National Defence Committee on March 2nd, 2011

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

Okay, I see.

I have another question about dealing with grievances. We have heard about cases where the chief of the defence staff goes to resolve the matter. Unfortunately, if there are financial implications, the chief of defence staff may claim not to have the authority to make any financial settlement that may have been awarded. As I understand it, it's the legal department that evaluates the complaint and can say yes or no.

In your presentation, you seem to be saying that there are some complex questions that need to be resolved. You do not mention what they are, but it seems quite simple to us. Just suppose that it is recognized that an injustice has been done to someone and we owe him $1,000 because of that injustice, but we don't take the next step. Would you not agree with me that it would be a lot easier, and would save a lot of time and effort, if the chief of the defence staff had the authority to correct, not only the injustice itself, but the financial injustice that resulted from it?

[VAdm Bruce Donaldson]

Yes, sir, it would be much easier.

The challenge is not agreeing that the chief should have these authorities; the challenge is finding the mechanism for giving the chief these authorities. It could be a legislated mechanism, but I think a simple legislative amendment to the National Defence Act, given the structure of financial authorities in the Government of Canada, would not be sufficient. There would probably have to be a number of different legislative amendments made in order to give effect to that delegation of authority to spend.

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

Could it be done by rules?

[VAdm Bruce Donaldson]

What we are approaching is a solution that is a combination of internal procedures--that is, connecting the grievance process and the decision-making in the grievance process with the resources that are available to analyze the implications of committing the money if the chief says to go ahead and do it. It's very important, if the chief is committing the Government of Canada to spending, that we know exactly what the commitment is. That is a procedural aspect.

At the same time, the chief does not have financial authority for these issues, so in essence the default position is to treat them as a claim against the crown, but the test for a claim against the crown is very different from the test for the redress of a grievance, and it is that inconsistency of approach that is frustrating the procedural solution.

I believe that a regulatory solution with Treasury Board to supplement the procedural solution gives us the best chance of a way ahead, and that is what we are pursuing, but as I say, having started last summer, I am surprised at how challenging this issue is. Still, I believe that in the next few months we will have at least a trial of a solution that we can put into place.

[The Chair, Conservative, Maxime Bernier]

Thank you. I now give the floor to Mr. Harris.

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

Thank you, Mr. Chair, and thank you, Vice-Admiral Donaldson, Colonel Grubb, and Colonel Gauthier, for joining us today.

This is a most interesting piece of legislation. A lot of complex issues are before us, some having to do with the relationship between the CDS and members of the forces. I think in the case of the grievances in particular, we were given a few very passionate ideas about the relationship between the CDS and the members of the forces. These ideas came from ex-military people with a great deal of respect for their lives in the military and the military commitment.

We've had very outstanding chiefs of defence staff in our forces. The relationship seems to be important for the purposes of morale and leadership. There's almost an attempt to achieve a personal relationship, if you will, as part of the function of leadership. I think you would agree with that; I see your head nodding. I think that's desirable. It was suggested that in that context it was unwise to have the CDS delegate that authority for something like grievances, for example.

Maybe Colonel Gauthier or either of you could answer this. Would it not make sense to retain the right to settle grievances in the Chief of the Defence Staff as the final authority, recognizing of course that even in your role as a delegate, you would consult with him and that perhaps even the decision would be made by him? Couldn't the final authority still be retained with the CDS? It's been suggested, although not by any witnesses in this committee, that maybe the CDS doesn't want that responsibility, either for financial aspects or for final authority.

Is there any sense of that in your organization?

[VAdm Bruce Donaldson]

Mr. Harris, the chief takes deeply personally his relationship with the members of the Canadian Forces and deeply personally their sense that they're being fairly treated. The issue in terms of delegation of final authority is not to sever or to adjust that relationship. It is, in fact, to establish a set of reasonable conditions within which final authority decisions can be made.

We have quite a lot of history. There are many grievances that manifest themselves with different people. The issue is that if the chief acted as the final authority for every grievance, he would spend more than a third of his time as Chief of the Defence Staff working on those issues.

He needs support. The key is to make it clear what his criteria are, what his views are, and to meet regularly to understand the grievances under consideration and to select those that he feels he needs personally to become involved with, either because of their complexity, because of the precedent they may establish, or because of the key leadership issues that are involved.

May I turn to Colonel Gauthier to add anything to that, Mr. Chair?

[Col Alain Gauthier]

On average, there are about 250 grievances that reach the final authority level. Most of those grievances are more complex, because they were not able to be resolved at the initial authority level.

Some of those grievances have boxes of documentation, and because the final authority needs to act as an administrative tribunal, it needs to review all the documentation that is in front of it. I would add that acting as a final authority on behalf of the CDS, where about 60% of the grievances reach final authority, I spend three-quarters of my time on a yearly basis rendering decisions.

This cannot be taken lightly; it cannot be taken by reading a synopsis of a case. You need to look at the whole thing. You need to look at the disclosure and the remarks from the member. It's a long and arduous process to be fair to the member.

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

In connection with the authority of the Chief of the Defence Staff to decide financial matters, I'm going to propose an amendment later on in the hearings of this committee to suggest that the clause that gives the Chief of the Defence Staff the final authority in the grievance process be amended to say that the chief shall have the authority to decide on all matters relating to a grievance, including financial matters, which would allow the Chief of the Defence Staff at least to say, “I believe this person is entitled to x dollars.”

How you actually get that money out of Treasury Board or out of your budget and into the hands of the person may be a technical matter. It seems to me that if that authority at least is given to the CDS, that would assist you in finding a way to get the money that the griever is entitled to into his hands. Is that something you think may help?

[VAdm Bruce Donaldson]

Mr. Harris, the chief has that authority now. In fact, he has the authority to hear all grievances and to render a decision as final authority. That includes financial matters, and he does. He renders a view of entitlement in terms of redress. The challenge is not so much rendering the view; it is finding the mechanism to actually commit the money to redress the grievance. It is not so much the chief's authority to make a finding; it is the government's ability and structure to empower the chief to cause that finding to be implemented.

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

I won't get into the argument over the drafting, but we understand that the RCMP commissioner has similar authority to settle a grievance, and that's the mechanism that's used to give that authority.

[VAdm Bruce Donaldson]

I believe the commissioner is an accounting officer, sir, which is a different arrangement than the chief has.

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

Maybe that can be handled in another forum.

We've received some pretty strong representations from the Military Police Complaints Commission. Perhaps you've seen them. I'm sure Colonel Grubb has seen them. Its about the authority given to you, sir--not you personally, but your office--to issue specific instructions on individual cases. I'm referring here to the provisions in proposed subsection 18.5(3).

[VAdm Bruce Donaldson]

I understand the ones you are referring to.

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

I don't mean the general instructions--there is no objection to those--but the specific instructions. They are unnecessary, because the chain of command permits that to happen for operational reasons, as you've suggested, but it is inconsistent with the independence of police authority to put that in legislation. They've backed up that position with a significant legal argument, plus a legal opinion from an academic authority.

Have you considered that position? Do you think it is necessary to have a specific provision of that nature? Is there legitimacy to that concern about the independence of the MPCC or the provost marshal?

[The Chair, Conservative, Maxime Bernier]

Please give a short answer, Admiral.

[VAdm Bruce Donaldson]

I'm not sure it's possible, Mr. Chair, to answer that question shortly, but let me offer a couple of thoughts.

First of all, this is a different business. Colonel Grubb and the provost marshal have the unenviable task of operating a world-class police force in incredibly changing and challenging environments. In that regard, the imperatives of conducting an investigation, the expectations of Canadians, and perhaps even the responsibilities of a provost marshal may come into conflict with some of the other priorities the Government of Canada has established for its fighting force.

One example would be conducting a forensic investigation in a battle scene. It goes without saying that we wouldn't send a whole bunch of military police into a live fire zone and put them at risk, but there may be a desire to send a bunch of military police into an area that will soon become a live fire zone, and there may be a requirement to balance some of that off.

I cannot really foresee very many circumstances in which I would make use of this provision, Mr. Harris. It makes me a little uncomfortable, because I value quite highly the independence of the provost marshal. In fact, I depend upon it.

Having said that, I could foresee, potentially, occasions when the provost marshal may wish for me to provide instructions to guide the course of an investigation in a complex scenario, because he may feel conflicted. He may seek that type of guidance. A provision in the bill would allow us to confront that quite openly and transparently and allow us to address that. I think that 10 or 15 years from now I would not want to be a vice-chief wishing that we had some way of dealing with the situation. Having it in the bill gives us that option, even if we never exercise it.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Thank you very much.

Now I will give the floor to Ms. Gallant.

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

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

Admiral, there's been significant discussion in this committee relating to the fairness of a summary trial process, although all witnesses have acknowledged the importance of the process.

In the course of those discussions, it's been suggested by some witnesses that Bill C-41 could be used as a vehicle to amend the NDA to eliminate the punishment of detention as a possibility at summary trial and remove any possibility that an offender convicted at summary trial would acquire a record under the Criminal Records Act.

Recognizing that, do you not currently have policy responsibility in the military justice area? I also note that you're the only representative in the chain of command to have appeared before us in the study of this bill. I'm wondering if you have any general comments or thoughts that you could share with us in this regard.

[VAdm Bruce Donaldson]

Thank you for the question.

First of all, I would say that to contemplate significant changes to available punishments in the summary trial process should be looked at very carefully and taken very seriously. My thoughts today, I would say, would be an incomplete view of those contemplated changes.

In terms of eliminating detention, detention by its nature is a rehabilitative sentence. In my experience—and I have some reasonable experience administering justice in the Canadian Forces—it is an extremely useful behaviour correction method. It is also a particularly effective deterrent to young men and women whose most precious commodity these days is their free time. Given the interests of the summary trial system--the importance of swift administration of justice while effectively maintaining morale and discipline in the unit--I consider detention to be a very important tool. Although it is a fairly serious tool for a summary trial process, I consider it to be entirely appropriate for what it is we're trying to achieve.

I would also say that if you took a poll of the men and woman affected by the summary trial process, they would be very uncomfortable if we did not have such a process. I think that for the minor charges that are dealt with by summary trial, it very much serves the interests of justice and fairness and swiftness that our men and women are looking for.

I would also say that the removal of detention as a sentence would concern the men and women of the Canadian Forces because they would feel that administration of justice would perhaps not be sufficient to maintain discipline and morale and to act as a deterrent effect within a unit for behaviours that everyone would like to correct.

Does that answer your question?

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

Well, it half answers the question. The other part of the question was whether you would agree that we should be removing any possibility that the offender convicted at summary trial would acquire a record under the Criminal Records Act.

[VAdm Bruce Donaldson]

It seems to me that our summary trial process is enforcing the laws of Canada as they apply to the members of the Canadian Forces, and in those circumstances in which you would acquire a record for an offence under the laws of Canada, I see no reason that you would not acquire a record for having broken similar laws as a member of the Canadian Forces. Having a record merely allows for it to be understood that you have engaged in sanctionable behaviour in the past.

I'm not an expert in this regard, but those are my thoughts.

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

You indicated in your opening remarks that granting the CDS a much broader authority to delegate his power as a final authority in the grievance power will enhance the efficiency of the grievance system. Could you expand on this, and also address the criticism to the effect that the exercise of this delegation authority would be an abdication of the CDS's responsibility?

[VAdm Bruce Donaldson]

Well, I've spoken about how I feel that it's not an abdication at all. I've spoken about the principle of delegation that we apply in many other respects that affect the lives and safety of men and women in uniform, and that in fact it enhances the safety of those men and women to empower leaders to make the right decisions in the right way at the right time. I feel that in the same vein the Chief of the Defence Staff's delegating of some of his responsibilities and authorities as final authority in the grievance process will in no way detract from his accountability or responsibility at the end of the day or from the efficacy of the system.

We balance, with the grievance system, two very challenging objectives. One is the objective of time limits. We have done a lot of work and we have made a lot of changes to allow us to address grievances faster than we have in the past. Frankly, we haven't done well historically, but we're doing much better. We still have work to do, and we hope the trial of the principled process will help us do that.

On the other hand, one of the reasons it takes so long is that we are focused on fairness--making sure that we thoroughly understand the grievance, thoroughly understand the issues involved, understand the precedents that have been set, understand the latitude that is available to the final authority, and are able to render a decision that meets the expectations of full consideration and a fair treatment of the grievance. That takes time. In fact, as we've heard, grievances that get to the final authority can be immensely complex and involve a number of different important principles that need to be reconciled.

So on one hand we have the requirement for timeliness and on the other the requirement for fairness and thoroughness, and it is by the chief's ability to delegate some of his decision-making that we're able to do both: we're able to be thorough and to address the issues in the detail required and manage the complexity, and yet still render a decision in an acceptable timeline. This is why we're pursuing that course of action.

[The Chair, Conservative, Maxime Bernier]

Merci. Thank you, Admiral.

Merci, Ms. Gallant.

Now I will give the floor to Mr. Hawn.