National Defence Committee on Feb. 16th, 2011

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Great.

I'd like to ask a question about an issue that I don't believe has been touched on yet this afternoon. This is an important pillar of the bill, certainly from our perspective, and it also meets our objective of bringing military justice law more in line with civilian justice. I'm referring to the issue of victim impact statements.

Do you agree that this is a welcome and necessary addition to the military justice system?

[Constance Baran-Gerez]

It certainly brings it in line with the civilian system and with the way in which matters are heard in criminal courts.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

You nicely evaded my question: do you agree it's a beneficial aspect?

[Constance Baran-Gerez]

Certainly it's one more piece of evidence for the sentencing body, and absolutely they should have all the information necessary.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Okay.

Thank you very much.

[The Chair, Conservative, Maxime Bernier]

Now I'll give the floor to the last speaker, Mr. Bachand.

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

Thank you, Mr. Chairman.

Earlier, Mr. Spratt, I talked to you about judges' compensation. I don't want to resume the discussion on that topic, but I simply want to point out to you that this concerns section 165.38. If possible, could you send me your opinion on this matter in writing?

Today, I instead want to talk to you about the possibility for a judge to file a grievance. I would like to talk to you about the concept of judicial deference. I find it curious that a judge can file a grievance directly with the Chief of the Defence Staff. I consider that a breach of judicial deference. I'm talking about section 29.101.

For example, what do you think of a judge who, in order to complain, would complete a grievance form and file it with the Chief of the Defence Staff? It seems to me that, in that case, that constitutes a breach of judicial deference.

[Michael Spratt]

Certainly that's obviously not the system that exists in the civilian system. It's a measure that could be strengthened when one's looking to encourage judicial independence, and it's a perception. When we look at bias and the perception of bias, it's not whether there is actual bias, but whether an observer looking at the system has a perception of bias.

I agree with you that this bill goes a long way to immunity from civil action, and there are a number of measures in this bill that seem to be a step forward for a sort of judicial independence. As we know from our system, judicial independence is one of the pillars of a fair and just judicial process, so I'd certainly agree with you: that's a measure in this bill that could be strengthened if one is looking to go even further to achieve that goal.

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

Would you like to hazard a response, even a brief one, on the Military Judges Compensation Committee, that is on section 965.38 that I discussed with you earlier? Would you be able to respond to that immediately, or would you prefer to respond in writing to the committee?

[Michael Spratt]

I never prefer homework, but I think I would be more than happy to take more time to consider it and to provide the committee with a short written response. I won't send you my bill.

[Voices]

Oh, oh!

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

Thank you. I have no further questions.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

I want to thank the members of the Criminal Lawyers' Association of Ontario. Thanks to Mr. Spratt and Ms. Baran-Gerez for being with us.

I'm going to suspend proceedings for three minutes in order to allow the National Defence and Canadian Forces Ombudsman to take his place among us.

[The Chair, Conservative, Maxime Bernier]

Thank you and good afternoon.

Now I would like to welcome Mr. Pierre Daigle, National Defence and Canadian Forces Ombudsman. Thank you for being with us. I see you are accompanied by Ms. Mary McFadyen.

I'll give you the floor for 10 minutes. Then committee members will be able to ask you questions on the bill we are considering.

[Pierre Daigle, Ombudsman, National Defence and Canadian Forces Ombudsman]

Thank you, Mr. Chairman.

I am indeed here with Mary McFadyen, general counsel. I would like to begin by thanking the committee for inviting me to testify this afternoon regarding an obvious unfairness in the military redress of grievance process. It is an unfairness that was recognized and criticized by the former Chief Justice of the Supreme Court of Canada, the Right Honourable Antonio Lamer.

Following our investigation into the Canadian Forces redress of grievance process in May 2010, I issued a report entitled, “The Canadian Forces Grievance Process: Making it Right for Those Who Serve”, which highlighted deficiencies in the grievance process that are causing further hardship for Canadian Forces members who have already been wronged.

As a result of our investigation, we found that the redress of grievance process, which is supposed to provide soldiers, sailors, airmen, and airwomen with a quick and informal mechanism to challenge Canadian Forces actions and resolve matters without the need for the courts or other processes, is flawed and unfair. Specifically, we determined that the Chief of the Defence Staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness.

I'll say it again. Specifically, we determined that the Chief of the Defence Staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness.

Instead, when a claim for compensation arising from a grievance is made, it is a government lawyer, not the Chief of the Defence Staff, who determines if compensation should be paid to the Canadian Forces member.

In my view, Mr. Chair, it simply defies logic that the Chief of the Defence Staff, who is charged with the control and administration of the Canadian Forces, is not given the authority to pay out a $50 claim.

It also seems unreasonable to our office that a government lawyer, whose role is to provide advice, has more decision-making authority regarding compensation than the Chief of the Defence Staff. As a result of our investigation, we have also found that government lawyers often deny financial compensation requests.

Moreover, when claims are rejected, Canadian Forces members are informed that they must initiate legal action against the Government of Canada in order to obtain compensation. However, unbeknownst to most men and women in uniform, legal action will rarely be heard by a court, because previous courts have ruled that there is no legally enforceable employment contract between the crown and Canadian Forces members.

At it currently stands, there is no real last resort for a Canadian Forces member to receive financial compensation, even when the Canadian Forces admits that the member has been treated wrongly or unfairly.

As a result of the investigation, I concluded that it is necessary for the Chief of the Defence Staff to be able to grant financial compensation for the simple reason that, in certain circumstances, fairness cannot be achieved by any other means.

As I mentioned earlier, our office is not the first to recognize this problem, nor is it the first to make recommendations that it be fixed. Indeed, after an external independent review in 2003, the former Chief Justice Lamer recommended that the Chief of the Defence Staff be given authority to settle financial claims and grievances.

In his report, the former Chief Justice stated, Soldiers are not second-class citizens. They are entitled to be treated with respect, and in the case of the grievance process, in a procedurally fair manner.

This is a fundamental principle that must not be lost in a bureaucratic process, even a military one.

Ultimately, a proper grievance process must be able to determine whether someone was treated fairly as well as to correct any unfair or improper treatment.

We must give the chain of command the tools and authority to take care of its people, and Canadian Forces members must have confidence that their chain of command will take care of them. This is a leadership and a morale issue. How can any military leader tell his or her troops, “I agree that you have been treated unfairly, but there is nothing I can do for you. I would ask you to continue to believe that I care about your situation.”

The Minister of National Defence has informed us that our recommendations are still being considered. However, given that eight years have elapsed without a resolution to this unfairness, from a sound public policy point of view I believe it is time to make the legislative change necessary to clarify and ensure that the Chief of the Defence Staff has the authority to provide financial compensation to fully resolve unfairness and to ensure that the grievance system can actually serve the men and women in the Canadian Forces as it was intended to do.

Former Chief Justice Lamer was right: our military members are not second-class citizens, and they deserve to be treated fairly. I am pleased that this committee has turned its attention to addressing this challenge.

At this time we stand ready to provide any assistance that we can to the committee.

So I am pleased that this committee has turned its attention to redressing this challenge, and we stand ready to assist you.

Before concluding, I would nevertheless like to add that I find it somewhat unfortunate that we have to debate a question whose purpose is merely to obtain justice and fairness for the members of the Canadian Forces.

Rightly so. Nobody is questioning former Chief Justice Lamer's recommendations.

I agree with the Minister of National Defence when he wrote back to me on this issue and said:

As you have rightly identified, this is not the first time this recommendation has been made, and the time has come to bring closure to it one way or the other.

Mr. Chair, I think the time is now.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Daigle. I remind committee members that we are examining Bill C-41 and that your questions must be relevant to the current debate. I am convinced that this will take place in that manner. I therefore give the floor to Mr. Dryden.

[Ken Dryden, Liberal, York Centre, ON]

Thank you.

I think your notes are clear, but I just want to make sure I understand them correctly. What you're saying is that the Chief of the Defence Staff does not have the authority. It's not that he gives over the authority to lawyers, but in fact that even if he wants to make that decision, he does not have the authority to do so. Is that what you're saying?

[Pierre Daigle]

That's what I'm saying. He doesn't have the authority to order any monetary compensation to address a grievance.

[Ken Dryden, Liberal, York Centre, ON]

As you've pointed out, this has been going on for a long time, and even eight years after Chief Justice Lamer's independent review.

Things like this don't happen for no reason, so what do you suppose is the thinking within National Defence as to why they have allowed this to continue for eight years? Despite the recommendation that was clearly made and what would seem to be a fairly simple resolution, why have they decided not to do anything?

[Pierre Daigle]

Mr. Chair, it's difficult for me to talk on their behalf. As you pointed out, Chief Justice Lamer recommended that in 2003. At that time the government agreed to 16 of the 18 recommendations that have to do with the grievance system, and one recommendation is the one we're talking about today.

[Ken Dryden, Liberal, York Centre, ON]

So it's one of those 16, as opposed to one of the two that they didn't agree with.

[Pierre Daigle]

Absolutely. There were 18 recommendations, two of which were still being debated at the time, which were funded judicial review and the subpoena for the grievance board. Among the 16 others, the one about the CDS authority to give financial compensation was approved, and during those eight years it was said that it would be implemented.

Now, since I took office, I did talk to some military entities. I know that the Canadian Forces Grievance Board, the director general of the Canadian Forces Grievance Authority, and some military senior officers agreed with that, but why it didn't happen after eight years is difficult for me to explain.

[Ken Dryden, Liberal, York Centre, ON]

You offer the example of even $50. Obviously, in a situation like that, tt would not seem to be a difficult decision to make, but can you advise us on the range of matters that might be considered here when financial compensation would be sought and has not been given? Can you give a few examples and how much those might entail?

[Pierre Daigle]

I don't have readily available the amount of money. Maybe Mary can answer that question.

My numbers might not be as accurate, but I've heard that in about 60 cases in which the CDS has upheld a grievance and has agreed that they will require some financial compensation, about half of those decisions upheld by the CDS were rejected in terms of compensation. They were not—

[Ken Dryden, Liberal, York Centre, ON]

What I'm trying to get at is this: are there thousands of dollars at stake somewhere, and therefore it's of real consequence to the military person who does not receive that compensation?