look at that under the Criminal Code, those same privates, with the same people involved—because you know that on some occasions both a court martial and a civil court have jurisdiction over a case, so you could see a case where a high-ranking officer would be charged with, for example, assault or sexual assault—could be called and be members of the jury, but in the forces, he would be precluded and excluded. If that same private is charged with any offences, he is not entitled, under my reading of the act, to have a peer appear there, because the lowest rank would be sergeant.

Again, I suggest that there is no reason to have that kind of discrepancy.

The second part on that panel, if you look at the National Defence Act and the way it's done, contrary to the criminal civil court, none of the parties in court have any say in who the panel members will be. There's no challenge process. There's an informal one where you can have a look at the people, but it's only at a court martial.

I understand that there would be something to be made out of that. It has to be addressed differently because sometimes the court martial is far away, but with the technology today, I suggest that the court martial administrator should have some responsibilities toward both the prosecution and the defence in the selection process. You end up with panel members at a court martial and you don't know how they've been selected.

The process is also said to be random, but at the end of the day, it is more or less clearly explained.

Lastly, as a former director of the Canadian Forces Directorate of Defence Counsel Services, I would point out one thing. While it is positive that the four-year term can be renewed, keep in mind that renewal is once again at the discretion of the authorities.

By its very nature, the role of the director of the Directorate of Defence Counsel Services is somewhat at odds with the organization. Indeed, in light of all the amendments, the various courts and the motions related to the likely amendments to the National Defence Act, the director may be the target of some animosity. It's human nature.

From my experience, I would once again suggest that the term of the director of the Directorate of Defence Counsel Services be renewed at the director's request, instead of further to a decision by the administration.

Thank you. I would be happy to answer questions.

[The Chair, Conservative, James Bezan]

Thank you. We appreciate those opening comments.

We're going to go to our seven-minute round.

Mr. Harris, you have the floor.

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

Thank you, Mr. Chair.

I want to thank all of our guests for coming here today and offering their opinions and experience to the committee.

This is a complex bill in the sense that there are a lot of clauses that we're dealing with here. Some of them have to do with relationships, as Ian Holloway has pointed out, in terms of the nature of military justice and it being a different system.

I think we all recognize the importance in the military context of having a disciplined system that responds to the operational needs. As Dean Holloway pointed out, in an extreme situation where the taking of a life is part of an obligation that one is required to do, I'm sure implied in that, Dean Holloway, is the qualification that unless such an order is unlawful, in which case one would be required to refuse. These are not black and white situations we are dealing with. We are dealing with degrees. All three of you have been in the military, so perhaps you could all offer your opinion on that.

One of the concerns that we have raised on this issue this time out and the last time with Bill C-41 was the attraction of criminal records to service offences. There are quite a lot of them, as we know. We do know that the procedure for some retrials is rather bereft of procedural protections that would normally be attracted in a civil trial, and yet we end up with individuals getting criminal records. There are dozens of offences. I add to that the fact that, based on the last records that we have here from the JAG, there are some 2,500 offences per year in a relatively small force—65,000 regulars and another 20,000 or so reservists—most of which are tried by summary process. That's only for one year. If you're in for five or ten years, what percentage of our forces come out having served and being subject to the kind of discipline we're talking about—for good reason—end up with criminal records for which no pardons are available? Now they have something called a record suspension. Isn't there something wrong with that, and shouldn't we try to find a way to fix it?

I'm inviting all of you, because I know you're junior ranks, Dean Holloway, and others have served as officers, so there are different perspectives here.

[Jean-Marie Dugas]

Actually, I have a small contribution. It's been there for a long time, and that's highly unfortunate, and your point is very good. You will see over the years that we have in the Canadian Forces what was called a conduct sheet. The members who were going out of the forces who had been convicted of an offence, if they wanted to have it pardoned, they had to basically open a criminal record to get the pardon. Some of these offences were very minor offences that we would not normally be charged with on the city streets. Your point is extremely valid. It should be really in a frame where it's clear that those officers are not subject to be charged for offences that would go into a criminal record.

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

Any others?

[Bruno Hamel]

For myself, I'm unfortunately unable to contribute to this part of the conversation because disciplinary matters are excluded from my mandate. I don't look at disciplinary matters at all.

[Dr. Ian Holloway]

We chatted about this the last time I was here, Mr. Harris, and I agree with you. In effect, this bill, I think, accomplishes what you've just said, that for most offences that are triable only by summary process, a criminal record will not attach. For those offences where a criminal record will attach, as I read it, the accused service person has an election. They can elect to choose trial by court martial. I am reasonably confident that this bill addresses the concern that I heard you raise last time and that you've just raised now.

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

I don't want to be correcting you, but, in fact, amendments were made last time that did go some considerable way in removing the number of offences that were to be subject to a criminal record. Unfortunately, that amendment did not appear in Bill C-15 when it was presented to the House. We're kind of back to square one here and we're having that debate this time out, although there's some suggestion there may be an amendment coming forward.

[Dr. Ian Holloway]

Didn't the minister undertake to you to resubmit? I don't know. I just know what I read in the paper. You're in the know, not me.

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

I'm just telling you, in the bill that's now before this committee, Bill C-15, of the six or eight amendments that were made last time, only one of them appeared in this bill when it was submitted to the House.

[Dr. Ian Holloway]

I think the essential fact is that, I can't say in every case, but in most cases where a criminal record would attach, the person has the right to elect a trial by court martial.

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

Let me ask you this question because I've asked it of a lot of people. You were an enlisted guy as opposed to an officer. I think, of these 2,500 offences per year, 60 to 80 of them are charged by court martial.

If someone said to you, “Young man, we're going to charge you with this offence. Now, you have a choice. You can be court martialled or you can go to the CO and the CO will take care of it this afternoon and you'll probably get this...”, how many people in your circumstances, and never mind your law degree and all of that stuff.... When an ordinary guy is caught doing something, being drunk and disorderly, AWOL, or whatever, how many people are going to choose a court martial?

[Dr. Ian Holloway]

The evidence would suggest very few, but the fact is that a well-trained divisional officer will explain this, because before you elect, you are interviewed by your divisional officer and he or she will explain that to you, and explain the consequences of the choice you will make.

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

But there is no right to counsel at that stage of the proceedings, and they don't have access to legal advice. The choices that are made in those circumstances are made in the context of, “You've got a choice, soldier. You can deal with it this afternoon or tomorrow morning or you can go—”