Evidence of meeting #67 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 grievance.
A recording is available from Parliament.
NDP
Jack Harris NDP St. John's East, NL
The only addition is “make public without delay”. The effect is really just to add “and make public without delay”. The reason it takes two lines is because—
Conservative
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I support this amendment for the simple reason that any adjudicator who is worth his or her salt should be able to make a reasoned decision, and should be able to withstand public scrutiny of that decision and should be able to set forth the facts, and the law, and the rationale for the decision.
I see no good reason for keeping anything private unless there is some compelling public policy reason, and I would dare say that most grievances have no compelling public policy reason for keeping them out of the sight of the public.
The additional reason that I would support the amendment is that it provides a body of precedent. Any adjudicator wants to look at how his or her colleagues have made similar decisions on similar fact situations over time. If, in fact, there is no basis on which these kinds of decisions are made public, then there is no basis for developing, if you will, a body of jurisprudence. If there is no body of jurisprudence then there is built-in inconsistency in decision-making, so individual A will make a decision, and on a similar set of facts decision-maker B will make a completely opposite decision.
It's good for the adjudicator, it's certainly good for the soldiers, and it's good for the public to see the basis for these kinds of decisions, what facts are accepted, what facts are not accepted, what decision is made, the rationale for the decision, and ultimately being able to defend the decision in public.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
Chair, there is no current requirement and there is no acceptable rationale for making public the reasons for decisions in every grievance. There are far-reaching privacy considerations that govern a large number of grievances, and by requiring the Chief of the Defence Staff to make public reasons for the decision in each one of the cases outlined in this amendment we would be placing that person in an irresolvable and impossible position with respect to the privacy rights of people, which are protected by robust legislation in this country, or in respect of the amended National Defence Act.
For that reason, we're opposed to the amendment.
NDP
Jack Harris NDP St. John's East, NL
I'm surprised to hear Mr. Alexander say a large number of grievances are affected by this. We're talking about the Chief of the Defence Staff overruling the grievance board. I wouldn't say that happens a hell of a lot of the time, to be honest with you.
But it's important to know that when we have what we're now going to be calling the external review board, it is designed to provide external independent determination of a grievance of a Canadian Forces member. To go through this whole process of having the grievance determined by an external review board after being denied through the chain of command, suppose that person wins at the external review board and the CDS says no. Isn't the requirement of reason by itself not enough if the reasons only go to the griever?
But there is a public interest in knowing whether or not, and why, something that has gone so far as to be adopted by the external review board for the purpose of ensuring independence is now being overturned. There is a right to know there.
As for the second consideration on the other side—the grievance being submitted by a military judge—it's clearly in the interest of transparency to know what the outcome is when the CDS is making a decision with respect to a military judge. Any interference with the privacy of the military judge who is involved is overridden by the necessity of ensuring the public and the members of the military community in particular know of the independence of military judges.
This might be the provision that would save the issue of independence of the judges if there is publicity and transparency with respect to how the CDS deals with grievances, that it is not being done behind closed doors. If it's something that would clearly not be deemed by a court to interfere with independence, you'd then know that because you'd know what the decision was, it would be publicly available, and it would be part of whatever challenge went to the court.
These things go to court because someone is dissatisfied with the decision made by a particular tribunal, or sometimes in advance of the tribunal even hearing it. That was the case with one or two matters before a court martial. The independence of the judges was a challenge to the process.
I think we should do whatever we can to ensure transparency there. Even if you don't agree with me in terms of the Chief of the Defence Staff not making decisions on a military judge, by adding these five words “and make public without delay” the reasons for a decision with respect to overruling a finding of the grievances committee or one of the military judge, I think we would be assisting the process.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
The CDS is in fact the final court of appeal here for pretty well all these purposes. The reason you have decisions released in public is to avoid both arbitrariness and the appearance of arbitrariness.
If the CDS cannot defend his reasoning or does not accept a certain set of facts or has skirted around a certain set of facts, the decision is almost inevitably going to be flawed. If a decision is flawed, that will lead to a distrust of the system and it will affect morale. I think it should be public unless there is some compelling reason why not.
With respect to Mr. Alexander's argument about privacy, etc., it seems to me that the privacy call is on the griever. If the griever does not wish the decision to be released in public, then I think that's his or her prerogative, not the other way around. If in fact there is some compelling national security reason, which I can't fathom or imagine, I'm sure the CDS will find ways in which it's not put out in public.
But the rule should be that everything is in public unless there is a compelling reason otherwise.
Conservative
The Chair Conservative James Bezan
Other comments?
Seeing none, now we're dealing with amendment NDP-8, reference number 5996083.
(Amendment negatived)
Now we go to amendment NDP-9.
Mr. Harris, can you move your amendment, reference number 5995955?
NDP
Jack Harris NDP St. John's East, NL
I'm being advised that's consequential, and we will withdraw it as it relates to the CDS authority.
Conservative
The Chair Conservative James Bezan
Okay. So we're back to clause 8, unamended. Are there any final comments on clause 8?
(Clause 8 agreed to on division)
Conservative
The Chair Conservative James Bezan
Moving on, clause 9 on page 5. We have amendment NDP-10, reference number 5993931.
Mr. Harris, could you move it to the floor, please?
NDP
Jack Harris NDP St. John's East, NL
I move amendment NDP-10. It's an amendment to clause 9 on page 5—
Conservative
Jack Harris NDP St. John's East, NL
Okay. All right, it was a, b, and c, so that the provision would now read:
29.14 (1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that
(a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and
(b) a grievance submitted by a military judge may not be delegated.
We've added c:
(c) a grievance that has far-reaching implications for the Canadian Forces may not be delegated.
I think that's designed because we have a little problem with delegating this final authority in any event, although the argument has clearly been made that there are reasons for doing this—although we don't necessarily agree with them—in terms of getting advice and having a study done and all of that. Certainly when we made this argument the last time, and we made it again, that the CDS at the end of the day is the one who, if he has the final authority for grievances, including military judges.... It's a morale issue. The notion that the buck stops here is one that I think we've had exemplary holders of the office of CDS make a very important part of their mandate and their persona. I can refer, of course, to the most recent CDS, Walter Natynczyk, who prided himself on his personal relationship with, and sense of responsibility to, all the members of the forces. The notion that the final authority rests with the CDS is a part of this and that's why we support that notion, despite our concerns, except with respect to military judges.
However, we think that if we're going to change this—and it looks as if the government is determined to change this—we should include an exception for grievances that have far-reaching implications for the Canadian Forces. That's a judgment call, clearly, and it's a judgment call that we expect the Chief of the Defence Staff to use wisely. But the indication should be that this delegation ought not to be used without the kind of consideration of the implications of a particular grievance so that the CDS keeps to himself or herself—although we've never had a female CDS yet—the final resolution of any grievance that has far-reaching implications for the Canadian Forces.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
The CDS retains the option not to delegate, and the function of delegating grievances is protected both in terms of the rank of the person to whom the authority can be delegated and in that, should the situation arise where a military judge has a grievance, the CDS must retain the direct responsibility for that grievance.
We will oppose this amendment simply because the term “far-reaching implications” is vague. Who would determine which grievance has far-reaching implications? It's not a self-defining category of issues. We do find that the current specification of certain types of grievances with systemic implications that exist in the Queen's Regulations and Orders 7.12 is a sufficient safeguard of the CDS's responsibility to retain responsibility for grievances that could impact the entire institution. But it's laid out in a more precise way there, and we think properly in the QR and O because those regulations can be changed by order in council.