National Defence Committee on Feb. 14th, 2024

[Tim McSorley]

I think there are a few ways.

It's definitely our opinion that both NSICOP and NSIRA should be given more teeth to request documents. Right now, it's legally binding that agencies need to provide documents as soon as feasible and to provide access, but there are no repercussions. We'd like to see an examination of possibly going for these agencies, similar to the Privacy Commissioner, in enforcing their work. This means going to the courts to have legally binding orders to provide the documents that agencies have or to ensure they follow the guidelines that are there.

For NSICOP, in particular, one thing that was at issue when it was created was that it's a committee of parliamentarians, not a committee of Parliament, and they have restrictions on their ability to speak out in Parliament and on their parliamentary privilege. In fact, it's the subject of a court case that's happening right now. There's a constitutional challenge. We believe that changing it to be a committee of Parliament would allow members to have a greater ability to speak out and a greater range to raise these issues.

Right now, if we look at NSICOP's reports in particular, they're even limited in what they can say in terms of who is withholding what kind of information and what they're getting at. We think changing the nature of the committee and reviewing it would be another way of addressing this.

Finally, the other aspect is around the resources they have. Both NSICOP and NSIRA could be provided with more resources to work even more closely with agencies to develop these relationships. They've said that sometimes it feels like obstruction, and other times it's about building up the relationships within national security agencies to have better access to those documents. More resources could also help alleviate this issue.

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

Mr. McSorley, you mentioned in your opening remarks the horrible time we had with the transfer of Afghan detainees—the torture and secrecy and the lack of transparency around that. We then saw it repeated in the Somalia affair. There were a lot of parallels there.

The documents about that Afghan detainee transfer still haven't been released. Somalia led to calls for an independent civilian oversight body to be created with the power to summon documents and, again, to report to Parliament.

I would love to hear from all three witnesses, because you've all talked and written about the need for greater civilian oversight of the military. What do you think about the creation of an independent oversight agency?

[Tim McSorley]

We would definitely support the creation of a new civilian oversight agency for the Department of National Defence.

The mandates of NSICOP and NSIRA are restricted to national security, and there are obviously broader issues of defence that don't fall under those mandates, even though there's an intersection. There would have to be some work on how they can interact around access to information.

Even right now, we believe that NSICOP would be better able to address a situation like the Afghan detainee transfer scandal, but at the same time, there remain restrictions both on their mandate and on what kind of information they're able to access. That may even prohibit or inhibit them from being able to fully investigate even if something like that were to happen today. It would be much better and much more clear.... It wouldn't result, I don't think, in the same kinds of politics and political wrangling that happened at that time, but there are still gaps that a civilian oversight body for DND would be able to fill.

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

Go ahead, Monsieur Drapeau.

[Col (Ret'd) Michel Drapeau]

The Somalia inquiry report prepared by my friend Justice Létourneau recommended the creation of an inspector general. He also recommended the creation of some oversight bodies: the military external grievance committee and the Military Police Complaints Commission.

Those organizations have been created, but over the past couple of years, instead of seeing them as independent civilian organizations, the heads of each one of those two organizations are retired judge advocate general officers. Whether or not they maintain their independence, it's not the way I would have liked to see it done.

Most certainly, we need to have an independent oversight body reporting to Parliament as an officer of Parliament, and that is an inspector general. You can call it by any other name, but that's what has been recommended and I still stand by that recommendation.

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

Go ahead, Mr. Shimooka.

[Richard Shimooka]

I'll take a different view of this, quickly. What body you create or how it is organized isn't necessarily the issue. I think the issue is what kind of teeth you give that body.

Look at the United States, let's say, and how congressional committees work there, and how effective they are at getting answers out of departmental representatives. Obviously, Congress has a lot more power than these bodies, but you get a much more clear and decisive answer, whereas in Canada I've seen several examples of departmental representatives coming to a committee—to this one or to the government operations committee—and they somewhat obfuscate the issue at hand that they're being asked about or don't provide the answers they should be required to.

For any oversight body, it's really about the ability for them to gain information, to have teeth and to provide repercussions for not answering in a straightforward way.

[The Chair, Liberal, John McKay]

Thank you.

We're now on the second round.

Madam Gallant, you have five minutes.

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

Mr. Drapeau, happy anniversary.

I'm going to call upon your experience dealing with sexual assault cases.

The government—the Liberals—has done an about-face on Justice Arbour's recommendation that all sexual assault cases be handled in the civilian courts. That being said, I was wondering about your experience insofar as the casework being transferred from the MP—military police—to the civilian courts and when that's done. In any cases involving the military, have the MP investigators ever excluded parts of interview transcripts of the victim or the defendant?

[Col (Ret'd) Michel Drapeau]

No, I'm not aware of it. It might have happened.

I have an opinion—a strong opinion—on the transfer of sexual assault cases to civilians. I've been arguing for this for 13 years.

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

With respect to the quality of videos for sexual assault cases, has it ever been your experience that a video of the interview of either the victim or the defendant had parts missing, that it was not complete when it was handed over to the other lawyers?

[Col (Ret'd) Michel Drapeau]

I don't know. I suspect there was, but it's difficult unless you have it. If you don't have that portion and it's been redacted, you have no way of knowing if this was reprehensible or was not required.

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

I'd like you to check with your partners, too, who may be involved in these cases. Are there instances where you know there's been a cut in the video and it's been pieced together or pieces have been taken out of a video?

[Col (Ret'd) Michel Drapeau]

I don't know.

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

In your experience, are you aware of any times DNA swabs were not taken after a sexual assault?

[Col (Ret'd) Michel Drapeau]

Yes.

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

Do you know of any instances where the DNA swabs were not compared to the DNA of the person who was accused of the assault?

[Col (Ret'd) Michel Drapeau]

I cannot answer the second question.

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

Do you know of any instances when no test was done on the accused for sexually transmitted diseases?

[Col (Ret'd) Michel Drapeau]

I'm not aware.

We have a case right now that I'm representing—a victim of a rape—and there was no DNA swab taken because there were no such tests available to them on deployment overseas.

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

Okay. That was when deployed, not necessarily at a training centre within Canada.

In cases involving the military, in your experience have pseudonyms or code words ever been used to obscure evidence?

[Col (Ret'd) Michel Drapeau]

I suspect they were. Certainly in the case of Vice-Admiral Norman, that came out in the news, so I'm anything but surprised by it. It's common parlance for the military to be using code words in various operations in various circumstances, so it doesn't shock my conscience that they're being used. It shocks it to use them improperly or illegally.

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

How should service members be protected from reprisals from their superiors when they request access to information?

[Col (Ret'd) Michel Drapeau]

They should seek a lawyer.

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

Very good.

What are some of the challenges that members in DND and/or CAF face when they want to expose wrongdoing?