Evidence of meeting #23 for National Defence in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was investigation.
A video is available from Parliament.
2:50 p.m.
As an Individual
That was our judgment at the time. Perhaps in hindsight, and information came out later, there were other routes available. Our assessment at the time was that we had reached an impasse.
2:50 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
More generally, what's the PCO's general rule in investigating allegations against a GIC appointment?
2:50 p.m.
As an Individual
A GIC appointment is an executive appointment. It's the gift of the Prime Minister. It's an executive branch appointment. The Prime Minister's department, the PCO, takes general responsibility for all of the processes: selection and appointment, performance review and discipline regarding GIC appointees.
Ms. Sherman's shop is fairly busy because there are 160 full-time GICs and about 1,000 part-timers.
2:50 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Yes, that's a lot.
Finally, there's almost no time left, but do you have any comment on the independence of the members of Parliament, the political system, and the justice system? Obviously, politicians shouldn't be demanding that the justice system do investigations of people.
2:50 p.m.
As an Individual
It's going to take a longer answer, and I'm happy to delve into that.
I think in the Westminster system there is always an answerable minister. Ministers have to be answerable to Parliament and Canadians for various things. Even with the court system, even with tribunals and independent bodies, there is a fundamental answerability to Parliament. For every body that Parliament appropriates funds for or creates through legislation, a minister is answerable.
That is not political interference. Political interference would be delving into the internal workings, interfering with a case. You can imagine different scenarios. I think there's a distinction, and also a line and a judgment to be called about when a minister who is answerable to Parliament should get involved, and how much.
2:55 p.m.
Bloc
Xavier Barsalou-Duval Bloc Pierre-Boucher—Les Patriotes—Verchères, QC
Thank you, Madam Chair.
Mr. Lick, when Minister Sajjan spoke earlier, he blamed the previous ombudsman, in a way. He said that the ombudsman should handle the issue by approaching other authorities in order to move things forward, or at least by providing information to the Privy Council Office to help it proceed. We can hear this to some extent from the Privy Council Office representative as well.
What are your thoughts on this matter?
2:55 p.m.
Ombudsman, Department of National Defence and the Canadian Armed Forces
I think the main principle in this, as I stated in my opening remarks, is that it is the constituent who drives whether an investigation goes forward in this case. I think fundamentally the issue at heart, and particularly the issue at heart for this committee, in my opinion, is that we have to build a system that provides that confidence to those who want to come forward.
In this case, in hindsight, as we look at all the testimony and all the comments in the media as much as we know, it is very likely that in the conversation that my predecessor had with the complainant there was no confidence that anything would be done. I think that is fundamentally the problem that we have at heart for this particular committee.
Essentially, the complainant was not confident that something would be done and that they would have protection from reprisal. Whether PCO is the right investigative body for this particular case, I don't think is fundamentally the question at heart. They could have done it if they had the information, as Mr. Wernick said—possibly. But, I would suggest that investigating sexual misconduct of a military member within the military is a bit more complex than, say, within a civilian organization. I believe it does require some element of knowledge of the military to properly investigate it. That could be hired out possibly, but fundamentally I think in this case it was the lack of confidence that anything would be done.
That is why this particular investigation didn't move forward.
2:55 p.m.
Bloc
Xavier Barsalou-Duval Bloc Pierre-Boucher—Les Patriotes—Verchères, QC
Thank you.
Let's say that a high-ranking member of the Canadian Armed Forces or even the commander-in-chief does something clearly inappropriate. The act may or may not be of a sexual nature, but it wouldn't be of a criminal nature. This is a completely fictional example. I'm not talking about the situation at hand, since I don't know what happened. The act isn't something that could lead to a trial or jail time.
If the minister decides to disregard information involving the general or the highest-ranking member of the military, because it may constitute interference, and fails to take any action, what are your options as an ombudsman with the information on hand?
2:55 p.m.
Ombudsman, Department of National Defence and the Canadian Armed Forces
As I stated in my opening remarks, if an allegation like that came to me or to my office, there are options available to us. As I think I've stated in previous testimony, I do not have the authority to proceed with an investigation where it involves criminal matters or matters that may result in a charge under the code of service discipline. That is clear.
In the case you're suggesting, I could, with the consent of the constituent—and again, as I said, with the confidence of the constituent that something would be done—refer the matter to the provost marshal.
2:55 p.m.
Bloc
Xavier Barsalou-Duval Bloc Pierre-Boucher—Les Patriotes—Verchères, QC
I have another question for you.
In practical terms, if you weren't reporting to the Minister of National Defence, but rather directly to Parliament, for example, how would that change the way things are handled and the progress of sexual misconduct cases in particular?
3 p.m.
Ombudsman, Department of National Defence and the Canadian Armed Forces
Fundamentally, there's a second part that needs to be added to your context there. We'll assume for the time being that I would not have the authority to investigate criminal matters, which I wouldn't think would be appropriate in any case, nor matters that could result in charges under the code of service discipline.
Our role today and our role in the future as an independent external body, I think fundamentally as an ombudsman under the principles we operate with, is to ensure fairness of process in order to provide members and constituents with the confidence that when a process is followed, it is fair. That is a role we play now, and one that I truly and strongly believe we would play in the future as well.
That said, reporting to Parliament means that all of Parliament is able to ensure that the process is fair—not reporting through a minister, where there may be vested political interest.
3 p.m.
Liberal
3 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I thank both our witnesses for being with us today.
I want to start briefly with Mr. Lick. You said at the status of women committee that you would have done the same thing, essentially, with this complaint, and taken the evidence of the complaint to the Minister of Defence. Is that correct?
3 p.m.
Ombudsman, Department of National Defence and the Canadian Armed Forces
I think as I said before, yes, if I had the exact same circumstances, I would have brought it to the attention of the person I report directly to as the person who has control and responsibility over the department in which that person operates. I think that's an appropriate thing to do.
If we understand correctly what happened, the purpose was to look at options that might be available to proceed with the complaint and to provide some level of confidence and protection for the complainant from possible reprisal, so that the member who brought forward the complaint would not be subject to that.
So, yes, fundamentally I would have done the same thing. Even in hindsight, I probably would have done the same thing, as well.
3 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
In this case, we now know through media reports what the evidence was. It appears to have been a document from which personal information could have been removed. Can you think of any reason why a minister should not look at that? If you took him something that included a document that didn't have personal identification on it, is there a reason why a minister couldn't look at that evidence?
3 p.m.
Ombudsman, Department of National Defence and the Canadian Armed Forces
I don't believe so. I think that is the reason why my predecessor brought that information forward. It was to at least give some substance to the idea that there was a credible allegation—not that it would have been found correct, but that there was a credible and significant allegation that should be pursued.
I think with the personal information removed, it was an appropriate thing that was done.
3 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Is there any other place you, as the current military ombudsman, would see as appropriate for you to take this kind of information?
April 6th, 2021 / 3 p.m.
Ombudsman, Department of National Defence and the Canadian Armed Forces
Well, I think we're seeing now that it's not.... I come back to the point that it's not truly about where it's brought. It is truly about what confidence the member has to see that it would be progressed and advanced fairly and that they would have protection from reprisals.
As I said before, perhaps PCO could have done it or hired it out, but I truly believe that in this case, given who the member was who is being alleged to have done something, it does require quite a deep level of knowledge and understanding of what the military environment is, and for that it may be difficult to find or to hire out.
I think that fundamentally it has to go back to what will provide the member or the constituent the confidence that something will be done and protection will be afforded.
3:05 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Lick.
I want to turn to you now, Mr. Wernick. Since we're dealing with a Governor in Council appointment, someone who, as you rightly pointed out, serves at the pleasure of the government, when there was a complaint about sexual misconduct, would your office, the Privy Council Office, have access to the personnel file of any GIC appointee? If there had been previous formal investigations into their conduct or sexual misconduct, would that information be available to your office?
3:05 p.m.
As an Individual
Those are questions probably better put to Janine, in terms of how you would go about fact-finding. We would have information about each person who was a GIC appointee because of their nomination, selection and appointment process. We wouldn't keep a running file on everything that they were up to. It would depend on where they were working and what organization they were the head of. In going to gather facts about an allegation, we would of course seek all the information that would be relevant, including the kinds of things that you talked about.
If I can just build on Mr. Lick's comments, I think this is a really unique situation, because you're talking about the person at the very head of the organization. I would never argue that PCO would get involved in internal matters of the armed forces. You don't want that, but because it was the GIC appointee, the executive appointee at the very top of the organization, we did have some responsibility to look into it.
The analogies would be the conduct allegations against the integrity commissioner in 2010, Madame Ouimet; conduct allegations against the head of the Canadian Human Rights Commission in 2013, Madame Chotalia; and even, at a stretch, the allegations against the Governor General as the head of state. When it's the person at the very top of the organization, where else do you go?
3:05 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
In your first answer to a question from Mr. Bezan, I believe, you talked about there always being a minister responsible. We've had Mr. Sajjan referring to the Privy Council Office as an independent office. I wonder whether you can comment on that characterization of the Privy Council Office as an independent office. Is it independent in operations, or is it always the Prime Minister who is responsible for the actions of the Privy Council Office?
3:05 p.m.
As an Individual
The Privy Council Office is the Prime Minister's department. It's part of the executive branch of government. It is the Prime Minister's department, and the Prime Minister is the minister, just like any other department, and the Clerk is the deputy minister, just like any other department.
It's not independent in the sense of the courts, but it is separate from Minister Sajjan. I guess that's the argument he was making. It was somebody from outside.
