National Defence Committee on March 2nd, 2011

[The Chair, Conservative, Maxime Bernier]

Good afternoon, everyone. Welcome to the 51^st meeting of the Standing Committee on National Defence.

Pursuant to the order of reference of Monday, December 6, 2010, we will be studying Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

It is our pleasure to have representatives from the Department of National Defence with us for the first hour, until 4:30 p.m.

Good afternoon, Vice-Admiral Donaldson.

Thank you for being with us.

We also welcome Mr. Alain Gauthier, Director General, Canadian Forces Grievance Authority.

And Mr. Timothy Grubb.

He is the Canadian Forces provost marshal.

Thanks for being with us. I will give the floor to Vice-Admiral Donaldson for seven to ten minutes.

[VAdm Bruce Donaldson, Vice-Chief of the Defence Staff, Department of National Defence]

Thank you very much, Mr. Chair.

Honourable members of the committee, let me begin by thanking you for the opportunity to appear before you today to discuss this important bill. I'd also like to thank you on behalf of all members of the Canadian Forces for your continuing interest and support for the men and women who wear the uniform for our country. Your ongoing commitment to a modern and relevant military is most appreciated.

I hope that my appearance today, both on behalf of the Chief of the Defence Staff and in my own role as vice-chief, will be beneficial to this important study. With me today are Colonel Alain Gauthier, the director general of the Canadian Forces Grievance Authority, and Colonel Tim Grubb, the Canadian Forces provost marshal, or head policeman.

In a healthy democracy, an effective military should both reflect the society and the values that it is designed to protect, as well as maintain the necessary discipline, efficiency and morale to be operationally effective in delivering that protection.

The changes proposed by Bill C-41 are necessary to succeed in both aspects of this challenge. Specifically, the proposed updates seek to address the three main subject areas of the Lamer report: the military justice system; the position of Canadian Forces provost marshal and the related military police complaints process; and the Canadian Forces grievance process.

Both the minister and the Judge Advocate General have already spoken to the provisions of the bill that are aimed at updating the military justice system. On these matters I really must defer to the expertise of the Judge Advocate General, who has statutory responsibility under the National Defence Act for military justice. However, the other two topics, the Canadian Forces provost marshal and the Canadian Forces grievance system, are indeed part of my responsibilities as Vice-Chief of the Defence Staff. Today I'd like to focus my remarks on these topics.

With regard to the Canadian Forces provost marshal, the Lamer report recommended that the responsibilities and command relationships of this position be clearly defined in the National Defence Act. This is exactly what Bill C-41 proposes. The bill sets out the responsibilities of the provost marshal, specifies the minimum rank to be held by the provost marshal, and clearly defines the conditions of tenure for the position. The bill would also increase transparency by requiring the provost marshal to submit an annual report to the Chief of the Defence Staff.

I understand that some concerns have been expressed regarding Bill C-41's potential impact on the investigative independence of the provost marshal, and this afternoon I'd like to address those concerns.

It is important to note that the military police in general, and the provost marshal in particular, are unique amongst police in Canada. They perform military duties in addition to investigative duties and often conduct investigations in active theatres of operation such as Afghanistan.

Certain command relationships must exist to recognize this reality. Clause 4 of the bill provides that the provost marshal acts under the general supervision of the vice-chief of the defence staff in respect of the provost marshal's statutory duties. The clause authorizes the vice-chief of the defence staff to issue general instructions in writing regarding these responsibilities, and it requires the provost marshal to ensure that these instructions are made available to the public. I believe that this is generally well understood.

However, I understand that the section proposing that the vice-chief may issue instructions or guidelines in writing in respect of a particular investigation has been the subject of some concern. This authority, which would only be exercised in exceptional circumstances, reflects the necessity for a transparent mechanism to convey direction to the provost marshal when operational imperatives must take priority over or be weighed against the investigative obligations of the military police.

For example, given the unique requirement to conduct investigations in zones of armed conflict, this authority might be exercised in a situation the provost marshal is investigating under circumstances in which its continuation may for logistical reasons or because of high risk to CF personnel directly impact upon the potential success of an ongoing operation.

The VCDS is the appropriate authority to balance the commander's concerns for mission success and the provost marshal's need to advance an investigation. To protect against a potential abuse of this authority, Bill C-41provides transparency safeguards. It would require the provost marshal to make any instructions or guidelines from the VCDS regarding the specific investigation available to the public, unless the provost marshal himself or herself considers that making it public would not be in the best interests of the administration of justice.

In addition, existing sections of the National Defence Act would allow the provost marshal to make an interference complaint to the Military Police Complaints Commission if he or she suspected the VCDS of improperly interfering in an investigation. This is an area in which there are competing principles, requiring a balance between two legitimate and fundamental concerns: the investigative independence of the provost marshal and the responsibility of the chain of command for the accomplishment of operational objectives.

I believe that Bill C-41 proposes a viable and appropriate balance between these two imperatives. I also understand that in his report, Chief Justice Lamer concluded that independence was protectable through transparency and accountability, exactly what is proposed in this bill. Furthermore, on April 1, 2011, the Canadian Forces provost marshal will be assuming full command of all Canadian Forces military police directly involved in policing duties. The changes to the military police command and control structure are a continuation of the recommendations made in various reports to strengthen the independence, authority, and efficiency of the provost marshal in the exercise of his or her policing mandate.

I'd now like to turn to the subject of the Canadian Forces grievance process. Let me underscore that dealing effectively with grievances in the Canadian Forces is not a simple corporate management issue. It is a key leadership responsibility that the Chief of the Defence Staff, I, and all leaders take very seriously.

An effective grievance system is crucial to ensuring the welfare of the men and women of the Canadian Forces and to maintaining the very discipline, morale and operational effectiveness that I mentioned earlier. The bill would rename the Canadian Forces Grievance Board, which has done excellent work since 2000, as the Military Grievances External Review Committee. Renaming the organization would help reinforce the fact that the board, like the military police complaints commission, is an independent review body and not part of the Canadian Forces.

The bill would also make the entire grievance process more efficient by allowing the Chief of the Defence Staff to delegate his power as the final authority in the grievance process to other senior officers directly responsible to him. I must emphasize that the CDS would remain ultimately responsible and accountable for these decisions. It is not, as some have suggested before this committee, an abdication of the CDS's responsibility for the welfare of the men and women of the CF. Rather, it is a reflection of the reality recognized by Chief Justice Lamer that it is impractical and unreasonable to expect the CDS to personally decide every grievance in an organization of the size and complexity of the Canadian Forces. Both of these measures are endorsed by the grievance board.

Last spring, the Canadian Forces conducted a ten-year review of the grievance system and we remain committed to its constant improvement. This improvement involves many non-statutory changes that are already underway, many of which address some of the concerns presented by the grievance board. Several initiatives, such as the digitization of the grievance file, the creation of a central registry and the adjustment of timelines, are underway to reduce the time it takes to staff a grievance.

A key initiative is the trial of the principled approach, which allows the grievance board to review a larger number of files in order to increase transparency and fairness. Currently, the grievance board provides findings and recommendations on only four types of files: reversion of rank and release from the CF; conflict of interest and harassment; pay and financial benefits; and entitlements to medical and dental care.

I'm confident that these new initiatives will give us the ability to reduce the staffing of grievances to 12 months while increasing the transparency and the fairness of our complaint resolution system. Of note, the Lamer report recommended that the Chief of the Defence Staff be given statutory authority to approve financial compensation in resolving a grievance. While we agree with this recommendation and we are committed to its implementation, there are a number of complex authority issues that must be resolved before we can move forward.

When I took over as Vice-Chief of the Defence Staff last summer, my goal was to resolve this issue immediately, but I must admit that I have yet to find a mechanism that is legally, administratively, and practically acceptable. We are currently reviewing options that range from legislative amendments to ex gratia authority. This is one of my top priorities, and I will closely monitor the working group that has been tasked to find a solution.

Mr. Chair, let me conclude by re-emphasizing how important I believe it is that the provisions of Bill C-41 be adopted as soon as possible. In that vein, I would be pleased to assist you in your consideration of the bill by providing any additional background information or explanation that you might require.

I would like to once again thank you for your time. I welcome any questions you might have.

[The Chair, Conservative, Maxime Bernier]

Thank you very much, Vice-Admiral Donaldson.

I now give the floor to Mr. Dryden.

[Ken Dryden, Liberal, York Centre, ON]

Thank you, Mr. Chair. Thank you all for being here today.

I think there's only one person at the table who has military experience, and the rest of us have to try to imagine what the experience is, knowing there can very well be special circumstances, special considerations. All of us come from certain fields where those fields only work if people really understand the special nature of what it is we're doing. We have all had experiences of saying to others, often in our own self-interested ways, that they don't understand, that they don't get it, that the way things work in real life in this area is different, so we need special rules, whether it's in law or medicine or sports or lots of different fields.

We grapple with it when we are dealing with these kinds of questions. We want for you to have those authorities and those rights to do what you need to do. At the same time, we also want to provide the kinds of protections that every citizen should have. It's a struggle. We have heard from different witnesses, and often witnesses who have military backgrounds argue different points in all of that.

We get to questions in the grievance area and in others. We had a very good debate in the last session between the primacy of the charter of rights as opposed to the charter of rights in very special circumstances. How do you understand that? How do you approach those very basic questions that really underlie any of the recommendations any of us might make?

[VAdm Bruce Donaldson]

Well, Mr. Dryden, it's a difficult question. As I said early on, I defer to the Judge Advocate General on technical matters of law, but as a leader, I share your concern with these questions. As a leader, it is critically important to me to do what is fair and right for the men and women under my command, and I am as seized of the importance of protecting their rights and seized of the importance of protecting the collective rights of the men and women in uniform as you are.

I believe that we need to be careful when we look at special circumstances and not be self-serving when we identify special circumstances, but I think most would agree that in the case of a military force there are circumstances in which provision of access, for example, to swift and appropriate justice may be a challenge in a Canadian context, so we need to provide a context for that for our people.

Also, when the circumstances and the expectations may be different, we need to make those clear to our people. At the end of the day, we need a system of justice that supports discipline and morale in a military force that meets the requirements of the Government of Canada and the expectations of Canadians.

These are challenging questions, and they're good questions to ask ourselves on an ongoing basis. I believe we have found a very good balance, in the amendments to the military justice system that we have been making for some time now, in recognizing the charter rights of our people and in amending the way we go about administering justice on an ongoing basis, the way we deal with procedural fairness, and the way we deal with the involvement and the independence of policing functions, of courts, and of summary trials. I think we were mindful in all that we have amended as we have gone forward, and in everything we do we are mindful of these rights.

I'm not sure that answers your question.

[Ken Dryden, Liberal, York Centre, ON]

Well, I'm sure that as the discussion goes on, the question will come up again in more specific ways.

I have two questions at the end of my time.

Why has it taken so long since the Lamer report of 2003 to get to this stage? That's one question.

Also, you made reference towards the end to the decision on the financial compensation of grievances and to your having struggled with it and not being there yet. Why is that so complicated?

[VAdm Bruce Donaldson]

Sir, it's taken us very long to get here; this is not our first attempt. We have tried--I say we, but there have been two other bills before the House that did not make it through and died on the order paper. One of the reasons Bill C-41 is structured the way it is is to try to take the essential elements that were felt to be more or less agreeable and get those established so as to avoid another protracted process that might not lead us to some of the changes that we need to put in place.

In terms of the financial compensation, sir, I think the way government is structured, the way departments are structured, the way federal accountabilities are structured, and the way the Department of National Defence, the Chief of the Defence Staff, and the deputy minister are positioned in that organization work very well from a number of perspectives. However, in this particular one, it has become very challenging to connect all of that in a way that would give the chief the ability to make the types of decisions that from a grievance perspective we feel he ought to be able to make and yet accept for the government the financial commitment that this would entail in order to redress the grievance. We have looked at an internal procedural resolution to that and we continue to experiment with it, but because of some of these other issues, that procedural fix is unlikely to satisfy the members of this committee, because it's not satisfying me.

We have looked at the potential for a legislative change, but I believe that the cascading requirements of legislation may make that a rather challenging approach. We've looked at a way of approaching Treasury Board to get authorities for the chief in these specific areas. That work continues, with Treasury Board and internally, to see how we would do that. As I say, I have been surprised at the challenge that we have encountered in dealing with some of the positions inside and outside the department. They were fairly hard when we started this investigation, but I believe they have been adjusted through a process of dialogue, negotiation, and experimentation, to the point that I actually feel that we can probably address this issue through a combination of both regulatory adjustments through the Treasury Board and procedural adjustments to how we approach the question.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

Mr. Bachand has the floor.

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

Thank you, Mr. Chair.

First, welcome to my friends.

My first question is for Mr. Donaldson. Everyone agrees that the final authority in the grievance procedure is the chief of the defence staff. But we are told that the chief of the defence staff also delegates a part of his responsibilities.

Does the chief of the defence staff delegate those responsibilities for grievances to you, making you the final authority?

[VAdm Bruce Donaldson]

Sir, on rare occasions I may be delegated this authority. On other occasions, aspects of this would be delegated to the director general, working directly for the chief, with certain clear guidelines in place upon which to base decisions.

I do want to emphasize that the act of delegation, at least in the context of the Canadian Forces, is in no way an abrogation of authority. The Chief of the Defence Staff is fully and absolutely responsible for many aspects--virtually all aspects--of the control of the administration of the Canadian Forces. That's success in operations, that is the management of personnel policies, that is virtually anything you can think of. The chief has delegated authorities in respect of many of those areas with great success, historically and to the present day. The method of delegation makes the parameters clear and also makes it clear when someone who has delegated authority needs to come back to the Chief of the Defence Staff. I don't know if that answers your question.

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

Yes, in part.

Is that delegation of authority provided for in the current National Defence Act? Or can the chief of the defence staff delegate his responsibilities on certain occasions through regulations?

[VAdm Bruce Donaldson]

I'm not sure of the answer.

May I turn, Mr. Chair, to Colonel Gauthier?

[Col Alain Gauthier, Director General, Canadian Forces Grievances Authority, Department of National Defence]

It is a combination of both, Mr. Bachand. The National Defence Act states that, for some categories of grievances, the chief of the defence staff has the authority to delegate…

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

Can you tell me what those categories are? Do you know them by heart?

[Col Alain Gauthier]

Yes, they are exactly the ones we listed…

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

…in the presentation?

[Col Alain Gauthier]

The ones that are referred directly to the board. So anything to do with rank and with release from the Canadian Forces, conflict of interest and harassment, pay and financial benefits and, lastly, anything to do with release for medical or dental reasons.

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

All those can be referred to the chief of the defence staff or to you, correct?

[Col Alain Gauthier]

They are all referred. When we receive them, the system moves in two ways. When the case is in one of those four categories, they are automatically referred to the Grievance Board. For everything else involved with Canadian Forces leadership, the authority is delegated to me by the chief of the defence staff. That represents about 60% of the grievances we receive.

To go back to your question, there is a very close link because I meet personally with General Natynczyk every month to discuss the various cases. I meet with General Natynczyk monthly, without fail.

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

So those various aspects that you have just mentioned are covered by the act?

[Col Alain Gauthier]

The National Defence Act stipulates only that cases are referred to the Grievance Board in certain specific categories. This is all set out in the Queen's Regulations and Orders…

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

Excuse me?

[Col Alain Gauthier]

I said the Queen's Regulations and Orders.

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

So the Queen is involved now!

[Col Alain Gauthier]

Those are our internal regulations; that is where the details are. It is where you find the four types of grievances that must be referred to the board.