National Defence Committee on March 2nd, 2011

[Col Patrick K. Gleeson]

Mr. Chair, yes, I'd be happy to take a quick moment and talk about that.

The first thing I would point out is that in proposed subsection 18.5(5), you'll note that it would not be for the instruction, or part of it, to be available to the public. It sends some instruction to the provost marshal that he can release part of the instructions if that would be appropriate.

The type of circumstance, I think, is one that arises in probably any police investigative situation. There may well be circumstances in which the police do not want to let an individual who is the subject of the investigation know the investigation is going on, or it could be witnesses. I'm not a police officer and I don't have a great deal of expertise in the nature of the work, but I do know that the police are often quite protective of the fact that they are pursuing an investigation, because to not ensure that this information is kept confidential actually jeopardizes their ability to pursue the investigation. I assume that it would be that type of assessment that the provost marshal would undertake in deciding whether or not to make the investigation or the direction public.

Again, that doesn't mean he can't make it public at a later date. The discretion is completely his as to what he does with that direction, subject to the test that he's got to be able to satisfy himself and anybody who may revisit that discretion that it was done in the best interests of the administration of justice.

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

As you said earlier, he can complain about something that he thinks is unwarranted interference.

[Col Patrick K. Gleeson]

Yes, and that's an excellent point. If you go to the current part IV of the National Defence Act, specifically to section 250.19, it has a complaint mechanism there that, when it was introduced in 1998, was unique to the military. I don't think it's changed. I don't think there is any other police organization in this country that has a review body that looks at what are called interference complaints—which essentially recognizes, again, the unique nature of the military police working in a chain-of-command environment.

I know there's been some suggestion that this mechanism is not meaningful here, but, quite frankly, any authority can misuse a statutory authority. The mere fact that there's a statutory authority doesn't mean it's always proper. The test is “improper” interference that's out there, so that mechanism is there as well.

[The Chair, Conservative, Maxime Bernier]

Thank you, Colonel Gleeson.

We are now going to vote on the Bloc Québécois amendment.

(Amendment negatived.)

Shall clause 4 carry?

(Clauses 4 and 5 agreed to)

(On clause 6)

There is a Bloc Québécois amendment for clause 6.

Mr. Bachand.

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

I just raised this topic in posing the question to the vice-admiral. The opinion is that we are once again compromising legal independence by giving the vice-chief of staff the power to judge grievances submitted by military judges. In his report, Judge Lamer proposed a separation: he suggested that the grievances committee be able to render a decision in the grievances of judges, and not the vice-chief of staff.

So, the change we are proposing to the wording of clause 6 is aimed at reflecting the argument I just put forward.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

With regard to your amendment, I have made a decision in consultation with the clerk. Bill C-41, which we are in the process of studying, amends the National Defence Act to clarify the delegation of the chief of the defence staff's powers and authority in the grievance process. More specifically, clause 6 states that the vice-chief of the defence staff will be the final authority in the grievance process. Your amendment proposes transferring the final authority to the grievances committee in the case of certain types of grievances, in other words, grievances submitted by the military judge. As House of Commons Procedure and Practice second edition states on page 766: "An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill." In the opinion of the Chair, after obtaining the much appreciated opinion of the procedural clerk, the transfer of final authority from the vice-chief of the defence staff to the grievances committee for certain types of grievances is contrary to the principle of Bill C-41 and is, therefore, out of order.

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

I do not want to appeal your ruling. I know that, sometimes, members are well-intentioned and want to resolve matters. It is now 5:30 p.m. Without appealing your very important and very articulate ruling, I would like to take it under advisement. You will understand that I just heard about this decision that, I am told, relies on extremely important facts and on jurisprudence that is probably extremely important. As we can all see, it is 5:30 p.m., which could allow me to… Especially since I think that you need to adjourn our work because the bells are starting to ring.

[The Chair, Conservative, Maxime Bernier]

Great.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

It is 5:30 and the bells are ringing, so, sure.

[The Chair, Conservative, Maxime Bernier]

We are going to suspend our work. We will see each other again Monday afternoon for a clause-by-clause discussion of Bill C-41.

Mr. Bachand, you will have the opportunity between now and then to consider my judicious decision.

And, so, I can now adjourn our meeting. Thank you.

The meeting is adjourned.