National Defence Committee on March 2nd, 2011

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair, and again thank you to the witnesses for being here.

I just want to wrap up—in my view, at least—some of this discussion about the CDS and his authority and responsibility and so on. As you said, Admiral, the CDS does render his view on financial commitments; he just doesn't have the authority to write the cheque. Just to be clear—you alluded to this—the CDS is not an accounting officer; the deputy minister is an accounting officer. This marks a differentiation from the RCMP. The commissioner of the RCMP is in fact at a deputy level and therefore is an accounting officer. We can't just say that since the RCMP does it, the CDS can do it.

Is that a fair summary of the CDS's authority in that area?

[VAdm Bruce Donaldson]

Yes, it is.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Okay.

[VAdm Bruce Donaldson]

There may be other technical and legislative differences that come into play as well, but in a nutshell, I think you've summarized it.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

With respect to detention, I have to say that the use of detention in my view is essential. I've used it. Most times I didn't have to use it. Most times, if somebody was getting uppity on the squadron, a simple visit with the squadron chief taking him down to Edmonton to take the tour was enough to deter anybody from further misbehaviour. I agree that detention or the threat of detention is a very important element of that system.

On the grievance system a little bit, we have about 700 grievances a year—is that the right number?—about 250 of which reach the CDS for final authority. Now that's 700 grievances out of a population of about 90,000 who are eligible to grieve.

[VAdm Bruce Donaldson]

That is 90,000 uniformed, yes.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Exactly. I would take that as a sign of faith in the system that people feel they can grieve, because there will be some resolution of grievance, and as you've pointed out, Admiral, we haven't done all that well in the past but are doing much better now. I would almost take that as an encouraging sign that people have faith that their grievance will in fact be resolved in some measure.

I suppose, Colonel Gauthier, you would be the most closely associated with that. Would you agree?

[Col Alain Gauthier]

Yes.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Again talking about courts martial and summary trial, we have about 65 courts martial a year and about 2,000 summary trials a year. I think that's the number we've seen. It's in that ballpark. The fact that so many opt for summary trial, I would suggest, with your disagreement or agreement, is an indication that members have faith in the summary trial system. They opt for it because they have faith that the commanding officer or whoever is hearing it will treat them fairly.

[VAdm Bruce Donaldson]

I completely agree. In fact, in my experience folks are much happier with the summary trial process because, for the types of things we charge people for, people just want to get it over with. They want justice to be done; they want to get their opportunity to defend themselves; they have, in my experience, great confidence in the summary trial process. They have recourse in those instances in which they feel they have not been dealt with appropriately. It allows us to administer justice in a way that is consistent with the environment within which we find ourselves on an ongoing basis.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Colonel Grubb, we talked about the balance of maintaining the investigative independence of the Canadian Forces provost marshal and the responsibility of the chain of command to act. The admiral addressed that, and it can be a delicate balance from time to time. I know you're liable to say yes because you're a loyal soldier, but I'm asking you to forget the loyal soldier part.

[VAdm Bruce Donaldson]

Actually, he hardly ever says yes to me. He has taken this independence thing way too far.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

When are you due to retire? Never mind.

Do you feel, as the Canadian Forces provost marshal, that the balance that has been struck is in fact effective and allows you to have that independence of investigative authority and yet still operate within the chain of command?

[Col Timothy Grubb, Canadian Forces Provost Marshal, Department of National Defence]

Yes, sir, absolutely. I think if I were just to take the legislation as written, without the safeguards that are present, I would have a lot more concern, but due to the transparency clauses that exist--the interference complaint process under part IV of the NDA—those types of safeguards certainly make it more robust. It allows me to make sure that there is an avenue of approach, should there be a conflict.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

That just twigs me to a final question, Mr. Chair, to Vice-Admiral Donaldson.

The fact that things are covered in Bill C-41 and that there may appear to be some things missing out of it that may be covered, in fact, in the National Defence Act would ameliorate or would fill the gap that might be apparent in Bill C-41 in some areas. Is that a...?

[VAdm Bruce Donaldson]

Absolutely, and in fact recourse to the Military Police Complaints Commission is one. It's why we established the commission: to make sure that in matters that affect the military police, if we don't think they're right or if someone doesn't think they're right, there is a recourse.

[The Chair, Conservative, Maxime Bernier]

I now give the floor to Mr. Bachand; he will be the last committee member to speak.

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

Thank you, Mr. Chair.

Vice-Admiral, with the Grievance Board becoming the Military Grievances External Review Committee, is it just a name change? Will the composition of the committee be the same? Will the committee's mandate and responsibilities remain the same? In other words, is this just a cosmetic change, or does it go deeper?

[VAdm Bruce Donaldson]

I think it is the evolution of the committee, and it is determining how best to conduct its business, which has already taken place. We're trying to catch up with the intent of the committee by changing the name.

You may say that it is a somewhat cosmetic change in Bill C-41, but I think it reflects the maturity of the Canadian Forces Grievance Board by making clear that it's not part of the Canadian Forces, but an external review board that we rely upon to give us impartial advice.

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

Okay, but all the committee members are military people. So the mandate and responsibilities will stay the same. We are just changing the name of the committee, but it has the same composition and the same mandate. If that is the case, just say so; it's no problem.

[VAdm Bruce Donaldson]

The current membership will not change as a result of the change in names. They are not members of the Canadian Forces. Many of them are retired members of the Canadian Forces, or perhaps all of them are retired members of the Canadian Forces. I think the grievance board will have to decide the types of people that they're pursuing to help with the work that they're doing.

I wouldn't want to comment on an appropriate makeup of that board, because I think that's the purview of the board itself, but I will say that given the types of questions they consider, I don't believe that a detailed understanding of the Canadian Forces, as Mr. Dryden pointed out at the beginning of his comments, and an understanding of the environment is a disadvantage for the members of that board.

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

I have one last question about military judges filing grievances and having them finally resolved by the chief of the defence staff. It seems to me that this compromises judicial restraint a little. I feel that judicial independence must be protected. Do you feel that it could be dangerous for a judge to file a grievance and have it come down to the chief of defence staff to resolve it?

Do you see judicial independence compromised by that?

[VAdm Bruce Donaldson]

No, I do not. We're not talking about grievances that pertain to the role of the judge or the decisions rendered by a judge. These are grievances like those of any other member of the Canadian Forces, so I think we have partitioned very well the independence of military judges. To say that because a military judge is in a position of independence, any aspect of administrative concern should be treated differently than other members of the Canadian Forces because, perhaps, the Chief of the Defence Staff may use that grievance as leverage over a judge in conducting his or her business I think calls to question the fundamental motivation of a Chief of the Defence Staff towards the grievance system. The chief must be motivated towards the benefit of the members of the Canadian Forces and the health of the institution as a whole. The resolution of grievances is a leadership function.

If a military judge, in a matter that has nothing to do with judicial responsibilities, pursues a grievance to the final authority with the Chief of the Defence Staff—for example, a sale of a house or a move, where he or she felt that administratively they weren't treated the way they should have been treated—I don't see how treating that grievance somehow differently because the person is a military judge benefits the Canadian Forces at all. In fact, I think it calls into question the whole principle of the chain of command and the Chief of the Defence Staff being responsible for the welfare and the well-being of every single member of the Canadian Forces and of the institution as a whole.

Does that answer your question, sir?

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

Yes. I don't agree, but it answers my question.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

Thank you, Vice-Admiral Donaldson, Colonel Grubb and Colonel Gauthier.

We are going to suspend our proceedings for a few minutes. Then we will move to the clause-by-clause study of Bill C-41.