National Defence Committee on May 8th, 2024

[Viviane LaPointe, Liberal, Sudbury, ON]

Thank you.

[The Chair, Liberal, John McKay]

Ms. Normandin, you have the floor for six minutes.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you, Mr. Chair.

I would also like to take a few seconds to thank you, General Eyre, for always generously attending our committee meetings and for your responses, which have helped us make sound recommendations. We're sorry to see you go, but we wish you every success in your future endeavours. I hope that you'll be back again before the end of the parliamentary session.

My question is quite long. I hope that it's relatively clear, regardless. Please take as much time as you need to answer it. This question was inspired by a question that a military member asked me.

He told me that there had been three independent reviews of the grievance process, but that there were still delays and backlogs and that the process was cumbersome. He also told me that an old federal decision confirmed that the military members weren't tied to the Crown by any employment contract. As a result, the grievance process, no matter how it's changed, will always remain internal within the Canadian Armed Forces. There will never be any possibility of external recourse.

Isn't this a matter of looking at the issue in the wrong way? Should the process for hiring military members also be reviewed? Should the fact that they aren't necessarily public servants and that they don't have employment contracts or recourse other than through internal channels be reviewed? Could a review of this process also be part of the discussion on how to improve the grievance process?

I think that we already started this discussion with Minister Blair. We talked about the possibility of a two‑year trial period for recruits, to see whether they like military service and to give them the chance to leave. There already seems to be a move towards reviewing the current approach.

Would it be a good idea to also look at how military members are hired and tied to their jobs? Could the study on grievances explore this option?

[Gen Wayne D. Eyre]

Mr. Chair, that's a good question.

I don't know whether there's a link between the recruitment and job training periods and our grievance system. Personally, I find it hard to see.

However, I must add that members who have a grievance, after the end of the process, still have the right to judicial review outside the Canadian Armed Forces.

I would like to hear General Simoneau's thoughts on the matter.

[MGen Erick Simoneau]

Thank you, Mr. Chair.

I would simply add that our job is codified within the National Defence Act. We aren't like public servants, but there's a good framework for what we do.

The grievance system isn't unique to the Canadian Armed Forces, as the chief of the defence staff just said. You can still go to federal court afterwards. We want to ensure that the members can go to federal court to resolve their issues. The process must be faster than before.

The member who spoke to you about delays is right. There are always delays. That's completely true. However, we're currently solving this exact problem by digitizing the grievance system and changing the way it works. We're completely overhauling the system so that, once members have gone through the initial and final authorities, they can turn to the federal courts as quickly as possible to resolve the issue and have their needs met.

Some of them have legitimate grievances. Sometimes, we just aren't able to resolve them, so we need to give them the chance to use these avenues of recourse.

[Gen Wayne D. Eyre]

Mr. Chair, our judge advocate general would also like to add something.

[BGen Rob Holman, Judge Advocate General, Canadian Armed Forces, Department of National Defence]

I gather that your question concerns the relationship between the Crown and the members of the Canadian Armed Forces, right? Under constitutional law, the Canadian Charter of Rights and Freedoms allows Parliament to review this relationship.

As General Simoneau said, this is set out in common law, but also in the National Defence Act. It's an idea worth studying.

[Christine Normandin, Bloc, Saint-Jean, QC]

That's worth noting. The goal is to find every possible avenue. On that note, I have a sub‑question.

One of the military's criticisms pointed to the fact that, ultimately, the chief of the defence staff has the final remedial authority. However, when a case goes to the Federal Court, the process is extremely long.

Should the remedial authority also be available to other entities outside the military when a grievance is accepted?

[Gen Wayne D. Eyre]

Mr. Chair, I'm responsible for discipline and good conduct within the forces. This is my responsibility as chief of the defence staff. In my opinion, we need to keep these responsibilities within the forces, as an institution, to ensure that we can continue to lead the forces.

Do you have anything to add?

[MGen Erick Simoneau]

I would add, General, that this is simply the value of the committee we were talking about earlier. It gives us good advice. The advice is unbiased, unfiltered and quite useful to us. Having often spoken to the chief of the defence staff about grievances—

[The Chair, Liberal, John McKay]

Unfortunately, we'll have to leave it there.

Thank you, Madam Normandin.

Ms. Mathyssen, you have six minutes.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Thank you.

A lot of the questions that have been asked already were similar to mine, in that the cause of those delays is, unfortunately, at the feet of the link of final authority. For four to five years things are held there.

In terms of the wait during which grievances aren't resolved and the stress and trauma that this can cause, that has a long-lasting impact. That is certainly something we have to address from a government perspective as well.

In terms of moving out and away from the chain of command with the final authority—I know you spoke of it a bit—does any other option exist? You talked about streamlining, but is there any other option you haven't mentioned yet?

[Gen Wayne D. Eyre]

As I mentioned in the last session, once the decision is made by the final authority, the member, the griever, has the right to a judicial review, which is external to the organization. That is one avenue as well.

In terms of looking at other models, I'm not sure if the team has done that or not.

[MGen Erick Simoneau]

We've done that. We are inspired to a great degree by the public service in the way they operate and the way they try to solve things through informal resolution. They bring all the subject matter experts around the table. That's how we operated with the board for the pilot project. We were inspired by our public service colleagues. We truly accepted that those delays were unacceptable, and we were trying to solve this. That's when we brought in our public service colleagues.

I think the big backlogs, as we've known them, are a thing of the past. I'm very confident that we're transforming the system in the right direction.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

One of the things we've consistently heard from a lot of the external forces, the checks and balances, the offices that are supposed to keep our government overall but certainly DND accountable, such as the Information Commissioner, the Privacy Commissioner, the ombudsman himself.... We had a scathing report in 2023 from the Military Police Complaints Commission stating that there was a refusal to release necessary information and that many of these offices do not have the jurisdictional teeth or enforcement to do so. I've tried to bring that forward in a piece of legislation to provide the ombudsman with independence.

I'd like to hear your opinion on whether independence is important, and on what further aspect of those teeth, to ensure that we're as transparent as we possibly can be, is important. Where do we need to go with that?

[Gen Wayne D. Eyre]

I will admit that I do not have a strong opinion or strong view either way about the reporting mechanism for organizations like the ombudsman. I do know and am proud to tell you that we have a good, solid relationship. We meet frequently and value the input of these various independent actors.

I just had the opportunity to review a draft report that the ombudsman is going to come out with related to what we're discussing here, and I'm very supportive of it. When we meet, the list of issues we hear from our members and the challenges they face is virtually the same.

In terms of the Military Police Complaints Commission and its annual report, this is a case of two reasonable actors having a disagreement on certain things, like what constitutes a policing-related complaint, or the access or releasability of information when it's protected by solicitor-client privilege. They're asking for the courts to determine where that line is. This is a rational way of addressing the challenge.

In terms of the degree of independence—whether they report to the minister or to Parliament—I am not convinced either way that this would affect their investigations. I am happy with the relationship that I have with them, and I value their advice.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

One of the main concerns from the Military Police Complaints Commission is that they can't even access the information. What about that issue? That's one of the biggest problems. There is no good relationship in the release of and access to information, let alone in the rest of that process.

[Gen Wayne D. Eyre]

Given that it's before the courts, I can't really comment on it.

I don't know if the JAG has more perspective.

[BGen Rob Holman]

Similarly, I can't comment.

The one thing I would emphasize is the important role that the MPCC plays in ensuring that Canadians and members of the Canadian Armed Forces are confident that military police are acting in a professional and independent way. Resolving those issues is important. I think we have to respect the fact that they've chosen the courts to do that.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

We have to respect it, but also try to avoid it in the first place.

[The Chair, Liberal, John McKay]

Thank you.

That brings us to our second round, which is five minutes.

Go ahead, Mrs. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

General Eyre, on October 18, 2022, I asked you how the military's vaccine mandate was impacting recruitment and retention. In the interest of transparency, and given that Health Canada is no longer authorizing AstraZeneca COVID shots, will you kindly provide this committee with all the legal opinions that you told the Canadian press you received in addition to the August 27, 2021, briefing memo presented to you by Lieutenant-General Trevor Cadieu?

[The Chair, Liberal, John McKay]

Let me intervene on that point. Generally, legal memos are protected by solicitor-client confidentiality. I'd be interested in the JAG's opinion as to whether that is reasonable.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

If it's possible, Mr. Chair, for us to have them, that would be really helpful. I want to prevent a raft of new grievances by asking for the recent directives and any CANFORGENS that have been sent out requiring that new recruits must have COVID shots before being deployed to a unit after passing basic training.

[The Chair, Liberal, John McKay]

Let's resolve this issue as to whether the undertaking being asked for is within the legal competence of solicitor-client privilege. I'd be interested in solving that issue. It's a legitimate question, but it's not necessarily something that a client is in a position to release the solicitor from.

If I could get your opinion, General Holman, I'd be grateful.