National Defence Committee on Jan. 30th, 2013

[Peter MacKay, Conservative, Central Nova, NS]

I certainly don't disagree with you, Mr. McKay, that the confidence all members of the Canadian Forces, as well as the public, have to have in the independence of the investigation is absolutely critical. I can assure you that the Judge Advocate General's office would have reviewed all of the provisions of the bill before you, in accordance with proposed amendments to the National Defence Act, with an eye to their constitutionality.

I referenced the fact that Mr. Justice Lamer would have undertaken a similar exercise. Some of the recommendations he made, Mr. McKay, which you're aware of, speak specifically to efforts being made to ensure a higher standard of investigation, compliance with investigative standards, and training in professional applicability of the military police to ensure compliance with those standards. Investigations with respect to conduct that is inconsistent with the professional standards of the military police are also subject to review by the Military Police Complaints Commission. Again, recent examinations of military police that have been very high profile are an indication that the system works. Military police are in fact subject to a high degree of scrutiny.

The bill is consistent with efforts being made and undertaken to comply with recommendations from Mr. Justice Lamer. We always have an eye as to constitutionality, to recommendations that come from the Judge Advocate General, as well as to Mr. Harris's suggestion that the Department of Justice review all government bills. Having been a member of the previous government, you know that there's a rigorous constitutional filter, if you will, undertaken by the Department of Justice.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Generally speaking, there is, at least there was, a rigorous constitutional filter. No bill actually hit the floor of the House of Commons without that filter being applied by the Department of Justice. The concern here is that the JAG is, in some respects, reviewing itself and signing off on itself. If in fact this were done by the Department of Justice, as happened in times past, you would have some level of comfort that it would stand up to judicial scrutiny.

The concern I have is that it's only going to be applied in a messy situation. It's going to derail, or potentially derail, or give an avenue for a defence counsel to derail an inquiry over something that is unnecessary.

I would be very encouraged, I would feel much more comfort, had we a justice department filter—a written filter would be even better—for JAG or for you directly that would satisfy the concerns raised by the MPCC and Professor Roach and others. I know we're going to hear other testimony that says this is not constitutional or is not charter-proof.

[Peter MacKay, Conservative, Central Nova, NS]

To speak to that point directly, Mr. McKay, I'm not a legal scholar. I was more of a practitioner. I do sometimes believe that legislators, and even the Department of Justice, suffer from a bit of constitutional constipation. They focus so fastidiously on whether this will pass the charter that perhaps no amendments would ever be made to legislation.

We have a very capable, rigorous examination by trusted, capable lawyers within the Department of National Defence in our Judge Advocate General's department. This is a separate system of justice. We're talking about our military justice system. There is expertise within the department that would not only examine the constitutionality of this but would try to anticipate, as you've suggested, these messy situations.

I'm not a strict adherent to Cartesian thinking that we have to try to codify and write down every single situation in anticipation of somehow preventing breaches of the law. It simply doesn't work that way.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I think one of the great remedies for constitutional constipation is anticipating that small changes could actually work.

Anyway, we can go around this mulberry bush for a while longer, but I want to get one other—

[The Chair, Conservative, James Bezan]

You have 30 seconds, and that includes a response.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thanks very much. You're a good chair.

As you know, the ombudsman has been very frustrated with the issue of an ex gratia payment ordered by the CDS, but you end up in this bureaucratic limbo-land. I have in my hand the Privy Council Office order of June 19 of last year. Paragraph 3 says “the power to authorize payment under subsection 1(1)”—which is the CDS ordering an ex gratia payment—“is subject to any conditions imposed by the Treasury Board”.

Is this an appearance of a solution or is it a real solution?

[Peter MacKay, Conservative, Central Nova, NS]

I'm hoping it's the latter, Mr. McKay. You've been around here as long or longer than I have and you know that the wheels of government and the grist often turn slowly here, but this is a genuine effort to address—

[John McKay, Liberal, Scarborough—Guildwood, ON]

I agree with the effort.

[Peter MacKay, Conservative, Central Nova, NS]

Again, with the greatest respect, I cannot either anticipate or speak for Treasury Board, but we, the Department of National Defence, the JAG office, have made it clear that we feel this is a change that would be welcome, that would expedite these outstanding grievances. And we're hopeful, based on the Privy Council's reporting, that this will be favourably received at Treasury Board.

[The Chair, Conservative, James Bezan]

Thank you.

We're going to cut it off there. Time has expired. We have fewer than ten minutes, closer to nine minutes, to get to a vote.

Minister MacKay, thank you so much for your appearance, along with Vice-Admiral Donaldson and Major-General Cathcart.

With that, the meeting is adjourned. We're out of here.