Transport Committee on Feb. 13th, 2014

[The Chair, Conservative, Larry Miller]

We'll call our meeting to order.

First of all, I'd like to thank our witnesses for being here. I appreciate it. Mr. Watson, just before we start, you....

[Jeff Watson, Conservative, Essex, ON]

Yes, Chair. I want to withdraw some remarks I made at this committee regarding the chief opposition critic at the last meeting. My facts were entirely incorrect, and I withdraw them unreservedly and with apology.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Thank you very much. I really appreciate it.

[The Chair, Conservative, Larry Miller]

Thank you.

With that, I'll turn it over to.... I don't know to which one of you, Mr. Dittmann, Mr. Armour, and Mr. Charpentier?

[Colonel Steve Charpentier, Director of Flight Safety, Department of National Defence]

Mr. Chair, good morning. It will be me.

I am colonel Steve Charpentier, the Director of Flight Safety for the Royal Canadian Air Force. I am also the Airworthiness Investigative Authority for the Department of National Defence and the Canadian Armed Forces, known throughout the air force as the AIA.

I am joined by Lieutenant Colonel Paul Dittmann, Chief Investigator, and Jim Armour, Senior Investigator, both from the Directorate of Flight Safety, as well as Alex Weatherston, Legal Counsel from the Office of the Legal Advisor to the Department of National Defence and the Canadian Forces. They all worked on the development of this bill.

The Airworthiness Investigative Authority, or AIA as I will abbreviate, is currently delegated, through a chief of defence staff order that was made on behalf of the Minister of National Defence, the necessary powers and duties to support the airworthiness and flight safety programs for the Canadian Forces and the Department of National Defence.

Thank you for allowing me to make some introductory remarks to this committee on the proposed amendments to the Aeronautics Act.

I would first like to say that these amendments are critical to the continued success of aviation investigation under both the Department of National Defence airworthiness program and the Canadian Forces flight safety program.

By correcting multiple deficiencies that presently exist within the Aeronautics Act, these amendments will provide appropriate tools for the Minister of National Defence to execute the statutory Aeronautics Act requirement to investigate aviation occurrences.

As the airworthiness investigative authority, I have the Minister of National Defence's delegated statutory responsibility to investigate matters of aviation safety for the Canadian Forces as part of the department's airworthiness program. Additionally, as the director of flight safety, I'm charged with the maintenance and implementation of the Canadian Forces flight safety program. In order to continue to carry out my airworthiness investigative authority function in a transparent, competent, and independent manner, the powers contained in the proposed amendment are essential.

Please note that the sole purpose of investigation carried out under both the airworthiness program and the flight safety program is to identify military aviation safety deficiencies and to make recommendations to eliminate or reduce the recurrence. An important concept within this process is that these investigations are not used for disciplinary or administrative purposes. This promotes a free and open reporting culture because the outcome of the investigation process is a blameless series of findings and recommendations aimed at prevention.

However, over time there have been changes to the way that the Royal Canadian Air Force's operation and training are conducted, and these changes have led to concerns in the capacity for the airworthiness investigative authority and his delegated investigators to investigate military aviation safety matters, particularly when civilians are involved.

The National Defence Act provides legal authority in respect of persons subject to the code of service discipline, meaning military members of the Canadian Forces. This authority works very well to investigate the military elements within the Canadian Forces because lawful orders may be given to ensure the cooperation of military personnel during the course of military aviation investigations. However, the National Defence Act does not generally apply to civilians and civilian contractors who are becoming increasingly more engaged in our air operation and training, with activities ranging from total maintenance of search and rescue and transport fleets to the lease of civilian-owned training aircraft at the flying training centres in Moose Jaw and Portage la Prairie.

Next I would like to point out that the civilian Transportation Safety Board is prohibited by the Canadian Transportation Accident Investigation and Safety Board Act from investigating military aviation accidents unless they involve civilian aviation facilities or non-military aircrafts, in which case the investigation must be coordinated with the airworthiness investigative authority.

So while the Minister of National Defence is responsible under the Aeronautics Act for military flight safety investigation, military investigators have no appropriate legal means to deal with civilian and civilian contractors involved in military aircraft accidents. To respond to this deficiency, the proposed Aeronautics Act amendments import many powers and provisions that are largely consistent with those that the Transportation Safety Board utilizes for investigating civilian accidents. This strategy will enable these powers to be used by the airworthiness investigative authority and its delegated investigators to properly conduct the investigation that they have been charged to carry out regardless of the occurrence, the location, or who is involved. Furthermore, civilians and industry that support military aviation will be completely familiar with the investigation process because essentially the same investigative powers will be utilized by both the airworthiness investigative authority and the Transportation Safety Board.

However, there are some differences with the proposed Aeronautics Act amendments when compared to the similar provision of the existing Canadian Transportation Accident Investigation and Safety Board Act, which I would refer to as CTAISB act. I would like to take the time to explain these differences, most of which deal with on-board recorders and the use of data from such devices.

The amendments will permit the on-board recorder of an aircraft operated by or on behalf of the Canadian Forces to be made available to military boards of inquiry convened under section 45 of the National Defence Act. Similar to the requirement in subsection 28(6) of the CTAISB act, when a civilian court or coroner must decide when a request is made for the production and discovery of an on-board recorder there is a test in subsection 23(1) of the amendments to the Aeronautics Act by which a military on-board recorder would be made available to a board of inquiry if the public interest in the proper administration of the Canadian Forces outweighs the privilege associated with the on-board recorder. The Minister of National Defence would make the final determination of the balancing of these interests. This provision is a welcome process change considered necessary to avoid a circumstance where, at present, one Canadian Forces authority, the AIA, might be in court trying to protect an on-board recorder while another Canadian Forces authority, the board of inquiry, would be in the same court attempting to get access to the on-board recorder.

Also, unlike under the CTAISB act, the new legislation provides that on-board recorders that are made available for a board of inquiry could subsequently be used in other proceedings that relate to determining the capacity or competence of an occurrence crew member who is a military member. This would not include any use of an on-board recorder in any military disciplinary proceeding. On-board recorder use in capacity or competency proceedings is considered appropriate given the need to safeguard the military aviation assets necessary for the defence of Canada.

As well, the AIA may authorize the use of on-board recorders for purposes other than aviation safety investigations that are in the interests of aviation safety, such as for debrief or training tools. This allows dual purpose systems, such as a head-up display with voice, to be fully employed both as an on-board recorder and a flight line training aid. This is seen as a great savings of resources for the Canadian Forces while facilitating safety investigations.

Finally, under the amendments, the AIA will provide reports to the Minister of National Defence, whereas under the CTAISB act, the Transportation Safety Board makes its reports public. This is appropriate given the AIA's wider scope of investigation and reporting, which may include operational and other classified information. It is expected that the Minister of National Defence, consistent with current practice, will permit the AIA report to be made public, less any items that could compromise operational and security considerations.

Another related problem is the inability to obtain information critical to flight safety investigation from civilian companies and individuals. Civilian companies and individuals have a wealth of technical data and could be a valuable source of feedback after reviewing a draft investigation report.

However, there is currently no penalty for unauthorized or premature release of information in a draft report, given that early release of such information could compromise an investigation. This leaves the Canadian Forces reluctant at present to consult civilian companies and individuals in the review process. These release problems will be solved by the provision of amendment that will prohibit by law the release of information in draft investigation reports.

In summary, the new proposed part II of the Aeronautics Act will enable the Department of National Defence to execute its statutory Aeronautics Act requirements by providing military investigators with the appropriate powers to conduct full and proper investigations into military aircraft accidents that may involve civilians.

Military investigators will be thoroughly trained in respect of all aspects of the new powers before being allowed to exercise those powers.

The amendments will also facilitate the sharing of information with the Transportation Safety Board for coordinated investigations, since both offices will have essentially the same obligations to protect information.

Last and most importantly, the proposed amendments are critical for improving the ability of the Canadian Forces and the Department of National Defence to ensure the safety of the men and women in the military aviation community, civilians involved in military aviation and the general public.

I am ready to answer any questions that the members of this committee may have.

Thank you.

[The Chair, Conservative, Larry Miller]

Thank you very much.

That's it for the presentation. If no one else wants to add anything at this time you are open for questions.

With that we'll move to Ms. Michaud for seven minutes.

[Olivia Chow, NDP, Trinity—Spadina, ON]

On a point of order, Mr. Chair, I believe that we need to shorten the meeting on February 27 because we need to be in the House at around 10:15 or so—

[The Chair, Conservative, Larry Miller]

Ms. Chow, I've already taken that into note and I think there shouldn't be any problem shortening the meeting by 10 or 15 minutes, but it will allow all of us there. That was my intention.

[Olivia Chow, NDP, Trinity—Spadina, ON]

If you could perhaps extend the meeting on Tuesday February 25 so that we will make up, because some of the witnesses may have traveled a long distance. We only have two meetings for witnesses in that week.... I'll let you make that—

[The Chair, Conservative, Larry Miller]

Well, we'd have to have consent from the whole committee for that. Just to note, February 25 and 27 will be different witnesses.

[Olivia Chow, NDP, Trinity—Spadina, ON]

That's true. Would 15 minutes be adequate, or do you need half an hour?

[The Chair, Conservative, Larry Miller]

Sorry?

[Olivia Chow, NDP, Trinity—Spadina, ON]

How much time do you need from our meeting on February 27 in order to get to the House? Just a few minutes?

[The Chair, Conservative, Larry Miller]

I would say 10 minutes, max. That would end the meeting at 10:35, and we don't have to be up there until 11:00 or 10:55.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Then it doesn't matter. Don't worry about it if it's only 10 or 15 minutes. I thought it was half an hour.

Élaine Michaud is the deputy critic for National Defence for our party. That's why since the defence folks are here—

[The Chair, Conservative, Larry Miller]

So who's taking the first round?

[Olivia Chow, NDP, Trinity—Spadina, ON]

She is taking the first round.

[The Chair, Conservative, Larry Miller]

Okay. Ms. Michaud, seven minutes.

[The Clerk of the Committee, Mr. Philippe Grenier-Michaud]

If the committee consents that Ms. Chow can be present in the room....

[The Chair, Conservative, Larry Miller]

Any member can be present, that's not an issue.

[The Clerk]

The question is the question of substitution. Because Ms. Chow is an official member of the committee, if she is substituted she needs to not be present for the substitution to be valid, or you can give consent to Ms. Michaud to ask any question that she wants.

[The Chair, Conservative, Larry Miller]

Okay. Let's use some common sense here.

Ms. Michaud, seven minutes.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Thank you very much, Mr. Chair.

I want to thank the witnesses for joining us.

I would like to quickly go over one part of your presentation to clarify something. You say that the investigations carried out by the Airworthiness Investigative Authority will be open and transparent. Did I understand correctly that investigation reports will be made public?

[Col Steve Charpentier]

Allow me to clarify.

Since the 2000s, once an investigation is completed, the relevant report is published on a website available to the general public. All investigations, without exception, are published in that manner.

My responsibility is to submit investigation reports to the Minister of National Defence, to whom I report as an employee of the Canadian Forces. By making our investigation reports public, we are demonstrating the transparency and thoroughness of our investigations. There aren't any problem when it comes to that. No changes are made to the reports before they are published on the website. That is one of our obligations. Even in exceptional cases, we could not circumvent the Access to Information Act, so it would always be possible to obtain investigation reports in this manner.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

What kinds of cases would be exceptional? Earlier, you talked about operational considerations. Could other factors justify an exception?