Public Accounts Committee on Oct. 22nd, 2018

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, colleagues. This is meeting 113 of the Standing Committee on Public Accounts, on Monday, October 22, 2018.

We are here this afternoon in consideration of report 3, “Administration of Justice in the Canadian Armed Forces”, of the 2018 spring reports of the Auditor General of Canada.

I remind our committee that we are televised today, so I would kindly ask that you turn your cellphone or any other type of communication device to mute or vibrate, or whatever causes fewer interruptions.

We're honoured to have with us from the Auditor General of Canada's office, Mr. Jerome Berthelette, Assistant Auditor General; Mr. Andrew Hayes, Senior General Counsel; and Ms. Chantal Thibaudeau, Director. From the Department of National Defence, we're pleased to have Ms. Jody Thomas, Deputy Minister; and Geneviève Bernatchez, Judge Advocate Ggeneral of the Canadian Armed Forces. Welcome.

We will turn the floor over to you, Mr. Berthelette, on behalf of the Office of the Auditor General.

[Jerome Berthelette, Assistant Auditor General, Office of the Auditor General]

Thank you, Mr. Chair, for this opportunity to discuss our spring 2018 report on the administration of justice in the Canadian Armed Forces.

Joining me today is Andrew Hayes, who is the principal responsible for the audit and is now our senior general counsel. Also joining me is Chantal Thibaudeau, the director of the audit.

Canada's military justice system functions in parallel with the civilian justice system. The purpose of the military justice system is to maintain discipline, efficiency and morale in the Canadian Armed Forces. Like the civilian system, the military system must be fair and respect the rule of law.

Charges in the military justice system can be dealt with through a summary trial or by court martial. The circumstances of each case, including the nature of the charges and the rank of the accused, will determine the type of trial. In some cases, the accused can select the type of trial.

Summary trials are intended to dispense prompt but fair justice for less serious offences. These trials are presided over by commanding officers or other authorized officers. A court martial is a formal trial presided over by a military judge. A court martial follows many of the same rules that apply to the criminal proceedings dealt with by civilian courts.

This audit focused on whether the Canadian Armed Forces administered the military justice system efficiently, including whether they processed military justice cases in a timely manner.

We concluded that the Canadian Armed Forces did not administer the military justice system efficiently.

We found that there were delays throughout the various stages of the military justice process and that the Canadian Armed Forces did not set time standards for some stages, which contributed to the delays. For example, we found that it took a long time to lay charges. For court martial cases, it took a long time to refer cases to prosecutors to decide to proceed to court martial and to set the date for hearing.

The Supreme Court of Canada has established a principle that most trials should be completed within an 18-month timeline after charges have been laid. For the 20 court martial cases we looked at, we found that the average time to complete the cases after charges were laid was 17.7 months, and that nine cases took more than 18 months to complete.

In the 2016-17 fiscal year, a court martial dismissed charges in one case because of the delay. In nine other cases, delay was one of the military prosecutor's reasons for not proceeding to trial. Canadians expect their armed forces to be disciplined and to address unacceptable behaviour promptly. The Supreme Court of Canada has also emphasized the importance of prompt administration of justice.

We also noted that the frequency of rotation of legal officers across the various legal service areas prevented prosecutors and defence counsel from developing the necessary expertise and experience to effectively perform their duties.

Furthermore, we found that the office of the judge advocate general did not provide effective oversight of the military justice system. The regular reviews of the system that were required had not been conducted, and case management systems and practices were inadequate. Some military units had their own tracking systems, but they did not capture all the information needed. Other units did not have any system or process to track and monitor their military justice cases.

We found that prosecutors had rarely documented their reasons for proceeding to courts martial. Prosecution decisions involve a high degree of professional judgment, and poor decisions may undermine confidence in the military justice system.

Without information about why prosecutors decided to proceed with court martial cases, the Director of Military Prosecutions cannot monitor and show how prosecutors applied legal principles and exercised professional judgment in each case.

We also found the Canadian Military Prosecution Service did not develop clear and defined processes to implement its prosecution policy. The delegation of prosecutorial duties and functions was not always documented, and the procedure for assigning cases and decision-making authorities was not clear.

National Defence agreed with our recommendations. The Department has prepared an action plan with milestones and time frames to address the recommendations. We have noted that, according to the action plan, some actions and milestones identified by National Defence should have already been completed.

Mr. Chair, this concludes my opening remarks. We would be pleased to answer any questions the committee may have.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Berthelette.

We'll now go to the Department of National Defence.

Deputy Minister Thomas, please.

[Jody Thomas, Deputy Minister, Department of National Defence]

Thank you very much.

Good afternoon, Mr. Chair and members. I am pleased to be appearing before you today alongside Commodore Geneviève Bernatchez, the judge advocate general. She does not like me to talk about this, but Commodore Bernatchez is the first woman ever to hold the position of judge advocate general in Canada. She was appointed in June 2018.

Before we begin, I'd like to thank Mr. Ferguson, Mr. Berthelette and their team for their hard work and insights on the administration of justice in the Canadian Armed Forces.

I also appreciate the committee's interest, and your contributions to enhancing military justice.

The military justice system is an important part of enforcing the high standards the Canadian Armed Forces hold themselves to.

An efficient and effective military justice system helps maintain discipline, efficiency and morale within the Canadian Armed Forces, which means that the Canadian Armed Forces is better prepared to defend Canada and Canadians at home or abroad in times of peace or conflict.

The Auditor General's report identified areas in the administration of our military justice system where we need to do better. We are committed to addressing them. We recognize that some of the Auditor General's observations reflect previous recommendations from other reports that were not fully actioned. We're acting on them now.

Commodore Bernatchez is implementing an action plan that ensures each of the Auditor General's recommendations is addressed and results in meaningful change.

This will allow the Canadian Armed Forces to strengthen the military justice system and ensure that the judge advocate general has proper oversight of that system. Today I will focus on what we've done in these areas so far and how we will continue to improve. I will keep these remarks short in order to leave more time for discussion.

The Auditor General identified a concern that some of our prosecutors and defence counsel have been rotating through their positions too quickly.

Commodore Bernatchez acted quickly to address this and has lengthened current postings to the recommended five years.

This will be the minimum duration for these positions from now on.

We also agree that the office of the JAG has not always had the information it needs to provide meaningful oversight of the military justice system. We appreciate the Auditor General's attention to this important point. We have been working on an electronic case management and monitoring system—namely, the justice administration information management system, or JAIMS—since 2017. JAIMS will track military justice files from the very first report of an alleged infraction through its investigation and the laying of charges to the trial disposition and review in both summary trial and court martial processes.

JAIMS will be used by key actors within the military justice system, including investigators, those laying charges, presiding officers, review and referral authorities, legal advisers, prosecutors and defence counsel. They will update JAIMS at each stage of the process so that files can be tracked in real time. JAIMS is nearing completion. We will begin pilot-testing it in early 2019. We are confident that this will improve the JAG's ability to oversee the military justice system and its administration.

We will also finish reviewing the time requirements for each stage of the military justice system early next year.

And we will establish clear new time standards, as the Auditor General recommended. These standards will respect the rules of fairness and legal requirements.

They will be incorporated into JAIMS so that key actors in the military justice system are prompted to move cases forward steadily. If anyone is unable to meet these time standards, the system will require that they provide reason for delay and they will tell us what has caused the delay so that we can figure out how to fix it.

These standards will also contribute to the timely disclosure of information to those charged with an offence, and these same time standards will be incorporated into the performance measurement system that we are developing. We will know when our standards are not met, and we will know why they were not met. That information will allow us to continue to improve the military justice system.

Because our work does not stop once we address Mr. Ferguson's recommendations.

We will continue to build on the excellent work that he and his team conducted with periodic, formal reviews of the military justice system.

We will act on the information that those reviews provide. The changes that we are making to how we manage our people, our communication and our case files will mean that the military justice system will be stronger. It will have appropriate oversight and will be responsive to the needs of the Canadian Armed Forces.

We look forward to discussing this in detail with you this afternoon, and we welcome your questions. Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Thomas.

We'll now move to the first round of questioning.

Madam Mendès, you have seven minutes.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Thank you very much, Mr. Chair.

Thank you all for being here.

I'm sorry. I'm trying to organize my notes. I took a few during your testimony.

Mr. Berthelette, you found that prosecutors rarely documented their reasons for proceeding to court martial. Why would they do something like that? It seems to me that in the legal system, whichever one it may be, not documenting your case is almost immediate grounds for dismissal of a case. What justification did they offer you for not documenting it?

[Jerome Berthelette]

I'll ask Mr. Hayes to answer the question.

[Andrew Hayes, Senior General Counsel, Office of the Auditor General]

We were interested in seeing the documentation that was prepared by prosecutors to justify their decisions so that we could assess the timeliness of those decisions. The question that you're asking about why they didn't document might be one that the judge advocate general can answer.

What I will offer, however, is that the exercise of discretion by the prosecutors is an important feature of their job. For oversight and monitoring, it's important for the judge advocate general—and I guess in this context I really mean the director of military prosecutions—to understand how decisions were made, on what basis, and when they were made, to be able to understand what improvements can be effected.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Precisely. I understand that point. Yes, maybe Commodore Bernatchez would like to respond.

[The Chair, Conservative, Kevin Sorenson]

We're having a little bit of a problem with the sound of Mr. Hayes' mike, and it's almost impossible for the interpreters to pick it up.

I would suggest that until they come to fix it, Mr. Hayes, you borrow Ms. Thibaudeau's mike or Mr. Berthelette's mike. I think everything else is fine.

Continue on, Madam Mendès. This isn't taken from your time.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Thank you very much, Mr. Chair.

Commodore Bernatchez, you will probably be able to give me an answer.

How have prosecutors been able to justify the lack of a way to track decisions? It seems a little strange to me, in a legal setting, that decisions are not tracked, because ultimately they have repercussions on the lives of individuals.

So what reason has been given for not keeping track of those decisions?

[Commodore Geneviève Bernatchez, Judge Advocate General, Canadian Armed Forces, Department of National Defence]

First of all, I want to state that the comments made by the audit team and in the Auditor General’s report point to shortcomings in documenting those decisions.

I want to assure the committee that the Director of Military Prosecutions’ team made those decisions and justified them regularly. As I told you, that is one of their obligations.

The problem that was brought to the attention of the director of military prosecutions, and which is well founded, is that this was not done, or documented, in a strict and systematic way in each case.

The Director of Military Prosecutions reacted immediately to that comment, that observation. He issued directives last summer to make sure that each time a decision is made by one of the prosecutors in a case, it is recorded by the prosecutor assigned to the case.

I also want to draw to the committee’s attention the fact that the Director of Military Prosecutions also completely reviewed the entire group of policies that apply to his prosecutors to make sure that there was an immediate response to the comments and observations made by the Auditor General.

I have the full review of the policies here, in English. I will try to translate it as I read.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Go ahead. You can read it in English.

[Cmdre Geneviève Bernatchez]

The DMP looked at updating all the policies related to the change to instruments for appointment of prosecutors, clarifying the limits of the powers of a prosecutor on a file and indicating at what level charges could be disposed. Also, he reviewed all the policies that specified the timeliness of disclosure to the accused, which was also raised very validly by the Auditor General's reports.

He has also issued a policy regarding better communications between his prosecutors and investigators at all stages of a file, and has issued policies regarding the specific time frames for the scheduling of courts martial, which was also noted in the Auditor General's report.

Not only did he address specifically what had been

used by the Auditor General, but he went further by doing a complete audit of his policies to make sure that they are current and adequate.

[Alexandra Mendes, Liberal, Brossard—Saint-Lambert, QC]

Thank you very much.

If I may, I would refer you, Deputy Minister, to paragraph 3.73, page 17, of the report of the Auditor General—the overseeing of the administration itself—and the reference made to the insufficient reviews of the office of the judge advocate general.

We have a new judge advocate general, and I congratulate Commodore Bernatchez. How did the fact that there were no reviews or very insufficient ones impact the administration of justice in a very real way, a concrete way, for personnel who have had to deal with the system? Was this a question of human resources? Was there a problem with staffing the JAG? What was the issue?

[Jody Thomas]

I certainly will invite the JAG to jump in. I think the question at hand was that we could always use more people. There's absolutely no doubt, and I think that Commodore Bernatchez herself would say, yes, she'd like to have more people, but the core of the problem was a lack of adherence to policy, a lack of review of those policies and a lack of follow-up periodically to ensure that cases were properly documented.

The impact was that we did not proceed to prosecution because of timeliness in at least one case, and then there were problems with another nine. That doesn't sound like many, but with the number of prosecutions in the course of a year within the Canadian Armed Forces, it has an impact. If anybody is denied justice because of a procedural problem, that is a problem for the Canadian Armed Forces both in the administration of general military discipline and reputation.

Rather than just looking for more people, the judge advocate general has done a complete review of policy and the implementation of the new tracking system—the case management system, essentially. She reports to the chief of the defence staff, me and the minister, depending on the situation. Now we can go in and questions can be asked, timelines can be assessed and we can ensure this system is being properly administered.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Thomas. We're a minute over.

We'll now move to Mr. Nuttall, please.

You have seven minutes.

[Alex Nuttall, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Thank you, Mr. Chair.

Thank you to the team from the Auditor General's office.

Usually I start with questions of the Auditor General. I'm going to skip right over that to get the deputy minister to answer some questions here.

What I find frustrating as I look through the response to the report is that there's a lot of “will”, “will”, “will”, and I hope there is the will to get it done, because it hasn't been done in the past. As you mentioned, these are items that have been consistently brought forward through previous audits.

What I find perplexing is.... Let me start here. What is the target timeline you put in place to get through a case? I realize there are going to be complex and simple cases and everything in between, but what would be a target timeline example? Do you have targets put in place for different offences?

[Jody Thomas]

The judge advocate general will get into the detail with you, but the response to that is, absolutely.

I will just take a minute to address the “will”. Most, if not all of the management action plan items are under way. We say “will” because they're not yet done, and we're happy to report back to you, and we do report back to the committee when things are completed in the management action plan. Many of them started before the audit was finished, because Commodore Bernatchez recognized that there were changes that had to be made. We have accepted every recommendation because we agree.

In terms of things that haven't been done previously that we had agreed to, we have put a new oversight view into the department. We're tracking things through data analytics in a way we never have in the past. We acknowledge, as a department, that in not just this audit but other audits, we have not always followed up and completed the things we said we would.

[Alex Nuttall, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Before we move over, I agree that's fine and dandy, but tracking the length of time it takes to go through the process is pretty elementary.

[Jody Thomas]

We agree.

[Alex Nuttall, Conservative, Barrie—Springwater—Oro-Medonte, ON]

This is the justice system for the Canadian Armed Forces—

[Jody Thomas]

Right.

[Alex Nuttall, Conservative, Barrie—Springwater—Oro-Medonte, ON]

—for the best country on Earth.

[Jody Thomas]

Right. We agree.