National Defence Committee on Feb. 7th, 2011

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chair.

Thanks, General, to you and your colleagues for your presence here and for the work you've done in preparing a terrific package of information on the bill.

I think clause 45 talks about military judges' inquiries, which would be similar to a process that might be undertaken under the Canadian Judicial Council with respect to the discipline of a military judge. This is not self-serving, because I don't aspire to be a military judge, and I'm very grateful that this particular provision doesn't apply to civilian courts, but I'm told that you're adding the requirement that a person must satisfy the applicable physical and medical fitness standards. Why would you conduct an inquiry into a judge who perhaps had a rough summer at the barbecue or ate too much or has trouble buttoning his uniform? I'm surprised that you would actually convene an inquiry into the obesity of somebody who might be sitting on a military court. I think many people would be relieved that this doesn't happen to apply to civilian courts, but I want to know why you're applying that to a military judge.

Don't hand that off to Pat.

[BGen Bernard Blaise Cathcart]

Thank you, Mr. Chair.

Pat's in good shape, so he's a supporter.

Obviously, I think the rationale lies again in that distinct aspect of being in the military. Military judges are still members of the military and as such are still required to meet all standards, fitness ones included, in terms of the ability to serve.

One of the comments you may have heard, Mr. Chair, not only in the context of military justice but also in administrative law, is something called the “universality of service principle”, which basically means that every member of the Canadian Forces--us included, judges--has to be fit to meet minimum standards so that if they're in scenarios where they would have to perhaps lift heavy items, carry people on stretchers, they'd meet those standards.

If a judge for some reason didn't meet that, I think it would be difficult for the system to treat it the way it would with any other soldier and simply say, “Get in shape or you're gone.” I think this provides an avenue where, if that were the case--and I'm speculating at the end of the day on how realistic that scenario would be--it would provide a mechanism by which the judge's fitness, which in this case could be the physical fitness, could be examined without the chain of command having direct interference and then the perception of infringing upon independence.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. LeBlanc.

I will now give the floor to Mr. Harris.

You have the floor.

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

General Cathcart, I have a couple of questions. One has to do with the military provost marshal. The role of the provost marshal, as I understand it, is to act as a police force within the military to ensure that the laws are being obeyed. These would be the general laws of the forces but also the laws of war and other obligations of the Canadian Forces.

In that context, I wonder if you could discuss the aspect of the Vice Chief of the Defence Staff having the power to issue instructions in relation to the conduct of a particular investigation. I say that, of course, in the context of one of the things we've been concerning ourselves with over the last year or so, which is the question of the actions of the military police themselves. I realize that these are before tribunals now. It is just the whole notion that the Vice Chief of the Defence Staff could, in fact--you could call it interference--actually provide instructions with respect to the conduct of a particular investigation. It presumes that he could say that he doesn't want you investigating this or doesn't like the way you're investigating this. That seems to me to be, in the context of an expectation of the provost marshal, aside from you, as a JAG.... You can give advice, but you can't arrest anybody. Maybe you can. You're in the position of giving advice. The provost marshal's role is somewhat different. Yet the Vice Chief of the Defence Staff can, in fact, control those investigations.

Could you comment on that, generally? When do you see that the Vice Chief of the Defence Staff might use such powers in actual practice, and can you give examples?

[BGen Bernard Blaise Cathcart]

Thank you for that question, Mr. Harris. It's a great question, underlining again the uniqueness of the Canadian military justice system and the players within that system. I'd like to assist the committee and in fact the public in their general understanding.

The provost marshal and the military police are unique in Canadian society. You will find no other police force in Canada like the military police. The prime reason for that is they have two distinct roles that are often interlaced, but they are distinct roles.

One is they support the operational chain of command in matters like detainee handling, traffic control points, and other aspects, such as security, both at home in Canada and abroad on missions such as in Afghanistan.

The other major role, which their name implies, is that they are police. A big chunk of what they do is they conduct investigations, both the military police and the national investigation service. I'm sure committee members are aware of those.

I think it's fundamental to understand that. If you don't understand the context that they are, to use a good Latin term, sui generis, a unique organization, the concept of saying that they're only a police force and the concept of police independence and then potential interference, and you compare it to the RCMP or Ottawa police or Victoria police, or any other police force in Canada, it would not, in my opinion, be an accurate comparative. It is because of those very operational roles that the chain of command must play a role in the conduct of the provost marshal and, by extension, the MP's business.

What this particular new proposal is designed to do is actually to protect both the chain of command and the provost marshal in a very transparent way in those rare occasions where the chain of command, as represented solely, and I underline solely, by the Vice Chief of the Defence Staff, can issue directions in a specific investigation and can also issue general guidance. That's the first part of that new section. Frankly, those mirror my own roles and responsibilities, where I can give specific direction as well to the director of military prosecutions. The whole scheme is designed to make that process transparent so that there are no concerns from the public, members of the military, or the provost marshal himself that there is confusion about what he can do.

I can't speak for the vice chief, of course; they are their operators, but I could see an example where you might have, as in Afghanistan, an offence being committed and the provost marshal feeling obligated by law to investigate it. He would require the logistical assistance of the task force commander to get his investigators into the theatre of operation in order to conduct an investigation. At the same time, the chain of command is fighting a war in the very area where the NIS or the MP may wish to travel. In that case it would actually help the provost marshal publicly to say to the vice chief that he needs to go there and can he support it. The vice chief may, in looking at all the circumstances, say, “Sorry, not right at the moment. It's too dangerous. We're fighting a war.” It gives both sides the full opportunity to look at the issue. Then if the vice chief does issue a specific instruction not to go, it's up to the provost marshal whether that direction is made public or not, as outlined. It is in the control of the provost marshal.

Frankly, in that scenario, it actually gives the provost marshal a fairly strong defence if he was criticized by tribunals or other sources to say he has a duty to do this. He can say that he is unique and that he has an operational responsibility because they are a police force that regrettably has to do investigations in war zones, for example.

One last aspect, because you mentioned the word “interference”, is not to forget that at the end of the day, if the provost marshal or any one of his folks under command feel they are actually being interfered with, they always have the option of going to the Military Police Complaints Commission and laying an interference complaint. That is another mechanism to hold everybody accountable, and it's transparent.

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

You do hear, of course, that there is an investigation going on and the NIS is looking into it. Some of these take a long time. How does the public or Parliament know whether or not particular instructions have been given? You say it's up to the provost marshal to make it public or not. It's not automatically public that there have been instructions given in a specific case.

[BGen Bernard Blaise Cathcart]

No, it's not public because it gives the discretion to the provost marshal. Again, it's in a case where the provost marshal would feel that going public would hinder the investigation. Actually, it is another variation on his perception that his investigation may be interfered with if he makes the Vice Chief of the Defence Staff's direction public at this time. He can make it public subsequent to that, but if he decided right away that he wanted to make it public, there is nothing that could be done. That would be the course of action for the provost marshal. Otherwise, much like any other police force, frankly, when they're conducting investigations, there is no obligation to make all their details available to the public right away until the investigation moves along.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Brigadier-General.

Now I will give the floor to Mr. Boughen.

You have seven minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Mr. Chair.

I'll be sharing my time with Mr. Hawn.

Let me add my voice to those of my colleagues, gentlemen, in welcoming you to the committee. It's very good of you to take some time to share with us your thoughts on this bill.

Under this bill, the composition of court martial panels would change, I understand. Could you perhaps walk us through the explanation as to why this modification is in place?

[Col Patrick K. Gleeson]

Thank you for that question.

Yes, Mr. Chair, there are changes in this bill to the court martial panel structure.

Essentially, for a quick walk-through of what will happen here, the first change the bill will provide for is a reduction in the rank of the senior member at court martial, currently at the colonel rank level, to lieutenant-colonel, as long as the accused is no higher in rank than a lieutenant-colonel.

That change is being proposed simply because of the resource implications imposed on the Canadian Forces in engaging colonels in every general court martial that is convened. When a general court martial is convened under the current scheme, a colonel needs to sit as the senior member of the panel. This will reduce the burden on the Canadian Forces and simply reflect the fact that a lot of these matters really don't need somebody at the colonel rank level to sit on them. It's a resourcing decision that is consistent with the interests of justice. That is what is going on there.

The other major change that is provided for in this piece of legislation is to essentially provide for a greater number of Canadian Forces members the opportunity to sit on the panel. We used to have a rank-based restriction with respect to panel membership. Nobody below the rank of captain could sit on a panel. At the NCM level, it was warrant officers and above who could sit. This bill will essentially allow anybody with three years' service in the military to sit on a panel, so long as they are not junior in rank to the accused person, the individual being tried by the court martial.

Again, that is responding to a recommendation that came out of the Senate, actually, in the context of a review they did, which was suggesting that we reduce rank distinctions in the panel context. We've looked at that and we think this is an appropriate way to try to address that issue while at the same time maintaining the integrity of the panel, which is there to perform a significantly different role from what you see in a jury downtown. We are not creating a panel of peers in the court martial system. We are creating a panel that has an understanding of military discipline and essentially is responsible for the maintenance of enforcement of discipline in the military.

Like everything else we do in this system, we try to strike that fine balance between making sure that the military interests are not undermined while at the same time we look at means to ensure the system is as fair as it possibly can be for the people who are subject to it.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Colonel.

Thanks, Chair.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, gentlemen, for being here.

I'll just quickly follow up on a couple of things. We've talked a lot about fairness being a requirement in the military justice system, which obviously it is, but we haven't talked a lot about the fact that it needs to be quick as well. It needs to be fairly and quickly applied.

I'd like you to talk a little bit about that, General Cathcart, about the requirement for doing this quickly based on the unique requirements of the military. We can't have people tied up in a two-year or three-year process or more, like we sometimes see on civvy street.

[BGen Bernard Blaise Cathcart]

Thank you, Mr. Hawn, for that question.

Through the chair, absolutely. Once again, I can't emphasize enough the heart of military justice, which is the maintenance of discipline that keeps the CF running. You need a system that is fair but also efficient, and I'll use the term “quick”, but people don't want to misconstrue that to mean that rights are being trampled upon in any way, shape, or form. I know you don't mean that, Mr. Hawn, but people do get that impression sometimes.

You need a system that is quick, not only in terms of activities in Canada. We're a big force spread across the country, and we have a very mobile force. A lot of it is engaged in training activities. For instance, you can have people going to Gagetown in the summer or to Petawawa in the summer to do training for a matter of weeks, and if a breach of discipline occurs there, you want to be able to deal with it while the individual is still on the ground, for the individual's sake and also so the rest of the unit can see that justice is being done.

Similarly, it has to be portable and transportable, so that you can take it around the world, because our code of discipline follows our troops anywhere in the world. You need a system that will be efficient and quick so that, as you indicate, folks get their day. They get their say and then a decision is made, but at the end of the day, it's not designed to tie individuals up because we ultimately need them to do the support, the trades, and also, ultimately, the fighting in that regard.

You can't lose sight of the fairness piece in any of that. You don't want to overlook it just for the sole goal of being quick and efficient, but you find, as we said throughout this—we sound like broken records to some degree—that you are struggling to find that right balance. If you make it too much heavy on rights and bog it down with process and procedures, you'll never have many of the troops out available to do training and conducting operations.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Whenever the military justice system dealt with me, it was fair and quick.

Just a little bit on training for a commanding officer or training for people.... I've done summary trials, and back in that day we had zero training. We had a JAG officer we could rely on, but we had zero training. That was raised as an issue by somebody at one of these sessions. Could you talk a little bit about the training that people in the process do receive now?

[BGen Bernard Blaise Cathcart]

Yes.

Starting from the fundamentals, first principles, that those trained to be presiding officers at summary trial are not judges, they are not lawyers, and the system is not designed to make them such, we have to be somewhat reasonable in making comparisons between folks who are legally and judicially trained versus those who are not. The value, the very essence, of the chain of command is that they understand the ethos and the requirements of morale and maintaining discipline, frankly, probably better than a lot of lawyers and judges do, and that's the reason they become the focal point. They don't receive formal training as in law school, go off to article and work in firms, etc., but they do get intensive training. From the moment everyone joins as recruits we are exposed to it, but certainly, to become a presiding officer, you have to go through training and a specific course that you must pass and then renew every five years to keep up to date on those skill sets. It is really just designed so that you're trained to recognize those issues of fairness, not to be an expert on constitutional or charter law. It is simply saying, “Wait a minute, that doesn't seem fair”, and that's the type of training we try to instill, both from a legal and an operational perspective.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

Mr. Wilfert, you have the floor.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

I have just one question for the general.

On the composition of a court martial panel, this came to light after a court martial that received a lot of publicity a number of months ago. Should at least one member of the panel have combat experience when dealing with an incident that occurred in theatre?

[BGen Bernard Blaise Cathcart]

Yes, we've obviously heard that expressed by some in the public, some commentators. I think it's a bit of a misunderstanding. I don't want to speak for the commentators--they can defend themselves--but my perception is that they were perhaps equating it with kind of a jury, that only those who had fought the fights or were in those tough scenarios could truly sit in judgment.

Well, first of all, if you do compare it to a jury...which, as Colonel Gleeson has outlined, is not the exact same. The military panel is different. Even in a jury, when you say “peers”, it's not a reflection; if someone who's on trial is a doctor, the jury isn't all about doctors in order to understand the full context.

I think what's key, underlying the panel philosophy, is an understanding of discipline. Whether it's army, navy, or air force is in many ways irrelevant, because the code of service discipline applies across the board. When you have individuals who may not have seen combat in a particular scenario.... They may have been captain of a ship, for instance, and seen combat in a naval context but not in an army. I think it would be, in my humble opinion, quite a stretch to simply say they're not competent to sit in judgment of someone who fought in a land war, for instance.

As long as they understand, at heart, what discipline really means, and understand the elements of the offence as explained by the trained judge who sits with them, then I think that is more than sufficient to give confidence that the system is working well.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Chairman, through you, it's an interesting response, because clearly that was an issue that was raised--namely, whether or not people could really empathize, given certain stressful situations in combat. I understand the discipline part. The issue simply was whether or not there was that empathy, and whether or not someone could be able to do that, or whether one person should be.

But I appreciate and consider your answer. Thank you.

That's all I have, Mr. Chair.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Wilfert.

I will give the floor to Ms. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman, and through you to our witnesses.

Justice Lamer made 88 recommendations, yet in going through Bill C-41 we don't see all the recommendations put into statute.

Would you explain to the committee why it is we're not seeing all the recommendations in an actual proposed bill?

[BGen Bernard Blaise Cathcart]

Thank you, Ms. Gallant.

I don't want to go through all 88--one minute per each--but essentially the nature of the recommendations was such that some did require statutory changes. Those are the ones we're trying to deal with now through Bill C-41.

Others were handled by other means. Take policy, for instance; some of the policy decisions that were made were simple internal decisions to rewrite a policy, whether in the military justice world or in chain of command.

Another avenue was through regulatory changes, primarily the Queen's regulations and orders.

So in terms of the nature and scope of each type of recommendation made, you had to go through and decide, okay, in order to give effect to Mr. Justice Lamer's recommendation, what's the best tool to do so? And not in all cases were those determined to be legislative changes.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Okay. So we have actually implemented the changes through the regulatory process in some cases.

[BGen Bernard Blaise Cathcart]

Correct.

My colleague was just reminding me that we have implemented 28 of the recommendations through means other than legislation. Some were tweaked in legislation, when you had the opportunity with Bill C-60, for instance, but the bulk of them were done through policy and regulatory changes.