Evidence of meeting #52 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 amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Mr. Jean-François Lafleur
Patrick K. Gleeson  Deputy Judge Advocate General, Military Justice and Administrative Law, Department of National Defence
Lucie Tardif-Carpentier  Procedural Clerk
Michael R. Gibson  Director, Strategic Legal Analysis, Department of National Defence

3:30 p.m.

Conservative

The Chair Conservative Maxime Bernier

Good afternoon and welcome to the 52nd meeting of the Standing Committee on National Defence. Pursuant to the order of reference of Monday, December 6, 2010, we are going to study Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

We have here with us today Colonel Gleeson and Lieutenant-Colonel Gibson, who were also here last week.

Thank you for being with us. If we need you, it will be very useful for members.

(On clause 6)

The Bloc Québécois has suggested that we amend clause 6. That's amendment BQ-3.1.

Mr. Bachand, the floor is yours. We are then going to move to amendment NDP-1, which also deals with clause 6.

3:30 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Chair, I think you made a decision last time. Was it on amendment BQ-3?

3:30 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes, it was on the Bloc Québécois amendment.

3:30 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Basically, it was out of order. Is that right?

3:30 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes, it was amendment BQ-3.

3:30 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Okay.

What I have here and what I was asking about is your decision. It is the draft decision of the chair.

3:30 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes. The decision was made last time. The draft decision became the final ruling.

3:30 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Okay.

So you read the draft decision and decided that it was the final decision.

3:30 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes.

3:30 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Very well. I do not want to appeal your decision. To date, especially from a political standpoint, what I have seen in this bill is a mix of ideas dealing with the higher structure. It's about having more judges, more of this and that. In some ways, I don't see how we can save judicial independence. As I said, I am not questioning your decision, but I am a little disappointed that we would agree to this type of judicial responsibility. It has actually been ruled out of order because, under the act, military judges and the Chief of the Defence Staff will have the final authority. In other words, the bill that was submitted to us deals with very specific issues that, in my view, do not go far enough. I wanted you to know that I accept your ruling, but I had to say that about amendment BQ-3.

I will now go to amendment BQ-3.1. My suggestion was to have the following wording: “final authority in the grievance process—except in the case of grievances submitted by a military judge—”, but given your decision, I suspect that we will have to withdraw it. However, there is still a principle set out in the amendment through the wording: “including for the settlement of financial claims, and shall”.

I am not sure how to proceed. Can we simply cross out the words “except in the case of grievances submitted by a military judge”?

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes.

3:35 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

We can do it?

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Mr. Harris.

3:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

There's another amendment that has wording very similar to Mr. Bachand's. It's NDP-1. It does what Mr. Bachand suggests to do, without amending his amendment. I'll leave it to the committee, but my amendment also has specific wording that effectively adds the words “including financial matters”.

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Mr. Harris, we will deal with your amendment after BQ-3.1. I understand your point.

3:35 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Do you agree with my removing the mention of a military judge from the clause?

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes. So amendment BQ-3.1 would read as follows: “final authority in the grievance process, including for the settlement of financial claims, and shall”.

3:35 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

But the point is for the Chief of the Defence Staff, who is the final decision-making authority, to have the proper legal instruments for settling claims. You must remember that this is what the ombudsman suggested when he came to testify before us.

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Thank you.

As to your amendment, even if we change the initial BQ-3.1 amendment based on the ruling of the chair, your amendment is still inadmissible, because it contravenes the terms of the royal recommendation.

To be more specific, I will say that “[s]ince an amendment may not infringe upon the financial initiative of the Crown”, this amendment is inadmissible because it “imposes a change on the public treasury...it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation”.

Therefore, I am of the opinion that this amendment proposes a new mechanism that will change the terms of the royal recommendation. As a result, the motion is out of order.

3:35 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Can I get a copy of your decision?

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes.

3:35 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

I believe poor Mr. Harris is headed down the same road as me.

3:35 p.m.

Conservative

The Chair Conservative Maxime Bernier

Yes.

Mr. Harris, would you like to introduce your amendment?

3:35 p.m.

NDP

Jack Harris NDP St. John's East, NL

Well, I may or I may not. We'll see.

I would like to point out to the committee and the chair that the issue of royal recommendation is one that really is not a matter for this committee. That's a matter for the House. Our job here is to look at the legislation, recommend changes, and make amendments here in committee. It may well be that the royal recommendation will be to include such a thing.

We've heard from witnesses from the government, just this last time from Vice-Admiral Donaldson, that this is exactly what the government wants to do. They want the Chief of the Defence Staff to be able to resolve these matters. They've simply been trying to find a mechanism to do that.

It seems to me that this committee's role is to make recommendations for amendments to the act that may assist in the performance of the duties, in this particular case, of the CDS in accordance with the desire and aspirations of the military themselves. So for us to refuse to make a recommendation that follows along with that, that may assist that cause.... Who is this committee to say that when this matter goes back before the House, if indeed a royal recommendation is required, that it won't be forthcoming? I think this committee should, as a committee, make this recommendation an amendment anyway, whether or not it's the view of the chair at this particular point that such a recommendation requires a royal recommendation.

It was suggested to us that it was difficult to amend this act to achieve that object. Well, if it can be done with a royal recommendation, then that's not the case at all. I would submit that it's up to this committee to make whatever amendments it wishes at this stage. I'm no expert in parliamentary procedure, but my understanding, from talking to the legislative people who helped draft this--my amendment, at least--was that it could be decided by this committee to forward it to the House and have a ruling made then. The royal recommendation is one that's open to change, frankly, when it goes back to the House. We don't know what the royal recommendation is going to be, whether it's considered to be broad enough at this point to include this or not.

You have made your ruling on Mr. Bachand's.... Unless the committee wants to seek to overrule your ruling, to challenge your ruling...and it's up to Mr. Bachand to ask for that. But I believe that given the importance that's been given to this by witnesses, by the ombudsman himself, by the grievance board, and by the expression of frustration by Vice-Admiral Donaldson, who's charged with this responsibility, we as a committee should try to assist by recommending a change that could at least go some way, and hopefully be successful, in allowing the CDS to do what he wants to do, what we're told he wants to do, and thereby assist in the greater morale in the Canadian Forces and all of the positive things that were suggested here.

When the ombudsman, Colonel Daigle, comes here and says that the CDS can't give you $2,000, but some captain in Afghanistan can pass out $10,000 to a villager, based on whatever authority is given to them, it seems to me rather extraordinary that the royal recommendation rule would be used at committee stage to thwart a helpful recommendation to the House. If the minister decides not to provide a royal recommendation when the time comes, at report stage, well, then, let them say so.

I don't know if this committee chair is required to prevent the committee from bringing forth a recommendation to amend an act before we've been notified by the ministry or by the government that the royal recommendation would not be forthcoming.

My point is that's an objection that should be made by the government or the government House leader in the House, not by the chair—apparently to his own motion—here in the committee. That's my view on it, sir. I'll be prepared to listen to what other people have to say, but that's my view on it.

3:40 p.m.

Conservative

The Chair Conservative Maxime Bernier

Merci.

Mr. Hawn.