STANDING COMMITTEE ON NATIONAL
DEFENCE AND VETERANS AFFAIRS
COMITÉ PERMANENT DE LA DÉFENSE
NATIONALE ET DES ANCIENS COMBATTANTS
[Recorded by Electronic Apparatus]
Thursday, June 01, 2000
The Chair (Mr. Pat O'Brien (London—Fanshawe,
Lib.)): I would like to call to order the Standing
Committee on National Defence and Veterans Affairs.
Our witness today is Brigadier-General Jerry Pitzul.
He is the Judge Advocate General for the Canadian
Just before we go to our witnesses, on behalf of all
those who participated in the recent SCONDVA trip to
Kosovo, Macedonia, Aviano, and London, England, I'd
like to thank the clerk, all the researchers and
translators, and all the staff who accompanied us on that
very interesting trip. I think it was very well
Thank you all very much.
It was very informative. We did have an unfortunate
experience in London, England, with some of our own
staff in Foreign Affairs, which was brought to the
attention of the minister on your behalf by the
chairman yesterday. He was not too pleased to hear
about that experience, so we'll await further
developments, but other than that the trip was very
worthwhile and positive.
Also, to the members who participated, thank you very
much. I think we achieved our objectives over there
and found the trip very worthwhile.
Next week I will not be here, as the minister has
asked me to represent him at Juno Beach for the start
of the creation of a long overdue memorial to our
troops at Juno Beach. Mr. Pratt, vice-chair, will
likely chair the two meetings.
As you know, we have to finish the procurement study
next week. We just have a few clauses left on IRBs,
and that meeting is scheduled for Tuesday, so
hopefully you can finalize it in my absence Tuesday.
I'll talk to Mr. Pratt. It's fine by me to just go
ahead and table it and get it tabled in the House. In
the eventuality that we might recess for the summer
sooner than we're anticipating, I'd like to make sure
that gets tabled in the House.
The only other thing before we begin today's session
is that we need to give some consideration to what, if
anything, we want to say on national missile
defence—our discussion as a committee on that. Do we
want to give an interim report to the House and the
relevant ministers about our hearings so far, before
the anticipated summer recess? You might just think
about that. We can deal with that not next week but
the following week.
With those announcements or opening words, I'd like to
go right to our witnesses.
I welcome you and thank you for attending today, sir.
We're happy to hear your remarks.
Brigadier-General Jerry S.T. Pitzul (Judge Advocate
General, Department of National Defence): Good
morning, Mr. Chair.
Before I commence, I'd like to introduce
Lieutenant-Colonel Ken Watkin from my office, who will
be here to provide me with any documents I need in
support of my testimony.
Good morning, ladies and gentlemen.
I have a prepared statement, Mr. Chair, that I'm
prepared to read to you at this point in time.
Mr. Chairman, members of the committee, I would like
to take this opportunity to thank you for asking me to
appear before you today to discuss the operations of
Canada's military legal branch and to speak on behalf
of the very dedicated group of Canadians serving in
uniform who provide legal advice to the Government of
Canada, the Department of National Defence, and the
While I recognize that I am also here because of the
ombudsman's appearance before you on May 9, I believe
it is important that I take this opportunity to outline
for you the organization and activities of the Office
of the Judge Advocate General. This may allow you to
place the ombudsman's comments in their proper context.
I know that copies of the first annual report by the Judge
Advocate General to the Minister of National Defence have been
provided to you, along with materials produced by my office
relating to operational law and the military justice system. The
tabling of that report is part of a new, historic framework put in
place by Parliament to promote greater accountability and
transparency in the military justice system.
As is evident from the Annual Report, the past year has been
one of dramatic and unprecedented change. In December 1998, Bill
C-25, containing amendments to the National Defence Act, received
Royal Assent. The majority of those amendments and the necessary
implementing regulations dealt with matters concerning military
justice and took effect September 1, 1999.
The reformation of the military justice system was the
product of an unprecedented level of study,
consultation, and inquiry, involving review by
committees of both the House and the Senate, including,
of course, this committee. The reforms were designed
to modernize the code of service discipline and to
promote accountability, fairness, integrity, and
transparency within the military justice system.
The changes have resulted in a structure that is more
consistent with Canadian civilian legal procedure and
standards while still preserving the military
requirements that underscore the rationale for a
distinct military justice system. I will discuss some
of these world-leading reforms further. However, I
would be remiss if I didn't also advise you of the
tremendous work being conducted by military lawyers in
the other area of the legislated responsibility of the
JAG: the provision of advice on military law.
During the past year, legal officers have advised on
targeting issues during the air campaign in Kosovo,
deployed with Canadian Forces contingents to Bosnia,
Kosovo, and East Timor, and participated in the
disaster assistance response team to Turkey.
Domestically, 42 officers were deployed across Canada
and were on duty or on call on New Year's Eve as part
of Operation ABACUS.
Other legal officers assisted in preparing for
litigation before the International Court of Justice,
the various independent inquiries relating to UN
operations in the former Yugoslavia and Rwanda, and the
International Criminal Tribunal for Rwanda. One of
our officers has been a member of the Government of
Canada team that was instrumental in developing the
Rome Statute creating the International Criminal Court.
As you will recall in the wake of the Somalia
operation, a number of the reports to government
recommended the provision of enhanced training in
military law and military justice. The Office of the
Judge Advocate General embarked on an ambitious program
of developing and providing training in these essential
areas. From September 1, 1999, to March 31 of this
year, summary trial presiding officer training was
provided by legal officers to 2,097 officers and 309
non-commissioned members, including over 60 general
officers. This involved over 120 separate two-day
Similarly, unit level training packages on military
justice were developed and distributed to all units in
the Canadian Forces. Included in this package was
training on the rights and obligations of individual
members of the Canadian Forces.
Over the past two years, as part of a major CF-wide
initiative, lectures on sexual assault, harassment, and
misconduct, designed to enhance service members'
awareness of these insidious acts and to advise them of
their rights, were offered by legal officers to all
members of the Canadian Forces.
In the past couple of weeks, there has been reference
both before this committee and in the media regarding
military lawyers as a group. Some of those reports
have unfairly and unjustly juxtaposed military lawyers
with terms like “abuse”, “stonewalling”, and
As the Judge Advocate General, I am not charged simply
with contributing to the welfare of Canadian Forces
personnel. When I put on my uniform and returned from
civilian life, I became directly responsible for the
welfare of the personnel under my command. For that
reason, I will now take a few minutes to outline the
qualifications and background of those men and women
who serve in the military legal branch so that you can
fully appreciate the dedication, commitment, and
abilities of these lawyers. It will also allow me to
set the record straight.
The high tempo of work that I have outlined for you
was completed by 93 regular force and 37 reserve force
officers. These lawyers come from all provinces of
Canada, representing both genders and linguistic
groups. They are supported by a small military
administrative staff and 67 civilian employees working
for the department.
The largest grouping of Regular Force legal officers are
located in Ottawa with seven regional offices located across Canada
and Germany. As I speak, military lawyers are deployed
operationally to Macedonia and Kosovo, Italy and two locations in
Bosnia. Thirteen military lawyers also serve in the Office of the
Department of National Defence/Canadian Forces Legal Advisor, the
Department of Justice legal services unit that serves the
Department and the CF.
This new office operates in conjunction with the JAG to offer
high-quality legal services regarding the full range of defence
Contrary to what was stated at the ombudsman's SCONDVA
appearance last month, military lawyers are required to
be members in good standing of a provincial law society
and to conform with the standards, practices, and
ethical codes of their professional body. Of the 93
regular force lawyers, 22 have obtained their master's
degree in law; this is the standard educational
requirement to teach at a Canadian law school. Seven
other officers have post-graduate degrees in other
Military lawyers have published learned articles in a
wide range of academic and military journals. An
article by one of our officers was recently cited with
approval by the Supreme Court of Canada in a
precedent-setting case on human rights. Canadian
Forces legal officers are also sought out
internationally to instruct in the law of armed
conflict and international humanitarian law.
Like other members of the Canadian Forces, members of
the military legal branch are required to serve for
long periods away from home and their families. They
practice law not only in the relative comfort of an
office building in Ottawa, but also out of the backs of
armoured personnel carriers, on the ramps of aircraft,
and in the operations rooms of warships. Commencing
with the Gulf conflict, 47 legal officers have deployed
operationally, with a significant number having more
than one deployment.
In the face of such dedicated service and sacrifice by
these Canadians and their families, it has been
extremely disappointing to see them portrayed as a
group that somehow is not fulfilling their professional
and service obligations.
I will now address the issue of cooperation with the
Office of the Ombudsman. It was stated at the May
SCONDVA appearance that the legal department of the
DND-CF was the sole area where the ombudsman was having
difficulty, and further that “the greatest pocket of
resistance” was with the military legal branch.
I cannot agree with this characterization. I have
stated on a number of occasions that I fully support
the creation of the Office of the Ombudsman.
The ombudsman is one of the number of mechanisms
established as a result of the post-Somalia reforms.
That office, along with the significant changes to the
military justice system, the establishment of
independent authorities such as the director of
military prosecutions and the director of defence
counsel services, the establishment of the Canadian
Forces Grievance Board and a Canadian Forces
Military Police Complaints Commission, provide a
mosaic of overlapping protection and safeguards to
ensure that CF members and DND employees are treated
fairly and equitably.
It is important to emphasize that legal services
provided to the Department of National Defence and the
Canadian Forces are not provided just by military
lawyers. To the extent the directives governing the
Office of the Ombudsman presently do—or any future
regulations might—regulate access by the ombudsman to
solicitor-client material or the work of lawyers, they
would have to apply to all lawyers providing advice to
the department and the Canadian Forces. This issue is
much larger than simply the Office of the Judge
Advocate General and military lawyers. We follow the
same rules as other government lawyers.
During the May appearance, reference was made to
military lawyers being an impediment to the operation
of the ombudsman's mandate, with specific mention being
made of two cases. In addition, media reports
following the SCONDVA hearing indicated that 10% of the
ombudsman's approximately 1,500 cases deal with issues
related to military justice. The ombudsman's website
indicates a total of 148 “complaints” under the
heading of “military justice”. These reports,
combined with a concentration on two cases, may have
wrongly left the impression that there is a widespread
denial of access by lawyers due to claims for
This is definitely not the case. As closely as can be
determined by my officers, my officers had eight
substantive contacts with investigators from the
ombudsman's office since that office commenced
operations—by this I mean other than calls seeking
telephone numbers or setting up meetings. In five
cases, the information provided to the investigators
appears to have been sufficient, since no further
communications were required with and no further
comments were made by the Office of the Ombudsman.
The sixth case referred to in May, regarding the
request for information about the status of the Somalia
medals files, was resolved with the provision of the
requested information. Indeed, my office was already
in the process of responding to the ombudsman on that
case at the time of his last appearance before this
In respect of the seventh case, the Smith complaint,
I can state that the lawyer involved in Halifax spoke to the
ombudsman's investigator and actually confirmed to the
investigator the advice that had been provided to the
public affairs officer, since, in the view of the
military lawyer, privilege had been waived. The lawyer
did not disclose further information when requested by
the investigator because it was either privileged or
it was clearly outside the mandate of the ombudsman's office.
As you may be aware, claim of privilege relates to
communications between a client and legal adviser.
There are two areas of privilege: legal advice
privilege, which means all communications, verbal or
written, of a confidential nature between a client and
a legal adviser consulted in a professional capacity;
and litigation privilege, which means
protection of the work conducted by a lawyer
in preparation for actual, contemplated litigation.
This privilege has long been
recognized and protected by Canadian courts, including
the Supreme Court of Canada. The protection is based on
the essential requirement for complete candour between
the client and lawyer in order to provide legal advice
and for the operation of an effective legal system.
Anyone who has gone through legal proceedings can
relate to the value of such candid communications.
As you are aware, the Government of Canada has occasion to
find itself involved in litigation both as a defendant and a
complainant, and therefore requires the requisite professional
services of legal counsel. Unless the client waives privilege or
the release of the information is mandated by law, such as being
ordered by a court, a legal advisor has a legal and ethical
obligation to refuse to disclose the privileged information.
The refusal to disclose information in the Smith case
was not evidence of a pocket of resistance but rather
a professional determination that privilege applied.
It was made by two lawyers who between them have
over 50 years at the bar. In addition, one of the
lawyers is a former judge.
In order to be certain the
claim for privilege was being made in a manner
consistent with government-wide practice, the matter
was referred for an independent
opinion prior to providing a final response to the
ombudsman's office. The military lawyers acted
responsibly and professionally.
I do understand that
the ombudsman does not agree with the government claim
for privilege in this case. However, I can only
outline the steps taken by my office to
ensure we were cooperating as far as the law allowed.
The ombudsman has stated he will respect
solicitor-client privilege, and by doing so he, in
effect, acknowledges that on occasion his investigators
will not gain access to all information. In the Smith
case, the lack of access to the information sought by
the investigator was evidently not an impediment to the
completion of the ombudsman's report or the making of
recommendations. My officers do and will continue to
cooperate fully to the extent their legal and
professional obligations allow.
The eighth case commented upon by the ombudsman in his
December 16, 1999, report dealt with an inquiry by the
investigator regarding an allegation of delay in a
specific case of a summary trial. As I will discuss
shortly, the mandate of the ombudsman does not extend
to the review of military tribunals, in particular,
individual cases being tried under the justice system.
The legal officer responded to the investigator by
outlining the relevant position of the
I might also note that the ministerial directives
provide that the ombudsman may report complaints of
abuse or delay related to the administration of the
code of service discipline, the Judge Advocate
General's legislated area of responsibility, to an
appropriate authority, including the
Judge Advocate General.
The ombudsman's office has never referred any
case alleging delay or abuse to my office. I cannot
explain the apparent discrepancy between the figures
provided by the ombudsman of 148 files involving
military justice-related matters and the actual number
of contacts with my office. It is not clear what
constitutes a complaint in the ombudsman's statistics
or how he defines military justice-related matters.
However, I can advise you that 140 of these complaints
were not referred to my office seeking solicitor-client
privileged information. As indicated by the facts, I have
outlined that my office and my lawyers are not an
impediment to the operation of the ombudsman's mandate.
Contacts with the Office of the Ombudsman have included a
briefing by the Ombudsman to JAG military and civilian personnel in
Ottawa on 25 April shortly before his SCONDVA appearance. Further
briefings were provided earlier to the Ombudsman and his staff by
the Director of Military Prosecutions and my Director of Military
Justice. On occasion, inquiries by service members to my office
have been referred to the Office of the Ombudsman.
Again I will state that the Office of the Ombudsman has
important work to perform with his mandate as a neutral sounding
board, mediator and a source of information, referral and
It is important that I clarify for you the role of the
Judge Advocate General and the status of military
lawyers. As I have indicated, I am specifically
mandated by the National Defence Act with the
superintendence of the administration of military
justice in the Canadian Forces.
This system is a constitutionally empowered system of
justice, parallel to but independent of the civilian
criminal justice system. The role of the JAG was
confirmed in the recent amendments to the act, based to
a large extent on two comprehensive reports conducted
by a special advisory group chaired by the late Right
Hon. Chief Justice Brian Dickson. Those reports
look not only at the responsibility of the Office of
the Judge Advocate General but also at the role of the
Minister of National Defence.
The minister is in a unique position in that he is not
only responsible for the department and the Canadian
Forces but also has responsibility for a separate,
fully fledged justice system. Like the Attorney
General, the minister is accountable to Parliament with
respect to the administration of that system. However,
as was recognized by Chief Justice Dickson, the role
performed by the minister is subject to limitations
prescribed by law.
The law and jurisprudence had evolved toward a greater
independence of service tribunals from the executive
power and the chain of command. The military justice
system “had to be and appear to be independent in
order to reflect the values of the civilian justice
system” and avoid conflict between the minister's
managerial and justice-related duties.
Therefore, the recommended legislated role for the Judge Advocate
General and the establishment of an independent
prosecutor for courts martial and a director of defence
counsel services were designed to insulate the
minister from the day-to-day operation of the military
justice system and the exercise of judicial and
quasi-judicial decision-making power.
The director of military prosecutions, who exercises an
independent quasi-judicial role, and the director of
defence counsel services both report to me but with
legislated safeguards to ensure their independence.
I am directly accountable in the fullest sense of the
word by statute to the minister.
As I have already mentioned, I report through the
minister to Parliament by means of the annual report
that I believe you have been provided with and may have
Comments have also been made that the lawyers are
seeking to be treated in a fashion different from
others in the department of the Canadian Forces. The
reality is the only different treatment sought is that
required to fulfil the role and responsibilities of
Even perceptions of inappropriate interference by the
executive branch in the administration of justice must
be avoided. For example, in the second Dickson report it
was indicated that prudence must be exercised, and I
...with respect to any statement or action a Minister may
take concerning specific cases of breaches to the Code
of Service Discipline... since such statement or action
could result in a dismissal of the charges even though
the Minister is not, strictly speaking, in the chain of
In effect, the doctrine of inappropriate command
influence applies even to the minister.
In this regard, while the ombudsman is
independent of the chain of command and management of
DND and the CF, he is not independent of the minister.
He works on behalf of the minister and he is part of the
executive portion of government. Therefore, he has no
greater power than the minister does to become involved
in cases within the military justice system, and by
becoming involved, he may adversely affect the proceedings.
The Ombudsman's December report seeks authority to oversee
military justice activities such as the conduct of court and
tribunal participants, the efficacy of service tribunals, oversight
of prosecutorial discretion, and the exercise of charge-laying
The amendments to the National Defence Act, just enacted some
nine months ago after an exhaustive review, did not envisage such
a role for an institutional ombudsman. Clearly a careful review is
required to avoid constitutional and other legal challenges.
In addition, the report seeks authority to expand the
classes of persons who can make complaints; attempts to
establish an oversight function over lawyers advising
the department and the CF; and seeks to restrict the
freedom of speech of personnel who might wish to make
any public statement regarding any matter the ombudsman
The ombudsman's proposals seek powers that are broader
than any statutory ombudsman has in Canada. These
proposals raise government-wide legal and policy
issues. The minister has put in place a process to
review the issues that arise from the December report.
Finally, I would like to address the issue of accountability
and the oversight of the conduct of military lawyers. I will break
this issue into three distinct areas: my accountability as the
Judge Advocate General for the proper administration of the
military justice system, the accountability of lawyers for their
professional conduct and finally the action of lawyers as leaders
and supervisors with the Canadian Forces and the Department.
In discussing this issue of accountability, I am
referring to that term as outlined in the Somalia
commission of inquiry report. That means a mechanism
for ensuring conformity to standards of action,
including being subject to scrutiny, interrogation, and
ultimately condemnation or sanction. Contrary to what
has been expressed, there already exists significant,
comprehensive, and fully empowered civilian oversight
of military lawyers and the military justice system.
As I've outlined, I am accountable to the minister,
and through the minister to Parliament. Further, there
is a new statutory requirement for the minister to
cause a five-year independent review of the amendments
to the act, with a report of that review to be laid
before both houses of Parliament. Direct civilian
oversight of the military justice system, including the
actions of lawyers, has been and continues to be
provided by the Court Martial Appeal Court, composed
entirely of civilian judges, the Federal Court of
Canada, and the Supreme Court of Canada.
The civilian provincial law societies, which govern my
professional actions and those of all lawyers advising
the department and the CF, are completely independent
and are empowered to review and investigate complaints
of misconduct. They are also authorized to take
appropriate action in response to substantiated
Further, in respect of their professional misconduct,
their actions are reviewed by knowledgeable members of
their profession according to clear standards that
govern the lawyer's licence to practise. Provincial
regulating bodies have been specifically established to
perform that role and provide the requisite procedural
As Professor Paciocco related at the last SCONDVA
hearing, the Office of the Ombudsman is not set up to
perform this type of accountability function. It does
not have the power of sanction, only recommendation.
Further, since there is no requirement for the
ombudsman to be a lawyer, there is no guarantee of an
integral expertise upon which to regulate the
professional conduct of lawyers.
It cannot be forgotten that not only are the rights of
the complainant at stake but so is the reputation,
future employment, and rights of the lawyer.
Finally, there is not the same level of procedural
fairness mandated in a review by the Office of the
Ombudsman, as is required by provincial law societies.
It appears the proposition that lawyers are in a zone
of immunity is based on a misunderstanding of the
meaning of the restriction in the mandate regarding the
work of lawyers. In a survey presently being conducted
by the ombudsman, there is a question polling CF
members on whether that office should be able to
investigate DND/CF lawyers. The question indicates
that the Office of the Ombudsman is not available to
investigate DND/CF lawyers in their capacity as—and I
quote—“supervisors of other employees on their staff
who potentially wish to bring a case against their
This is not my position and never has been. I see
significant merit in having available an objective,
independent mediator to resolve incidents that occur in
an employment or service capacity. Indeed, the
alternative dispute resolution process, being headed by
Dr. Peter Stern, is gaining increasing profile and
acceptance within the department and the CF.
In summary, I would again like to express my
continuing support for organizations like the
ombudsman, which are designed to ensure the welfare of
all Canadian men and women who serve in uniform and the
civilian employees of the department who support them.
The Office of the Judge Advocate General is also
committed to that same task and to the advancement of
the interests of military justice at home and abroad,
whether that is by vigorously representing the
interests of service accused as defence counsel;
advancing the public interest as a prosecutor; or
contributing to the creation of fair public policy as a
There need to be continuing efforts at cooperation
amongst all the players, with a full understanding and
respect for their respective roles. We are committed
to doing so in a manner consistent with our professional
Thank you for the extended time, Mr. Chair.
The Chair: Thank you very much, General.
A number of us who were in Skopje had an opportunity
to meet one of your staff there. His name escapes me
at the moment, but I found him to be a very interesting
person, and helpful to us. I just relay that to you.
Before we start questions, I would just comment that
we value very much, as a committee, the work you do,
obviously, and equally so the work of the ombudsman,
for whom you've expressed support several times today.
I guess it's a little curious to us, and of concern,
that there seems to be a conflict in facts, or at least
in perception. We'll go to questions and see if we can
elucidate the situation, if you can help us a little
bit. It's very important to us that we see the two
positions working in a complementary fashion.
It's unfortunate, but I don't see the Canadian
Mr. Mercier, you have seven minutes.
Mr. Paul Mercier (Terrebonne—Blainville, BQ): Mr. Chair, you
may rule my question out of order, and if it is, you will tell me.
This is my question; you have been mentioning the Somalia
mission in which the Canadian Forces participated. In the course of
this mission, it was alleged that the Canadian Forces behaved with
brutality towards the Somalis. These soldiers were put on trial,
and rightly so, because they shouldn't have mistreated the Somalis
who were trying to pillage the camp. I have asked this question
before, but I did not get an answer. What is a soldier to do in
such a situation? In other words, when we are doing peacekeeping in
a country where there is virtually no judicial system, how should
our armed forces react when the locals are misbehaving and
jeopardizing the mission?
I am particularly sensitive to this matter, having been part
of a UN mission between 1961 and 1963 in a country that was then
known as Katanga and has since become the Congo. I am wondering.
When a soldier sees people trying to pillage the camp that he is
supposed to protect, he should not behave brutally towards the
offender, but what should he do? If he pushes him out and tells him
to go away, the guy will be back the next day. Then, what is he
supposed to do?
The Chair: I think the Judge Advocate General is
here on his report and on his role. I think the
question goes into kind of a hypothetical reaction of
I think it's stretching the purpose of your
appearance, but I'll leave it up to you, sir, if you'd
like to respond in any way.
BGen Jerry Pitzul: Mr. Chair, the question is a
It would be of concern to any serving member. When
one observes crime, I think one has a duty, as a
citizen, to report that crime, whether that be
domestically or internationally. No individual
deserves to be brutalized at any point in time, whether
as a Canadian or as any citizen of the world, I would
think. That would be my view. It's a basic human
rights value—unless we're in a combat situation and
we're trying to advance a mission in a war-like
I was the trial judge in the Elvin Kyle Brown case and
two other cases. I heard the testimony directly. It
was heart-wrenching for me to hear that testimony. I
think a soldier's duty is to report crime in any
mechanism available to them. It is, if you will, their
duty and their obligation. Access the chain of
command, access the established vehicles even outside
any particular chain of command, but a crime should be
reported and should be dealt with.
You know, in Canada we're very fortunate to have many
mechanisms to deal with the oversight, if you will, of
crime of public servants.
We have the courts, committees of Parliament, auditors
general, the Canadian Human Rights Commission,
information commissioners, access commissioners,
grievance boards, and the Military Police Complaints
Commission. Officers who work in my office do not work
for the chain of command. They respond to me, through
the minister. Where available, padres are available.
The ombudsman is available. There is a plethora of
routes, if you will. The crime can get reported
and get out.
That would be my basic take as a citizen of this
country and not necessarily as the Judge Advocate
I can repeat my answer in French if you like. I am sorry, I
was answering the chairman.
The Chair: We have translation.
BGen Jerry Pitzul: Thank you.
The Chair: Mr. Mercier, anything else?
Mr. Paul Mercier: When armed forces are occupying a foreign
country, they assume judicial powers. They assume the power to sue
the locals who are committing acts against their soldiers, but when
we are in Somalia or elsewhere, we are not allowed to react the
same way. We do not bestow upon ourselves the same judicial powers
against the locals who could be hostile to our troops. We are not
assuming that power.
Our military does not have anything. There is no judicial
authority to whom they can refer the local people when they do them
some wrong. In other words, shouldn't the people in these missions
assume the judicial and criminal powers, as would a regular army
occupying a foreign country?
BGen Jerry Pitzul: Until now, the UN and NATO, the
organizations under which we are working when we are on a foreign
mission, have not given us this power. I believe that for the time
being this power is not recognized under international law. We are
not authorized to judge the citizens of another country when acts
are committed against our armed forces.
You will remember that in Somalia, there was hardly any
infrastructure. So, once you have convicted Somali citizens of
offences against our armed forces, what do you do with them?
Mr. Paul Mercier: That is my question.
BGen Jerry Pitzul: It is an excellent question, but I don't
have any direct answer. This is part of a wider debate, a debate
about the intellectual, academic, political and judicial aspects.
On what basis can we authorize the armed forces to judge the
citizens of a foreign country? This is a very complex question, and
I am unable to give you an answer in the short time that we have.
Mr. Paul Mercier: Thank you.
The Chair: Thank you, Mr. Mercier.
Mr. Bertrand, did I see your hand earlier?
Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.): No.
The Chair: Okay. I wasn't sure.
Mr. George Proud (Hillsborough, Lib.): Thank you,
Mr. Chairman, and welcome, Brigadier-General.
I was just saying to the chairman a few minutes ago,
while you were giving your testimony, that maybe we
should have both of you here before us, you and the
ombudsman, and see where we'll come out at the end of
At any rate, you say that his testimony before us
is not exactly... that what he said isn't the way it is. I
wonder, with the differences of opinion between you and
I'd ask you a couple of questions. First, how do you
recommend that this be resolved? You also mentioned in
your testimony that there are things—and I would
imagine there are—he can't get. I wonder if you could
tell us in a general way what kind of information this
would be and why he couldn't get it, why he couldn't
BGen Jerry Pitzul: To answer your question, I
don't really understand what the issue is in terms of
the ombudsman's discomfort with the military lawyers.
I've described for you the eight cases that we've had
contact with, six of which have resulted in no further
comment or the information being provided. The two
cases were handled, in my respective position,
know about the 140 other cases that he refers to on his
website complaining about military justice issues.
None of those have been referred to my office.
If I can answer your question this way, there
appear to be three subject areas: the first is
solicitor-client privilege, the second is mandate, and
the third is cooperation with our office.
With respect to solicitor-client privilege, we play by
the same rules as the rest of the government. We
don't have any special privilege. The privilege is not
ours; the privilege is the client's. The client is the
Government of Canada.
So if the ombudsman were to have access to
solicitor-client privilege in respect of the work being
done by military lawyers, the issue is much broader.
It's also the Department of Justice counsel, any
counsel who works for the government and provides
advice to the government. That's a serious issue.
That's not an issue that's easily resolved. That
requires the process of review that the minister is
The same can be said for the other issues in respect
of his mandate. I look at the report of December and
the ombudsman is seeking to review charge-laying
discretion by the police and by military authorities; to
review the exercise of prosecutorial discretion; to
review the conduct of military judges and service
tribunals; to review the conduct of defence counsel.
Those are really broad societal issues, not just
The Supreme Court of Canada has said repeatedly that
the exercise of prosecutorial discretion is a
quasi-judicial decision-making power that should not be
interfered with by the executive in any way, shape or
form. And there's the protection of solicitor-client
privilege, which I've already referred to.
The review of the conduct of military judges is a
large issue. It goes directly to their independence
and would affect the judiciary, I would suggest, not
just in the military justice system but across our
On the issue of reviewing the conduct of defence
counsel, I don't think there's anything more sacrosanct
in terms of the legal system than the relationship
between defence counsel and accused. Whether that
defence counsel wears a uniform or not, it's still a
defence counsel and an accused trying to defend the
rights of an accused before a court.
So these are broad issues. These are not issues of
the military lawyers.
In respect of the cooperation between our two offices,
those are the contacts we've had. There's been nothing
So there are the mandate issues and the
cooperation issues. The mandate issues are larger than
us; the cooperation issues I've described to you.
I am, if you will, almost in a position where this
is a one-sided argument, and I'm trying to understand
the position of the ombudsman.
Mr. George Proud: I guess you're right in
respect of the one-sided argument, because the fact is,
and you know this as well as I do, that the perception
of your office, probably the perception of military
justice by the general public, is very negative.
Whatever appears in public, and whatever the ombudsman
said, I think I know what side the public will come down
on. That's the thing I would like to see remedied.
I'd like to see that remedied. You say the lawyers lock
themselves in these closed towers and don't talk to
anybody, and that's basically what the public would take
for being the truth.
What I would like to see as a member of this
committee, and with my respect for the Canadian Forces
and my wish to see justice done there, is that
this situation could be resolved in a way that's
beneficial to every man and woman in the Canadian
Forces, and not just for the military lawyers or
for the ombudsman, but for those people you're
there to serve.
BGen Jerry Pitzul: Sir, I share that sentiment
a hundred percent.
Mr. George Proud: Thank you.
The Chair: Thank you, Mr. Proud. I think we all
Now I'll go to Mr. Earle, please.
Mr. Gordon Earle (Halifax West, NDP): Thank you,
Mr. Chair. I do have some thoughts and comments on the
ombudsman's role and its relationship to the judge
advocate's role, but I'll save those until a little bit
later. I want to go to some more specific items that
come to mind while I have you here.
When we talk about justice, and I notice you talk
about appeals in your report... I'm not asking for
solicitor-client information here, but I'm asking on
what principle would the case involving former Sergeant
Mike Kipling, which I understand is now going to be
appealed by the government after a decision was made in
his favour, be considered to move that forward to
an appeal? Would it be your office that would make
that recommendation, or would it be—you mentioned
external lawyers sometimes advise the
department—external lawyers who would make that
BGen Jerry Pitzul: The case of Sergeant Kipling is
before the courts, so you'll appreciate that I'm under a
limitation as to what I can say. But I think if you're
question refers to process, it's an appropriate question
and I think I can address that.
The director of military prosecutions under the
statute can be instructed by the minister to undertake
appeals on his behalf. So the decision to file the
notice of appeal was the director of military
There are two standards that have to be
met: whether there's a reasonable prospect of success and
whether it is in the public interest to proceed with the
The notice of appeal has been filed with the courts.
It relates to several grounds of appeal. Those grounds
of appeal are in the public; therefore, I can hopefully
refer to them accurately—I didn't memorize them, but I
can refer to them. It's a misapprehension by the trial
judge of the evidence that was before him. It was a
failure, from the prosecutor's perspective, to consider
all of the relevant evidence that was before them.
There is an alleged failure of the trial judge in
assessing the section 7 charter rights of the accused
and how they apply to the case and the absence of a
section 1 analysis under the charter in respect of the
In addition, there is a requirement, I would believe,
for all Canadians to have some certainty in the law in
respect of the deployment of Canadian Forces members on
operations. I believe that is also cited in the
grounds of appeal. So there's the trial itself and the
issue of certainty in the law.
Mr. Gordon Earle: Did I understand correctly that
it is the director of military prosecutions who
makes the decision? Is that on the recommendation of
the minister, or is it simply that he reports to the
BGen Jerry Pitzul: No, the director of military
prosecutions does her consultation in the fashion
that she feels necessary to arrive at her decision, and
then she would inform the minister.
Mr. Gordon Earle: Thank you.
The second one—and
again, I'm not asking for confidential information of
any sort—is on the Matt Stopford case. That's
been in the news just recently, and the report has
indicated that there's indication that substances were
put into drinks intended for him, etc.
There appears to be no recourse, except perhaps
administrative recourse, on the part of the military.
It seems that all the legal recourse has run out; time
has expired, etc. Is it in fact the case that there's
no further legal recourse for this individual, either
civil or otherwise?
The next question would be, would your department have
any role to play with respect to recommending
BGen Jerry Pitzul: Mr. Earle, I'm really not
in a position to provide you with what legal advice I
would provide to Mr. Stopford. Your question was
phrased in the manner of what his recourse would be.
I'm not in a position to provide you with that legal
I understand, from media reports, that he is seeking
the advice of counsel.
Mr. Gordon Earle: Okay.
BGen Jerry Pitzul: The Stopford case, in
respect to the position taken by the national
investigative service based on the advice they
received—in respect of what advice it is they
received, which was received from their external
counsel that they have for this purpose—is really for
them to disclose. But what has been reported is that
there was a limitation period. There was a three-year
limitation period provided in the law prior to the
amendments. That's why the amendments, in part, are
wise. They lifted the limitation period. It no longer
exists. Hopefully, it never happens again in the future
of the Canadian Forces, but if it were ever to happen,
action wouldn't be barred by a limitation period, or
certainly action under the code of service discipline
wouldn't be barred by a limitation period.
Mr. Gordon Earle: I'll move now to the role
of the ombudsman. Being a former ombudsman and having
worked in that field for 22 years, I can understand
precisely what the problem seems to be.
You hit the nail on the head
when you talked about mandate. Essentially, the
military ombudsman is what we would refer to as an
executive ombudsman. He's accountable to a minister,
so that is quite different from a statutory or
legislative ombudsman, who might be accountable to
I worked as a legislative ombudsman, so I was
accountable to a legislature, and we did not run into
this problem with the Attorney General's department in
the province where I worked, because of two things.
One was the cooperative approach. We were all working
to try to resolve problems, so we had a good
communication system set up.
Secondly, in terms of the Attorney General in that
particular province and the act, we had jurisdiction
over anyone who was accountable, directly or
indirectly, to the crown for the proper performance of
their function—and the lawyers were accountable to
So we did exercise jurisdiction with respect to
looking at lawyers and the practices they used and how
they might impact on a case. But we were always very
careful not to try to substitute our opinion for the
legal opinion of the lawyers.
We looked at process, administrative matters, and
things that might impact upon a person's complaint.
I think this is probably what the military
ombudsman is looking for, that kind of capability where
if you're investigating a complaint and all of a sudden
the matter is referred to a lawyer, you don't find the
door closed so that you can no longer examine that
issue because it's now a solicitor-client privilege
So we did not have that problem, because of the
cooperation aspect, the fact that everybody wanted to
resolve the issues. They saw the role of the ombudsman
as being a facilitative role in that regard, not one of
challenging or questioning the professional ethics of
I think to resolve the difficulty that is currently
present with the ombudsman in your office there has to
be a change in mandate to clarify it, or perhaps the
cooperation aspect has to be worked out a little better
in terms of communication, so that each side
understands precisely where the other's limitation is,
yet can still work to offset that in the best interest
of having good, objective investigations that would not
leave any doubt in the minds of the persons who are
involved with that complaint.
BGen Jerry Pitzul: Mr. Earle, I would agree with
that, and I think that is the process of review being
undertaken to see if we can get there.
But you would agree... because I've worked in the same
jurisdiction, if you will, with the same rules as the
ombudsman, and it worked fine. There was no difficulty
there. But when you talk about reviewing the conduct
of judges or being mandated by law to review the
exercise of discretion, that's a broad issue that needs
a lot of review. But I share your sentiments a hundred
The Chair: Thank you, Mr. Earle.
Now, Mrs. Wayne, please.
Mrs. Elsie Wayne (Saint John, PC): Thank you very
Brigadier-General, I was very impressed when the
ombudsman came before us, and the biggest question in
my mind was why he would have 148 complaints, of which,
you are telling us, only eight came to you.
That tells me that the people in the military felt
they had nowhere to go. There's something wrong when
148 complaints would go to that man, yet those 148
people didn't feel free to go through the present
system that's in place.
So perhaps you could tell us, sir, why? Why did the
military people not feel free to make use of the system
you have in place and not feel that you people were going
to listen to them?
I know myself, in my riding office—and I have
Camp Gagetown just up the road—of women who came
to me with regard to sexual assault that took place,
and they could get absolutely no one to listen to them
and help them. My heart just ached on that, sir.
I have to tell you, when he came here, I was really
pleased to see that he was there, that he was listening
to all of the complaints that were coming to him and
trying to take action to help those people.
So perhaps you can enlighten us as to why 148 people
felt they had to go to the ombudsman and that there was
nowhere else for them to go.
BGen Jerry Pitzul: My response to your question
will be, first, it's our system—yours, mine—it
belongs to every person in this room. It doesn't
belong to me; it belongs to all of us. My response is
I don't know what those 148 complaints are.
I don't know whether or not they've already gone
somewhere else and weren't satisfied with the responses
they received. I don't know if they're characterized as
military justice complaints.
So I don't know. It's very difficult for me to answer
in respect to those 140 and to draw conclusions about
why they're characterized as military justice
complaints, why they are there before the ombudsman.
They may be elsewhere. It's not to say that they're not
elsewhere. I'm glad he's there to receive complaints.
I'm glad we're there to receive complaints.
It's very difficult for me to answer your question,
other than to say those 140 complaints did not come to
us—or maybe they have and I just don't know about it,
or in what way they might have. Were they cases that
were not prosecuted or cases that were prosecuted and
folks are unhappy with the result? Are they grievance
matters? Are they military police complaints? I don't
know what complaints they are.
Mrs. Elsie Wayne: Well, a moment ago, sir, you
said you did not provide the legal opinion to the
national investigation that was taking place with
regard to this Officer Stopford. Do you agree with the
legal opinion they've been given? I understand you may
not have been privy to all of it at this time. Have
you or will you investigate this case because of the
situation that's there?
BGen Jerry Pitzul: The National Investigation
Service has conducted its investigation based on
the advice it received. I believe the office of the
director of military prosecutions is involved in part
in providing or assisting in the provision of advice.
I don't get involved in individual cases. That is the
role of the director of military prosecutions to
perform. The minister has announced in the House that
he is digesting the report together with the chief of
defence staff, and they will be announcing a plan of
Mrs. Elsie Wayne: Well, you and I know that seven
years ago, when this took place, when the poison was
put in the coffee of Warrant Officer Stopford and
Master Corporal Nickson, there were confessions, and
there was a clear conspiracy and questions related to
the chain of command at that time. And nothing was
done, even though confessions were made. I don't see
how, in the system we have today... this has painted a
very bad picture.
My question to you, sir, is would you support a call
for a public inquiry into this, and if not, why?
BGen Jerry Pitzul: My answer to your question is
that I'm here clearly speaking on behalf of the
minister. The minister has said in the House what his
plan is, and like you, I have to wait to see what the
minister and the chief of defence staff will announce
in respect of their approach to the investigation
The Chair: Do you have any more questions, Mrs.
Mrs. Elsie Wayne: Well, I guess he can't answer
the question because of whom he reports to, but I would
have liked to have known if he feels that a public
inquiry is the way to go at this time. I think that
would then clear up the air for everyone, for the
military, for us who sit around this table, and
everyone else, because it's being done out there and
it's away from the political system altogether. That's
why I would have liked to have had his opinion.
BGen Jerry Pitzul: You appreciate that is a
decision for the minister.
The Chair: Thank you. We've had that question
answered. We appreciate that.
We're about to start a second round of questions, and
I'm going to give the first opportunity to Mr.
Goldring, if he has any questions for our witness.
We're starting our second round now.
Mr. Peter Goldring (Edmonton East, Canadian
Alliance): Yes, I do, and I apologize for missing the
first part of this meeting. I do have concerns, and I
understand Elsie has been echoing them.
I would like to ask if it would not be possible to
issue a firm statement on the Matt Stopford issue to be
able to clarify the situation.
There seems to be
great concern over the report that was issued in the
Matt Stopford case and the fact that it cast aspersions
across the entire military. I was
wondering if it was within your purview or authority to
be able to clarify that, to be able to issue for Matt
Stopford details on who was involved in the particulars
of the suggested poisoning, and if it were possible to do
that, would it not be proper to admit liability so that
actions could be started by him immediately?
This is in case there are not provisos you can use in
criminal law, but so he could
approach it through civilian courts. Is this possible
to do? Is it within your purview to be able to do
BGen Jerry Pitzul: The department responsible for
providing legal advice in respect of civil litigation
that may or may not involve the Government of Canada is
the Department of Justice, and their legal services are
provided by the folks who do that in the Department of
National Defence and the Canadian Forces. Issues
dealing with civil liability are referred to them.
Mr. Peter Goldring: Because this has gone far
beyond simply producing a report and it seems to be impacting
on the entire Canadian Armed Forces, to the point where
it was even suggested in the
paper that people are afraid to have a
cup of coffee, does it not call for
immediate and firm action to clarify this
for sake of the respect and honour of our entire
Canadian Armed Forces? What can we do?
The Chair: I hear a point of order from Mr. Bertrand.
Mr. Robert Bertrand: To perhaps answer Mr.
Goldring's question, I know
the CDS will be making an announcement around
12 noon today regarding the Matt Stopford incident,
and I think a lot of the questions raised here this
morning will be answered by the CDS's press conference.
The Chair: Thank you for that clarification.
Back to Mr. Goldring.
Mr. Peter Goldring: Is this through your
department or under your responsibility at all,
to answer this type of situation? Are you
involved with it?
BGen Jerry Pitzul: The minister and the CDS will
be dealing with the response to the report. The Department
of Justice, as well as some members of my staff, would
have provided advice had they been requested to do
so, yes. I'm an adviser. So it's not my
responsibility, in that sense. The
minister and the chief of defence staff are responding
to that responsibility.
Mr. Peter Goldring: I see.
Secondly, I have a question that you can possibly
answer. There's some suggestion of attitudinal problems
toward women in the military, and this seems to be
a point that was brought up previously. What is meant
by that, or the record saying “there are sweeping
social changes within the military” and “wishes to root
out the systemic problems for women”? What is meant by
comments such as those and what is intended to be done?
BGen Jerry Pitzul: Whose comments are those, sir?
Mr. Peter Goldring: These are attributed to the
Judge Advocate General—
A voice: The ombudsman.
Mr. Peter Goldring: I'm sorry, the
ombudsman. What would be meant by that?
BGen Jerry Pitzul: Sir, what he means by those
comments is a question that really only he can answer. I
don't know how I'm supposed to answer what he means by
Mr. Peter Goldring: I see. Reverting back to
the charges or the suggestion of investigating charges
under the act to the prejudice of good order and
discipline that were being reviewed for the
perpetrators of the poisoning, or introduction of noxious
items into food and drink, are there
specific reasons why other charges weren't looked at to
address this? For example, I'm seeing here in a report that
there is section 130, which deals with obstructing
justice. There is section 130 for assault. Are there
not other areas in there—or conspiring to commit an
indictable offence, which is section 130? Why could
these areas and charges not be looked at? Why just
narrowly zero in on section 129?
Why could we not have looked at other charges to
In other words, why are we looking at a charge that
might address... If the servicemen had actually introduced
a noxious substance for the person mentioned, why
would we not look at charges that might relate to
attempting to... After all, they all did admit to this.
Why wouldn't we look at other charges in the Code of
Military Discipline that would properly reference that?
BGen Jerry Pitzul: Perhaps it is something I
missed, but the National Investigation
Service conducted their investigation, obtained their
advice, and, I would suspect, probably considered all of those
options. I'm not in a position to
inform you here. I didn't conduct that review. I
didn't provide that advice. What charges they looked
I mean, all of the offences are open in any
investigation, so whether or not the NIS looked at a
particular offence or didn't look at it, or if they
looked at it, what the result was, I think are
questions that have to be posed to them. They are the
The Chair: Thank you. Thank you, Mr. Goldring.
Mr. Bertrand, you're next on my list. Do you have
Mr. Robert Bertrand: I have a couple of other
questions, Mr. Chairman.
General, if a CF member has been convicted and wants
to appeal—I know you talked about two or three agencies
he can go to; could you mention those
agencies again for me?
BGen Jerry Pitzul: Do you mean if someone has been convicted
at court martial, what are his options if the
prosecution were to appeal?
Mr. Robert Bertrand: Yes.
BGen Jerry Pitzul: When the prosecution on the
National Defence side decides to appeal a case from
court martial, the accused can be provided counsel in
the following ways: they can ask for a military
defence counsel to be provided free of charge; they
can ask for funding for their own defence counsel to
represent them on the appeal; or they can apply to the
courts for the courts to appoint a lawyer at public
expense. Those are the options for an individual who, having
been convicted at court martial, faces an appeal by the
prosecution. They can obtain relief, if you will, in
order to present his or her position to the Court
Martial Appeal Court.
Mr. Robert Bertrand: I guess we hear about it more
often in the civil courts, because
it happens often enough, but does it happen often in the military
BGen Jerry Pitzul: If you look at the annual
report, you will see there were, I believe, five
appeals that went to the Court Martial Appeal Court.
In every case where the prosecution appeals, that is
the option available to the accused. It's not just one
case. It's in every case where the prosecution takes
the matter on appeal.
Mr. Robert Bertrand: To come back to the
Stopford case, we read in the papers it was because of
the three-year statute of limitations that no charges
were being considered. I know that changes
were brought to the National Defence Act—I believe it
was in 1988—which meant that from now on these problems would not
be dealt with in the same way. Am I right?
BGen Jerry Pitzul: That's right, sir. The
limitation period has been lifted, so there is no
limitation period in respect of offences committed by
persons subject to the Code of Service Discipline,
including Canadian Forces members.
Mr. Robert Bertrand: Okay.
The Chair: Mrs. Longfield, there are two minutes
left of Mr. Bertrand's time. I can come back to you, if
you wish, but do you want to use those two minutes?
Mrs. Judi Longfield (Whitby—Ajax, Lib.): I'd like you
to come back to me.
The Chair: Okay. You can start with those two
and then go on.
Mrs. Judi Longfield: Okay.
You mentioned an alternate dispute resolution program and
that you were having satisfactory results from that. I
wonder if you could elaborate on that program for me.
BGen Jerry Pitzul: In a limited sense, in that it's
Dr. Peter Stern... There's an executive director of
alternative dispute resolution. He has an office. It's
more than an office. He has an office and staff and a
program that's been instituted in the Canadian Forces.
Folks, both supervisors and employees, who are
having difficulties at communicating—or even management
having difficulty communicating—can go to his office
and say they have a problem and would like to enter
into a dispute resolution process. They can ask for
The effort of this office is directed at
explaining to all persons in the forces who come
for help what this means in terms of having to establish
a mutually satisfactory goal; that is to say, that the
problem is to be resolved and the process by which the
parties are to go through it, whether they're going
to discuss things separately and then come together and
discuss one issue at a time, or a bulk of issues and so
on. Their process is fascinating to me, and from what I
know, it has been extremely successful.
We've had two occasions to use it in our office and
the results have been extremely positive, both for the
management and for the employees involved. I cannot
speak more highly of my personal experience with that process.
It's very effective.
Mrs. Judi Longfield: How long has this been in
BGen Jerry Pitzul: I've been back to the
department since early summer of 1998 and it was
shortly after that, within the following
six-month period, I believe. I stand to be corrected
Mrs. Judi Longfield: Do you have any idea how
many cases they might deal with?
BGen Jerry Pitzul: No. That would be something
you would have to ask the executive director. But I
think it is growing. He seems to be very busy and
harder to get hold of when you have an issue.
The Chair: Thank you. I'll come back to—
BGen Jerry Pitzul: Can I add to the statute
of limitations issue?
The Chair: Sure.
BGen Jerry Pitzul: The act was changed to remove
the three-year limitation period, but the act also
provides that if there is a limitation period provided
in another act... Understand that the National Defence
Act incorporates all of the Criminal Code offences, so
if there's a summary conviction offence for which
there's a limitation period already contained in the
Criminal Code, then the National Defence Act has to
live up to that limitation period.
The Chair: Thank you.
Mr. Mercier, no more questions?
Then we're back to Mrs. Longfield.
Mrs. Judi Longfield: Would the legal military
branch refer anybody to Dr. Stern's program?
BGen Jerry Pitzul: His program is accessible to
all members of the Canadian Forces and the department.
Mrs. Judi Longfield: I know it's hard to answer for
someone else's department, but would that also be
available to the ombudsman? And do you know of any
instances where they have worked with the ombudsman?
BGen Jerry Pitzul: I believe so. My understanding
is that... If you will, his program is accessible to all
members of the department and the Canadian Forces. My
inference is, why would the ombudsman, if he so
chose, not wish to work with that directorate? I'm
guessing here, but I would think he would.
Mrs. Judi Longfield: Okay.
My final question, and I think it's going to be
very difficult to answer, is what is your
view on how we can reduce the obvious friction—in
some cases animosity—between the
legal branch and the ombudsman's office? If you could
put three suggestions into practice, what might they
BGen Jerry Pitzul: There is the issue of the
resolution of the mandate. From our limited contact
with them, I don't see an issue. We're there to
cooperate with all the...
I mean, there are a number of bodies.
It's not just the ombudsman who has to be dealt with.
There's the Canadian Forces Grievance Board that we
operate with, the Military Police Complaints Commission
that we operate with, the Canadian Human Rights
Commission, the Auditor General, the Privacy
Commissioner, and the Access to Information
Commissioner—in my area, not the Access
to Information Commissioner
and the Privacy Commissioner because the Department of
Justice deals with them, but all those oversight bodies,
if I can call them that, and the courts. You know,
there's cooperation, as best we can, as counsel.
We do have professional obligations under the law, and
I suppose that's the issue of mandate that the minister
has been asked to look at in respect of all of the
issues I've mentioned, that touch upon not only
military lawyers but all lawyers in government service.
Mrs. Judi Longfield: Might it also simply be the
expectations of those who are going to the ombudsman,
who somehow think that when they have exhausted all of
the other legal avenues, the ombudsman is a panacea who
can suddenly rectify everything that hasn't been
BGen Jerry Pitzul: I can't speak for the
ombudsman and/or his office, but clearly every time we
create an office, every time we make a reform such as
the reform to the military justice system, we create
expectations. Ms. Wayne has commented already
on the conduct depicted in the NIS investigation, and it is as
abhorrent to me as it is to her. But we have the
reforms, we have the institutions in place, and we have to
let them work. That would be my perspective.
I know we raise expectations every time we come before
a committee and say we've created this new magic
tool that's going to solve all of our issues. Well,
that's not so. We have to work with them and make them
The amendments to the National Defence Act are seven or eight
months old, in terms of the reforms. You will see
the annual report. It is the first time in Canada
we've described the operation of our system. It takes time
to work the system through and to get things done
appropriately. I know for some folks it may not be as fast
as they would like, but it does take time. So this
raising of expectations is natural, I think.
The Vice-Chair (Mr. David Pratt (Nepean—Carleton,
Lib.)): Do you have anything further, Ms. Longfield?
Mr. Earle, you're on.
Mr. Gordon Earle: Thank you, Mr. Chair.
The Vice-Chair (Mr. David Pratt): Five minutes.
Mr. Gordon Earle: Okay, thank you.
I was talking with a member of the forces almost a year
ago. We were chatting generally in a relaxed environment
at a party and he was talking about two aspects of concern.
One was the health care system and the other was the military
justice system and the court martial system.
His view, basically, was that once you enter the
military you lose all the rights you would normally
have as a Canadian citizen, and he expressed
some pretty strong views about
the justice system. He described the court martial
process as a kangaroo court. He said this was not just his
opinion, but what he was saying reflected what a lot of the
rank and file people felt about the system; that when they
got into difficulty, they were being tried by people in
the chain of command and so forth.
I noticed in your report you talked a bit about the
types of court martial, and you indicated there are four
basic types. Perhaps you could elaborate a bit or
give an indication of the difference
between these types. I notice you also talk about
some reforms to the court martial system that may be
geared at resolving some of the things that made this
person feel it was a second class kind of justice
system. Perhaps you could elaborate a bit upon those
BGen. Jerry Pitzul: The first thing I would like
to tell you, Mr. Earle, is that there's an excellent pamphlet
we put out earlier in the spring called The Code of
Service Discipline and Me. It describes, if you
will, the right to do these obligations under the Code
of Service Discipline and gives somewhat of an
explanation there. There are enough copies for every
member of the forces and we've sent it out across the
forces. There is also the annual report that describes the
system in its entirety.
It's a two-tiered system. There's the court martial
system and the summary system. The summary system is
meant to deal with the more minor transgressions of
disciplinary conduct. The court martial system is really
aimed at dealing with more criminal-type behaviour, if
you will. We have an independent judiciary, an
independent prosecution service, and an independent defence
The changes were to enshrine those roles and make them
independent. In the summary trial process we narrowed
the jurisdiction so that the summary process does not
deal with all types of offences. They can only deal in
their absolute jurisdiction with a very small number of
offences. We've reduced the power of punishment. If
the service member is not content with the summary
trial system, we've broadened the power to elect into
the court martial system. If you've ever attended a
court martial or have ever had counsel who
appeared in the court martial system, you will find a very
different point of view than the anecdotal conversation
It's an effort. I mean, no accused person likes any
system they go before. So you're trying to
convince a lot people who haven't seen the system
operate, or the results of the system, that it is a fair
and just system. But having prosecuted,
having defended, and having judged, that's a system
I would put my conduct in front of. For me, that is
the test. Would my conduct be judged fairly by that
Mr. Gordon Earle: Coming back to
the ombudsman's office, have you and the ombudsman ever
sat down and discussed, one on one, your roles and how to
go about improving the cooperation between the offices?
BGen Jerry Pitzul: On April 25, very shortly before
his testimony here, I invited him for lunch. He
brought a member of his staff and he made a
presentation. He assembled all the lawyers
who were available in Ottawa
and the civilian staff in our office. We assembled
together. We heard about how his office operated. He provided
us with an overview of his case management tracking system, which
is a system that can be probably modified
for others to use, so we were interested in that. He
was asked directly about whether or not there were any problems.
The answer we had was no.
Then we listened to his
testimony here on May 9, and, quite personally, I was
Mr. Gordon Earle: I know what worked
specifically for me as an ombudsman.
If I were having difficulty with a given department, I'd
go and sit down and talk to the minister, one on one... not
the formal kind of presentation you talked
about, but I was thinking more about just you and the ombudsman.
Have the two of you attempted to sit down in
isolation, by yourselves, and have a good heart-to-heart
talk about what kinds of things you can do to improve
the communications? Has that ever happened?
BGen Jerry Pitzul: Up to this point it's been with the
minister. It's always been in the presence of others.
When you say one on one, the answer to that is no.
Have we had discussions? Yes, but we've always had
discussions in the presence of others.
The Chair: Thank you, Mr. Earle.
My name is next on the list, unless there are other
colleagues on our side with questions.
Okay. I won't leave the chair unless the committee wants. I
just have a factual question too, and it's a
take-off from Mr. Earle's last
question just now and also from the comments by my
colleague, Mr. Proud.
It concerns me that just at a time when we're
seeing a major change in attitude among the public
towards the Canadian Forces in the positive direction, and
polls reflect this, as you're probably aware,
we have some of these unfortunate situations
coming to light in the media.
General, this committee, as I think you know, operates
almost totally as non-partisan as we can to promote the
good of the Canadian Forces. So I'm really concerned
that just as we're seeing a positive change in attitude
among the public, which is one of the reasons we're
able to get more money for defence—and we need more—we start
to see some of these situations come to light.
It's a long prelude to my question, and
I share Mr. Proud's concern that the public has a great
unease, if not distrust, about what goes on in the
Canadian Forces and how it's reported and how it's
prosecuted or how justice is done.
So now on Mr. Earle's point, it just boggles my mind
that you can have one government official saying 148
cases have been problem cases for him and you're saying
there were eight, and six were resolved.
If you and the ombudsman have not sat
down, one on one, and discussed this discrepancy,
could you give us a commitment that you'll do that in
the very near future? Could we ask you to take
the initiative and discuss the discrepancy, just you
and the ombudsman, and then to report to the committee
in a timely manner? Is that a reasonable request?
BGen Jerry Pitzul: I could take that back to the
minister, because he is embarking upon his process of
review, and certainly put it to him and take
instructions from him.
The Chair: So that's what you have to do? You
have to take it back to the minister. That's fine. I
certainly have no problem involving the minister,
because I know how supportive he is of both you and
We would ask you then to do that. It's a
discrepancy that we just simply don't
understand, and we'd like to get it clarified.
BGen Jerry Pitzul: Sir, I don't understand either.
The Chair: Okay, so let's try to get the facts.
Now it's Mrs. Wayne's turn.
Mrs. Elsie Wayne: As our chairperson just
said, we have a committee here, sir, that I would
say is non-political. We don't deal on a political basis
around this table when it comes to the military.
When I hear your response, sir, with respect to what
the chairperson has just said... you have to go to the
minister? You're the military. We're politicians, and by God,
I think you have to make decisions, sir.
You do. You have to make them.
I have great
respect for these two handsome young men who are sitting
here with you. I don't want the image of our military to be
hurt, and none of us around this table does.
Certainly, with this Stopford and this Nickson case,
that has hurt. There is no question about that.
It has hurt as never before.
As our chairperson was saying,
all of us around here were trying to turn it around,
because we know the boys can't come up here with
placards, as all these other groups do, and march on
the Hill, for God's sake. We have to speak for you, and
we're trying to do that. We do it in a non-political way.
I'm still saying in this case there should be
a public inquiry, and I'd
like to know it from you. That saves you
and that saves everybody
now... and then the politics is out of it totally.
I don't understand why you can't tell me whether you
feel that way or not. You have to go to the minister
first before you can say something.
I'm not going out
and saying that the brigadier-general came and said, yes,
I think that's
right. I just think it's time we took a
stand, and that we get the bloody politics out of it when it
comes to the military, sir.
So I'd like to know
whether or not you think there should be a public
inquiry into that one.
The Chair: You need to clarify your relationship
with the minister and so on.
BGen Jerry Pitzul: My relationship to the minister
is prescribed by the statute. I'm his legal adviser
in respect of issues of military law. The decision as to
whether or not there would be a public inquiry or any
decision in respect of how the government will respond
to the results of the investigation is for the
minister to take.
I'm wearing this uniform, so
segregating parts of the military from other parts of
the military... as far as I'm concerned, I'm still
wearing it. So if there's a tarnishment on the
Canadian Forces, on the department, on the Government of
Canada, on this country, I am concerned.
We do have responsibilities prescribed by law. The
minister is responsible, together with the CDS
in respect to this particular file,
for deciding how the government will react to
the results of this investigation. That is my duty.
The Chair: Mrs. Wayne, I'm not sure if you were
here when the parliamentary secretary mentioned that
around noon today there's going to be an announcement
from the minister and the CDS on this Stopford
situation and how the government's going to proceed.
While I share my colleague's frustration, I guess we
would all say that we do support the situation where,
as in all democracies in Canada, the ultimate control
of the military is through the elected officials,
namely the Minister of National Defence and the
government. So in the last analysis, the minister is the person
we have to go to with these questions.
Mrs. Elsie Wayne: I have no doubt in my mind. I
already went to the minister yesterday, as you know,
and I'll go back to him, I'm sure.
My question for the brigadier-general was, does he not
agree in principle that this is what
the minister should be doing?
The Chair: Who would call that a potentially
career-limiting question and answer?
Some hon. members: Oh, oh!
BGen Jerry Pitzul: Mr. O'Brien, I'd like to answer
that in the following way. Career limiting is not an
issue for me. I've been a judge, I've acted
independently and impartially, and I've acted that way
as the director of public prosecutions for the Province
of Nova Scotia.
I'll tell you
under oath that my professional obligation is to
provide advice to the minister, not to make public
comments, and that's what I will do. That's part of the system
we all belong to. It has nothing to do with
a career, Mr. Chair. This is it for me in terms
of a career.
The Chair: We thank you for your answer. We
understand that, but still some of us around here know
that for some people it would be career limiting.
So that's the end of round two.
There's still time, and I think there are members who
have some more questions, so we'll go to round three.
We'll start with Mr. Goldring.
Mr. Peter Goldring: General, I see in the report that it
mentions the ombudsman as a creation of the minister,
a representative of the minister.
While on a recent
visit to Holland, I believe the ombudsman there is
a serving military officer, or that in some other
countries the ombudsman is a serving military officer.
I guess my question is, would that not be a natural
way or a more proper way to have representations so
that the ombudsman who represents the military would be
appointed from the lot of the military? The ombudsman
would be a senior
military officer who would be well-respected, who would
would be close to the ground, close to the situation of
what military experiences are.
Further, if this inquiry report had been
reviewed through the ombudsman's office, he might
have input or suggestions or concerns on how the
report was worded so that it wouldn't impact and
discredit the military unnecessarily. In other words, a
military person might have been able to understand that
this report was impacting on all military people
across the country and it was unnecessary to do it in
that fashion. Would it not be better to have a
senior, well-respected serving military person to be the
ombudsman for the military?
The Chair: Brigadier-General, you are allowing a lot
more latitude than I might in your position. They are policy
questions clearly, but if you want to answer them, go
BGen Jerry Pitzul: I am the
proponent of an open and transparent military justice
system. You may have noticed I don't back away
The Chair: Fair enough.
BGen Jerry Pitzul: I think every country
has to deal with the way it oversees its
military in the fashion it sees fit, in the
context of its own society and, hopefully, its own
democracy, if that is the situation in which it operates.
I am not familiar with that system you speak of
where there's a military ombudsman. That may work in
On the report you speak of, I'm assuming you're
referring to the National Investigation Service's
report of yesterday. That's a
military police report, and I'm not so sure
that vetting of a military police report is what you're
suggesting. So I'm having a little trouble
understanding your question in that regard.
The police choose when and how they wish to make
Mr. Peter Goldring: It was more with the
intention that you can issue a report and you can issue
a report. If a report is worded in a certain fashion
that doesn't... or we can add clarity to the report.
If the proud military men and women themselves read that report
and were sensitive to the issues, I'm sure they would want to have
that report done in much more detail to clearly impact
on the perpetrators, as opposed to the entire rest of
the military. I'm sure that would have been picked up.
BGen Jerry Pitzul: I think, sir,
your question has to be posed to the people who
issued the report. I'm not in a position... look, I
don't superintend the police.
I have no role in respect of them, other
than when they impact upon the court systems.
Mr. Peter Goldring: Then I will go back to the
original question. Why is the ombudsman a non-military
person when he's representing the military?
BGen Jerry Pitzul: That is the
choice of government, sir, and I have no—
Mr. Peter Goldring: Do you think it would
make sense to have a military person
represent the military?
BGen Jerry Pitzul: I think the
description posed of what an ombudsman should be in his
position profile and in the mandate, a neutral
mediator or observer, a rapporteur... the resolution of
disputes at the lowest possible level is an apt
description for an ombudsman in the military. Whether
or not the individual is in uniform or not, I don't
know. I'd have to think about it further. I really
haven't thought about it. It's an option, I guess.
The Chair: Mr. Bertrand, you have the floor.
Mr. Robert Bertrand: General, I would like to quote part of
the evidence given by the Ombudsman when he appeared before us last
month and I would like you to comment. He said:
According to the National Defence Act, the Judge Advocate General
is entrusted with monitoring military justice. It is an important
statutory role that must not be compromised. That being said, this
role should never allow people that are responsible for legal
counselling to avoid the scrutiny of the Ombudsman or to escape the
obligation to co-operate with him in the course of his inquiries.
Mr. Goldring mentioned earlier the role of the ombudsmen in
several other countries. Do you know if there are countries where
the ombudsmen can monitor the system? I did not understand whether
you were alluding to decisions concerning military justice.
BGen Jerry Pitzul: According to the information I have, no
other country gives them that right, but you might want to ask the
Ombudsman himself. In the meantime, I do not believe any of our
allies allow this. Obviously, this would be a form of interference
in the judicial system and such intervention should be carefully
We have created a system where the judges are independent.
They belong to an entity that is distinct from the rest of the
forces and they are renumerated in a different way. They do not
belong to the chain of command. They are appointed by the Governor
in Council and their mandate is finite and can be renewed. We have
therefore become independent judges.
We have emulated models that exist in Australia, in New
Zealand, in England and in Nova Scotia, and created a system where
the chief prosecutor is at arm's length from the system, but still
accountable. A decision made by the chief prosecutor can only be
reversed by the Judge Advocate General or the Minister, who, in
turn, have to put in writing and publish the new decision. The
system is fully transparent. If the Judge Advocate General or the
Minister are not prepared to act, the decision made by the chief
prosecutor, the Director of Military Prosecutions, stands.
We can instruct the defence lawyers and the counsellors as to
the political aspects and the number of people they should have in
their office, but we can in no way interfere with the course of an
Nine out of ten Canadian provinces have similar rules
concerning the ombudsmen.
In Ontario the act states:
14.(4) Nothing in this Act empowers the Ombudsman to investigate any
decision, recommendation, act or omission,
(b) of any person acting as legal adviser to the Crown or acting
as counsel to the Crown in relation to any proceedings.
On the justice system, it states:
13. This Act does not apply,
(a) to judges or to the functions of any court;
These rules apply to State ombudsmen and not to institutional
ombudsmen. Obviously, if we were to say that the ombudsman has a
right to interfere, there could be a judicial challenge.
Mr. Robert Bertrand: Thank you. This is what I was getting at,
General. I understand what the Ombudsman wants to achieve. If I
were him, I would probably react the same way. As you rightly
mentioned, if a decision were rendered which was contrary to the
Ombudsman's position, there would be a danger of interference with
the military justice system.
BGen Jerry Pitzul: Let's not forget nevertheless that there
can be a measure of discretion without undue interference. One
could say that the Ombudsman's role is only to make
recommendations, and that he is not allowed to make decisions. May
I remind you that I am appearing today following the appearance of
the Ombudsman. I believe that his power is not merely to make
recommendations, that it is much broader than that.
Mr. Robert Bertrand: Thank you very much, General.
The Chair: Mr. Mercier, do you have a question?
Mr. Paul Mercier: Not yet.
The Chair: Mr. Earle.
Mr. Gordon Earle: Thank you, Mr. Chair.
First of all, I want to respond very briefly to what my
colleague Mr. Goldring said about whether the
ombudsman should be a person in uniform or not. I
would say that the most important thing for an
ombudsman is the mandate and the line of
accountability. I've said before that I feel what the
federal government needs is a federal ombudsman system
accountable to Parliament. A part of that could be the
military ombudsman, along with the other specialized
ombudsmen the federal government has.
So the most important thing is the mandate. Whether
the individual is in uniform or not becomes secondary.
The integrity of the individual is the most crucial
factor, regardless of whether they're in uniform
or out of uniform.
Having said that, there is always a caution against
appointing someone from the same field they are
required to investigate, because perception is as
important as the reality. It's the whole concept that
justice must not only be done, it must be seen to be
done. Not only must an ombudsman be fair, he must be
seen to be fair.
The public would have less confidence in a military
person investigating the military, regardless of the
integrity of that individual and how well they might be
doing their job. So you put a person at a disadvantage
when you put them in that situation.
A prime example of that was in the province of
Newfoundland. The ombudsman, who was appointed
accountable to the legislature of Newfoundland, was a
former politician, an MP. Ombudsmen should be seen as
being non-political, impartial, and objective.
Consequently, after that individual had served for a
number of years, when the government changed, they
ended up doing away with the ombudsman's office,
despite the fact that the concept was working and that
individual had done everything to divest himself of
political affiliation and had done a good job. They
got rid of the ombudsman because the government coming
in was of a different political persuasion. They saw that
ombudsman as being political. Instead of replacing him
with someone else, they did away with the office.
That's the danger you run into with appointing
someone in the military to investigate the military.
Next is my question, which is on a different topic.
You mentioned during your talk that legal officers had
assisted with the Kosovo conflict. What kinds of
questions would your department have dealt with in that
conflict? I know we here in Parliament had some
questions about the whole legality of the operation,
whether it was sanctioned by the UN, etc. Afterwards
there was some issue about Canada potentially being
charged for war crimes because of playing a role in
What kinds of issues would your
department have been involved in with Kosovo?
Again, I'm not asking for a list of client
information, but in general, what kinds of things would
you be advising on?
BGen Jerry Pitzul: Clearly the government is
involved in a lawsuit with respect to the Kosovo air
campaign, so what I can say here is very limited. But
the types of things military lawyers do on deployed
operations, provided by some respective rules of
engagement... I deal with the application of a
status of forces agreement. I deal with local
purchasing, contracting, and leasing arrangements, and
advise in respect of disciplinary cases that are within
the unit. So they are involved in a plethora of
activity in providing legal advice on operations.
As time goes on, there is more and more demand for
counsel. For example, in the Bosnia area, counsel was
used there to negotiate, if you will, the leasing
arrangements for the site on which the camp exists.
Apparently some negotiations with a number of people
had to take place. Depending on the ethnic background
and culture of the communities in which the Canadian
Forces participate, some communities like third-party
issues rather than having to deal face to face on
negotiations. The lawyers are often used in that. So
applying the law of armed conflict, international
law, the Hague conventions, and those types of
activities are also part of that.
Mr. Gordon Earle: These counsels would be deployed
right in the theatre.
BGen Jerry Pitzul: Yes. Their chain of command,
if I can use that term, is the Judge Advocate General's
chain, so they can communicate directly back to Ottawa.
They don't rely on the local chain of command. They
are advisers to it.
Mr. Gordon Earle: Thank you.
The Chair: Last question, Mrs. Wayne.
Mrs. Elsie Wayne: I would like to ask you a
question, sir, and this has nothing to do with the
Stopford and Nickson case. Having been a
lawyer and a judge, don't you agree that in
principle, a public inquiry is a beneficial means
of conducting a fair and thorough investigation?
BGen Jerry Pitzul: As is a court, as are
administrative tribunals, as are a plethora of other
tools available to any investigating body. A public
inquiry is a tool, and the only tool that seems to have
been disposed of is using the criminal law or the
disciplinary law to deal with that particular case.
Everything else that's available at law still appears
to be available.
The Chair: Thank you.
Mrs. Elsie Wayne: I think he should run and come
back as a politician.
I have just one other little short question.
The Chair: Sure.
Mrs. Elsie Wayne: If I were in your shoes, sir, I
would have grave concerns about the fact that 148
people went to the ombudsman. I would be asking myself
about that, and I would be doing a thorough
investigation to find out what was wrong within the
system that they didn't come and use the system that is
in place that you refer to.
BGen Jerry Pitzul: There may not be anything
necessarily wrong with them going to the
ombudsman, in the sense that they go to the ombudsman
and get their complaints satisfied. Just going to the
ombudsman is not necessarily an indication of
negativity in the system. The ombudsman is a tool for
folks. He's also my ombudsman.
If I feel somebody isn't listening to me—the pay
people don't want to issue my paycheque for some reason
and I can't get any answers absolutely at all—I may go
to the ombudsman. The ombudsman may say it was because
I phoned the wrong office, or this is where I should go
for pay. That's an appropriate use of that tool.
Mrs. Elsie Wayne: I can understand that.
BGen Jerry Pitzul: I'm not going to embark upon
investigating the ombudsman.
Mrs. Elsie Wayne: No.
BGen Jerry Pitzul: I don't have that mandate. We
don't have any investigators. We have lawyers. But I
understand what you're saying.
Mrs. Elsie Wayne: If you had heard what I was told
when those women, who had been sexually assaulted in
Montreal, sat in front of me and cried, I have to tell
you... No one would help them. No one would listen to
them. I just couldn't believe that was happening in
our military. They felt there was nowhere for them to
There's something wrong with the system there that
needs to be improved upon. I say that to you sincerely.
I look you right in the eye because I think something
has to be done about the injustice that is there.
Something must be done.
BGen Jerry Pitzul: Thank you, and I want to say, I
wish to agree with the member. People need to have
their issues dealt with. There's no excuse for any
organization that doesn't accept and deal with a
complaint, particularly an insidious act like that.
You're absolutely right.
The Chair: Thank you, Ms. Wayne.
Thank you very
much, gentlemen. We appreciate your being with us this
morning and clarifying your role. I think some
important discussion has taken place about the
relationship between your office and the ombudsman's
office. All of us will await some clarification we're
seeking in that regard.
Thank you very much. I appreciate you being here.
The meeting is adjourned.