Evidence of meeting #47 for National Defence in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board's.
A recording is available from Parliament.
Director of Operations and General Counsel, Canadian Forces Grievance Board
Not usually.
Bloc
Claude Bachand Bloc Saint-Jean, QC
All right. That's what people complain about, the tendency to protect the various levels as you move up the hierarchy.
Mr. Hamel, you say this distinction increases military members' trust in the process. I've met a lot who don't really trust the process. Let me be clear: this isn't an attack on you or Ms. Maynard. In your view, will Bill C-41 enable us to make certain amendments in order to change the process that requires complainants to deal with individuals at various levels?
Chairperson, Canadian Forces Grievance Board
Mr. Chairman, that's a question I will have to think about a little more at length because it's not part of Bill C-41. However, it reinforces the argument I made earlier in my address. The value added by the board, which is completely outside the Canadian Forces, is this notion of independence, that it is outside the chain of command. However, the regulations restrict our ability or do not allow us to exploit the full potential of that value.
That's why we firmly believe that, before the Chief of the Defence Staff renders his decision, he and the complainant—because we're talking about two parties here—should get the benefit of the board's review. I believe that, if the board were to be required by law to examine all cases at the first level before the Chief of Staff renders his decision, this notion of fairness, of transparency, would be guaranteed for all members of the Canadian Forces, regardless of the topic or subject of their grievance. The board adopted this position in 2000.
Conservative
The Chair Conservative Maxime Bernier
Thank you, Mr. Hamel.
Thank you, Mr. Bachand.
Mr. Harris, go ahead, please.
Jack Harris NDP St. John's East, NL
Thank you, Chair.
Mr. Hamel, I thank you for your presentation today.
I appreciate your comments about the expectation that the board would be external to the forces and be seen as independent; however, I have a little problem in one sense. The way I see it--and I suppose I'm similar to Mr. Bachand in this--is that the military are not unionized, they don't have representation, and they rely on a process such as this to settle what are known in union circles, and in the military as well, as grievances.
I understand that most of what you deal with relates to issues having to do with medical and financial matters, issues of release of soldiers, and things that obviously impinge on their personal well-being and their future, but they're really of a contractual nature and they involve their rights.
What disturbs me, I suppose, is that the complement of your board is not truly civilian. They may be ex-military. I understand that you have a number of ex-military officers who sit on your board. Maybe all of them have military connections. Wouldn't it be fairer to have a truly civilian...?
This is part of civilian oversight of how our forces members are being treated within the operation. Shouldn't it really have people who are from civil society, who have an understanding of employment matters of how people should be treated and to what kind of standards people should be treated in society in general, not just in the military?
It seems that your board, although it has the name of being external and is talked about as being independent, in fact has a very significant military tone to it.
Chairperson, Canadian Forces Grievance Board
Thank you for your question.
Mr. Chairman, the board is absolutely in favour of the principle of independence. It's a principle essential to its proper operation. I should mention once again that the board enjoys institutional independence, that is to say that it suffers no direct internal or external interference from anyone. The board receives its allowances directly from the Treasury Board; there is no interference in its institutional independence.
It is also important for the board to protect or safeguard the independence of its members. The board has put in place a series of measures designed precisely to preserve their independence. For example, the internal assignment of caseloads is done in a centralized manner. Board members may recuse themselves or have an obligation to do so where there is an appearance of conflict, whether that appearance is proven or not. Furthermore, there is no interaction between board members who must consider a case and the organization of the Canadian Forces or National Defence. There are people who work for them, who assist them in their work, who make the necessary contacts and who find the information for them. So they are really isolated. They moreover work across Canada and use their work teams to examine cases. This is a sacrosanct principle.
Now one may wonder whether the fact that certain board members have a—
NDP
Jack Harris NDP St. John's East, NL
Can I interrupt? I only have seven minutes, and you've taken up a fair bit. You're really avoiding the question.
I didn't question the institutional independence of your board. I suggested to you that a true civilian oversight body would be absent military personnel, who may have total institutional independence but may have standards and influences and cultures associated with the military. It may well be. We've heard examples of it in the past, such as the “suck it up, soldier” business about PTSD, which was prevalent in the military and is now being denounced. A civilian oversight body might not have that same attitude about certain matters that are medical or financial. Many think that standards could be better in terms of how soldiers are treated in terms of their pay and benefits as well as in terms of whether they're released properly, or even whether they should be released or should be allowed to stick around to get the benefits after being there for ten years, for example, instead of being discharged at nine years and ten months.
There are a whole bunch of issues. There may be institutional independence, but if it doesn't involve civilian oversight and if the experience and history and life of the people on the board is totally military, I have a concern. Do you not agree that it could be a problem?
Chairperson, Canadian Forces Grievance Board
Thank you for the clarification.
Mr. Chairman, I believe that the board's statistics speak for themselves. Since it was established in 2000, regardless of the membership of the Canadian Forces Grievance Board, an average of 40% of the cases that have been referred to the board over a 10-year period have produced positive recommendations for the complainants. In other words, the board's recommendations were in favour of the complainants. To be more specific, last year alone, the board's recommendations went in favour of members in 45% of the cases the board considered.
If we want to go a little further, regardless of the board's recommendations, whether they are in favour of the members or of the original decision, the Chief of the Defence Staff has agreed to 90% of the board's recommendations.
It's true that, on the one hand, there may always be a certain perception that the board members are related to the military field, but that's a perception. In my view, military service does not lead to an absence of neutrality. The fact that a board member has served in the Canadian Forces cannot mean an absence of neutrality on his or her part. I prefer to observe the statistics and to note that, historically, the decisions have been half in favour of complainants and half against them. Last year, the percentages were 45% and 55% respectively. We also note the weight or importance that the Chief of Staff attaches to the board's work: he concurs its decisions in 90% of cases. As for the 10% of decisions in which he does not concur, that's often as a result of a matter of interpretation or discretion on his part.
Conservative
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Thank you, Mr. Chair, and thank you to our witnesses for being here. I have a fair number of questions, so I'd appreciate some fairly concise answers.
I think there may be a misconception by some here. The grievance process is not normally against a person: it's normally against a regulation or the application of a regulation, such as release conditions and that sort of thing. Is that fair to say?
Chairperson, Canadian Forces Grievance Board
Yes and no. There may be certain personal decisions, particularly in harassment cases. As a general rule, however, those decisions concern the interpretation of regulations, rights, social benefits and things like that.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
As far as the process goes, it can start at the unit level. Correct me if I'm wrong, but it doesn't go from that decision straight to the CDS. It goes through various levels before it gets to the CDS. Is that not correct?
Chairperson, Canadian Forces Grievance Board
There is indeed an intermediate level, Mr. Chairman. Once the grievance has been submitted to the commander, the initial authority intervenes.
The initial authority will basically consider and determine the grievance on its merits. When a member is not satisfied with either the response or the remedy provided to the griever, he or she may actually submit his or her grievance to the next level, which is the final level. There is an intermediate step or an initial step, which does not preclude the commanding officer from initially trying to resolve the issue administratively.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
From my previous experience, if the CO couldn't handle it, the griever could then go to the wing commander, then go to the commander of the command, and then go through other steps. Is that not the case anymore?
Director of Operations and General Counsel, Canadian Forces Grievance Board
They took that away.
Chairperson, Canadian Forces Grievance Board
That provision was taken away by Bill C-25when it received royal assent. It removed the minister from that process. It was a chain-of-command process with seven levels. It was brought down from seven levels to two. It also involved the creation of this board and the removal of the minister from the chain of command and from adjudicating grievances.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
On the three recommendations that were not part of Bill C-41, is it not accurate to say that the one having to do with the fiscal year versus the calendar year and the one related to the board's completion of the caseload have been accepted, but are being put off until the current MPCC process is finished so that these recommendations would not be seen as interfering with that process? I believe that the department has accepted these recommendations, but is putting off the implementation of them until the MPCC process is over. Is that your understanding?
Chairperson, Canadian Forces Grievance Board
I believe that is an understanding of the issue. The board's position has not changed. The department and the Canadian Forces know their positions. However, I'm not in a position to tell you with any accuracy the reasons why the recommendations are not part of the bill. Our position is known and remains unchanged.
Conservative
Chairperson, Canadian Forces Grievance Board
I know that, in principle, they have been accepted by the department, but I can't explain why they aren't included in the bill.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Okay, then, we've closed that loop.
In the case of the subpoena powers, have there been problems in the past, in that subpoena power has been needed?
Chairperson, Canadian Forces Grievance Board
We have never had to revert to that use of power. Over the last year, we came close on several occasions to having to revert to a hearing in order to acquire a single document. We understand that there's a statutory obligation on the department to provide the board with all the information within its control. The subpoena would be a great tool for acquiring information that is not under control of the Canadian Forces and for which the only other power at the board's disposal is a hearing. We believe that having such a tool to acquire a piece of information or a testimony would be effective in accelerating the process.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
I understand, but it's not based on experience. It's based on a prediction of what might be good in the future.
With respect to civilian oversight and the makeup of the board, the fact that a person has been in the military doesn't disqualify that person from adjudicating on military issues. Do you think that an all-civilian board with no military experience would have enough understanding of order, discipline, and the military ethos to be able to adjudicate properly? The military are held to a different standard.
Chairperson, Canadian Forces Grievance Board
Thank you.
With regard to the board's independence and make-up, that's an interesting question in that I would characterize the model adopted by the department and by the Canadian Forces as highly specialized. It's a stand-alone complaints management model, in a way, in the context of which a number of agencies address very specific mandates and very specific cases. In the case of the board, it's restricted to military grievances that concern the lives and benefits of military members on a day-to-day basis. Some raise the argument that was advanced a little earlier. Others say, on the contrary, that it is important to have a certain knowledge, to understand the organization, provided you respect the principle of independence and do not interfere with the issues of the board.
This interpretation can work on one side and on the other. I can tell you that, when a case is assigned to me, it is very easy for me to ask the tough questions, to know to whom and how to ask them. I can't answer on behalf of other people, but I maintain what I previously said, that military service is not a factor that detracts from an individual's neutrality. In my opinion, you can't make that connection, draw that conclusion, simply as a result of military service. In fact our statistics tend to prove the contrary.
It must also be understood that the board plays no direct role in the appointments of people and selection criteria. All that is the responsibility of the Privy Council Office and the Governor in Council. The board's role or my role, if you prefer, boils down to making recommendations on renewal, once people are appointed. That's the only role I play.