Evidence of meeting #113 for Public Accounts in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was jag.
A video is available from Parliament.
4:45 p.m.
Conservative
4:45 p.m.
Randeep Sarai Surrey Centre, Lib.
Thank you, Ms. Thomas and Judge Advocate General.
I'm the son of an officer. I know how military training works. I grew up in a household where my dad had those standards and we all had to adhere to them. I'm also a lawyer, so I know how justice delayed is justice denied. Timely disclosure and performance measurements are all basic departmental requirements, whether you do them on Excel or in a fancy computer. If there's no attitude or will, nobody is going to implement them. It seems like there's a big attitude or will problem because, on its own, I don't think the technology is a reason for delay. I'm a little concerned that, if we're implementing a technology next year, we're going to have problems and we're going to blame it on the technology. I think it should be beyond that.
Military is usually one of the best organizations where systems, checklists, timelines, accountability and follow-throughs are ingrained in an officer's, or a soldier's, or a JAG member's psyche. In fact, I would hope that JAG was a standard that, across the country, other departments of justice would hold to and say they do really well. In fact, it's the other way around. The Canadian Bar Association has critiqued the previous system as being inadequate. It should be the other way around, where departments of justice should take leadership from JAG, by looking at how well they do it, how timely and how effectively, just because of the culture of how military should operate.
What is the timeline for the new system and can we ensure that there's no gap, for example, if the deputy minister or the commandant is changed, so that we don't have this delay again? It seems to be an epidemic that whenever senior staff is changed then the new staff says they don't know what the other staff did. These are simple things, like when a teacher runs their curriculum, they have a system in a binder, so that if they're sick or away, the substitute can come in and pick up right from there and the class goes on.
How are we ensuring that this new system will be managed well, so we don't have those changes?
4:45 p.m.
Deputy Minister, Department of National Defence
Thank you very much for the question.
I agree that it is difficult when senior leadership changes. We tend to go from one person's priorities to another. This is ingrained in our governance, in that our assistant deputy minister's information management system reports to us on the progress of this system, so they are independent of me or the judge advocate general. It is on its own timeline. To ensure it doesn't have the problems that we've seen in other systems, it's being rolled out in phases and it's being thoroughly tested in sandboxes. We're doing user acceptance testing to ensure that it does function.
Your point is well taken and it underscores everything that we've said today. The system doesn't fix all the problems. Human beings have to fix the problems. The system will give the JAG a different insight into what's going on in our organization that we think will help improve standards. The system alone won't do it.
4:45 p.m.
Surrey Centre, Lib.
My concern is that I'm a father of two daughters. There are women officers in the room and you're both distinguished women in the military. I don't want another story where women, who bring about their assault charges or harassment claims within the military, which have been rampant, are not getting justice or that justice is denied. Even if they get justice, if it's so late and they're so mentally and psychologically tormented through the delay of that outcome that their advice to others is to not join the military because it's going to be very troubling....
How do we ensure that message goes right from the top down that there will be no tolerance of that? If they are seeing delays in their cases, how can they bring them forward? Normally, a victim cannot have that access, but I think in a JAG situation, they should be able to have access because I don't want that problem being out there.
4:45 p.m.
Cmdre Geneviève Bernatchez
I want to reaffirm here for the committee that inappropriate sexual behaviour is not accepted in the Canadian Armed Forces and that our chief of the defence staff completely committed to ensuring that this would be dealt with. The military justice system is one of the important tools put at the disposal of the chain of command to ensure that we eradicate these behaviours within our midst.
You're absolutely correct that a computer system cannot, in and of itself, solve everything. When we're talking about timeliness, when we're talking about the effectiveness of the system, there needs to be a complete cohesion of things coming together. The solutions we're looking at and are currently working on are the time standards and the litigation experience, as has been noted by the Auditor General, to ensure that our prosecutors and our defence counsel have the expertise required moving forward. That requires training as well from all actors in the military justice system.
Going back to a previous question or comment, the Canadian Armed Forces disciplinary advisory committee, made up of senior NCOs, is the key advisory body for the Canadian Armed Forces in that regard. Better communication between actors was also noted in order to ensure that the system runs smoothly and benefits from the perspective, the expertise and the points of view of all of the major actors.
I would be remiss not to mention also Bill C-77, which is currently before Parliament for discussion. That is expected to significantly reduce the delays within the military justice system, because it will simplify summary hearings and bring them back to simple disciplinary infractions that commanding officers, delegated officers, can deal with.
4:50 p.m.
Conservative
The Chair Conservative Kevin Sorenson
We'll now move to Mr. Bezan.
Welcome to our committee, Mr. Bezan. The time is yours.
October 22nd, 2018 / 4:50 p.m.
James Bezan Selkirk—Interlake—Eastman, CPC
Thank you, Mr. Chair.
I want to thank our witnesses for being here.
I read through report 3 from the AG's office. It is a condemnation of our military justice system. I have to say that when you look at all the recommendations here and the conclusions, it's disappointing. Then you look at the delays and you look at the decision by the Supreme Court on the Jordan decision. Essentially, justice delayed is justice denied.
Why is this happening? Is it a human resource problem? Do we have not enough judges, not enough lawyers, not enough investigators? Even the investigations are taking beyond 30 days.
Deputy Minister Thomas, why is this happening? Why isn't our military justice system properly resourced?
4:50 p.m.
Deputy Minister, Department of National Defence
I have spoken to Commodore Bernatchez about her resource level, and she believes she is properly resourced.
I think there are a number of elements. There is no one answer. I can't give you a simple answer as to why there are delays. Sometimes the victim doesn't want to come forward, or the people involved in the case are deployed. It's an operational organization where people are moving all of the time. Time delays within units have to do with being deployed on operations. Sometimes it has to do with training. Sometimes it has to do with the availability of judges or prosecutors. There are a number of factors.
I do believe, and I may be alone in this, that data will help Commodore Bernatchez manage the operation differently, because she will see.... She believes she has enough resources; perhaps she doesn't, and we will see a particular bottleneck in one part of the country or one part of the process or the way in which we execute certain parts of the process.
4:50 p.m.
Selkirk—Interlake—Eastman, CPC
But there's no doubt that by having these delays, you're undermining your own rules and service codes, such as the code of service conduct, that are in place today. When you try to maintain good order and discipline, when you try to maintain that morale, how do you get that when you have everybody languishing in court?
I know that you guys are well versed on the Beaudry decision by the Court Martial Appeals Court. Is maybe part of that decision of actually pulling everything out that would be considered a court martial and moving all of those into the civil court rather than their being in the military justice system the solution? There are people out there who are advocating and some have been advocating for years that it should be outside of the military justice system, but I believe it really does undermine the code of conduct. It undermines the military ethos and it undermines the chain of command.
I'm glad CAF is appealing that decision to the Supreme Court and asking for a stay of proceedings, but at the same time, when we see reports like this—you have your critics out there, outside of the AG's office—aren't you just adding fuel to that fire?
4:50 p.m.
Deputy Minister, Department of National Defence
We agree that the report is problematic in the conduct of the military justice system. It's not the intent or the purpose or the validity of it. It's that the conduct of some cases in the military justice system has been problematic, and it does affect esprit de corps, which is why we are determined to fix it.
The Beaudry case is before the courts so we can't speak about it, but we have to be cognizant of the fact—and this is a comparison but it is not intended to deflect—that the civilian justice system has similar if not more profound time problems. It isn't a one-for-one and it will get better if you move.
4:55 p.m.
Selkirk—Interlake—Eastman, CPC
Commodore, you mentioned that Bill C-77—and we'll have you at committee tomorrow as we start the study on it—will address some of the shortfalls we currently have in the National Defence Act. I'm glad that we are going to be addressing victims' rights to reflect what we already have in the Victims Bill of Rights brought in by our previous Conservative government.
Can you speak to how this will streamline the process in the summary hearings and change the way summary convictions are carried out versus the court martial system?
4:55 p.m.
Conservative
4:55 p.m.
Cmdre Geneviève Bernatchez
The current system provides for offences that may be tried by courts martial or summary trial. When charges are laid, oftentimes the accused is given the choice to elect between one of the two forums. Then it goes to summary trial or.... There are a lot of steps as a consequence of the evolution of Canadian law. The military justice system must keep step with Canadian legal standards and Canadian values, and that's how the system developed. Over time, though, it put an incredible burden, an incredible responsibility on the shoulders of commanding officers who, as rightfully noted, are not legally trained, and that complexity, in and of itself, inserted delays in the process.
Bill C-77 aims to introduce summary hearings. For the simplest disciplinary instances within the units, for example, being late for duty, things of that nature, a commanding officer or a delegated officer will be able to try the cases, without giving elections to the member, because there will be no penal or criminal consequences. It will be akin to the disciplinary hearings we have in the public service or the RCMP. Minor things will be kept at the unit level. It will de-clog the court martial level of tribunals. It will also ensure that there are less steps to follow, so things will be addressed more quickly. That's how it will address delays.
4:55 p.m.
Conservative
The Chair Conservative Kevin Sorenson
Thank you very much. Those were good questions and good answers.
We'll come back, I think, to the final question, unless anyone else wanted in after that.
Monsieur Robert-Falcon Ouellette.
4:55 p.m.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
Once again, thank you very much, Commodore Bernatchez. I was just reading your resumé. It's very impressive, by the way. You were in the naval reserves. You were a combat officer in the naval combat trade, and then you transferred over in 1990, in Yugoslavia and Afghanistan. That's very interesting.
I have a question for the Auditor General's office. You've done this review. Are you going to be coming back to do an additional review after you've allowed time for the military justice system to make its changes to Bill C-77?
4:55 p.m.
Senior General Counsel, Office of the Auditor General
We are in the process of looking at our forward-looking audit schedule. The decisions about what we audit and what we follow up on are determined in part by the action plans and the time frames for the department—in this case, National Defence—to complete their tasks. Obviously, we're interested in the work the committee does to hold departments to account. I can't say that we will be back looking at this in the very near future, but it is an important area that has grabbed our attention.
As you probably know, we are completing an audit connected in some ways to this, in relation to inappropriate sexual behaviour, so the office will be before the committee again, I'm sure, when we table that audit.
4:55 p.m.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
Concerning postings of military personnel, the Auditor General suggested five years or a longer time frame. The military had a tendency to do two- to three-year postings in the past, a maximum of four years in the same position. The reason for that was that you wanted to train people in various positions so they could have an understanding that if they moved into a command position, they would know all of the jobs, or much of the jobs, that they might be in charge of commanding later on.
How would this change impact the level of expertise in the long term for the military justice system?
5 p.m.
Cmdre Geneviève Bernatchez
It is recognized that in order to be a performing litigator, one needs experience and needs expertise. This was noted by the Bronson reports in 2008 and 2009.
We acknowledged that, and I've issued orders to my chief of staff that the vast majority of litigators who are part of the military justice system stay in place for a minimum period of five years. Of course, this will be done as per the director of military prosecutions' and director of defence counsel services' wishes as well, because certain people are just not cut out to be litigators, so they need to have the flexibility to say this person is not working and they will need a replacement.
That will build the expertise, but you're absolutely correct. We need to look at the entire organism that is the office of the JAG and see where we need to balance in order to ensure that there is also the generalist approach, because the office of the JAG is responsible for providing legal advice in all areas of military law and we need to develop the knowledge of it.
What I've asked for the support of the Canadian Armed Forces to do, and we've started this fall, is an occupational analysis of legal officers to see where we need the training, how long the posting should be, and what types of experience the legal officers need, whether they are litigators or generalists within the office of the JAG.
It's quite a long process. It usually takes five years in order for it to be meaningful. After we have completed the occupational analysis, we will be able to determine how we adjust our personnel management practices to ensure that we yield the best results for our clients.
5 p.m.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
It's related to the idea of summary trials. Obviously, before Bill C-77, which is in Parliament right now, that left you with a record. You were criminally responsible. It was a criminal case. Now it has changed.
Is there going to be an education program? One of the issues with the military justice system is that people were very afraid to use it. If you were late, you were charged and you would eventually have to go and get a pardon, at some point in the future. A lot of people were very wary, because 20 years ago you could be charged and you would have a criminal record for life when you left the military, just for having been 15 minutes late.
Now it's changing. Will there be an education program through the NCMs and the units on the ground to actually ensure people know that this instrument has changed, that they can use it, that they can go about and actually start imposing the discipline? Discipline is important for one reason. If people make mistakes, people can die. If you don't use your arms properly, your weapons, if you discharge your weapon in an inappropriate way, if you're doing things that are inappropriate, your comrades could die while in operations, and obviously, we don't want that.
What are you doing to help ensure that the disciplinary structure is flexible on the ground, related to education?
5 p.m.
Conservative
5 p.m.
Cmdre Geneviève Bernatchez
You are correct in stating that some of the offences currently tried by summary trial could eventually lead to records that are akin to criminal records. The changes that would be brought by Bill C-77 would ensure that everything that is done by summary hearings doesn't result in penal or criminal consequences.
That will be a sea change. If we go from the summary trial process to the summary hearing process, it will require significant training of all actors within the military justice system. That's something that the office of the judge advocate general and the Canadian Armed Forces did in 1998 when there was a sea change in the military justice system, and we're quite used to doing this. It will be significant. It will need to be deliberate.
As you mentioned previously, it will need to address not only the officers within the Canadian Armed Forces, but all of the disciplinarians—the senior NCOs, the NCMs, everybody who has a role to play, from the person who receives a complaint to the person who leads the investigation, to the person who lays the charges, to the person who finally hears the summary hearing process.