National Defence Committee on Feb. 12th, 2024

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

As the superintendent, my job is to ensure independent actors have the space and resources they need to carry out their roles in that space. I have not given any direction with respect to the transfer of evidence or case files. That's within the independent authority of the Canadian Forces provost marshal.

I have taken note of the question you asked the minister. I think there is some information we can share with you in that respect. We'll take that on notice.

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

Okay.

We have the law of armed conflict, and we have the situation in Iraq. How would you intervene and ensure the issue is being addressed from your standpoint?

[The Chair, Liberal, John McKay]

That's an exceedingly difficult question for which she's given you no time to answer. However, take 15 seconds, please.

[BGen Rob Holman]

I am responsible for a training package called the Code of Conduct for Canadian Forces Personnel, which sets out 11 rules in a code of conduct and an instruction package. All of that is delivered to every person before they are deployed. Those rules, I understand, continue to be issued by commanders as part of the soldier card and the rules of engagement given to Canadian Forces members.

[The Chair, Liberal, John McKay]

Thank you, Mrs. Gallant.

Mr. Collins, you have six minutes.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thanks, Mr. Chair.

I'd like to pick up on the disruption COVID-19 played in the provision of government services.

Obviously, some of that interruption was in our compliance to the rules and regulations related to access to information. The pandemic created many challenges for us. I was a municipal councillor at the time and working from home, oftentimes even using my personal telephone and computer to do work. We were trying to make the best of a bad situation. It certainly disrupted not just our daily lives but also our work lives.

Mr. Matthews, many employees go home to work under different circumstances. Can you relay to us the challenges that the work-from-home environment plays as it relates to complying with some of the regulations you've been asked about today?

[Bill Matthews]

Certainly. I have a couple of points.

I should start by acknowledging that I was not at National Defence during the peak of COVID-19, though I was certainly in close contact.

National Defence was very much two worlds during COVID-19. You had people who, due to the nature of their job, were in the traditional workplace most of the time because they handled information that was not allowed to be home. You had others who were able to work remotely. That would have included members of the corporate secretary team. That dynamic certainly led to some delays when it came to ATIPs. However, to be fair, National Defence was challenged on ATIPs before COVID-19. It made a challenging problem worse. The backlog grew because of that dynamic.

As we discussed earlier today, we're back at it now, trying to streamline the process and use tools. Last year was, frankly, a break-even year for us in terms of the number of requests closed and the number of requests that came in. It's a growing business and we will not be able to improve our performance unless we find automated technology tools and a better process. Throwing people at it will not serve us well in the long run. However, COVID-19 made a challenging problem worse.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thank you for your answer.

I want to pick up on the minister's comments. My friend and colleague also referenced this.

He talked about reinforcing the importance of our policies with senior leaders. Those were his exact words. As someone who's been in government for quite some time, I've found that it's sometimes related to a need for more training. Sometimes it's a culture issue. I found, municipally, in all my years there, that some departments were certainly better than others at gaining compliance when we dealt with access to information. For the traditional delinquents—we'll call them that to be polite—I found the culture was one of denying and deflecting and almost trying to retain as much information as possible.

Can I ask you about culture? You can throw all the training resources you want sometimes at something—in this instance it's access to information—but if the culture and leadership don't relay the importance of complying with legislation to the people in the department, things aren't going to change. Can you speak about that issue?

[Bill Matthews]

I think the member has nailed it from two perspectives. You have to raise awareness with tools, techniques and obligations. That's training. Making sure that people understand that this is an important part of their job is culture and leadership.

I think in the heat of the moment, when people are very busy procuring something or testing something or doing whatever their day job is, things like an ATIP—the discipline and hygiene of good information management—can often feel like a secondary task that you'll do when you have a few spare hours. I think we're all learning that it's time well spent and that it's more efficient to do it in the moment. Hopefully, some of the tools we put in place will help us with that.

The message to staff from General Eyre and me, and in our raising it proactively with all our direct reports, is hopefully putting additional heat and light on this issue.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thank you.

One of the critiques that municipalities had of our provincial government was that the legislation that governed us, MFIPPA, the municipal freedom of information process, hadn't been updated in 30 years. As referenced here today, our government worked on Bill C-58, which passed and updated the legislation. Up until that time, consecutive federal governments were seen as dinosaurs as it relates to access to information, whether it was from journalists, citizens or people in the workplace.

Can I get your thoughts on Bill C-58? How long does it take for a department to nail it down? You would have had to retrain. You had an old system that was in effect for decades. New legislation comes in and we're now changing the rules. How long does it take to right the ship in that regard as it relates to, in this instance, Bill C-58?

[The Chair, Liberal, John McKay]

You have 30 seconds or less.

[Bill Matthews]

Maybe we'll have to come back to that.

I think I will avoid Bill C-58 specifically. One of our best friends on this is making data and information more open by default. In theory, you'll start publishing datasets, which we've been doing, just to make information more accessible to Canadians who are curious. Defence will always be challenged by what needs to be protected and what doesn't. It's a sensitive space.

Maybe in the next round we can turn to Taylor on Bill C-58 specifically.

[The Chair, Liberal, John McKay]

Thank you, Mr. Collins.

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

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

Thank you very much.

Last June, the Standing Committee on Access to Information, Privacy and Ethics conducted a study on access to information in Canada. Among the recommendations that were made, there was mention of two departments with problems with access to information—Immigration, Refugees and Citizenship Canada and National Defence. One of the recommendations was to create an expedited system for access to information requests related to sexual misconduct, among other things.

That recommendation was not accepted by the minister. It was argued that requests should not be given different status based on the identity of requesters.

However, given that these are two particularly problematic departments, would it not be a good idea to have an expedited processing channel based not on the identity of the requester, but on the subject?

People's confidence in the system must be restored, especially when it comes to National Defence, since that is often where things go wrong, unfortunately.

[Bill Matthews]

That's an important question.

Given that the department faces a lot of challenges in complying with the act, it would be difficult to set up a system to set priorities for certain issues or files.

My view is that we have to respect the law, which is 30 days, and we are struggling. If we can do things in general to improve access and the response rate to the 30 days, that's good for the whole system. I think we also have the challenge that many people are putting in access to information requests related to personnel files because they have been unable to get the information they request on release and other methods. I'm thinking here of medical records. If we could improve on that process and answer their questions properly in the first place, that might reduce the need for these other ATIP requests that come in.

It's an interesting idea. Given the challenge we face on timeliness, I'm more focused on tackling the system as a whole as opposed to prioritizing some requests over others.

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

Thank you very much.

At the Foreign Interference Commission, a number of experts said that Canada was probably one of the least transparent countries when it comes to national security. We know that the Communications Security Establishment, or CSE, reports to National Defence.

The Standing Committee on National Defence has already made recommendations to the effect that the CSE should be a little more transparent and that it should provide people with more information when there are cyber attacks, for example.

The Standing Committee on Public Safety and National Security is currently studying Bill C‑26, and there are expectations of the private sector. Don't you think that National Defence should set an example and be a little more transparent and proactive when it comes to whistleblowing when there are attacks or computer computer-related issues, instead of that information being somewhat concealed, in a way?

[Bill Matthews]

At National Defence, the security of information and intelligence is really important. In my opinion, the problem starts when we have to establish the security classification of a document for the first time.

This is why training is so important. We have a bias in the department of trying to classify everything as secret and protected right from the get-go. Once something is classified that way, any ATIP request that comes in requires more care and attention to process.

If you train people properly on what truly is secret and what's protected and if you classify things the right way the first time, that leads to greater efficiencies. However, without proper training, I think the bias in a place like the Department of National Defence—because security is paramount—is going to be to overclassify documents from the start. I think we could do more when a document is first created to say that it shouldn't be classified. That would alleviate part of the problem.

The other piece is that now, under open government, we are going through and trying to declassify a bunch of documents and release our datasets.

The work is ongoing, but once the classification level is established for those documents, a lot of paperwork has to be done before information can be published.

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

I was talking more about real-time transparency when there are cyber attacks. However, your answer does lead me to another question.

In some cases, there seems to be a duplication of work when a declassification request is processed. One department will declassify the document, and another department will not. So energy and time seem to be wasted.

Would it not be a good idea to create a declassification centre, rather than just having broad guidelines that do not seem to be applied in the same way from one department to another?

[Bill Matthews]

Maybe it would be, but in general, it is difficult to centralize systems in the federal government, since it is quite large.

However, it would certainly be worthwhile to clarify the guidelines so that the assessment of the security classification of information is more consistent.

Ms. Paxton works with her counterparts in other departments to ensure that the interpretation of information is consistent when it comes to security classification, but, as you already mentioned, that is not always the case.

[The Chair, Liberal, John McKay]

Thank you.

Ms. Mathyssen, you have six minutes, please.

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

I feel like we're consistently in a bit of a loop when we're discussing a lot of these access to information, transparency and privacy issues.

There was some question about ensuring that we both protect transparency and the information stream itself from political interference and from, of course, senior leadership interference. When I was on the status of women committee and we were trying to get into a lot of what had happened under General Vance and in terms of sexual misconduct, I spoke to the provost marshal, whom you mentioned, General Holman. We consistently questioned whether the provost marshal was able to investigate senior leadership above him at the highest ranks through the chain of command. There was an insistence that he absolutely could. Then it came back later that, in fact, there had been a huge failure with that, that an investigation was not able to happen at those highest senior levels.

When people are filing access to information requests, the scope of.... It's based a lot on an honour system, and within that system, there is time and the ability to limit information. There are instances where there is nil information when it comes to sexual misconduct cases, and therein lies that window of the problem.

That's why I put a bill forward. It's to provide the only truly independent office within that system, which is the ombudsman. However, we heard earlier from the minister himself that he has absolutely no intention of moving the ombudsman away from the system now, where it finds itself caught up in the chain of command because it is reporting directly to the minister, and putting it into the purview of Parliament.

I'll ask this again: Why can't there be moves to recognize the independence of the office of the ombudsman and move it away from the minister's office so it reports directly to Parliament?

[Bill Matthews]

It's an interesting issue. On the independence of ombuds and reporting directly to Parliament or through the minister, there are pros and cons. You've heard from the ombudsperson, Mr. Lick, about his views. From my perspective, what's important for the ombud is that he is free from the chain of command that is directly involved in any issues so people are free to raise issues with him and we work within the system we have.

I should share with you that when Mr. Lick first took office, there were some financial controls, I'll call them, put in place on his organization, basically such that he required approval to do certain things through my office. We have worked with him to loosen up those controls again so he can have more independence. That's different from the independence you're speaking about.

I'm not sure if one of my colleagues has a view, but the minister said it: We will work within the system we have. Currently, he is part of the structure that reports to the minister. If that changes, we'll obviously adjust.

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

As we heard from the ethics committee, there are timelines within the grievance process and the ATIP system. Members have a limit of 90 days to submit a grievance if it occurs to them, but ATIPs often take longer to receive within that 90 days. What considerations have been made around the leniency for members to come forward with a grievance if they're waiting for an ATIP for the information regarding their case?

[Bill Matthews]

I'm going to turn to my colleague to talk about the grievance process.

[Major-General Erick Simoneau, Chief of Staff, Chief Professional Conduct and Culture, Canadian Armed Forces, Department of National Defence]

I can take this one, Mr. Chair. Thank you.

We're very flexible on the application of the 30 days. When the griever doesn't have a proper resolution with the initial authority, they always have the opportunity, the right, to elevate it to the next level, which we call the “final authority”. At that point, based on exceptional circumstances, which this one could certainly be—because I'm chairing a board that sees grievances like those and we allow for this—we grant beyond 30 days. We just need to be aware of them—