Evidence of meeting #63 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
Acting Director General, Operations, National Defence and Canadian Forces Ombudsman
The regulations already include relatively clear guidelines on the matter. They prohibit the use of reprisal and give people full freedom to come forward. I think it's a matter of the culture needing to change, and changing the corporate culture can take years.
Conservative
The Chair Conservative James Bezan
I'm going to have to cut it off there so we have time to clear the table and move in our other witnesses.
I'd like to thank you, Mr. Daigle and Mr. Gauthier, for sharing your expertise with us in our study of Bill C-15.
With that, we're going to suspend for a couple of minutes.
Conservative
The Chair Conservative James Bezan
I call the meeting back to order. We're going to continue on with our study on Bill C-15.
Joining us now from the Department of National Defence we have Vice-Admiral Bruce Donaldson, who is the Vice-Chief of the Defence Staff, and Major General Blaise Cathcart, who is the Judge Advocate General.
Admiral Donaldson, I will turn the floor over to you for your opening comments.
Vice-Admiral Bruce Donaldson Vice-Chief of the Defence Staff, Department of National Defence
Thank you, Chair. I hope that General Cathcart will have an opportunity to give a couple of opening remarks as well. I am thankful for the chance to be back before you. I apologize,
I wasn't able to have my remarks translated in time, but a translation will be provided later.
My brief opening remarks will focus on four areas of Bill C-15 that we believe are of particular importance: offences under the military justice system, military police complaints, the office of the provost marshal, and the grievance process, specifically the role of the Chief of the Defence Staff within that process.
We have attempted to bring into line those convictions under the military justice system that would be deemed not to constitute an offence for the purposes of the Criminal Records Act. Therefore, service members would no longer be required to apply for a record suspension, formerly known as a pardon, for these offences. You will recall that Minister MacKay indicated that the government intends to submit an amendment that will expand the list of exemptions that mirrors the amendments made by committee during its consideration of Bill C-41.
The military police structure, regarding both the complaints process and the role of the provost marshal, has evolved and will continue to do so with this bill.
Since the last time I addressed this committee, we have completed implementation of some very important changes to the command structure of the military police. On April 1, 2011, command and control of the military police for the purposes of policing was transferred to the Canadian Forces provost marshal. Not only has this provided additional agility to address the policing needs of the CF and DND, but more importantly, it has firmly established the requisite investigative independence of the military police as a critical part of the military justice system. This bill addresses the findings of Chief Justice Lamer with regard to the powers of the Military Police Complaints Commission. For example, provisions within this bill require that the Canadian Forces provost marshal resolve any complaint dealing with the conduct of the military police within 12 months, as well as protecting those people making complaints in good faith from being penalized for doing so.
It is important to note the operational role of military police in support of both domestic and international operations. This proposed legislation clarifies the reporting relationship of my office, the vice chief's office, vis-à-vis the provost marshal, while providing balance between the independent role of the Canadian Forces provost marshal in support of the military justice system, as well as providing the necessary oversight to ensure Canadian armed forces missions are supported effectively by the military police. This bill clarifies the role of the office of the Canadian Forces provost marshal and its relationship with the office of the vice-chief of the defence staff, and increases transparency through the formalization of reporting measures to the Chief of the Defence Staff.
I would now like to turn to the subject of the Canadian Forces grievance process. Allow me to underscore that dealing effectively with grievances in the Canadian Forces is a key leadership responsibility. I would also like to draw attention to the singular importance of the office of the Chief of the Defence Staff. The roles and responsibilities of the CDS in the grievance process are twofold: to safeguard the institution that is the Canadian armed forces, and to promote the welfare of the members of the Canadian armed forces. These responsibilities converge in the person of the Chief of the Defence Staff when he becomes the final authority for grievances.
Yet Chief Justice Lamer recognized that it is unrealistic to expect the CDS to personally decide every grievance that must be reviewed by the grievance board. The authority sought in Bill C-15 would allow the CDS to choose the grievances he wishes to determine as final authority and to delegate all others primarily to an officer directly responsible to him. In fact, that current officer, Colonel François Malo, is sitting here behind me. This would allow the Chief of the Defence Staff to focus his time on systemic issues, on matters that touch the core of our profession or on the demands that service places upon military members.
I must emphasize that the CDS is well versed in the status of the grievance portfolio on an ongoing basis. He remains ultimately responsible and accountable for all decisions made by his delegate.
Bill C-15 would also empower the CDS to cancel the release of Canadian Forces members as a potential remedy in the grievance system when it is discovered that a member has been improperly released.
In addition to these amendments, I'm pleased to inform you that the government recently authorized the CDS, under an order in council, to make ex gratia payments to grievers while making a final decision in certain circumstances within the grievance process. The Director General Canadian Forces Grievance Authority is in the process of implementing this authority. Obtaining the authority for the CDS is a significant step. As the implementation process continues, the CDS will assess the scope of the authority given to him through the order in council, and determine whether it fully addresses the issue identified in the Lamer report.
We have also taken other steps to improve the grievance process, including reducing the number of grievances submitted by encouraging CF members to inform their commanding officers of their intent to grieve. This new process helps a commanding officer to engage early, and when able, to resolve issues locally. We continue to work with the grievance board to explore ways to expand the types of grievances they review to ensure that the final authority's determination of grievances reflects the approach taken to similar issues across the public service.
I'm pleased to report that as a result of improvements over the last few years, the number of grievances submitted by CF members annually has declined by 10% since it peaked at nearly 1,000 in 2010. I am, however, also keenly aware of a large number of grievances on compensation and benefits matters that are working their way through the system. I directed last fall that additional personnel resources be provided to both the Canadian Forces grievance authority and the chief of military personnel to address these grievances and reduce this backlog.
We remain committed to the goal of determining grievances in a timely manner and continue to strive to reduce the staffing of grievances to a maximum of 12 months, while increasing the transparency and the fairness of our grievance system.
These proposed amendments to the National Defence Act constitute an important step forward not only in the adjudication of military law, but in the effectiveness and transparency of the Canadian Forces provost marshal and the overall efficiency of the grievance process.
These changes will help to ensure the integrity of the institution that is the Canadian armed forces, and as importantly, further protect the welfare of our men and women in uniform.
I would like once again to thank you for the opportunity to speak on this important matter.
Mr. Chair, I turn the floor back over to you, but I recommend that we give General Cathcart, our Judge Advocate General, the opportunity for some opening remarks.
Thank you.
Major-General Blaise Cathcart Judge Advocate General, Department of National Defence
Thank you, Mr. Chair.
Again, a huge thanks to you and the entire committee for extending the invitation to speak to you today on this very important matter, which is important not only for military justice but for the entire Canadian Forces as a whole, and that is Bill C-15.
As you know, the primary intent of this bill is to respond to the recommendations made by the Right Honourable Antonio Lamer in the first independent review of the legislation in 2003.
As Judge Advocate General, it is my statutory role, pursuant to section 9.1 of the National Defence Act, to act as legal adviser to the Governor General, the Minister of National Defence, the department, and the Canadian Forces in matters relating to military law. I have the additional statutory responsibility pursuant to section 9.2 to superintend the administration of the military justice in the Canadian Forces.
As stated by Chief Justice Lamer in his 2003 report, the JAG's role as superintendent of the military justice system is largely analogous to that of an attorney general. The military justice system has two fundamental purposes, as recognized in clause 62 of Bill C-15: (a) to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and (b) to contribute to respect for the law and the maintenance of a just, peaceful and safe society.
To put it in a nutshell, it is to maintain discipline and to do justice.
I would like to take a few moments to address some points that arose during the committee's proceedings related to Bill C-15 when the minister appeared last week.
Bill C-15, similar to any other government bill introduced in Parliament, advanced through a prescribed process of development and consideration. This process includes: the development of a memorandum to cabinet that includes a review by all other departments, including the Department of Justice and the Privy Council Office; interdepartmental meetings at which the legislative initiative is scrutinized and discussed and other departmental officials have the opportunity to express their concerns and to comment; consideration and approval of the MC by cabinet; and, following approval by cabinet, drafting by the legislative drafters at the Department of Justice working in conjunction with instructing counsel from the relevant department.
These legislative drafters have, as part of their mandate, an obligation to raise any charter concerns. Thus, as part of the legislative process that I alluded to above, many stakeholders are involved before a bill is introduced. This particularly includes an opportunity for the Department of Justice, pursuant to subsection 4.1(1) of the Department of Justice Act, to raise any concerns it may have regarding the compliance of the bill with the charter.
However, having regard to my statutory mandate, in terms of any proposed legislation impacting on the National Defence Act, it is my duty to advise the minister on the constitutionality of proposed legislation.
As the superintendent of the military justice system, it is my statutory responsibility to ensure the system serves the operational requirements of the Canadian Forces while respecting the charter.
Contrary to one concern that has been expressed, there is no conflict of interest in the office of the JAG advising on the constitutionality of legislation relating to the military justice system, anymore than there is in the Attorney General of Canada advising on the constitutionality of proposed legislation drafted by the Department of Justice. This is the job that Parliament has given me to do in the National Defence Act.
I have an outstanding team of legal officers to assist me in doing that. Within their areas of expertise, they do not take a back seat to anyone in terms of their quality, their education and training, their professional standards, and their devotion to the rule of law. We are Canada's leading authorities in matters of military law and military justice.
To be clear, I have no doubt that the military justice system is constitutional and satisfies the guarantees set forth in the charter, and I stand behind this bill. As recently as 2011, Chief Justice LeSage adopted the views of Chief Justice Lamer, who stated, “Canada has developed a very sound and fair military justice framework in which Canadians...have trust and confidence.” Further, Chief Justice LeSage made recommendations that would assist in ensuring the continued strength and viability of the military justice system.
Therefore, while you may hear criticisms of the military justice system during your study, I would refer you to the comments of two eminent jurists, Chief Justice Lamer and Chief Justice LeSage, during their respective independent reviews that served to reinforce my view that the military justice system is fair to accused members while serving the operational needs of the Canadian Forces.
In conclusion, Mr. Chair and members of the committee, I leave you with comments of the former Chief Justice of Canada, the late Honourable Brian Dickson, who stated that there “is a need for a separate and distinct military justice system, consistent with the primacy of the rule of law”.
Like chief justices Lamer and LeSage, I am confident that Canada has a sound and fair military justice system.
Bill C-15 would serve to further enhance the military justice system. The improvements it would make are necessary to enable the military justice system to fulfill its two fundamental purposes: to promote operational effectiveness and to do justice for the men and women of the Canadian armed forces.
With that, Mr. Chair, I thank you and the committee for this opportunity, and I welcome any questions you or the committee members may have.
Conservative
The Chair Conservative James Bezan
Thank you, General.
Admiral, we appreciate your opening comments.
With that, we're going to our seven-minute round.
Mr. Harris.
NDP
Jack Harris NDP St. John's East, NL
Thank you, gentlemen, for joining us today. This is a very important piece of legislation, and I think we all agree on that. There is much in it that we are quite supportive of and are happy to see advanced.
However, as is my duty, I will have to ask you to comment.
General Cathcart, I have to direct this to you first. I hear your comments comparing your role as the JAG to the role of the Department of Justice, and your own views with respect to the Charter of Rights. I have to put to you the comments made in a affidavit to the Federal Court by Edgar Schmidt, who is a senior Department of Justice lawyer. He states in his affidavit that his instructions, personally given to him as a standard to be employed under statutory examinations of legislation, were essentially this:
...if any argument could reasonably be advanced in favour of the consistency of a provision of a bill or regulation with the Bill of Rights or the Canadian Charter of Rights and Freedoms, (the “Charter”), that was to be the end of my inquiry as it concerned the statutory examination. It was expressly made clear to me that the review was not to concern itself with whether a provision was more likely than not inconsistent with the Bill of Rights or the Charter or even whether a provision was almost certainly inconsistent with the Bill of Rights or the Charter—it was only when it was utterly certain that a provision was inconsistent with the Bill of Rights or the Charter because no reasonable argument existed in its favour that the Department considered any issue arose under the statutory examination provisions.
As a lawyer, sir, and you being a lawyer as well, I think I can say that most lawyers in Canada were probably shocked to hear that statement. I'd ask you to comment on that, in view of the approach that at least this individual says he was instructed to take in dealing with these provisions.
You mentioned that part of the review of this provision was a review by the Department of Justice. Did you get an opinion from them in accordance with their obligations with respect to some of these provisions? I know and you know that these have been challenged on the basis of the inconsistencies. That's not as a whole, but certain provisions could be inconsistent with an individual's right under the charter.
MGen Blaise Cathcart
That's a very, very probing question, Mr. Harris. Obviously I'm not prepared to comment on the specifics of Mr. Schmidt's own circumstances or the case before the Federal Court. I can't do that. I can only refer you to our roles and the roles we had with our government colleagues in Bill C-15, and, as I said, absolutely assure you that from our perspective the provisions as proposed are constitutional and would withstand challenge.
As a lawyer, you know well that every time a provision is challenged, whether it's in this type of legislation or any other, or an exercise of other government authority, you never know what the final outcome is going to be until a judge pronounces on it. As professionals who have been around this topic for many, many years, not only me personally but the long tradition of JAG lawyers dealing with military law, military justice, I can reiterate with great confidence that the bill is sound.
NDP
Jack Harris NDP St. John's East, NL
Well, sir, with all respect, I'm sure your predecessors had the same view on other legislation which we had to rush through Parliament in November 2011 to fix the status of the military judges as a result of a constitutional decision that declared there was a problem. I would suggest that other JAGs have been down this road before and have had the same kind of confidence.
The last time out, in 2011, in Bill C-41, and you and your then deputy were a part of that, substantial changes were made to clause 75 as a result of concerns about the constitutionality, in our view, and perhaps agreed to by the government, about the undue imposition of criminal records on people. As a result of that concern, substantial changes were made, from 5 or 6 offences to 25 or 26 offences, with respect to eliminating a criminal record.
Yet, when this bill went back to the House of Commons after having this study and review, and I guess you would call it a compromise that was reached, we see that's gone. Somebody decided it wasn't necessary to do that, or to even bring in some of the provisions recommended by Justice Lamer that were there and are now out again, such as the simple changes to continuing the term of office for a member of the grievance board or the Military Police Complaints Commission if they were in the middle of a case. These things were stripped out of the bill as well.
It gives me pause to wonder whether these amendments, and the discussions that went on in this committee, were even taken seriously.
MGen Blaise Cathcart
Again, I can't speak for the government. You heard the minister last week addressing those issues, and on clause 75 he's obviously said publicly many times that the government has gone back and reviewed that. I think that's just an indicator, frankly, of the process.
In vibrant democracies such as ours there's great debate. Reasonable people can disagree reasonably, review matters, and come back with a final answer that will hopefully fit the bill. Ultimately in some cases that will be determined not by our judgment but by the judgment of a court perhaps, as in the case of your reference to Bill C-41, and Bill C-15. That's what makes our system strong and vibrant: we think we have it right; the courts don't, and we'll respond to that as we have.
NDP
Jack Harris NDP St. John's East, NL
So you're saying in terms of the decision-making that you don't make the decision, that the government does, and you just give advice.
NDP
Jack Harris NDP St. John's East, NL
If I may, I'll turn now to you, Vice-Admiral Donaldson.
We've had this discussion before, the last time out, about delegation of authority for final results of grievances being made by the CDS, and I put it forth in the context of morale and discipline. You may have been here to hear the ombudsman talk about the huge number of grievances that are stalled and the length of time it takes. He said on average it takes two years to get a grievance through the system.
I know that commitments were made last time to try to make improvements, and I guess one of the questions is whether there have been any.
On the issue of delegation, I think you would agree that the previous CDS, and I'm sure the new CDS, made it his business to take a personal interest in and to have a personal relationship with the members of the CF. I think he achieved that very well. Even if the work, shall we say, may be delegated to someone else, surely, knowing that the final decision can actually be in the hands of the CDS, all the work of sifting through the evidence and weighing it might be done by a delegate, who could say, “Okay, here's where it's at and this is what I think we should do”.
Why would you delegate that away from the CDS? I know he has plenty of things to do, but why would you do that?
Conservative
The Chair Conservative James Bezan
The time has expired, so Admiral, could you give a very brief reply.
VAdm Bruce Donaldson
Thank you, Mr. Chair.
Mr. Harris, thank you for that. Let me very quickly try to address both your questions.
First, regarding the grievance backlog, we have been working on that. One of the most challenging areas of grievance is compensation and benefits. It turns out that no one's upset if they come away with a little more money than they were expecting, but everyone's upset if they come away with a little less. The instance of grievance for compensation and benefits is very high.
I don't question the motivation or the legitimacy of the grievances, but there are an awful lot of them that go through the grievance system, many of which have policy implications. Each case is looked at very carefully for those policy implications, and there's a bottleneck there. We've put extra resources in to try to resolve the bottleneck, but moving forward is still a challenge.
We're addressing it by changing the way we address grievances by looking at different dispute resolution options for people, and by addressing them early and at lower levels, so that we elevate to higher levels only those things that require that level of policy attention and scrutiny. But I admit, sir, that we continue to work on this and we do need to get better at it.
Second, I think you would agree that if the Chief of the Defence Staff is going to agree with a grievance, the more expeditiously that can be done the better. In many cases, a delegated authority can come to that conclusion faster than the Chief of the Defence Staff can actually go through given the volume. We could pare it down to having the chief invest his time in the more challenging grievances that touch on the questions of the institution or the specific well-being of men and women in uniform and responding to the grievance board in those instances.
I hope I've touched on it.
Conservative
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you very much, Mr. Chair, and through you to the witnesses, thank you for appearing today.
My questions are mainly for Major-General Cathcart in his position as Judge Advocate General.
Thank you very much for your introduction. It answered some of my questions. I usually ask questions of the witnesses that would be asked of me as a member of the defence committee, basically, what do they do and what does a judge advocate general do, and in your introduction you did answer some of that.
When you say your job is primarily to advise, I think you might advise the Governor General, an others. Can you give us some examples of how you do that, perhaps by giving us some hypothetical situations? What kinds of questions come before you? What would a typical response be to the authorities you advise?
MGen Blaise Cathcart
That's a very good question. I appreciate that because certainly part of my mandate since I've been appointed as JAG is really to help folks, both inside the government and in the Canadian populace as a whole, understand the role of the Judge Advocate General. It's somewhat different from perhaps the TV show that people have seen, although we're looking for a new fighter plane to get witnesses....
Conservative
MGen Blaise Cathcart
In all seriousness, it's a long historical role. In fact, last year we celebrated the 100th anniversary of the appointment of the very first judge advocate general in 1911, Colonel Henry Smith. We've had a long tradition of judge advocate generals in Canada, I think largely unknown by the populace as a general rule.
More recently, certainly since the new amendments were made in 1998, the role and responsibility of JAG were squarely put by Parliament in legislation in the National Defence Act. I alluded to those roles. Those are very important roles. There's the idea of being an adviser to the Governor General, the minister, the department, the Canadian Forces, on all matters of military law. Military law is not defined in the act or anywhere else, so it's a rather broad term, and we looked at it in that sense.
In basic terms, Mr. Norlock, for any legal issue that arises in CF activities or CF operations, including governance of the Canadian Forces, the Judge Advocate General provides that specialized military law legal advice. Of course, in doing so, we do so with the support of and in consultation with our other legal partners in town, whether they be at the Department of Justice or at the Department of Foreign Affairs.
You can imagine a number of issues that go from the high end of perhaps strategic analysis, which would be legal authority for the Canadian Forces to participate, let's say, in the conflict in Afghanistan or Libya, and what rules would be involved in terms of rules of engagement, targeting who from a legal perspective, and how can targeting be done in those types of circumstances.
We go right down to sort of human issues, or what we call military administrative law, which is dealing with all those issues from recruitment to release of CF members. Frankly, that's an area of law that really means a lot more to the men and women in uniform, the young troopers and soldiers and airmen and seamen, because those are the issues that we've alluded to in this committee like pay, like grievances, that really make or break morale. We advise on a whole gamut of those issues.
We try to break those down within our organization to three main areas: l military justice, which we're primarily discussing today; administrative law, which I just mentioned; and operational law, those things that relate to all the issues that arise on operations. We hear a lot of things in the press. We heard things about detainees and the transfer of detainees in Afghanistan. We had important roles, again, in working with our legal colleagues in town to respond to that.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you very much.
There's been some talk of the possibility of appointing part-time military judges. I wonder if you could speak briefly about the necessity of doing so.
Then for some other folks, because in some instances there's a parallel relationship with the civilian judicial system, why couldn't some of the military judges not be members of the Canadian armed forces but just be someone, a civvy, who applied the rules of jurisprudence that are there?
If you have some time, I wonder if you could tell me, and you may or may not know, how many lawyers the attorney general's department has, and your department has, and why it shouldn't shock anybody that you all don't think the same way about everything.