National Defence Committee on Feb. 14th, 2024

[Col (Ret'd) Michel Drapeau]

Again, they should seek a lawyer.

First of all, the legislation protecting wrongdoing—I forget what it's called—excludes members of the military. They have no protection if they want to denounce something. By culture, he or she in the military has to go through the chain of command. The chain of command may in fact be the culprit. In this case, I don't mean to be joking about it: They should seek legal advice as to how to go about it.

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

Should it really be necessary for a member of the Canadian Armed Forces to seek out legal advice and pay to expose?

[Col (Ret'd) Michel Drapeau]

It's increasingly so. Some of the things I've written in the brief suggest just that. A member is left to his own devices in the military...or the forces morale and services and so on, unless you have legal advice to argue for your rights. There's no union to speak for you; there's no organization. They are left to their own devices, and the only device available to a serving member is to put in a grievance, and the grievance has to go through the chain of command.

[The Chair, Liberal, John McKay]

Thank you, Mrs. Gallant.

Madam Lambropoulos, you have five minutes.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

Thank you, Chair.

I'd like to thank all of our witnesses for being here with us today to answer some questions.

I'll start with Mr. Drapeau.

You spoke a bit about the CAF grievance process. We've heard several times at committee that this is an issue, that it takes a long time and that if it were to be improved, transparency and trust within the CAF would also be improved.

I'm asking you if you have any very specific recommendations or suggestions—not necessarily having to do with the Information Commissioner and other commissioners, because I will be asking a question about that next—on how to improve the grievance process as it relates to access to information or resources.

[Col (Ret'd) Michel Drapeau]

If you're asking about improving the grievance process in relation to access to information, I don't think the two are connected. I mean, they're not. As a requester, you don't have to be a military person. If you're not a military person, you don't have access to the grievance process. You have access only through the complaint process. The two are not related.

Let's say I was the deputy minister of the defence department for a day and I wanted to try to come in with some examination of resilience. I'd certainly follow my own advice to have an auditor of some sort examine it. What's being done? What is the workload? How do we best do this? What system needs to be changed? What authority levels need to be provided to the ATI staff? It would be all of that, including whether or not you need to process five-dollar access fees. Is that really required? It creates bureaucracy and expenses and so on.

I think we need to go back to basic principles. It cannot be done within an organization or an institution. It has to be done system-wide. Do we really need to insist in 2024 on 30 days' release time? Is that reasonable today? I would rather have 60 days and live by it than have 30 days extended to 90 days or 120 days. We need something as simple as that.

It will also improve the morale of ATIP staff. You can imagine those people, good people, going into work knowing they have impossible work to satisfy their boss, their clients, the OICs and so on, because maybe they have an impossible task to try to obtain documents, go through them and release them within 30 days.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

You also mentioned that one of the main issues is that the Office of the Information Commissioner and the Office of the Privacy Commissioner take up to a year or more to complete an investigation.

[Col (Ret'd) Michel Drapeau]

I'm being generous when I say a year. Often it's two years or more.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

It's upwards of a year.

You suggested something that I'm not sure I agree with. I would like to pick your brain to see what you mean or what alternative solutions you think there could be.

You said that the Office of the Information Commissioner is not a necessary office. I'm wondering if you've considered other ways the government could have an accountability—

[Col (Ret'd) Michel Drapeau]

A 1997 green paper by Parliament on access to information examined various options. Should we have an ombudsman-type commissioner or should we do like the States did? We elected to have an Information Commissioner.

The Office of the Information Commissioner of those days, with Mr. Grace and John Reid and so on, was a different organization from what we have today. In those days, almost 90% of the staff were investigators. They investigated. They went to the organizations to look at the documents and to see if they were there and properly released. Then we moved the Information Commission to Gatineau. They do everything by email or phone. Most of the staff are now doing administrative material. It's a very heavy-set management structure that takes away the number of investigators. I would look at that also.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

There are some good suggestions in there. Do you have any specific suggestions? If we were to write recommendations on how to improve this process, what would you say?

[Col (Ret'd) Michel Drapeau]

The first thing I would do if I could just snap my fingers—and it could be done by snapping your fingers by a small change to the act—is provide the Information Commissioner with the task of issuing their decision within a year. If we ask organizations to release documents in 30 days, surely we can ask the Information Commissioner to do their job within a year. If a year goes by and you don't have a decision, then you get a free pass to go to the Federal Court if you need to.

[The Chair, Liberal, John McKay]

Thank you, Madam Lambropoulos.

Madam Normandin, you have two and a half minutes.

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

Thank you very much.

Mr. Drapeau, I'd like to come back to the questions Ms. Lambropoulos asked, because I may have misunderstood something. Correct me if I'm wrong.

My understanding is that, when a grievance has been filed, it can take years, because it is the Chief of the Defence Staff who makes the decision. During that time, however, it's impossible to submit an access to information request on the file.

Is that right?

[Col (Ret'd) Michel Drapeau]

No, it is possible to submit an access to information request on that file.

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

Okay, thank you.

Can we assume that, in the context of the transfer of requests to the civilian system for sexual misconduct cases, the fact that the case is before a civilian court will also not prevent access to information requests?

That should not be a problem. Is that right?

[Col (Ret'd) Michel Drapeau]

That's right.

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

Okay, thank you. I misunderstood. I wanted to make sure I had the correct information.

Mr. Shimooka, I would like to hear your thoughts on the level of declassification that exists in other countries compared to what is happening here. For older cases, some jurisdictions have a 50‑year rule.

Can we compare Canada to other Five Eyes countries? Where do we stand in that regard? Is there any catching up to do? Can you make any recommendations in that area?

I'd like to hear your thoughts on this issue more broadly.

[Richard Shimooka]

One point I want to make is that I agree a hundred per cent with Colonel Drapeau's comment about 30 days versus 60 or 90. I believe that 30 is supposed to be one of the quickest mandated responses. When you are getting extension after extension, I would rather, as you've said, have the documentation be...to get it right at a certain point than just having this ad hoc process.

One point that I think we've seen in the discussion, especially in the United States surrounding what happened with Snowden and other individuals, is whether all this stuff is required to be classified. How much of the documentation really should be classified?

I know that the Finnish system specifically says that nothing is classified unless it has to be specifically identified as classified. That changes the dynamics of what the burden is on ATI. I think Canada in theory has a very far-out liberal process in this. I don't say that in a negative sense but in the sense that it should very much provide documentation quickly, and in practice it really doesn't. It has these issues we've discussed today.

[The Chair, Liberal, John McKay]

Thank you, Madam Normandin.

Some of us don't think “liberal” is a negative word.

[Richard Shimooka]

It wasn't intended as such.

[The Chair, Liberal, John McKay]

Yes, I know. I'm teasing.

Madam Mathyssen, you have two and a half minutes.

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

Mr. Drapeau, I think Mrs. Gallant was starting to ask some questions on the transfer of criminal sexual offence cases handled by the military to the civilian system. The minister has promised legislation to solve this problem. I have a piece of legislation that could be quickly adopted to do that.

Can you tell the committee what legislative changes you think are needed to maintain the independence of these investigations and to ensure transparency for them?

[Col (Ret'd) Michel Drapeau]

To change it to civilian court jurisdiction, amend section 70 of the act by adding just one line where they don't have jurisdiction. It can be done in three minutes. It's simple.

The moment it's done, victims would be able to call 411. If she were to be the subject of an assault and reported the crime, we'd let the civil authorities at the federal, provincial or municipal level investigate and the courts would take care of that. It's not black magic. Up until 1999, the forces did not have jurisdiction over sexual assault. Overnight, as a result of and in the wake of the Somalia inquiry, in the act that was enacted in 1998 and put into force in 1999, DND accepted the responsibility for sexual assault.

At that time, when they did, the military police were not trained at all in this sense. The judges had never received any training. The prosecution staff had never argued any cases of sexual assault. It was a type of learning episode they went through over a number of years. In the process, victims lost confidence in the independence and skill of the military police and the prosecution staff.

I think time has shown—and Justice Fish and Justice Arbour have been quite eloquent on it—that it has to be transferred, and the sooner the better.

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

One problem has been left, though. For cases now starting within the civilian system.... Those that were started within the military justice system are now being lost. This lack of legislation has been seen as part of that problem. Have you seen that in your practice?