PARLIAMENT of CANADA

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Publications - June 1, 2000
 

STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS

COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, June 01, 2000

• 0905

[English]

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 Forces.

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 organized.

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.

[Translation]

Good morning, ladies and gentlemen.

[English]

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 Canadian Forces.

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.

[Translation]

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.

• 0910

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.

[English]

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 training sessions.

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 “obstruction”.

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.

[Translation]

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.

• 0915

This new office operates in conjunction with the JAG to offer high-quality legal services regarding the full range of defence legal issues.

[English]

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 disciplines.

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 solicitor-client privilege.

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 committee.

• 0920

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.

[Translation]

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.

[English]

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 ministerial directive.

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.

[Translation]

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.

• 0925

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 education.

[English]

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 before you.

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 their office.

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 quote:

    ...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 command.

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.

[Translation]

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 discretion.

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.

• 0930

[English]

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 is investigating.

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.

[Translation]

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.

[English]

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 complaints.

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 fairness.

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 supervisor”.

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 legal adviser.

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 obligations.

Thank you for the extended time, Mr. Chair.

The Chair: Thank you very much, General.

• 0935

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 Alliance present.

[Translation]

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?

[English]

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 our troops.

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 good one.

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 scenario.

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.

• 0940

That would be my basic take as a citizen of this country and not necessarily as the Judge Advocate General.

[Translation]

I can repeat my answer in French if you like. I am sorry, I was answering the chairman.

[English]

The Chair: We have translation.

[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.

[English]

Mr. Bertrand, did I see your hand earlier?

[Translation]

Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.): No.

[English]

The Chair: Okay. I wasn't sure.

Mr. Proud.

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 that.

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 the ombudsman...

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 have it.

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, appropriately.

• 0945

I don't 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 undertaking.

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 government issues.

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 judicial system.

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 else.

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 share that.

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 recommendation?

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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 prosecution's.

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 appeal.

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 case.

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 minister?

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 administrative action?

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 advice.

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 Parliament.

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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 the crown.

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 thing.

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 the lawyers.

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 percent.

The Chair: Thank you, Mr. Earle.

Now, Mrs. Wayne, please.

Mrs. Elsie Wayne (Saint John, PC): Thank you very much.

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.

• 1000

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 action shortly.

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 results.

The Chair: Do you have any more questions, Mrs. Wayne?

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. Goldring.

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.

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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 this?

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 those comments.

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 effect...

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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 at...

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 charging authority.

The Chair: Thank you. Thank you, Mr. Goldring.

Mr. Bertrand, you're next on my list. Do you have additional questions?

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 justice system?

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 help.

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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 place?

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 there.

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.

[Translation]

Mr. Mercier, no more questions?

[English]

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 be?

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 done?

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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 work.

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 points.

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 counsel service.

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 you had.

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 system?

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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 somewhat surprised.

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 the ombudsman.

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.

Thank you.

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.

• 1030

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.

• 1035

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 right ahead.

BGen Jerry Pitzul: I am the proponent of an open and transparent military justice system. You may have noticed I don't back away from questions.

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 that context.

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 information public.

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.

[Translation]

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.

• 1040

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 defined.

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 individual case.

Nine out of ten Canadian provinces have similar rules concerning the ombudsmen.

[English]

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;

[Translation]

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?

[English]

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.

• 1045

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 dropping bombs.

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.

• 1050

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 go.

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.

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