National Defence Committee on June 10th, 2010

[BGen Bernard Blaise Cathcart]

That is again a good question. No, there are not two different systems. In fact, for those who at least follow it in the press, those who actually attended General Menard's court martial at Asticou in Gatineau saw that it was exactly the same process that a private would have gone through if he or she was in the same circumstances.

I think what you're referring to is whether the system is transferrable or deployable. The short answer to that is yes: our system is designed so that we can hold courts martial in theatre. We already hold summary trials in theatre. In fact, currently you may be aware that in the court martial of Captain Semrau, which is ongoing, the court is actually in Afghanistan—if not right now, next week—and they will be interviewing witnesses and looking at various aspects of that case.

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

Mr. Cathcart, why was General Ménard brought back to Canada for the investigation and court martial proceedings? Was there a reason for that?

[BGen Bernard Blaise Cathcart]

Yes, Mr. Chair. When the court martial is scheduled, the scheduling is done by an officer within the judge's office who is called the court martial administrator. They work with all the players—the judge, the defence counsel, and the prosecutor—to determine when and where a court martial can take place.

My understanding of this was that all those parties were consulted in the process. Of course, what we're trying to achieve is a fair trial, but an expedient and quick one. Especially when you're dealing with a commander, it has to be dealt with swiftly in terms of the individual and the impact on discipline. Because he is at the top of the discipline chain, we have to move quickly.

If there was consideration that the trial could have been done more quickly in theatre...I'm sure that was considered and could have been done; I don't know the reasons. It's not for my questioning at this point, but it wasn't a question of the status of the individual, of him being a general, that the court martial was back in Canada.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you very much, General.

We'll now go to Mr. Harris for seven minutes.

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

Thank you, Chair.

Thank you, General, for your remarks and for your appearance here this morning. I will say as well that your credentials are extremely positive.

I'm also very proud to see that our forces have such capable, experienced, and clearly top-of-the-line people in this type of position. I want to congratulate you on your resumé. I will say, as a fellow graduate of the London School of Economics LL.M. program, that your distinction in receiving these awards that are listed here, not only for LSE, but for all of the University of London students, is indeed a great distinction, and I want to congratulate you on that. The people who were in this program are not your average lawyers, so your distinction there is indeed a mark of your ability.

On that line, I'm impressed by the topic of your dissertation. I wonder if you could make available a copy of it to our committee for our perusal. This is certainly very topical in view of the events of the last couple of years and certainly of the last six months in the House.

I don't want to dwell overly on the issue of solicitor-client privilege, but it has obviously been an issue in this committee this morning and before. I will say that I've researched this issue extensively from a parliamentary privilege point of view in the recent while.

I understand that parliamentary committees would not willy-nilly seek to have solicitor's advice before a committee, and I think the principles that are at work here is that parliamentarians should act with great restraint. I appreciate the diplomacy of your answer to the first rounds of questions.

I take it, though, and assume that at the end of the day you would recognize, after the proper process with the kinds of procedural protections that may be required, the supremacy of parliamentary privilege in these matters, in accordance with the rulings, history, and the place of parliamentarians in our legal system. Would you not?

[BGen Bernard Blaise Cathcart]

Mr. Chair, yes, of course, I recognize the supremacy of parliament. It's clearly stated in the opening of our constitution. However, to make the analysis from the supremacy of parliament down to the various specific issues at a specific given moment in time, I think there's a causal link that certainly as lawyers we have to analyze and see how far...and what impact that supremacy concept actually has.

Because you know very well, Mr. Chair, that as legal counsel and lawyers who are active members and current members of any bar in Canada, we are bound by that. I'm not sure of a more fundamental precedent or concept within the practice of law than the solicitor-client privilege.

Again, we can debate the policies over many, many years as to why lawmakers and courts have interpreted it that way, but again, given that my role here is largely to talk about my qualifications, that would probably be left for another day.

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

Well, I guess the question is not a simplistic question of Parliament versus a particular obligation that you may have to your client. The issue is the interpretation of parliamentary privilege, which is also part of the law. I guess we can leave it for another day, but I take it that you, as a public servant, would abide by rulings of the Speaker or the chair in dealing with issues of that nature at the end of the day.

[BGen Bernard Blaise Cathcart]

Mr. Chair, I will abide by the rule of law and all the law that bounds me.

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

That'll do it, because it is a part of the law. That's fine.

Tell me, maybe just as a background for some of us here, you as the Judge Advocate General, do you have...? The judges within the court marshal system, are they lawyers who are not necessarily under your direction, but under your team--the judges, the defence counsel, the prosecutors...?

How do you manage to keep your distance, as it were, from the process of an independent judge in a court martial, an independent office of prosecutors who make decisions about prosecutions and the charges, and on the other side, the defence? You did say that defence counsel is appointed. What role is in the appointment process versus a choice of a soldier who may be subject to a court martial?

Within your bailiwick, how do you manage all of these Chinese walls, if you will, between the judges, the defence counsel, and the prosecution? Can you explain that a little bit?

[The Vice-Chair, Liberal, Bryon Wilfert]

General, you have about a minute and a half to do so.

[BGen Bernard Blaise Cathcart]

Thank you, Mr. Chair.

Thank you for that question. It's another very good one for me to talk about the military justice system, which I believe is an outstanding and reputable system. One of my goals will be to educate the public much more, because there is not a lot of common knowledge in the Canadian public about the Canadian military justice system, and it is an extremely sound and competent one.

Mr. Chair, in a word, it is certainly a challenge as a superintendent, because you are playing with independent actors. The Office of the Chief Military Judge is a separate independent unit within the Canadian Forces, and it's led essentially by the chief military judge. Similarly, the director of military prosecutions and the director of defence counsel services are independent actors and their offices are independent actors.

I manage it by trying to have open lines of communication. We have informal and formal meetings. As for my staff, for example, I have a deputy judge advocate general in charge of military justice and administrative law, and they have staff, and regularly, when they're developing policies, when they're looking for ways to improve the system, they do so in consultation with those various independent actors. But at no point are we imposing our will or our desires to have them act in a certain way other than in accordance with the rule of law in a general sense.

It's a two-way consultative process. If they have issues or difficulties, particularly on process, they'll bring it to my folks and we'll address it.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

Thank you, General, for being with us.

Through you, Mr. Chair, I'd like to talk a little bit about the more specific side of legal advice to operations. Can you comment on the level of on-the-spot legal advice and oversight in the planning process for specific missions, whether it's a bombing mission in the Kosovo campaign or a specific operation in Afghanistan? For example, what level of legal oversight and advice and what kinds of considerations would be injected at that point?

[BGen Bernard Blaise Cathcart]

Thank you. Again, that is a another very good question that allows me to speak to this area that we refer to as operational law.

If I may, I'll give some context for just a moment, because it is important for context to understand that the term “operational law” applies to all the legal issues arising from CF operations, international and domestic. It really started... In fact, when I joined the branch in 1990 as a young lawyer, a captain, I asked operational law when I would get deployed and the answer was pretty much that they didn't do that, that their deployable operation was a posting to Germany, and it was in Lahr at that time.

For those who knew it at the time, it was a demanding job at times, but it was a pretty nice spot to be posted to. Coincidentally, perhaps, in terms of the historical peace, we had incidents, both domestic and not, like the Oka crisis, and then the first Gulf War, which really focused a number of legal issues that perhaps in the past Canadian Forces commanders didn't understand in the same way that they would in a more modern approach. But it certainly required legal advice to be given almost immediately, not from an office sitting in a chair in Ottawa, but on the ground beside the commander.

So it has really been since that point in 1990, when we began to develop the deployment concept of having lawyers deployed with commanders. We usually tried it at the command level, whichever command level that was, whether it was the whole task force, or battle group, or brigade, or even lower levels, and similarly with the air force. If you are targeting, as we did in the Kosovo campaign in 1998, we had lawyers in the targeting process as the target files came through who were providing advice to our Canadian Forces commander and the pilots who did the bombing missions in Kosovo.

Similarly on ships, we send lawyers. We just had a lawyer come back with HMCS Fredericton from its deployment off the Horn of Africa, working on counterterrorism and counter-piracy missions. We have a lawyer who advises the commander directly.

In that role, the chain of command over the years has evolved and has understood very much the importance of having that immediacy, that sense of legal advice on the spot, in the moment, rather than trying to reach a place like Ottawa over several time zones.

They have willingly opened up to our folks coming into the operational planning process so that we're not literally at the moment of things like targeting; we're far before that, as the operation is being planned, at all levels, in Ottawa, at operational headquarters out on Star Top Road, and in the field, as in Afghanistan, onboard vessels, or in targeting cells with the air force.

We very much have that immediate legal advice on the spot. From my perspective, it has worked extremely well, and the chain of command has been well served by it.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

This is a subjective question, but have you or your folks in the field found that the operators in the field, whether they be pilots, ops officers on ships, or army platoon-level, company-level commanders, have been receptive to that kind of interaction and advice?

[BGen Bernard Blaise Cathcart]

Yes, Mr. Chair. Overall, they've been very receptive. Of course, we're not immune... In the Canadian Forces, we're recruited from the same gene pool as the rest of Canada, and we have the usual sense of lawyer jokes and a certain skepticism about lawyers getting involved in issues. But at the end of the day, there is very much an open, welcoming approach by commanders, and they very much, as I've said, across the board appreciate the legal advice that they're able to get, again often under very demanding and trying circumstances.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

And to you, through the chair, you mentioned that we have 158 reg force and 53 reserve force lawyers. It may be an obvious question--and obvious answer--because everybody wants more, but is that enough, given the microscope that is on ops these days at the time and given the political naval-gazing that can follow years later? Is that enough? How are we served there?

[BGen Bernard Blaise Cathcart]

Mr. Chair, we're well served. Yes, of course, like any organization, you'd always like to have more, because that gives you more capability and more flexibility. Any operator will tell you that. As an operational lawyer, I'll tell you the same thing.

Having said that, as I said, our low-density high-demand group is stepping up to the plate each and every time, in every circumstance. And I'll add, because it wasn't highlighted perhaps enough when I talked about missions at other places, like the Sudan, we have an officer there, and we have officers in the Congo. They are working on what we call “rule of law projects” for the United Nations. So they're actually now in the field in the Congo, working with the Congolese forces to help them develop their military justice system. From that perspective, more bodies allows us to have more flexibility and be more agile in our response, but on a daily basis, we are certainly answering the mail.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

This will be probably a difficult question to answer, and I totally understand that, but we've been talking about parliamentary privilege and solicitor-client privilege and so on. I'll ask you your view, and you may not be able to answer it, but I'll just say that in my view—and I'm not a lawyer, obviously—I don't think one of the privileges of Parliament is to break the laws of Canada. That's a pretty general statement and you can comment on that or not.

[BGen Bernard Blaise Cathcart]

Mr. Chair, I'll simply say from my perspective that I don't see or would expect any member of Parliament, or Parliament as an institution, to be breaking any laws. It's often a matter of interpretation and debate. As I've said several times, that's best left for another forum.

[The Vice-Chair, Liberal, Bryon Wilfert]

You have about 30 seconds.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

On forthcoming changes to the military justice system as a result of what we've learned over the last years, whether it's Afghanistan or the application of the charter, and so on, are there any forecast changes of import that you see?

[The Vice-Chair, Liberal, Bryon Wilfert]

Twenty seconds.

[BGen Bernard Blaise Cathcart]

Mr. Chair, a short answer is yes. We're always evolving. We're always looking for changes, not only to keep pace with changes in the civilian system, which is important, but also within our unique military justice system, because there is a reason to have a separate system of military justice.

So yes, we're always evolving. Whether it's legislative changes, regulatory changes, or policy changes, they're always evolving and taking place.

[The Vice-Chair, Liberal, Bryon Wilfert]

Thank you. I'm relieved, General, to hear that lawyers have a sense of humour. That's the most enlightening thing I've heard today--no offence to the other lawyers in the room.

Before we go to the second round, I just want to point out two things.

Depending on when we finish with this witness, we have a number of options that we can do and we can go in camera with regard to any recommendations. Keep in mind that the government can be guided by recommendations of a standing committee on the appointment of a nominee, but obviously it doesn't have to abide by the committee's recommendations, as advocated by the Speaker in 2005.

I'll also point out to members of the committee that afterwards we will go into committee business as we have a number of items with regard to committee business.

With the second round now, we'll begin with Mr. Braid.