National Defence Committee on Feb. 4th, 2013

[MGen Blaise Cathcart]

—but I'll do my best.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

The reason I mention this is we're smiling at it, yet, because one lawyer gives an opinion to a body, all of a sudden it's suspect that.... I'm referring, quite frankly, to the Canadian Charter of Rights and Freedoms. I would imagine there's a lively debate, but in the end a consensus, so leave that to the end, if you can, and maybe address the other three questions.

[MGen Blaise Cathcart]

Great. Those are very important questions. I don't mean to make light of them, but they reflect a natural...some tensions around town between lawyers. It's not unusual; you see the same in private practice. I will address that in a second.

I will address the second question first, if I may, Mr. Chair, on the concept of civilianizing military justice. We have heard that out in the public as a suggestion perhaps to improve the military justice system. I fundamentally disagree with such a proposition. I think it's critical to have those judges. We are talking about the military judges who actually sit at courts martial. We're not talking about the judges who sit on appeal at the court martial appeal court who are civilian judges. I fully support and always have supported the concept of having civilian judges on the appeal review, because those are matters of law and they will have a broader perspective from across Canada and in their Federal Court roles. But internally, I think it is vital to have people who sit in judgment of our men and women in uniform on either mundane or very serious charges, as we saw recently with Captain Semrau, or the courts martial involving Major Watts and others that are in the press these days.

To me at a very fundamental level it's common sense that you want somebody who obviously knows the law, is very practised in the rules of evidence and criminal law and discipline. But again it's that point: discipline. That's what separates the military justice system from the civilian system. It's discipline that requires the troops to pay attention so that when they are in times of crisis, in firefights in the middle of Afghanistan, they are going to respond to orders without questioning them. It's that habit of obedience that discipline really goes to form.

You have to have, in my opinion, clearly someone who fully understands that, who has actually been brought up in that culture, if you will, of understanding what discipline really means, and the context in which our men and women in uniform actually conduct their activities. It's one thing for us to sit sometimes in the relative comfort of offices here in Ottawa, and another to actually be out there and understand what it's like on the front lines.

I think it would be very dangerous, in my respectful opinion, to have that part of the courts martial system civilianized. I think we would lose not only the experience of those judges, but the understanding of the concept of discipline.

In regard to the part-time judges that you mentioned, what we're really referring to is the ability to have what we call a surge capability in times of heightened activity when we may need more military judges at courts martial. Right now the way the scheme is proposed, we would have to appoint them as military judges. As you know, with Bill C-15 and Bill C-16, they would have tenure until the age of 60. We may have a surge of activity; let's say we were in a major conflict again and we needed more judges to sit on courts martial and then after that surge we're left with perhaps a pool of 15 to 20 military judges of which a lot of them functionally we don't need. This gives us the ability to surge when we need to, to have part-time military judges, reserve judges, who could then not be required once that surge element is over.

Regarding the interaction, overall I can say with a great amount of confidence that Parliament and Canadians as a whole should be very proud of all of the government's legal advisers. We do some tough work, a lot of times in anonymity. We're not asking to be put in the headlights, that's for sure, but there's a lot of hard work done in the trenches, literally. We work closely with the Department of Justice, Foreign Affairs, and Privy Council legal advisers.

Having said that, as I said, in response to Mr. Harris's question earlier, reasonable people can agree reasonably to disagree over interpretations. It doesn't mean one is wrong or one is better than the other; it simply means there is a different perspective.

What we bring to the table, not to put it too lightly, is 100 years of critical experience of military operations and understanding of how they're done not only at the strategic level, but right down to the tactical level as well.

[The Chair, Conservative, James Bezan]

Thank you. The time expired quite a while ago.

Mr. McKay, you have the floor.

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

Thank you, Chair, and thank you to both of you.

I have heard of a military surge; I have not heard of a lawyer surge before.

Vice-Admiral Donaldson, you seem to put great stock in the issuance of this Privy Council order with respect to these ex gratia payments which has been in existence now since June. Can you tell me whether the CDS has issued any cheques based upon this order?

[VAdm Bruce Donaldson]

I don't believe the CDS has resolved the financial grievance yet, Mr. McKay.

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

How many would be on his desk?

[VAdm Bruce Donaldson]

I don't think there would be any on his desk. I think he would have resolved them. I think some of them are still working through the system.

Until we have had the chance to work through some of them, I think we need to get a sense of how the conditions, to which the chief and the grievance authority are subject, play out. We don't actually have experience yet in resolving financial grievances.

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

This thing has been out for eight months now, and we hear of a bunch of unhappy folks in the military. Do you perceive this order as having a retroactive effect?

[VAdm Bruce Donaldson]

I don't think the Government of Canada can give retroactive effect to—

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

Well, I just didn't know the scope of the discretion of the CDS. Would anything prior to June 19 that had been “resolved” not be picked up by this particular Privy Council order?

[VAdm Bruce Donaldson]

I don't think so, Mr. McKay.

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

I just wanted clarification. It's only in going forward, and you haven't actually had any experience in resolving an issue.

[VAdm Bruce Donaldson]

In applying it, no.

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

In applying it at this point.

[VAdm Bruce Donaldson]

No, but the authority is really the authority to make ex gratia payments within the conditions that are normally laid down by the Government of Canada for exercising that authority, and the—

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

Does that strike you as going around in circles? Because if in fact Treasury Board has these guidelines, which I'm absolutely certain they do, and the Treasury Board guidelines are now going to apply to the CDS in the same manner as if they applied to Treasury Board, and if Treasury Board has said as a blanket statement there are no declining markets in Canada, how can the CDS avoid that statement?

[VAdm Bruce Donaldson]

Sir, in terms of declining markets, you're talking about the housing market.

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

Yes.

[VAdm Bruce Donaldson]

I think it's important to accept that the Government of Canada actually frames the policies that benefit our men and women in uniform during things like moves and that type of thing. The policy has a certain scope and a certain intent.

I'm sure that the intent of the government was not to delegate to the Chief of the Defence Staff the ability to make different scopes or intents of the policy that the government put in place, but rather to get at the interpretation of that policy to make sure the unique circumstances of men and women in uniform are not creating circumstances that actually fall within the policy but that we're not smart enough to figure out.

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

How is the CDS actually going to make an ex gratia payment that is different from what Treasury Board would do? If Treasury Board has started with the proposition that you can't suffer a loss by virtue of the fact that there are no declining markets in Canada, how is it that the CDS can actually avoid that interpretation of what will be exactly the same set of guidelines as Treasury Board's?

[VAdm Bruce Donaldson]

I would say, sir, first of all, that the Chief of the Defence staff doesn't have exactly the same scope as Treasury Board. Treasury Board has considerable scope. Treasury Board can revisit policies and applications, etc., but once Treasury Board has set those parameters, they apply to everybody.

I would say, however, that in terms of the problem of home equity loss, it's not a particularly good example of a grievance to which the chief's authority can be applied. I think that in the ones we're confronted with, it is exactly because the intent of the government, made quite clearly to limit the scope of that policy—

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

I don't want to belabour the issue. It just strikes me as peculiar that the CDS, if I understand what you're saying correctly, can effectively ignore what has been a policy interpretation of Treasury Board, i.e., there are no declining markets in Canada.

[VAdm Bruce Donaldson]

I can't comment about the policy decision by Treasury Board or whether that policy decision has actually been made, but what I can say, sir, is that the scope of financial remediation of grievances is broader than home equity assistance. In many instances of men and women in uniform having grievances that have caused financial effects on them as well, the chief does have the authority, and Treasury Board has given him the exact instrument he needs to remediate.

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

He appears to have, prior to June, authority to recommend, but he doesn't have any cheque-writing ability.

What I don't understand—and I don't want to pursue this any further—is what difference the June order makes. He can't write cheques willy-nilly; it might well be an appearance of a move forward, but I'm not sure it is. Anyway, I have very few minutes and I'll just leave it there.

I'll turn to General Cathcart.

As you know, the contentious point here is proposed section 18.5 and the ability, in this case of Vice-Admiral Donaldson, to issue guidelines to the provost marshal.

As I read the legislation, the legislation is silent as to what would be the exceptional circumstances, or maybe just circumstances, period, in which he or she would issue guidelines to the provost marshal. We are therefore left with taking it on good faith. It's a bit of a vague way to impact, if you will, on police investigative independence.