National Defence Committee on March 7th, 2011

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Chair, this is about justice being served and the appearance of justice being served. The grievances we're talking about have nothing to do with the judges' role as military judges. The grievances we're talking about are the same types of grievances that a judge or an infantryman or a pilot or anybody could make who is a member of the Canadian Forces. It has nothing to do with the judge's role. It has everything to do with a judge's membership in the Canadian Forces, as an officer of the Canadian Forces. He or she is allowed to grieve the same kinds of things that anybody else can grieve, whether it's a moving claim or a travel claim, or whatever. This is exactly about making sure that judges have the same access to justice and the grievance system that everybody else has in the Canadian Forces.

What we are proposing here is to change this. It is counterproductive to the delivery of justice and the appearance of the delivery of justice. This has nothing to do with their jobs or their role as judges. It has to do with their status as members of the Canadian Forces who are able to access the grievance process just like any other officer or non-commissioned member of the Canadian Forces.

[The Chair, Conservative, Maxime Bernier]

Mr. Bachand. Then Mr. Hawn.

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

I ask Mr. Hawn what he has against the fact that, when judges file a grievance, it is decided on by the grievances committee. Basically, we are just taking it out of the hands of the Chief of the Defence Staff.

According to the wording of the clause, the Chief of the Defence Staff shall refer it “to the grievances committee for its findings and recommendations.” So the Chief of the Defence Staff makes the final decision again. That is not what Justice Lamer wanted. He wanted the final decision to be made by the grievances committee and not by the Chief of the Defence Staff. That is the intent of my proposal.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

We have a fundamental disagreement with that as stated. We suggest that judges, as officers of the Canadian Forces, have access to the same grievance process as anybody else in the Canadian Forces. There is no reason for a judge to have any other grievance process. It has nothing to do with any decision they make as judges. It has nothing to do with their role as judges. It has everything to do with their status as members of the Canadian Forces. In our view, they should follow the same grievance process as other members of the Canadian Forces.

[The Chair, Conservative, Maxime Bernier]

Mr. Gleeson.

[Col Patrick K. Gleeson]

This amendment is removing the obligation of the CDS to send military judges' grievances to the grievance committee. It removes the language that's in the original clause of the bill that says “and every grievance submitted by a military judge”. I believe it was intended to be consequential to Bloc amendment BQ-3, but I don't think that was carried, so this would actually remove the obligation that is now in the act for the purposes of reflecting the concern of judicial independence, of having the chief refer these for review and recommendation regardless of the content of the grievance.

I put that information on the table for the members of the committee.

[The Chair, Conservative, Maxime Bernier]

Okay, Mr. Harris.

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

Mr. Bachand, is it your hope that the military judges would have the right to have their grievances considered? The way I read this amendment, one of the worries was that the Chief of the Defence Staff shouldn't have authority over the military judges. This seems to say that the Chief of the Defence Staff doesn't have discretion in referring those grievances to the committee. It says that every grievance shall be submitted to the grievance committee. Every grievance of a military judge shall be referred. Then the last sentence says the Chief of the Defence Staff “may” refer other grievances to the grievance committee. In other words, he has an option on other grievances, but he doesn't have an option with the military judges. He has to send them to the grievance committee. Is that a problem? I'm just trying to understand.

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

No, Mr. Chair, the Chief of the Defence Staff can refer them to the grievances committee, which in turn can provide recommendations in its findings. That being the case, I feel that the Chief of the Defence Staff has the final word again. I want to avoid that. I want the grievances committee to have to be responsible for the final decision when a military judge files a grievance. The decision would not fall to the Chief of the Defence Staff. In my view, that would protect the independence of the judicial system.

[The Chair, Conservative, Maxime Bernier]

Mr. Gleeson, is that what the amendment is doing?

[Col Patrick K. Gleeson]

It certainly doesn't in itself, Mr. Chair. Again, correct me if I'm wrong, but amendment BQ-3 was not carried. Am I correct in that regard?

[The Chair, Conservative, Maxime Bernier]

You're right.

[Col Patrick K. Gleeson]

So with amendment BQ-3 not being carried, the Chief of the Defence Staff is the final authority with respect to all grievances, including those submitted by military judges. Given that starting position, what happens with amendment BQ-4 is that we're now removing the obligation that the chief would have if this bill were to pass unamended to refer every grievance from a military judge to the grievance board for their findings and recommendations--not for a final decision, but for their findings and recommendations.

That is in the bill to address the type of concern you're talking about, which Mr. Bachand was referring to. The amendment that's being proposed would remove that obligation, so it would read, after the amendment, simply that “the Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council to the grievances committee for its findings and recommendations”.

So the CDS would have the discretion as to whether or not military judge grievances would go forward, and it would be based on the nature of the grievance and not on the fact that it came from a military judge.

The unamended clause would cause any military judge grievance, as long as it falls within the scope of the act--and there are some prohibitions on what military judges can grieve, but any grievance that's properly submitted by a military judge, regardless of its content, would go to the grievance board for findings and recommendations. That's what would disappear if this amendment were adopted.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Gleeson.

We must bear in mind that the committee has not approved Bloc Québécois amendments BQ-3 and BQ-3.1, and that has an impact on amendment BQ-4.

Do you still want to move to the vote on amendment BQ-4, Mr. Bachand?

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

You told me that it was in order.

[The Chair, Conservative, Maxime Bernier]

Yes, it is in order.

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

So, yes, I want to move to the vote.

[The Chair, Conservative, Maxime Bernier]

Yes, Mr. Hawn?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Let's just call the vote, Mr. Chair.

[The Chair, Conservative, Maxime Bernier]

Okay.

Mr. Harris.

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

Was amendment BQ-3 rejected by the committee or was it ruled out of order?

[The Chair, Conservative, Maxime Bernier]

Amendment BQ-3 was ruled by the chair as not receivable.

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

It was ruled out of order, was it?

[The Chair, Conservative, Maxime Bernier]

Yes.

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

So we can't revert to it.