Well, I've heard the learned gentleman from the JAG praise the opinion of Mr. Justice LeSage and Mr. Justice Lamer on behalf of the government. As you told us, they were speaking on behalf of the government, so we take them at their word.
Mr. Justice LeSage's recommendation 41 was, “The CDS should be permitted to delegate his role as the final adjudicator in all but those cases that have far-reaching implications for the Canadian Forces”. That's where the choice of words comes from: a retired justice of the court. Although the words may be imprecise, their intention is very clear.
Mr. Justice Lamer, in his report, recommended that, “the Chief of Defence Staff be given authority to delegate...the powers, duties or functions...as final authority in the grievance process”.
He said:
Notwithstanding the above, I recommend that the officer to whom the Chief of Defence Staff delegates be required to submit to the Chief of Defence Staff for final adjudication all grievances that fall within guidelines to be established by the Chief of Defence Staff (e.g., grievances that have policy implications for the Canadian Forces, affect the capacity of the Canadian Forces, and/or have significant financial implications).
These are examples, I would submit, of grievances that would have far-reaching implications. Mr. Justice Lamer suggests that the final adjudication of these grievances be retained by the Chief of the Defence Staff. That's where the argument comes from. That's where the suggestion comes from.
We had a philosophical notion that the Chief of the Defence Staff should not be disengaged from the grievance system because that's where you find out where the bugs are. You find out when things aren't working when people file grievances. If you have 500 grievances on a particular topic, you might get the hint there's something serious going on in a particular area or field, or potentially in a particular command. This is the way for the Chief of the Defence Staff to be seen to be personally interested and aware of what's causing disgruntlement in the system.
We have a grievance system that has its warts. Improvements have been called for, and some have been made. To permit a wholesale delegation of the powers of the Chief of the Defence Staff, having jealously guarded them, which we just did when we tried to give the military judges some independence.... Now we're saying they're going to be jealously guarded by the CDS with the final authority, but he can delegate it in this manner, without any significant controls on that power, other than saying a military judge's grievance can't be delegated, or if an officer grieves it can't be delegated to someone of lesser rank. Well, these are two modest limitations.
I submit the integrity of the authority and role of the CDS would require that all of these grievances that end up, using LeSage's words, “having far-reaching implications to the Canadian Forces”, to in fact be personally determined. At the end of the day, I don't mind having somebody else do the work. As Mr. Justice Lamer recommended, you could delegate the work, but it has to come back to the Chief of the Defence Staff for final adjudication so it's not actually a delegation of the final authority.
Having said that and relying on the independent reviews that this government has asked for and paid for and sought from the highest authority, then I think we should honour those suggestions and recommendations and ensure that grievances that have significant implications for the capacity of the Canadian Forces, significant financial implications, significant policy implications, be determined by the Chief of the Defence Staff and not by some delegation.
