National Defence Committee on Feb. 25th, 2013

[The Chair, Conservative, James Bezan]

Good afternoon, everyone.

We are going to continue our study of Bill C-15 pursuant to the standing order issued to us as an order of reference on Wednesday, December 12, which was to study the Act to amend the National Defence Act and to make consequential amendments to other Acts. We are going into clause-by-clause consideration pursuant to Standing Order 75(1).

In light of that standing order, we're going to postpone the consideration of clause 1 and move straight into clause 2, which provides definitions. Are there any comments? Shall clause 2 carry?

(Clause 2 agreed to)

Shall clause 3 carry?

(Clause 3 agreed to)

(On clause 4)

We have an NDP amendment.

Mr. Harris.

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

I move amendment NDP-1, which would delete lines 11 to 23 on page 4 of the bill.

We propose removing these proposed subsections as they're unnecessary. We don't have to have special provisions for the Chief of the Defence Staff to be able to remove the provost marshal. We don't believe that's an appropriate way to have the provost marshal, who is the equivalent of a chief of police, as we discussed during committee. The provost marshal ought to have an independent existence. Having the Chief of the Defence Staff able to remove him interferes with the independence of the provost marshal, which we think is important. The current lack of independence is made worse, in the view of some of the witnesses we had.

If this amendment is not supported, we have a different amendment. The principle was to remove not only the provision requiring the provost marshal to be subject to serve at good behaviour, but also especially those provisions allowing the Vice CDS to make instructions or issue guidelines to the provost marshal.

We had considerable debate about that during the hearings. Obviously, opinions differ on this. I think Mr. Peter Tinsley expressed it very well as a step backwards. We don't see any justification for changing the particular situation whereby the provost marshal is in charge of the investigation, can lay the charges, can do the investigation. We had some debate with Mr. Tinsley from members of the committee suggesting there were instances, especially during combat or in the field, where the judgment of the provost marshal should be overruled by the Vice CDS. I believe the response was a practical one and a sensible one from Mr. Tinsley, which is that for people in that position—and he has been in that position as a police officer both in the field and elsewhere—the fact that there are combat circumstances doesn't make a difference. The importance of the independence of the police is still relevant despite the fact that it is taking place in combat.

We obviously recognize there's a chain of command here, but in the case of the military police, the independence of the police force is similar to the need for the independence of the judiciary, which we see in the military, which we should see in the military, which we should also see in civilian life. To make the provost marshal subject to this provision is a step backwards, as was said. It also goes against the recommendations made in the Lamer and LeSage reports, and it is also contrary to the accountability framework that's been agreed upon.

It's been suggested that's just a policy and can be overruled. It may well be just the policy, but this is now being overruled by legislation, which amounts to a step backwards. Why this is necessary hasn't been adequately or convincingly or persuasively presented to the committee. Therefore, we want to see this change.

[The Chair, Conservative, James Bezan]

Okay.

Are there other comments?

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thank you, Chair.

As you might have predicted, on our side we have an entirely different view. The measures contained in this amendment would remove from Bill C-15 a very important provision that is very much in the spirit of the military justice system and in the spirit of modernizing that system. It is a complement—complement with two Es—to the mandate and role of the provost marshal, which is being given legislative form here in an unprecedented way elsewhere in the bill.

This part of this clause explicitly shows the need, and enshrines the need, for the manner in which the military justice system, as it relates to the provost marshal, has to balance the interests of justice with those of military operations. And as both the provost marshal said as a witness here, and the VCDS said here, this is not a challenge to the independence or the professionalism with which the provost marshal and the military police will conduct investigations. It is a recognition that they will have to conduct investigations from time to time in extraordinary circumstances, on a battlefield in a dynamic environment, an unprecedented environment, where we've sent the Canadian Forces because they have the capabilities to operate there, and where the duty of care that we all have towards the Canadian Forces requires that there be an operational point of contact, in this case one point of contact, with the police. This point of contact would allow the chain of command to inform the provost marshal or indeed instruct the provost marshal if necessary with regard to certain circumstances that might affect an investigation.

That enhancement of accountability in the spirit of the military justice system also contains a transparency provision set out in 18.4 and 18.5 that will ensure that this VCDS and his successors are true to the spirit and letter of their commitment, which is to use this provision rarely and to use it to shore up the independence of investigations, not to compromise them in any way.

[The Chair, Conservative, James Bezan]

Mr. McKay.

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

I associate myself with Mr. Harris' comments. It is incumbent upon the government to show an overwhelming basis for the justification for potential interference in any kind of police investigation. The burden is entirely on the government to justify this, and in my mind, they have not done that. In fact, the evidence has been to the contrary by former and current provost marshals, and I take this as a step backwards. I can virtually guarantee that this will be challenged at some point or another in circumstances that will not be favourable to the government, and therefore will compromise a proper investigation and possibly even proper convictions.

So I don't think the government has met the burden of proof, and as I say, if it ain't broke, don't fix it.

[The Chair, Conservative, James Bezan]

Mr. Harris.

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

There are three things that were said opposite that disturbed me. One suggested that we have to balance the interests of justice with operations. I don't think that's a balancing act this legislation is doing and neither do I think we balance the interests of justice with operations, we find a way to achieve justice despite operational circumstances.

When you look at this issue here, if it is a step backwards—which we know it is because there's already an agreement now between the provost marshal and the Vice Chief of the Defence Staff that it operates in the spirit of independence—stepping backwards is not modernizing a rule. If we're going to modernize military justice, we'd listen to what Justice Létourneau said when he talked about the modernization of the military justice system that's taken place in Australia, in the U.K., in New Zealand, and in other parts of the world that have recognized some of the arcane aspects—some of them are a century old—of military justice.

The modernization of the military justice system would actually make it more like the civilian system. The aspects that are unnecessary in the military context should be removed. Clearly that had been undertaken in Canada through one of the recommendations of Justice Lamer and the follow-through by the agreement and guidelines that had already been agreed upon. We're not modernizing it, we're going backwards. That's absolutely wrong.

The government has put forth not one single incident, not one single circumstance, not one single example where a provision like this was necessary and unfortunately was not available—not one. On the other hand, there have been two incidents discussed, which were in combat—one was in Somalia and one in Afghanistan—where in fact the opportunities to interfere were present. They weren't used, thankfully.

One required significant independence. In the Somalia situation, where in the absence of a senior military police officer the local command was conducting an investigation, which was entirely inappropriate, the military police had to stop it. We all know the fallout from this incident in Somalia led to significant harm to the institution of the Canadian military, as a result of what happened and the outcome.

The other incident had to do with the removal of a commanding officer in Afghanistan. When Mr. Hawn and I were both there on a Sunday morning, all of a sudden there was a plane leaving Kandahar air force base with a commanding officer on it because of a matter involving an offence and a charge against the code of military conduct. That's an incident where one might say there could have been interference. There were guidelines in place. There was an agreement in place. No interference took place.

Are we opening the door for potential interference in a circumstance like that? That's the concern we have. Why are we stepping backwards? This is not modernization. This is retrenchment. This is turning back the clock.

[The Chair, Conservative, James Bezan]

Are there other comments? Seeing none, I'm going to put the question.

(Amendment negatived [See Minutes of Proceedings])

Then we move to amendment NDP-2. I'm ruling it out of order. It's inadmissible because it goes beyond the scope of the bill.

Let me read my ruling first. It's inadmissible because there is already a hierarchy link between the Chief of the Defence Staff—in clause 4 here, in proposed subsection 18.5(1), it talks about how “The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff”.

Here in the amendment you're making, it also links in the independence by providing guidance to the Military Police Complaints Commission, so I'm ruling this one inadmissible.

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

That's the copy of the guidelines to the Military Police Complaints Commission.

[The Chair, Conservative, James Bezan]

“...issue instructions or guidelines”, you are issuing instructions from the Chief of the Defence Staff through the vice chief directly to the military police commission, which is outside the scope of this bill.

So it's out of order—inadmissible.

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

It may be inadmissible by virtue of the ruling, Mr. Chairman, but the purpose is to ensure that any instructions given in writing are in fact made available to an outside body, such as the Military Police Complaints Commission.

It appears it has been interpreted that the instructions are to be given—

[The Chair, Conservative, James Bezan]

Yes, it has.

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

But that's not the intention.

[The Chair, Conservative, James Bezan]

That's a drafting problem then. The way it is, it's not admissible, so it's not going to be debated.

We move on to clause 4 without amendment.

(Clause 4 agreed to on division)

(On clause 5)

Are there any comments?

Mr. Harris.

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

I have a comment.

We certainly support that because we would like to see the military judges independent of the grievance system in respect to their duties. We'll have other comments on what happens to grievances submitted by military judges, but obviously the judicial duties should be handled by judicial counsel and the judges themselves. So we will support that.

[The Chair, Conservative, James Bezan]

Okay.

(Clause 5 agreed to)

(On clause 6)

Mr. Harris, could you move your amendment NDP-3 to the floor, please?

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

This has to do with the role of the grievances submitted by the....

It is replacing lines 40 and 41, on page 4.

[The Chair, Conservative, James Bezan]

The very last two lines.

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

This is to deal with what happens to grievances that are submitted by military judges. It is our firm belief that this aspect of the grievance system relates to the independence of military judges.

We just had a provision, in clause 5, saying that military judges can't submit grievances in matters related to their judicial duties. Then, in clause 6, they can submit grievances but the determination and consideration by the Chief of the Defence Staff interferes with their independence. Even though it's a non-judicial matter, it may have to do with vacation pay, with entitlement for leave, with something related to pay, and it could have an influence on the amount of money a military judge is to receive in terms of the result of a grievance. As was indicated to the committee by the grievance board chair, the vast majority of grievances that come before the board have to do with benefits, so there's likely a monetary consequence to this.

The idea of the amendment is to ensure the grievances committee has the final decision with respect to that. The amendment says the grievances shall be “considered and determined by the Grievances Committee”, which is the new name for it, by the way. “The committee's decision is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or review by any court.”

That provides a separate avenue of resolution of grievances by military judges. I would submit it's a factor that would or could be considered by a court in considering whether military judges are indeed independent. We've seen a couple of cases now where the courts have ruled that the independence of judges was compromised. This is one where there is also a danger of that kind of ruling from the courts, and we think this amendment would resolve that. There's no need for the Chief of the Defence Staff to hear this if we have a robust grievances committee that's able to determine these matters.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thanks, Chair.

Under section 29.11, the Chief of the Defence Staff is the final authority in the grievance process. This proposed amendment would derogate from that principle by placing the grievances committee in....

[The Chair, Conservative, James Bezan]

You are ahead one.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

No. I'm making a point about the amendment by placing the grievances committee in the position of the CDS as final authority for the resolution of grievances for the purposes of military justice. That would be an inconsistency in the legislation. We therefore consider it entirely inappropriate.

The military judges do have absolute independence, and that independence is robustly protected throughout the act insofar as they are adjudicating legal cases. Insofar as they file grievances, which to my understanding has never occurred, the number of military judges being very limited, they would be subject to the grievance process. No amendment has been proposed to the final authority under this proposed legislation, not to make the Chief of the Defence Staff anything other than the final authority in the grievance process under section 29.11.

[The Chair, Conservative, James Bezan]

And you are correct. Based on that, it was an oversight by me and at the front table.

Since we have started the debate, we'll finish it.

Go ahead.