Evidence of meeting #51 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 judges.
A recording is available from Parliament.
Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence
Not really. I am not an expert in double dipping.
Certainly, these individuals would be treated the same way as any other former member or reserve member of the Canadian Forces in performing those functions. They would not have any special treatment. I don't know, to be quite frank, what the rules are around reserve service.
I know that we have retired regular force members who do reserve force work. To my knowledge, they continue to collect their pensions.
Bloc
Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence
Again, there's nothing in this scheme that would treat these individuals any differently from any other member of the reserve force. If that's the scheme that exists and is available, then it would be clearly available here.
I would point out, though, that just because you're a member of the reserve force doesn't mean that you're collecting the pension as a regular force member. There are a lot of members of the reserve force who have never served in the regular force. It's not a preconceived notion that you would be receiving a pension as a retired regular force officer.
Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence
Of course, it happens. I just don't know the parameters and the rules around it. I truly don't.
Conservative
The Chair Conservative Maxime Bernier
Thank you.
Let's move on to the vote on amendment BQ-1 of the Bloc Québécois, as proposed by Mr. Bachand.
(Amendment negatived.)
Conservative
The Chair Conservative Maxime Bernier
Now let's move on to the vote on clause 2.
(Clause 2 agreed to.)
Conservative
The Chair Conservative Maxime Bernier
Now let's move on to the vote on clause 3, to which no amendment has been proposed.
(Clause 3 agreed to.)
Conservative
The Chair Conservative Maxime Bernier
Before we move on to the vote on clause 4, I will give the floor to Mr. Bachand.
(Clause 4—Appointment)
You proposed amendment BQ-2.
Bloc
Claude Bachand Bloc Saint-Jean, QC
The purpose of amendment BQ-2 is to give independence to the Canadian Forces provost marshall. This was a request from the Military Police Complaints Commission, which asked about the independence of the provost marshall if clause 4 were to be left as it is.
That is why we want to delete lines 11 to 23 of clause 4, to ensure that the provost marshall's independence is maintained.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Thank you, Mr. Chair.
I think both the vice-chief and the provost marshal covered that pretty thoroughly. The effect of this would be to remove the vice-chief from that area where he balances the independence of the provost marshal and yet is still able to operate within the chain of command. Both the vice-chief and the Canadian Forces provost marshal addressed pretty clearly that it does not jeopardize the things you're concerned with, so we can't support that amendment.
Bloc
Claude Bachand Bloc Saint-Jean, QC
You will recall that I told Mr. Donaldson that I understood his point of view, but that I did not share it. So, I understand your point of view, Mr. Hawn, but I do not share it.
NDP
Jack Harris NDP St. John's East, NL
I read quite thoroughly the views of the chief of the Military Police Complaints Commission. I listened to Vice-Admiral Donaldson and Colonel Grubb as well. The question really wasn't answered. Maybe the JAG could help us here.
The argument put forth by the Military Police Complaints Commission is that this was unnecessary because the relationship between the vice-chief of defence staff, whoever that may be, and the provost marshal was within the chain of command, and that this power actually existed, so it was unnecessary to put that in there. Now, there may be a transparency argument to say that it may exist, but this puts it on paper and formalizes it, and it also provides the transparency side, which I think is a useful argument.
I have a second concern or question regarding this matter. We have two sets of guidelines here. One is the general guidelines. The Military Police Complaints Commission gave us a copy of a 1998 general set of instructions--or authorities, I suppose you'd call it--signed by the then Chief of the Defence Staff and the provost marshal of the day. I think it's called the accountability framework. I don't know if it's current or not. Maybe you could tell us about that.
If we're going down this road of formalizing the role of the provost marshal and formalizing the right to make instructions, I would be inclined to consider this amendment if we add to proposed subsection 18.5(4) so that it reads: The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) and subsection (2) are available to the public.
There are two sets of guidelines here. One is the general guidelines, or the accountability framework, and the second is the specific guidelines. I see the problem and I see that there may be circumstances in which it isn't possible to conduct individual or particular types of investigations in the way that the provost marshal as an independent police force might want in terms of professional standards, but in the interests of transparency and civilian or public awareness of this important relationship, I would want the general instructions, such as the accountability framework itself, to be made public as well.
Would you care to comment on this proposal?
Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence
Yes, Mr. Chair, I would be happy to do so, maybe starting at the end of that request first.
If you look at proposed subsection 18.5(2), you will note that there is already an obligation for the general instructions to be made public. There is an obligation under both the general instruction requirement at the end of proposed subsection18.5(2) and in proposed subsection 18.5(3) for instructions to be made public, so the transparency element is there.
To step back to the question about whether this is required, generally speaking I think I would agree with the view expressed: that clearly the chain of command has the ability to give instructions to subordinates, so a senior member in the chain of command has that legal authority. However, clearly the military police are in a special position. They have special responsibilities. As the vice-chief said earlier, he takes the notion of investigatorial or police independence very seriously, and it's very important that we recognize it and not improperly interfere with it.
Given that understanding, and in response to the recommendations made, we are actually framing in statute how that relationship should exist between the chain of command as represented by the VCDS and the provost marshal. As soon as you start framing that relationship in statute, it becomes necessary to articulate when and where that direction can be given.
If you were to include proposed subsection 18.5(2), which allows the issuance of general instructions, without the exceptional power that you see in proposed subsection 18.5(3), the only conclusion you could draw in the absence of proposed subsection 18.5(3) is that it's prohibited. You could never give that type of specific instruction.
So in response to your question and in response to the comments that the committee has seen in other material, I would suggest that it is in fact necessary because of what is being done in this bill.
Conservative
Bloc
Claude Bachand Bloc Saint-Jean, QC
I would like to respond to Mr. Gleeson's arguments. The second paragraph indicates that the vice-chief of staff can establish guidelines or give general instructions. In the third paragraph, it also says that he establishes guidelines and gives instructions for an investigation in particular. We are no longer talking about general instructions.
I am not a judge or a lawyer, but I know the meaning of that expression. Justice is important in an institution like the Canadian Forces, but so is the appearance of justice. We have already seen cases where, considering that he had justice in his hands, the judge made his decision. There was an uproar of major concern, and public opinion was mobilized because the appearance of justice was absent.
To wrap up my argument, I think it is important that we leave all the provost marshall's responsibilities intact. From the moment a superior tries to establish guidelines or instructions, the appearance of justice no longer exists. To protect the principle of the appearance of justice, the Bloc Québécois presents this amendment.
Conservative
The Chair Conservative Maxime Bernier
Thank you.
Mr. Hawn has the floor. Then it will be Mr. Harris.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
I understand Mr. Bachand's concerns, but that's exactly what it says, if you read proposed subsection 18.5(2): “The Vice Chief of the Defence Staff may issue general instructions or guidelines”, and the last part of it says, “The Provost Marshal shall ensure that they are available to the public.” Proposed subsection 18.5(3) says: “The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.” And proposed subsection 18.5(4) says: “The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.”
So in both cases the provost marshal shall ensure that those are made available to the public. They aren't being treated differently; they're being treated exactly the same.
Bloc
Claude Bachand Bloc Saint-Jean, QC
In my opinion, it is not because we make information available to the public that the appearance of justice is protected. Who is going to handle that? Who is going to start an outcry, who is going to alert the public because that person thinks a decision was rendered improperly? For me, it seems that a superior issues directives to the provost marshall, who administers justice to the Department of National Defence. I want to preserve the principle. It does not involve calling the public to witness all the decisions. That is not satisfactory.
NDP
Jack Harris NDP St. John's East, NL
I just want to put my view on the record, having listened to Colonel Gleeson. I think it is important to understand that there is a principle of law, an interpretation, that if you give expression to one general power, it can exclude other powers, so if you say you can make general instructions, that could be interpreted to include that you're not allowed to make specific instructions. I think the Latin is expressio unius est exclusio alterius. I think that's what Colonel Gleeson was referring to when he talked about the fact that if you write one down, it means you've got to deal with the other one. so I accept that, even if clause 1 says the provost marshal acts under the general supervision of the vice-chief of defence staff in respect to responsibilities.
I think that if you start giving these general powers, you have to give the specific ones as well. I'm satisfied with the transparency contained in proposed subsections 18.5(2) and 18.5(4) in terms of satisfying the public interest.
The only quibble or reservation I may have is with proposed subsection 18.5(5), which allows the provost marshal to keep the instructions to himself. That isn't only in relation to the specific instructions, as I understand it. Perhaps, Colonel Gleeson, you can tell us some examples of when the best interests of justice would motivate the provost marshal not to make these instructions available.