PARLIAMENT of CANADA

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Publications - May 12, 1998
 

STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS

COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 12, 1998

• 0901

[English]

The Vice-Chairman (Mr. Bob Wood (Nipissing, Lib.)): Welcome to this morning's hearings on Bill C-25. We have a pretty ambitious schedule this morning, so we'd like to get going right away. I think we may be called in to vote this morning at about 10.30, so we should get going.

We'd like to welcome Dr. Bland. Doctor, it's great that you're here. As you know, we're studying Bill C-25 and we were asked to submit a number of names of people we would like to have appear before our committee. You are one of those people who were selected by the committee, and we're glad you are here.

Because of our time restraint, I would ask you to keep your remarks to around 10 minutes, because I know a number of people have some important questions for you. Is that all right?

Dr. Doug Bland (Chair, Defence Management Studies Program, School of Policy Studies, Queen's University): That's fine by me.

The Chairman: The floor is yours, Doctor.

Dr. Doug Bland: Thank you very much.

Ladies and gentlemen, thank you for the opportunity to speak with you this morning. I hope I can be of some help to you. You may or may not know that besides working in the academic world at the present time, before that I spent 30 years as an officer in the Canadian Armed Forces, in the army in particular, in both command and staff positions.

I want to talk to you this morning a little bit about the amendments to the National Defence Act, both from a military point of view and an academic point of view.

On the academic side, for the last 10 or 15 years or so I've been most interested in the organization and functioning of National Defence Headquarters, and particularly in the relationship between members of Parliament, ministers of defence, deputy ministers and chiefs of the defence staff. I've written two books in that field; the latest one is a book on the chiefs of defence—all the officers who have held that position in the last 30 years.

When I was researching that book, I was privileged to spend time speaking with everyone who has ever been Chief of the Defence Staff, some of them now deceased, and everyone who has since 1960 been a deputy minister in the department. So I have some background in that relationship, and sometimes it's been a troubled relationship. We might want to speak about that for a few minutes.

As far as the bill before you is concerned, I think it's important for a couple of reasons. First, as you are well aware, I believe the last time Parliament addressed in detail the National Defence Act was in 1950-51. And if you have time to read, there's a very thick and interesting document, which is the committee meetings from 1950-51 when the parliamentarians first looked at this new, then unified, National Defence Act. The discussions in those minutes set out some of the tone and intentions of the parliamentarians at that time, some of which I think have been lost over the years.

• 0905

In my view the national defence of Canada is not the responsibility of the Canadian Armed Forces, or of the Department of National Defence or directly of Parliament. In effect, the defence of Canada is the responsibility of the people; and the members of Parliament, as representatives of the people, are therefore accountable to the people of Canada for the national defence of the country and for the operation of all the instruments, organizations, units and individuals who give effect to that defence.

The National Defence Act, in my view, therefore is an instrument of delegation. Its purpose is to explain to individuals who daily manage and direct the defence of Canada their responsibilities, their terms of reference and the degree of authority that Parliament allows these individuals to have in all circumstances.

When I speak to officers, often I ask them what is the basis for military operations in Canada. Naturally they will say that getting the mission done, taking care of the job, tactical necessity and so on is the basis for military operations. But I try to explain to them that in my view the basis for military operations really is the law. The commanding concept here is what we refer to as lawful command. So the National Defence Act sets out lawful command. It dictates who has authority for whom, who can decide what and how the defence department and the armed forces will be organized and commanded.

I think the second main theme that interests me here is the notion that officers of the armed forces in operations especially are responsible for two main things. One is to complete an operation; second is for the safety of their troops and the troops under their command.

The law in the National Defence Act and in the code of service discipline provides for a certain trust and a large delegation of authority to officers and it restricts in some respects the activities of citizens, citizen soldiers. As Canadians we allow that to happen because we trust the people at the front end, the pointy end, of the system to take reasonable decisions in the circumstances to get the mission done within the law and to protect their people.

Over the last number of years there have been, for other reasons than warfare, and operations and defence, attempts to restrict what is a lawful command. In some cases that's a good thing. In other cases it is beginning, or has already, shifted responsibility and accountability from the officers in the field to those who have taken away these delegated responsibilities.

As a simple example, we recall that a few weeks ago a sergeant in the forces refused to be inoculated for anthrax. He then, by that act, committed an offence under the National Defence Act because he refused a lawful command. People then criticized the action of the forces in that regard, saying that it was unreasonable to expect a person to take an inoculation and so on.

That argument is fine, but the consequence of the argument is that if you take away officers' responsibilities to have people inoculated in a field, then you take away accountability from them for the consequences of not having people inoculated. So if that person gets sick, an officer can quite easily say, it's not my fault; somebody else is responsible for that man's condition. If the entire force gets sick, then officers can simply turn around and point to someone else who has changed the law and taken away this lawful command from them.

So in that sense there have been a number of changes that have changed the balance of accountability and responsibility in the forces, and some of them are built into this act.

I'd just like to look at a couple of clauses here before I finish.

• 0910

On page 7 of the document that I have—I assume you have this one that was prepared by the research branch—you refer to the office of the Judge Advocate General. The intent of that clause and the amendment, as I read them, is to make the Judge Advocate General independent of the Chief of the Defence Staff. The law as it now stands, in my view, already makes the Judge Advocate General independent of the Chief of the Defence Staff.

The intent of the legislation in the 1950s was to make the Judge Advocate General one of three people responsible together for managing and commanding the Canadian Armed Forces: the then service chief, the Judge Advocate General, and the deputy minister. So I think it would be useful, in this amendment, to clarify the independence of the Judge Advocate General by saying it, whereas it's only implied in the act now.

I think you need to add to that amendment a statement that the Judge Advocate General is also independent of the deputy minister. The difficulties that have arisen in the Department of National Defence over the last number of years can be partly attributed to the fact that the deputy minister and the Chief of the Defence Staff have take the Judge Advocate General under their organization where he ought to have always been as an independent third leg on the stool, if you will. So it's important in this legislation to say that he's independent of both the deputy minister and the Chief of the Defence Staff.

The other clause that interests me is the one dealing with the Vice Chief of the Defence Staff under sections 18(1) and 18(2) of the National Defence Act. Not to be too academic, but the amendment here says that it formalizes the position of the Vice Chief of the Defence Staff relative to the Canadian Forces. It says that he will act in place of the CDS for the control and administration of the Canadian Forces during the absence or incapacity of the CDS.

There is some history here and some literature about that relationship. The Judge Advocate General has it in the files, I know, but if they can't find it, I can in my own files. The argument about the relationship of the Vice Chief of the Defence Staff to the CDS and when he would act in place of the CDS has been argued before. The particular point to make here is that the vice chief would act in the absence of the CDS. It's not a helpful phrase. It's not clear. It's at least ambiguous. What does “absent” mean? Does that mean when the CDS is absent from National Defence Headquarters, or Ottawa, or Ontario or Canada? In our modern world of communications, is the Chief of the Defence Staff ever absent? He can be in Bosnia and be speaking quite easily by phone, fax, or whatever to Parliament, ministers and so on.

I think it would be more helpful if the amendment was reworded to say words to the effect that the vice chief will act for the CDS when the CDS is incapacitated or it could be temporarily on directions from the CDS. In other words, Parliament wouldn't want to hand over to the CDS the power to delegate his duties to someone else permanently. Some temporary arrangement is necessary.

That same section 18 deals with the appointment by order in council of a CDS. The act reads now, if I'm still up to date, that in effect the Governor in Council may appoint a Chief of the Defence Staff. This is a good opportunity to change that section and have it read that the Governor in Council shall appoint a CDS.

Right now, there is confusion in the act as to whether there actually may or may not be a CDS, and it has from time to time historically caused problems in the department.

• 0915

I think in that same regard, in the first section of the act, you might want to look at the section that deals with the duties of the deputy minister. The only thing it says in the act at the moment is one sentence that says there “shall” be, not “may” be, a Deputy Minister of the Department of National Defence, but it's silent as to his duties, responsibilities and relationships.

I think it's important to clarify that the deputy minister is not a member of the armed forces, he's not responsible—he's not allowed—to give orders and directions to the armed forces. He or she has only responsibilities as the department head for the Department of National Defence.

At the same time, it might be useful to use this opportunity to clarify what most people assume the act says—this is an idea that got lost especially in the 1970s and the early 1980s—and that is the point that the Department of National Defence and the Canadian Armed Forces are two separate entities.

It's implicit in the act, in the way the act is set up in two parts, and in the way it refers to people enrolled in the armed forces and so on. But over the years, there have been occasions when deputy ministers have assumed that the Department of National Defence and the Canadian Forces were the same thing, so that they could act—they have acted—to give direction to control and administer the armed forces in ways that I don't think were intended by the people who originally wrote this act.

So those are my main comments from reviewing the act and having worked with the Somalia inquiry as a technical adviser for two years. I'll tell you that we went through very interesting and deep discussions about the relationship of Parliament to the armed forces and to questions of command and control of the armed forces.

With respect, I would direct your attention to the final section of the report of the Somalia inquiry. This deals with—I believe this is the title—what's called “The Need for a Vigilant Parliament”. This comes back to my original point: I believe the defence of Canada, the operation of the armed forces, the delegation of responsibility, and every act and aspect of national defence policy in this country is the responsibility of members of Parliament.

One thing Senator Rompkey made plain in his report, the report of the joint committee on defence—I know that some of you were members—in 1994 was that if there was one thing that all members of that committee agreed on, it was that Parliament hadn't been paying attention to its duties in relation to the armed forces and defence policy.

Finally, I know you have lots to read, but I would recommend two short books to you. These studies were done by the Somalia inquiry. These were independent studies. One was called The Laws Applicable to the Canadian Forces in Somalia, by Mr. Jim Simpson. General Simpson was a Judge Advocate General in the 1970s. He's an international authority on armed forces and the law and on the law of armed conflict. He works for the United Nations for European bodies. He wrote this short text explaining the relationship of the law to Canadian Forces deployed in Somalia.

The other one, with all modesty, is a study that I did for the inquiry. It's called National Defence Headquarters: centre for decision. The main theme here is to try to explain in law and custom the relationship between the minister, the CDS, and the deputy minister in the Department of National Defence. It looks at where it has gone off the rails and how it might be put back on the rails.

So on your next airplane ride, you might take those with you to keep you awake, I hope, during your travels.

Thank you, Mr. Chairman.

The Vice-Chairman (Mr. Bob Wood): Thank you very much.

We'll begin our questioning with Madame Venne.

[Translation]

You have the floor for 10 minutes Madam Venne.

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Thank you, Mr. Chairman.

• 0920

Mr. Chairman, I hope that you won't take away from my time the minutes the witness took to untangle his wires.

[English]

I beg your pardon?

Mr. George Proud (Hillsborough, Lib.): The clock's not running yet.

The Vice-Chairman (Bob Wood): I haven't hit it yet.

Ms. Pierrette Venne: No, I hope not.

[Translation]

I must say that it felt quite strange this morning to get back into the Official Opposition role that we played for a few years. That being said, let's be serious.

My first question has to do with the inspector general who, as you know, is not a civilian according to this bill as was recommended by the Létourneau Commission. I would like to know what you think of the fact that we won't have a civilian inspector general who could also have acted as an ombudsperson, a role much larger than that of the oversight committee to be made up of eight distinguished Canadians.

First, I would like to have your views on the recommendations of the Létourneau Commission about the inspector general, then I would like you to tell me if according to you it could have been included in this bill.

[English]

Dr. Doug Bland: During our discussions at the inquiry, there was considerable debate about the value of the inspector general concept. What I needed to know before I talked with the commissioners and they made recommendations was what function this inspector general was to have, because many people from outside the establishment seemed to believe just the idea was enough to solve all the problems. But, actually, when you add another wheel on the wagon, so to speak, you need to know what that wheel is supposed to do. We needed to have some conversations about what the inspector general was supposed to do.

In my view, the purpose of the inspector general is not to serve the interests of the Chief of the Defence Staff or the deputy minister, but to serve the interests of ministers.

If there has been one complaint over the last, I would say, probably 50 years from ministers, it's that they are not expert when they become ministers of defence. They are then more or less trapped into a situation where they have to take advice from their technical experts, who may then be in a conflict of interest. It's not unique to defence departments, but ministers, whether it was Paul Hellyer or Allan McKinnon and others, have all said—and some to me—that they always felt restricted in making decisions because their advice was coming from people who had an interest in the decision that was being made.

For the most part, the chiefs of defence staff and deputy ministers have honestly and carefully tried to solve that problem for ministers by giving them various options. Yet ministers have always and still complain that they would like to have someone else to speak to.

Paul Hellyer, for instance, tried to establish a board of governors, if you will, outside experts to speak to him. Other ministers have established committees to speak with them. Others, like Minister Collenette, have gone out to the academic community and the broader community to ask for information, to test the opinions they're getting from inside the department.

• 0925

A formal way to do that is to establish an inspector general branch. The individual would be responsible and accountable directly to the minister and would act as an auditor and as an adviser to the minister.

The argument against that concept from the defence department in the last number of months—over the last 18 months or so since the report was out—was that in a force of Canada's size, it's redundant and not necessary, and besides, it would interfere with the command or the chain of command.

I don't buy either of those arguments necessarily, but I think we can find a compromise if we can depend on two things. One is, if the Office of the Auditor General and his defence audit team were strengthened with more staff and more resources, you would have a fine audit responsibility. The second thing, which is perhaps more important, is that if the Standing Committee on National Defence and Veterans Affairs and Parliament had a broader mandate, more opportunities to select topics for investigation and a permanent research staff to work with the committee, you would accomplish what people were trying to do when they proposed this idea of an inspector general.

The idea of a more vigorous committee of the House, a committee on national defence, is not new. It has been recommended many times, but for various reasons that you ladies and gentlemen will understand perhaps better than I, ministers have not been very keen on having a committee of national defence that has a great deal of power.

[Translation]

Ms. Pierrette Venne: The role you are defining is not the one I had in mind for the inspector general. I thought that the inspector general could have dealt with the problems of the military as well as acting as an ombudsperson. Therefore, that inspector general would not have served the interests of the minister. It's not what I had in mind.

I could give you an example. Right now, in Longue-Pointe, in the eastern part of Montreal, there is a privatization process at National Defence that could lead to the loss of 250 military jobs and 150 civilian jobs. The inspector general could, in this case, be the right authority to shed light on this privatization. He could have the power to initiate an inquiry and to act as a conciliator once in a while. I was really not thinking of an inspector general serving the interests of the minister of National Defence. I wanted to know if according to you the inspector general I was thinking of could have played a worthwhile role.

[English]

Dr. Doug Bland: To mention for a moment the ombudsman, the concept of an ombudsman, as I am sure we all understand, is someone dealing with human rights, personnel problems, and so on, and is quite a restricted concept. I would not see an ombudsman for examining the type of problem you're talking about. The proposal put forward by the Somalia inquiry was to bring the concept of an inspector general who is an auditor and an ombudsman into one office.

In answer to this specific question or this type of question of the effect of policy on communities, and so on, whether it's moving aircraft contracts from Bristol Aerospace in Winnipeg to Montreal, or shutting down bases, and so on, I think the most appropriate inspector and commentator on those kinds of policies is Parliament. I think a vigorous committee of national defence in Parliament must have the capability to investigate in detail, to call for witnesses, to call for documents, and then to have expert examination of those policies and to make them public.

I may be cynical here, but I don't think it is entirely helpful to hand that responsibility to another group of bureaucrats.

• 0930

[Translation]

Ms. Pierrette Venne: Thank you. I have the feeling that I will have to walk out with my seat as well because we very well know that members of Parliament don't have the clout that you are talking about, even here within the Standing Committee on National Defence. Thank you anyway.

[English]

The Vice-Chairman (Mr. Bob Wood): Thank you, Madam Venne. Mr. Richardson.

Mr. John Richardson (Perth—Middlesex, Lib.): Thank you very much, Mr. Chairman, and welcome, Dr. Bland.

In your presentation you mentioned the inspector general, as it flowed directly from your work in the Somalia inquiry and other areas. There has been a perceptional problem and a real problem in the double-headed arrangement at National Defence Headquarters and Canadian Forces headquarters. Two of them stem from equality, but one is more equal than the other for a number of reasons.

The longevity of a deputy minister far exceeds that of a Chief of the Defence Staff, thereby he is the holder of the institutional knowledge and the institutional history that developed many of the programs that may be on the table or going forward. A new chief would come in and inherit a direction he may have had some input into during his career, but not to the intensity the deputy minister would have had with his section of people directing policy—mainly the secondments from foreign affairs to defence over the years has been a feed-in to defence policy.

I don't know how this relates to this bill and I don't want to get us side-tracked too much on this, but nobody wants to open the can of worms on this one. It's been discussed in the periphery of Ottawa for at least 25 years. First, I'd like to have some of your insights into why it is such a touchy question to not review that relationship.

Two, just the powers the deputy minister has over the financial resources and accountability in that area give him some power. I'm not talking about any one person, just the position here. The Chief of the Defence Staff is the only person who has direct access to the Prime Minister in the whole of the civil service, to the degree that the Chief of the Defence Staff has the right to meet with him at any time.

You've been close to this scene. We would like to have some of your opinions on this.

How do you see us ever balancing this out or righting some areas of decision-making? Am I wrong in saying the institutional history resides in the deputy minister because of longevity on the job, and the staff has a longer lifespan in there because of the dynamic posting system we have in the Canadian forces? We move people in and out of their chairs every two to three years and they're on to something else. I'd appreciate your giving us some of your insights, if you don't mind, with such a broad question as that.

Dr. Doug Bland: I'm one of the guys, as you know, who likes to open this can of worms. I think it is absolutely relevant to the work you're doing here today and the work of this committee. There can be, in my view, no more important clauses in the National Defence Act than those that relate to the delegation of authority from Parliament to the armed forces and the civil service. The clauses that deal with that delegation must be crystal clear.

In my view, and looking over the shoulders of the parliamentarians who wrote the National Defence Act in the early 1950s, there is no ambiguity in the relationship among the minister, the CDS and the deputy minister. Each has clear responsibilities in law.

• 0935

The problem for most of us is that the law is written with too many nuances in it. As I mentioned in my opening remarks, all it says in the National Defence Act about the deputy minister is that there shall be a Deputy Minister of the Department of National Defence, and the act is silent as to the deputy's duties in relation to the armed forces and so on. The necessity for the Department of National Defence and the armed forces to work together has at times allowed a strong personality to overcome a weaker personality, and it works both ways.

You will recall when General Jacques Dextraze took over as Chief of the Defence Staff, and was in office for more than five years, my research indicates there was no ambiguity about who was in charge. General Dextraze was in charge of the department. However, after 1972 there was a certain reorganization to create the structure they have now. I talked with Allan McKinnon, who was then Minister of National Defence, and asked him if the CDS was superior to, equal to, or subordinate to the deputy minister. The minister said “I don't know, and I can't find out”. He wasn't an inexperienced individual, and I thought that was a danger sign for Parliament, when ministers couldn't understand who was accountable for serious business.

One of the key themes I believe in the Somalia Inquiry was to try to find out who was accountable in responsibility for the actions and decisions taken within the defence establishment. Unfortunately, the inquiry was cut off before they got to the final answer of that, but part of the difficulty in arriving at an answer was to find out who was actually responsible for actions and decisions.

A number of changes have been made since that time. Louise Fréchette, as deputy minister, changed the process by which she and the CDS offered information to the minister, and that was an important change.

But I would say two things contributed to the ambiguity we suffered for a number of years past. Again, with respect, I return to Parliament. In many regards, in the early seventies when the relationship was changed, the structure of National Defence Headquarters was put in place as it is now, and ministers passed their responsibilities for civil control of the armed forces from Parliament to the bureaucracy. In a sense, they said to the deputy minister “You control the armed forces for us”. That upset the relationship terribly.

If you go to the testimony of Mr. Bob Fowler before the Somalia inquiry in his first sitting and read it carefully, you will see statements in that testimony where he alleges he is responsible for the decisions taken by the military. He says words to the effect that “You know you can't leave the military to make these decisions about how many people to take to Somalia, for instance, or they'd want to take everything”. He had to control those kinds of decisions. I think that is not within the province of the deputy minister.

The second thing that's important, after the abandonment of civil control of the armed forces by Parliament, is the abandonment by the officer corps of the military of their professional confidence. As you said, many people will state that a deputy minister has a long time in the office, becomes the all-seeing, all-knowing individual, knows the history and background of the issues, and officers float in and out. But if you look at the actual evidence of the time officers have spent in National Defence Headquarters over the last few years—people such as General John de Chastelain, Paul Manson, and others—these people have a long residence in Ottawa; they do understand the system.

• 0940

When you look at deputy ministers, on the other hand, Louise Fréchette is a fine lady and I have a lot of time for the work she did in the department, but she had next to no experience in defence matters. Yet she had a commanding presence in the building.

That occurs in many respects because the military simply let people step into their shoes.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Richardson and Dr. Bland.

We now go to David Price, then to George Proud, and then to Mr. O'Reilly.

Mr. David Price (Compton—Stanstead, PC): Thank you, Mr. Chairman.

Welcome, Dr. Bland. I'm very happy you could be here this morning.

One of the main things you brought up—I was happy to hear you bring it up, actually—is chapter 44, that is, “The Need for a Vigilant Parliament”. I wanted a little more comment on that. In particular, if the military is going to be more accountable to the public, it has to do it through Parliament. So could we be looking maybe at a permanent joint committee including the Senate, or that type of direction? Could you give us some comments on that and your feelings on that?

Dr. Doug Bland: That is exactly what is required. I was heartened by the recommendation of the special joint committee on defence in Senator De Bané's and Senator Rompkey's report, where they suggested a permanent joint committee be established. But again, that committee would need the support of an expert staff. You need people who can read the documents and who understand the history and can work through it and advise parliamentarians.

Once such a committee is in place, I think you will find that many military officers are eager to make their views known, to escape perhaps a little from the strictures of government policy and to speak professionally about the problems they face in the field, in procurement policies, and so on.

So yes, a permanent committee of the type you suggested would be very important and would probably eliminate the idea of the need for an inspector general's office.

Mr. David Price: That's what I was going to lead into next, the inspector general part exactly.

You mentioned earlier that you thought the inspector general would be somebody the minister would be in need of, but the current minister, when asked about the inspector general—we brought it up, naturally, when the report came out—said, “Well, the generals can't function with somebody looking over their shoulders”.

You're going in a completely different direction here. On the other hand, we're looking at an inspector general really as looking over their shoulders, but for Parliament, not directly for the minister. Granted, he could report to the minister, but he's really reporting to Parliament.

Maybe you could comment further on that, because your direction seemed to be a little different from that.

Dr. Doug Bland: The theoretical start point for this is that the term “civil control of the military” means the control of the armed forces by civilians elected to Parliament. That's what we say here, that's what some of us try to teach in eastern Europe these days, and people are trying to reform their own systems. It doesn't mean control of the armed forces by people wearing civilian clothes, whether they're public servants or others.

I think I understand what the minister was saying when he made that comment, but the armed forces must function with someone looking over their shoulder. Otherwise you don't have a democratic civil control of the armed forces.

The question then is who's looking over their shoulder? Are members of Parliament actively engaged in looking over their shoulder, or do they hire someone to do it for them? The Auditor General of Canada has a long history of looking over the armed forces' shoulder, and that's been painful at times, but a benefit to Canada.

• 0945

I think over our long history Canadians have always thought that someone else was forming our defence policy for us, giving us our strategy, and commanding our generals, in effect. Whether it was the Imperial Defense of Queen Victoria or the British Armed Forces in the two world wars or the United Nations or the United States or someone else, we've often in our history thought we ought not to be involved in these detailed matters.

In many cases, you can point out in Canadian defence history where members of Parliament and others have allowed foreign generals or foreign politicians to set the trend for us. But now, in this new world of ours, we're like the kid in the movie: We're home alone. We actually have to start deciding some of these basic issues for ourselves. Where will we be deployed? What kind of forces will we have? How will they be controlled? What kind of civil control will we have?

If one thing has come clear to me from the Somalia affair it's that this was a typical example, as a Canadian historian said, of Canada lending troops to other people and then forgetting about them. When they were called to account, when Parliament was called to account for the actions of the troops, we had difficulty explaining who did what to whom.

I'm sorry for the long answer, but I think it comes back to, yes, there's a need for someone to look over the shoulder of the armed forces. It's absolutely necessary in a democracy. The people who are accountable to Canada, to Canadians, ought to be doing that.

Mr. David Price: We had an interesting comment yesterday from Justice Dickson, who said, when I asked him the same question, at present, but maybe five years down the road there would be a need. He seemed to allude more to the fact that it was because our military had been downsized so much, that maybe if it was larger, then we'd be going in that direction.

Dr. Doug Bland: I think principles stand no matter the scope of the organization. The size of the armed forces doesn't change the concept of civil control of the armed forces. However, as the armed forces shrink, and perhaps shrink even more, there is a need for economy in the system.

Yes, you will always, in my view, need a parliamentary committee to look at the armed forces. The staff you have working for you might not need to number in the hundreds, as it does in the American system, but four or five real experts working in the area with the committee would certainly be of some benefit.

Mr. David Price: The other thing was that this bill tends to be going in a direction of bringing our military law a lot closer to our civil law, and as the judge said yesterday, tying it closer to our Charter of Rights and Freedoms. Maybe you'd care to comment on what your feelings are, if this is something that you see as being feasible, particularly in the case of how we're handling things in, let's say, our domestic areas and how this law handles things in the war zones that we happen to be working in at certain times, doing our peacekeeping.

Dr. Doug Bland: I think the debate and the various recommendations and so on have all been very healthy. In my conversations with military officers who are in and out of the service these days I find a great deal of support for the changes that have been recommended by the Somalia inquiry, by Dickson and by Parliament, by the minister.

So people are keen to bring this system into the present century. However, when you change the code of service discipline and the degree of authority officers have over the armed forces, you don't necessarily change the problems. In other words, if there is indiscipline in the armed forces—up to now—theoretically, the military takes care of that. Parliament has entrusted the officer corps to discipline the armed forces.

• 0950

As people take away degrees of that power from the military, the problem of indiscipline in the armed forces doesn't go away. It may occur in various guises and in various situations. So the question now is, if the officer corps is not responsible for disciplining the armed forces, for keeping them in “good order and discipline”, then who is?

If you say the armed forces officer corps is not responsible for discipline in the barracks and can't search the barracks because that infringes on a person's right to have a room of his or her own and so on, who is going to maintain discipline in the barracks and keep weapons and drugs and criminal activity out of the barracks? The Commissioner of Human Rights? Will he go up to Petawawa and do these things?

Mr. David Price: I agree with you there. What I was looking at is— The example you brought up was an excellent one, about the sergeant not taking the anthrax shot. Do you feel that in theatre there should be another set of rules, because the situation changes so drastically? Right now we're tending to make our military laws right across the board very “peacetime”.

Dr. Doug Bland: Even in the amended suggestions, there is still sufficient power to discipline units. Some of the comments by people who said they didn't have enough power to do things were self-serving. But Parliament needs to go through, as you are, this difficult act of trying to balance two imperatives: protecting the citizen soldier from arbitrary punishment, arrest, and so on whilst maintaining sufficient power to maintain discipline and order in difficult circumstances.

Mr. David Price: So you're fairly comfortable that this is handling it?

The Vice-Chairman (Mr. Bob Wood): This will be your last question, Mr. Price.

Mr. David Price: Yes.

Dr. Doug Bland: I'm fairly comfortable that we can work this new system, but it will take some time and perhaps even further amendments to the act as we gain some experience.

If I could return just for a second to the anthrax inoculation, let's reverse the situation. Let's assume that the members on board that ship or the force in the Gulf had not been inoculated and the ship's company got anthrax. Someone would have that officer and the CDS in here saying, “What the hell were you doing? Why didn't you give all these people inoculations?” And he would say, “Well, it's not my responsibility. I can't do that.”

A British general was asked once, after some— No, I'll use another story. You'll remember when a Canadian Forces soldier went to Quebec City and shot up the legislature. He took a weapon from Carp, I believe, and he went to Quebec City and opened up on everybody in the building. A parliamentarian—no names here—asked a general officer, “What are you people doing hiring those kinds of soldiers?” And the general's response was, “We don't know whether these guys are nutcases, because we're not allowed to ask then any more on recruitment: `What is your medical history? What is your psychological history?' These are all protected things. So don't come to me if we get the wrong kinds of people in the forces.”

So that's the kind of dilemma you get when you remove responsibility and accountability from someone for recurring problems. You have to pass it to somebody else.

The Vice-Chairman (Mr. Bob Wood): Thank you, Dr. Bland.

We'll go to five-minute rounds for the second round, starting with Mr. Proud.

Mr. George Proud: Thank you, Mr. Chairman.

Dr. Bland, most of my questions have been answered this morning, but I am interested in a couple of areas.

One, you talk about the oversight by Parliament, and I think you know where I'm coming from on this. You said the joint committee recommended a permanent joint committee that would do these things. My philosophy on this is if we had the joint committee or a committee, whether this one or another one, the Somalia inquiry would have been done by this committee. I believe that strongly.

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But you run into the problem of course that we all all run into, and this is of government not wanting to give that power up, and it doesn't matter whether I'm sitting on this side of the table or that side of the table. I believe that someday we will get the best of both worlds, somewhere between the American system and the British system, so we can have a committee that will have this power, that will have the expertise to do this.

Having said that, I believe we have a pretty good oversight in place— lacking that right now, by the new proposals that are there. And my question to you would be if you would expand for a moment on your view of what you think Parliament should do that it's not doing now.

The final question I have is do you feel, and I think you've already said it, that this bill does a pretty fair job in getting us to where we should be going with military justice?

Dr. Doug Bland: I would say that the bill is a good start. Just the fact that Parliament is paying attention to the National Defence Act in detail is a good start. I would be really encouraged if you began at clause 1 and took a lot of time and worked your way right through to clause— whatever is the end. That would be helpful.

As regards the role of Parliament in particular, the important consideration for me is that I would rather see Parliament investigate the deployment of the Canadian Forces to wherever before they deploy, not after they come back. So in this respect, when Canada is going to send a significant force somewhere, I would like to see a parliamentary committee call in the commander who has been named for that operation and ask: “Do you know where you're going? Do you know what your mission is? Do you have all the stuff you need? What else can we get you? Do you need some more troops? Tell us what you need. Are you confident that you can carry out this mission under the law?” The commander will say, “Sure, I'm happy with everything”, and then he goes away. And if he can't, then you can hold him to account for that. But to send the force overseas and then come back and say, “We didn't know you didn't have enough guys, and how come this happened, and who did what to whom?”—that's not the way to go.

Even in a routine situation I think Parliament should inquire of the armed forces often about how it's going, get a performance evaluation report. And particularly, I think that every officer who is promoted to general or flag rank, or is nominated by the CDS for promotion, at least once in his career ought to sit before a committee of Parliament before promotion so that Parliament can just talk to the individual about his views or her views of the world.

The same of course should happen when the government nominates someone to be the Vice Chief of the Defence Staff or the Chief of the Defence Staff. I think it would simply be helpful and a stimulant to the departments and to the armed forces to have those sorts of interviews before the fact, not after the fact.

Mr. George Proud: Thank you.

The Vice-Chairman (Mr. Bob Wood): Mr. O'Reilly.

Mr. John O'Reilly (Victoria—Haliburton, Lib.): Thank you very much, Mr. Chairman, Dr. Bland.

Of course in Bill C-25 we're looking for specific improvements, your opinion of whether it will work and how it can be improved.

We've had, with the appointment of Minister Eggleton, seven ministers of defence in eight years, and I've gone through the white paper on the Somalia inquiry on this committee and the reserve restructuring in the last Parliament. Committee members on the government side take direction from the parliamentary secretaries—there are two here—who take direction from the minister, and committees reflect the House of Commons. The make-up of the committee is similar to the make-up of the House of Commons, except today the official opposition, the Reform Party, don't take much interest in this. They haven't shown up.

I don't see how you can structure a parliamentary committee on defence with the instability of the Minister of Defence taking direction from his deputy minister, and then giving direction to his parliamentary secretaries, who then come to the committee and give direction to the government side on the committee. So I find your theory is one that is flawed, because I don't see how it's going to change anything that happens here.

So perhaps you could give me some direction on just how this committee would work.

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Dr. Doug Bland: I guess it's the privilege of the academy to make theoretical suggestions and to allow people such as you to work out the practicalities of it. I realize fully that committees are more or less captive of the ministers of the day and the government and its political process. But I think—I hope—that reasonable people would find ways to serve the national interest in this particular issue.

My view, I suppose, is that the notion of a joint committee is more helpful. To involve the Senate, to involve the House, in overseeing the armed forces might offer some escape from the problems you're speaking about. These are essentially political problems, but the consequences of the politics of the thing show up in the field. They show up in problems with procurement, with problems in the conditions in service of the people in the armed forces. They show up in operations. I hope that Parliament will find some way to solve those problems.

You can't escape the fact that ministers rotate in and out of these offices often. In 1970-72, when Donald Macdonald first came in under Trudeau's government, there were seven ministers of defence in two years. We're still living with the consequences of that. The stability in defence policy and understanding in Parliament I think rests with the larger body of parliamentarians—people like you and others who, because they're interested or for whatever reason, become interested in the topic. They become the advisers to government, to ministers and so on.

I joke sometimes that there are no Sam Nunns in Canada. If you know Senator Nunn from the United States, he's a true expert in international affairs and national defence. This fellow knows a great deal and he can debate with anyone on any subject because he spent a lifetime working in the area. We have some parliamentarians who can match that, but it's not seen often to be an important trade for parliamentarians to become involved in the details of these matters.

Mr. John O'Reilly: The specifics of the improvements of Bill C-25?

Dr. Doug Bland: The main points I see are to make a statement in the act that specifies that the Department of National Defence and the Canadian Forces are two separate entities. It should clarify the duties of the deputy minister in relation to the CDS. It should also clarify the position of the vice chief, as I said, not to give this carte blanche that he will be acting whenever the CDS is absent—I think that's too difficult.

I think it's important, as you're doing here, to reinforce the independance of the Judge Advocate General, who's the minister's officer, not the CDS's officer or the deputy minister's officer, by saying as the amendment states, that the Judge Advocate General is independant of the CDS but to add that he or she is independant of the deputy minister.

Mr. John O'Reilly: Thank you, Mr. Chairman.

The Vice-Chairman (Mr. Bob Wood): Thank you. Mr. Price, the second round.

Mr. David Price: Thank you, Mr. Chairman.

In November of last year I put forward a motion in this committee to have the Somalia commissioners come before us to speak actually of chapter 44, on “The Need for a Vigilant Parliament”. Unfortunately, the other side didn't want to hear about it. I don't know why.

I'm wondering in your opinion if we were to get this committee set up, what budget would it come out of? In terms of the experts you referred to, where could we get that type of person?

Dr. Doug Bland: You can contract all kinds of guys. Seriously, I think that the more information from more sources that the committee has, the better off they are. There are of course the commissioners from the Somalia inquiry, who have a great deal to say. They were very active in writing every line in the report, in my experience. But if that's not possible, then I suggest the committee speak with General Jim Simpson, who was the technical adviser on the legal parts of the inquiry. You'll find a great deal of useful information from him, I'm sure.

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How much would it cost? I think the budgeting question is important. It probably should come out of the House or out of Parliament somewhere.

You can find the experts you need from retired military people who have proper experience and academic qualifications from the academic world and from a growing body of young Canadians who have taken an interest in international affairs, in defence management and so on.

Assuming you're not hiring hundreds, I don't think Parliament would have any problem whatsoever developing a competent research staff in these areas.

Mr. David Price: A lot of our expertise could come directly out of the Senate, which we're not using a lot right now.

Dr. Doug Bland: Absolutely.

Mr. David Price: I asked Judge Dickson yesterday about recommendation 23 in his report, which states:

    We recommend that an increased training and education be introduced for all commanding and delegated officers to ensure that they are knowledgeable about their roles in the military justice system and competent to perform them. But for exceptional circumstances, those officers should not be permitted to preside at a summary trial unless certified to do so by the Judge Advocate General.

There's some feeling that this should not be in legislation but in the regulations. What would be your feelings on that?

Dr. Doug Bland: I think that's a matter of training and experience. It's something that commanding officers and general officers ought to be doing in the normal course of things, and they do that. I know basic officer training people are exposed to the National Defence Act, to the rules of summary trials and so on. If you serve in a regimental situation, you soon get used to the procedure.

I think it is helpful to remind the Chief of the Defence Staff every once in awhile and to have him report in his annual report on the status of discipline in the armed forces—how many charges have been laid, how many people have been tried, and so on—and to at that time talk to the Chief of the Defence Staff, who Parliament has delegated to run the military justice system, in a sense, and to have him report on training and so on.

I think that's the proper way to go.

Mr. David Price: But you're still not saying whether you feel it should be legislation or regulation.

Dr. Doug Bland: I think it should be regulation.

Mr. David Price: Just regulation?

Dr. Doug Bland: Yes.

Mr. David Price: Okay. As it is now, the Chief of the Defence Staff reports back to Parliament. Would you feel that he should be listing, say, details of the summary trials in his report to Parliament?

Dr. Doug Bland: Yes. I think it used to be routine in the “old” army, if I can call it that. The CDS should, in his annual report, report how many offences have been committed, how they've been handled and so on—without naming people, obviously—to give an idea to Parliament of the state of discipline within the armed forces. I don't think any CDS would mind doing that.

Mr. David Price: Thank you.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Price.

Any other questions of our witness?

Dr. Bland, thank you for being with us this morning and sharing your views on Bill C-25. We appreciate very much your taking the time to be here.

Dr. Doug Bland: Glad to be here. Thank you.

The Vice-Chairman (Mr. Bob Wood): I don't believe Mr. Desbarats is here, but I do think Mr. Grainger is ready to go. If it's fine with the committee, we'll change the order.

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The Vice-Chairman (Mr. Bob Wood): Are you ready, sir?

Mr. Brian Grainger (Individual Presentation): Yes, thank you, Mr. Chair.

The Vice-Chairman (Mr. Bob Wood): I'd like to welcome our second witness this morning, Brian Grainger.

Mr. Grainger, thank you for coming on maybe a little bit before you were ready to, but we certainly appreciate it. I believe your brief has been passed around, and we're certainly looking forward to your comments—in fact, you were involved in the development of the Military Police Complaints Committee provision in Bill C-25—and the questions that will follow.

The floor is yours, sir.

Mr. Brian Grainger: Thank you, and good morning, Mr. Chair. I am grateful to you, sir, and members of the House of Commons committee on defence, as well as the committee's branch staff, for helping in adjusting the schedule to allow me to appear a little later this morning.

I believe there are four significant initiatives connected to the complaints initiative, so that proposed section 250 should not be viewed in isolation. In fact, I would hearken back to the comments made earlier by Dr. Bland and members of this committee when you spoke of such things as an ombudsperson, grievance mechanisms, eminent persons committee, code of service discipline changes, and even the discussion around the notion of the inspector general. Much is happening, and Bill C-25 represents a move forward.

Specifically, however, the complaints commission should be viewed in terms of its connection to the professionalization, the professional development, if you will, of the Canadian Forces military police, and that aspect, that initiative, if you like, caught in part in the act but caught also in decisions and activities and events taking place within National Defence, include such things as a military police professional code of conduct, military police credentials review board, military professional standards, and of course, the National Investigation Service or, as it's called, the NIS of the military police.

Any presentation before members of this committee must take note of the appearances earlier of, as I mentioned, Dr. Bland, and of course, Chief Justice Dickson, the report by the Somalia inquiry, and the special advisory group led by Chief Justice Dickson. And the very efforts in the last 18 to 24 months by Canadian Forces personnel themselves, from the very top to all the ranks, has led to some important improvements as we speak.

Today I'd like to concentrate on the military police. That's proposed section 250 of the bill, which addresses the so-called Military Police Complaints Commission. In this regard, members here and in the whole House would be interested in how this section, among a number of related initiatives I just mentioned, supports the enhanced accountability and widens and deepens the professionalization of the Canadian Forces military police.

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Allow me to go over to the overhead. You may have this before you, at any rate, and I'm not sure that the overhead is now necessary.

The development of the Military Police Complaints Commission has been done in the context of other initiatives, as I mentioned earlier: a credentials review board, which sanctions and disciplines the military police; military police professional standards in and around section 156, the appointments; and a code of conduct, which is actually mentioned, as you know, in Bill C-25, proposed section 13.1, a very major development.

I, of course, was only one of a group of individuals who worked on this issue. These very fine people, including defence staff, looked at three elements of this issue: one was the oversight requirements, as built into proposed section 250, for a public complaints commission; the accountabilities, much discussed earlier today in respect to the military police and its relationship to other elements of the Canadian Forces; and of course, the necessary professional development, identified in part from previous reports, including, of course, Chief Justice Dickson's advice.

There is no perfect system in Canada. All the work in civilian and military police environments can attest to this. These initiatives, and in particular, the Military Police Complaints Commission, are based on several key policing lessons, as well as related case law on police jurisprudence—that is, the independence of the police; the oversight mechanism over the police; accountability to command and control, and in that regard, audits, annual reports; an accountability framework, which now exists between the Vice Chief of the Defence Staff and the Canadian Forces provost marshal; as well as the unique piece of legislation in this document, called interference complaints, or proposed section 250.19, which is quite unique in Canada or anywhere.

Allow me to briefly speak to several critical questions that Canadians, including the rank and file of the Canadian Forces, have the right to ask about this particular initiative and perhaps some of the related ones.

Do the Bill C-25 amendments improve military police professionalism? Yes. Existing Canadian police service acts and account of those are built into the operational oversight mechanics.

Do we need a Military Police Complaints Commission? Yes, several other countries have them. We believe it would help. It addresses concerns raised in the Somali commission's report, as well as Chief Justice Dickson's report.

Would it be similar to the RCMP complaints commission? Yes, it's highly modelled on that particular piece of legislation, and to a degree, on several others—Ontario and B.C. in particular.

After the reforms are implemented, how will military police accountability compare with civilian police? A close comparison on an item-by-item basis across all major Canadian police service statutes—and if the committee is interested and its staff wishes, I can provide that—shows that the accountabilities are indeed addressed.

Thank you very much, Mr. Chairman, for allowing me a few opening comments. I'm delighted to have the opportunity to be here, and I thank all members for the opportunity to spend some time with them. Thank you.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Grainger. As you know, the bells are ringing here. I think we'll be okay until about 10.30 a.m., but then we're going to have to take a quick recess and then come back. Hopefully you can weather the interruption.

We'll start with Madame Venne.

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[Translation]

Ms. Pierrette Venne: I would like to ask you a short question. Does the fact that the Complaints Commission has no enforceable powers bother you? As we all know, the conclusions and recommendations of the commission won't be binding. Don't you think that the fact that the commission won't have any decision-making authority will reduce greatly the impact of the creation of such a commission?

[English]

Mr. Brian Grainger: This is an excellent question. It's the same question that we must ask of all civilian police forces and their oversight. Always, the chief or the command and control, civilian or otherwise, is allowed to listen to the advice and recommendation of such boards, wherever they exist—and this is the norm—and then to take decisions accordingly. This allows that command and control system to be accountable and responsible for the problems and the discipline as they occur.

Secondly, and perhaps more importantly, in the current environment of the 1990s, most such police protocols and arrangements and commissions around complaints operate on the basis of some form of mediation or early intervention, so that my complaint, whatever it may be—and indeed it may be serious, so it goes longer and takes longer—is dealt with as early as possible. The management of the discipline of the problem is handled at the front end as quickly as possible.

This is the typical approach in all policing environments throughout North America and outside of Canada. In this case, we would suggest it will also be useful because we believe it should be solved quickly, early, inside the organization and then in the reporting to, because this calls for an annual report from the commission, as does the RCMP approach, and as does every other in this country. Then it's public.

If the chief of a particular police service or the Canadian Forces provost marshal doesn't handle a particular problem, that problem will be a matter of public comment.

[Translation]

Ms. Pierrette Venne: Thank you. It was my only question.

[English]

The Vice-Chairman (Mr. Bob Wood): Thank you.

Mr. Price.

Mr. David Price: Thank you, Mr. Chairman, and thanks for being here, Mr. Grainger.

This will also be a short question. Certain of our military police services are going to have to be farmed out because of a lack of people, and actually one of the nice things to say is that it's also because of the low crime rate in the military, which is very pleasant to hear.

We have heard that outside police forces don't understand the military way of life, the military culture, and so on. I'd like your comments on that, and how you feel this bill is addressing this.

Mr. Brian Grainger: Well, Mr. Price, I'm obviously more comfortable with the second part of your question than the first part.

On the first part, however, I will say that it is my understanding that it may not be necessary, if I may use that word, to farm out military police. What the military police have done—and have done, may I say, effectively over the years, and I think are increasingly good at—is to note those things they don't do or perhaps can do as well as others, some types of offences, and they have shared that responsibility with other police services. They have asked them to help them, and sometimes turn the matter over to them fairly early in the process.

That's a little different from the notion of farming out that you've raised. Again, that's a term used in today's jargon, and I'm not sure I want to go there. However, I appreciate your question, and I think you have a valid concern that perhaps of the 1,200 or 1,300 military police officers, just how many of them can handle how many tasks at any given time? That's always a valid question.

Mr. David Price: —

[Editor's Note: Inaudible] —numbers in certain areas.

Mr. Brian Grainger: That's true of just about every downsized police service in this country and the United States today. They're all struggling to deal with that reality.

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Your second question is really quite interesting. The Canadian military police have, over the last little while, brought more and more members of other police services at various ranks into their service, and have had an very excellent exchange going. I think that is not only good to have professionalization benefits, but firmly believe that we'll see some case management benefits right at the front end in terms of work, including perhaps bringing them closer to many of our major civilian police services.

It may not be known to this committee that the Canadian Forces provost marshal is a very vital member of the Canadian Association of Chiefs of Police, and plays a very active part in that whole community. I think the community gains, and I think the Canadian Forces provost marshal believes that she gains as well.

Mr. David Price: Could we see it going the other way also—the military police being more involved in the communities surrounding our bases? As we know, they tend to have been isolated from that. If we don't talk of farming out, if we talk instead of sharing of services, would you see the possibility of going more in that direction so we'd make better use of our services?

Mr. Brian Grainger: I think you've raised a very excellent point. There is going on right now inside the Canadian Forces provost marshal's work in this area, dealing with the whole act and everything, some very excellent definition work around: what is police service? What do we do? In regard to your reference to community, I think you will see more of that. Again, I'm speaking out of turn if I go much further because I'm not in the middle of that discussion, but I am aware of it.

Mr. David Price: Thank you.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Price.

Are there any questions from my colleagues from the government? Yes, Mr. Richardson.

Mr. John Richardson: I'd like to ask a couple of short ones, Mr. Chairman.

We're looking at some kind of way to show some openness and transparency throughout the system. If the police—I forget the proper word—is modelled on the Mounties' system of policing and the grievance procedure that's set up, I don't know many other police arrangements that have those kinds of escapes or opportunities to seek redress of a grievance or to seek advice to professional organizations as is proposed in this legislation. Am I wrong in that assumption?

Mr. Brian Grainger: No, you're both right and— perhaps I can steer you in the direction that it exists.

In any organization, paramilitary or military, there is a stream of activity related to grievance matters, as in any private or public organization or agency. There is also one dealing with, if you like, complaints and discipline and so forth.

The Royal Canadian Mounted Police has a body, the complaints commission, that looks at the public complaint side and addresses to a degree small-D disciplinary issues, and then also has a review of the grievances as well.

There are bodies in our national police service, if you will, that are similar but different because of the needs of that organization. If I were to take you on a quick tour across our country from Halifax to Vancouver in regard to any civilian service, you too would spot the things you just mentioned. There would be these streams of activity. How they're set up is quite unique to the needs of that community or that particular police service, but they're there in some form or another.

Ontario, for example, just revamped its whole police act under Bill 105, which was enacted several months ago. If you were to take a look at that document, you'd see all of these pieces come together and how the chief of police and others are accountable to the civilian oversight and so forth. They're all there. There's just a slightly different model in each case, perhaps.

Mr. John Richardson: I'll follow up with one last question.

The Vice-Chairman (Mr. Bob Wood): Very quickly, Mr. Richardson, because we're going to have to get out of here.

Mr. John Richardson: All right.

The situation—it's all set up for peacetime. In wartime, they become traffic controllers. They mark the routes, they see that there's no mix-up on the flow of military personnel, and they also look after prisoners of war and their movement to the back. I didn't notice anything like that in Bill C-25.

Mr. Brian Grainger: Bill C-25 doesn't address that specific operational environment, referenced in part in your own questions earlier to Doug Bland.

Mr. John Richardson: Yes.

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Mr. Brian Grainger: It does come into the regulation and the management of that operation, and that's where it will take place, within the command of the general, she or he who's in charge of that particular operation. It's an interesting question, though, to pursue.

Mr. John Richardson: Thank you. We're on our way.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Grainger, for being here. We appreciate your time.

We have to suspend the committee until roughly 11 o'clock, when Mr. Desbarats will join us.

Thank you.

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The Vice-Chairman (Mr. Bob Wood): We're ready to reconvene, after a quick vote, and welcome Mr. Desbarats to the committee.

Mr. Desbarats, it's great of you to join us this morning. Thanks for waiting while we went about our parliamentary duties. We ask you to keep your comments to roughly 10 minutes, and then I know lots of my colleagues have many questions for you. We're looking forward to your testimony. The floor is yours, sir.

Mr. Peter Desbarats (Individual Presentation): Thank you very much, Mr. Chairman.

I have prepared a brief opening statement, which I will read. I apologize for the fact that it's only in English. During the Somalia inquiry I did ask my questions of francophone witnesses in French, but anybody who heard that would probably be glad I'm sticking to English.

Some hon. members: Oh, oh!

Mr. Peter Desbarats: I'd like to start out by commending members of this committee for the work all of you have done to bring before Canadians the plight of what Maclean's magazine has called Canada's fighting poor. I welcome the opportunity to associate myself with that work by appearing here today.

During the course of the Somalia inquiry, we encountered much of the same evidence as you have received, particularly during our visits to army bases in Quebec, Ontario, and Alberta. Like you, we were impressed by the dedication, the hard work, the integrity, and the courage of the men and women who spoke to us, especially members of the lower ranks and junior officers, just as we were appalled by the failures of many of our senior military officers to provide not just inspiring leadership but even adequate leadership to these soldiers, both at home and on overseas missions such as the one in Somalia.

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As we progressed with our inquiry, I came to the unavoidable conclusion that the higher the rank in the armed forces, the lower the quality. There were some individual exceptions to this rule, of course, but in general it held true. The reason was that inferior leaders over the years tended to select and promote junior officers who most closely resembled them, resulting in a gradual erosion of quality at the top of the system, regardless of the quality of men and women entering the system at the lower levels. This “dumbing down” of the armed forces was encouraged by a closed system accountable only to itself.

This lack of accountability was one of the main themes of the report we issued last July and one of the main issues in relation to Bill C-25 that I'm here to discuss. One result of this closed system was the series of easily preventable disasters in Somalia, made infinitely worse by subsequent attempts of senior leaders to avoid being accountable for them—attempts that are continuing to this day.

Another result is the one you have encountered, a poorly paid and poorly equipped military that has continued to lose respect for its own leaders since our inquiry ended, even as it has regained the respect of many Canadians for its work in the aftermath of natural disasters in Manitoba, Quebec, and Ontario.

The scandalous plight of many of our soldiers is not something for which they are responsible, just as the terrible events in Somalia would not have happened if our men and women there had been adequately led. They are the result of lack of leadership by successive governments and generations of senior officers.

It was some of these senior officers who, in a desperate effort to deflect criticism from themselves, tried to create the impression that the Somalia inquiry was anti-military and we were the ones who were damaging the morale of the armed forces by persisting in our investigations. I don't think they fooled Canadians for a moment, certainly not the Canadians who viewed our hearings on television and had a chance to judge the generals for themselves. I know they didn't fool the soldiers who turned out in large numbers voluntarily to talk to me and my fellow commissioners, even as they talked publicly to members of your own committee, at times risking the disapproval of their officers and endangering their own careers to do so.

I have many stories to illustrate this, as I'm sure you have. One that sticks in my mind occurred after the inquiry, just before last Christmas, when a woman showed up unannounced at my front door in London, Ontario with a copy of my book for me to sign. She wanted me to address it to her son, who, she happened to mention, was in the army, and then she said he had served in Somalia. “Are you sure he wants this for Christmas?” I asked. “He agrees with everything you said”, she replied. Then she went on to tell me that the first letter she received from her son in Somalia asked her to send immediately an artist's brush to clean the fine desert sand from his gun and his old hiking boots. He had written to her that the military had sent boots to Somalia in whole sizes only, no half sizes, and as a result many of our soldiers were getting blisters aggravated by heat, dust, and dirt.

I could write another book about the military's failure to look after our soldiers properly in Somalia, elsewhere overseas, and here at home, but now I can just wait for the book you're going to write yourselves.

I have already used the term “accountability” several times, and this will be the theme of my brief analysis and critique of Bill C-25. I don't have the time and I certainly don't have the expertise to provide you with a detailed legal study of the bill, although my two years on the inquiry represented a kind of crash course in law, not to mention the wiles and whims of lawyers. I'm happy to leave many aspects of this complex bill to more competent authorities.

As a general comment, I can say the bill on the whole responds in many respects to many of the concerns we had about the system of military justice. These proposed improvements in our military justice system, if adopted, will make it more contemporary by reflecting the new roles and character of the armed forces, as opposed to an army preparing or involved in major wars.

They will reflect the effect of our Charter of Rights and Freedoms on this specialized sector of our justice system, and in general tend to bring it into the 1990s.

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But there are sections of this legislation that go beyond proposing changes in existing structures to create new structures, specifically the Canadian Forces Military Police Complaints Commission and the Canadian Forces Grievance Board. The complaints commission, as you know, of course, would be a body of up to six civilians appointed by the Governor in Council to receive and investigate complaints about the military police. It would report to the provost marshal and would be within the chain of command within the military.

The grievance board would be outside the chain of command, in contrast to the current grievance system in which members of the armed forces can take a grievance only to successively superior levels within their own chain of command.

Both these new structures are designed to increase accountability within the armed forces and represent improvements on the current system as far as they go. In my view, that's not far enough.

During our inquiry we spent a great deal of time, in public hearings and in discussions among ourselves, establishing clear and coherent principles and systems of accountability and workable definitions of responsibility, supervision and delegation, sanction, and knowledge. This reflected our growing awareness of efforts made by senior officers in Somalia and Canada and officials at National Defence Headquarters to avoid accountability and avoid taking responsibility; efforts that started in Somalia as soon as things went wrong and that persisted in Ottawa throughout the inquiry and continue up to this day.

Let me quickly summarize some of the problems as we saw them. We found that official reporting and record-keeping requirements, policies, and practices throughout the armed forces and the department were ineffective and open to abuse. We had trouble getting documentation and even discovering, in some cases, whether documentation had been lost, deliberately destroyed, or never recorded. Sloppy record keeping invites evasion of accountability.

We discovered blatant attempts to avoid disclosure of information required by access to information legislation, an integral part of public accountability. We found that current mechanisms of internal audit and program review, the responsibility of the chief of review services, are, in the words of the report “shrouded in secrecy”.

CRS reports need not be publicized and their fate can be determined by the Chief of the Defence Staff or the deputy minister, to whom the CRS reports. The CRS has no ability to initiate investigations, and no mechanism exists for follow-up or independent assessment of CRS reports or their recommendations for change. We stated that mechanisms for parliamentary oversight of the department and the military high command are ineffective.

These and other findings and concerns led us to propose the creation of a new office, the Inspector General of Canadian Forces, incorporating the roles of military inspector and ombudsperson. The important things to note about this position are it would be appointed by the Governor in Council; it would be filled by a civilian; it would stand outside the chain of command; and it would have the power to initiate investigations, not merely to respond to allegations of injustice or misconduct. It's not a very radical idea. The armed forces of the U.S. have benefited for some years from just such a position.

It seemed to us that by adopting this recommendation, Canada's senior military leaders could have signified a real change of heart. Instead of appearing to be reluctantly dragged into modern systems of accountability, they could have appeared to welcome reform by stating unequivocally that the era of hiding information and avoiding accountability had ended. Unfortunately, the opposite message was sent out when this was one of the first recommendations to be rejected by the military.

Their response was that they could not function effectively with someone constantly looking over their shoulders, although I'm sure many Canadians like myself wondered why not. Most of us are accountable in our jobs to some kind of inspection and independent assessment. Why should the military be different?

I think an opportunity was lost when the military and the government drew back from a full system of accountability and opted for a more limited forum. Some would argue this was better than nothing, but I said publicly at the time that perhaps it was more dangerous in the sense that it tried to create the illusion of full accountability, when what was being proposed in fact was quite different.

Finally, let me say in closing—and perhaps to anticipate questions some of you might have about the recent ruling by Madam Justice Reed in the challenge to our report by Lieutenant Colonel Morneault—this issue of accountability is still very much alive as far as the Somalia inquiry is concerned. It was left hanging in the air to some extent when our inquiry had the disgraceful distinction—not our disgrace—of being the first major inquiry or royal commission in Canadian history that was not allowed to complete its mandate. This unprecedented decision continues to affect actions being taken in the courts by former and serving senior officers to discredit the inquiry, its findings, and the reputations of the commissioners.

• 1125

One result of the government's decision to close us down is that the government now finds itself in a serious conflict of interest when it comes to defending our report against these challenges. In effect, my work and the work of the other commissioners is now being defended in court by a government that has previously proclaimed itself to be dissatisfied with that work, so dissatisfied that it cut it short.

Under these circumstances, I have serious doubts that I am being defended adequately as my work is challenged in the courts. I can't speak for the other commissioners. And those doubts certainly haven't been dispelled by the manner in which the Morneault challenge has been handled so far.

At the very least and as a matter of fairness, not to say common courtesy, I would expect that I would be kept personally informed of the progress of these cases and that I would be given an opportunity to provide some input into my own defence. This has not happened. I have been left to learn after the fact from the media about judgments affecting my reputation.

I have not been asked personally to suggest experienced former counsel for the inquiry who could represent my interests adequately. In fact I have learned that counsel whom I would have designated have been deliberately excluded from the process. And I continue to be excluded from any discussion of an appeal of Madam Justice Reed's decision, a matter, as I said, in which I have an obvious stake.

I would appeal to members of this committee, not just as a former commissioner but as a citizen whose basic rights are now being violated, to assist me by protesting a clear miscarriage of justice. As far as I'm concerned, this mess is the direct result of persistent attempts to avoid accountability before our inquiry by senior officers and officials at National Defence Headquarters. It's all part of the same sad story, and unfortunately it's still far from over.

Thank you very much, Mr. Chair.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Desbarats, for your comments and thoughts. We will open the questioning.

[Translation]

Madam Venne, you have 10 minutes.

Ms. Pierrette Venne: Good morning, Mr. Desbarats. Here is my question. Do you think that enough attention was paid to the recommendations of the Inquiry Commission on Somalia about military justice? I am thinking, among other things, about the general inspector that you alluded to. As for judges, you recommended that they be civilians and you took position on the duration of their mandate. You recommended that their term instead of being of five years, last until they retire. I'm also thinking about turning to counsel in the case of summary proceedings. These are a few examples of recommendations that the government did not incorporate in the bill.

Excluding the elements I have just mentioned and that were set aside, do you think that the government still paid enough attention to the recommendations of the Inquiry Commission on Somalia?

[English]

Mr. Peter Desbarats: I suppose there is a simple answer to that, which is we worked long and hard and thought a great deal about the recommendations we were making in the report. We felt the recommendations contained in the report represented our view of how the system of military justice, including military police, military courts, and so forth, could be reformed.

Over the last couple of weeks, since I knew I was appearing before this committee, I read back over some of those sections in the report, because it's amazing how quickly you tend to forget. It's almost a year now since we worked on the report, and I've moved on to other things.

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I also read the excellent summary of the bill prepared by the parliamentary research branch, which, as you know, points out what parts of the new bill follow recommendations in our report, what parts are taken from the Dickson report, and so forth.

As I said in my own comments, I didn't really feel at this point, without spending a great deal of time studying the bill, that I could go over it and make the same kind of detailed analysis myself. I would be hesitant to do that without the kind of legal background the other two commissioners and some of the excellent lawyers we had working with us had. I think I served a useful role on the inquiry, but not in the area of legal expertise.

So the short answer to that is I would of course support the recommendations as they were made in our report, and the bill does not follow those recommendations in every detail. I'm quite prepared this morning, if you want—but I don't think it would serve any great purpose—to review with you those sections of the report. But as I said, in the usual fashion of these things, the government has moved some distance towards implementing in some cases the exact recommendation and in some cases the principle behind the recommendation. So there definitely has been an advance.

I've worked on other inquiries and royal commissions, not in the same capacity as a commissioner, but as a researcher and a staff member in one case, most of them dealing with the media. I'm a veteran of commissions and inquiries where none of the recommendations are adopted by the government. That was certainly true of the newspaper commission I worked on in the early 1980s.

I think the minister himself said, shortly after the report came out, that by his own calculation, the government had adopted 80% of the recommendations. I said at that time that must be some sort of record for royal commissions in this country.

We don't live in a perfect world. I'm not completely happy with the fact that they didn't move fully to implement our recommendations in those areas, but of course it represents progress, yes.

[Translation]

Ms. Pierrette Venne: Thank you. That's all, Mr. Chairman.

[English]

The Vice-Chairman (Mr. Bob Wood): Mr. Proud and then Mr. Price.

Mr. George Proud: Thank you, Mr. Chairman.

Thank you, Mr. Desbarats, for appearing here this morning. You said, as I understood it, that you have gone through the bill. You have a pretty good idea of everything in it, I suspect, from your review of it.

Mr. Peter Desbarats: I wasn't supplied, Mr. Proud, with a copy of the legislation itself, so I relied on the summary that was prepared, which seems to be fairly exhaustive.

Mr. George Proud: They're the most extensive amendments to the national act since 1950.

You stated that the government's desire for reform within the Canadian Forces, as has been talked about, will be measured in part by the response to the commission's recommendations to remove the military police from the direct military chain of command.

As recommended by Chief Justice Dickson and his special advisory group, the NIS, the National Investigation Service, has now been set up to investigate serious and sensitive charges, and it is not responsible to the operational chain of command. The NIS has independent authority to lay charges and gets independent legal advice from the director of military prosecutions. Bill C-25 provides for a professional code of conduct for military police and will establish an independent and external Military Police Complaints Commission.

Would you agree that these changes provide sufficient assurance of the integrity and professionalism of military police investigations?

Mr. Peter Desbarats: Which clause of the bill deals with the NIS? I'd like to, if I could, be referred to the section of the summary I have that deals with that.

Mr. George Proud: It's up and running now. It's not in the bill. It's been since September of last year.

Mr. Peter Desbarats: Right. I'm not familiar enough with that particular development to comment on it with any kind of authority.

Mr. George Proud: If I might, I'll go on to talk about the oversight and review, which was talked about earlier here today.

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The minister has set up three ways to do this: first, by striving to strengthen cooperation with existing oversight bodies; second, by establishing new and specialized bodies; and third, by substantially increasing annual and public reporting. In short, there will be more specialized review mechanisms tailored to these areas.

Would you agree the government has covered all bases in this? I guess my question would be, what would be left to an inspector general with this oversight in view, including this Parliament itself?

Mr. Peter Desbarats: This oversight body is a civilian body that the minister announced some time ago. I can't remember the composition of that body. Is that the one Laurier LaPierre was appointed to?

Mr. George Proud: Yes.

Mr. Peter Desbarats: Right.

Frankly I wasn't particularly impressed by the appointment of that oversight body. These people are appointed, I would assume, by the minister. I'm not familiar exactly with the kind of tenure they have in office.

My superficial impression, just from reading the media reports about the appointment of that body and from my own experience, would be that bodies like that tend to be only as good as the information they receive, and the information they receive reflects their ability to ask for the right kind of information and to know what is going on.

So it seems to me that body in fact would be dependent to a great extent on the information they actually receive from the military and would not function as an independent oversight body that in effect would initiate its own investigations. I don't know what kind of staff that body has; I suspect it's going to be very little.

I suspect that what that body may end up being is a kind of advisory committee in a sense. In the university milieu, I have had experience with advisory committees that don't do anything very much. I had my own advisory committees over the years at the Graduate School of Journalism at Western, and it would have been very easy to dominate those advisory committees, because as dean I controlled the information they received.

So I suspect there's a real danger that that committee could end up like that, and that is not at all what we had envisioned when we recommended the appointment of an inspector general. The key element, or one of the key elements, in that position was that the person who filled the role of inspector general would have adequate staff but would also be able to initiate investigations and would have complete access to all information or records that office required. That's significantly different from the kind of committee the minister has appointed. I didn't regard that as a substitute at all for the inspector general's office.

Mr. George Proud: You seemed kind of dismayed when you said you assume it was appointed by the minister. Who would it have been appointed by if it hadn't been appointed by the minister?

Mr. Peter Desbarats: Well, I suppose if you wanted to make it even less effective, perhaps you could have it appointed by the Chief of the Defence Staff.

Mr. George Proud: Why would it not be effective if appointed by the minister? Ultimately he's the one who takes the full responsibility.

Mr. Peter Desbarats: Yes, that's probably where the appointment has to come from. I followed up that comment by saying I was also unfamiliar with what kind of tenure or security of appointment this body would have.

But I'm not focusing primarily on the appointment procedure. I'm focusing primarily on what kind of staff and what kind of power and authority that body would have.

Mr. George Proud: I'm assuming they're going to have the authority and the people to back them up. It would be rather artificial to set an organization up like this. Hopefully that isn't the case and it would be— I would think that group, and the many groups there are, would give a pretty good overview and review of what is needed. But I suppose we could argue that all day.

Mr. Peter Desbarats: Well, I think, Mr. Proud, you're a little more optimistic than I am.

First of all, I haven't read anything in the media that indicates to me what kind of staff, if any, that body is going to have. In the worst case, that body would have an executive assistant of some kind attached to it, that body would meet perhaps three or four times a year in Ottawa, they would get together and read a bundle of reports presented to them by the military, they would put some kind of rubber stamp of approval on them, and then go home. I certainly hope it doesn't end up as that kind of body, but there's a distinct risk that it might, and I haven't read anything to the contrary.

• 1140

Mr. George Proud: The bill itself addresses this. There are several pages on the authority and on the investigative powers it does have. So I think, although I don't know what others think, there's pretty broad coverage of that. It will be reported to Parliament, as these things are.

Personally, I think it does a pretty good job of that.

Thank you very much.

The Vice-Chairman (Mr. Bob Wood): Okay.

Mr. Price, followed by Mr. O'Reilly.

Mr. David Price: Thank you, Mr. Chairman.

First of all, welcome to the committee, Mr. Desbarats. We're very happy to have you here.

I'll start off by following up a little bit on Madam Venne's questions. Most of this bill, it seems, has come out of the Dickson advisory group studying military justice. They did the report in the period of January to March, which means we're talking only a couple of months, whereas the Somalia commission sat for two years, and many of your recommendations, of course, are not in this bill. As Madam Venne mentioned, the two rather important ones are the inspector general and the civilian JAG.

It's my understanding—in fact, more than my understanding—that the commissioners continue to be fearful that the military is not, and feels that it need not, be responsible to civilian authority. One of your confrères, Justice Rutherford, spoke about two months ago to the Royal Canadian Military Institute. It was a closed session, but he did allude very strongly to the fact that he had, I think, the same feelings you have.

When we talked to the minister about an inspector general, his comment was that generals can't function with someone looking over their shoulders. I have here a response that you made to that.

You said:

    Why not? Isn't the whole principle of civilian control in the military in a democratic society based on the idea of someone looking over the generals' shoulders?

That someone, I would imagine, would be Parliament. Can you comment on that?

Mr. Peter Desbarats: I did comment on it in the opening statement.

Mr. David Price: Yes, but—

Mr. Peter Desbarats: I have a rather jaundiced view—understandably, I think—of the Dickson report and some of the other reports the minister commissioned at that time. If my recollection is correct, these reports were commissioned at or around the time the minister had already either announced, or had clearly indicated, that he was going to cut short our inquiry. They were designed to cover the same ground our inquiry was covering. They did it in a much shorter time period, in a much more superficial fashion, in my view, and in some cases, the first thing they did was come to us to try to get hold of the research we had done and that was going into our own report.

So I regarded the creation of those other studies as highly political in motivation. As I said, I have a rather jaundiced view of those. That doesn't mean I don't think the findings in some cases were useful. In many cases, they paralleled ours. But the principle that runs all through our report is this one of accountability—accountability to society, accountability to society through Parliament.

Our clear finding during the inquiry was that one of the major problems that led to Somalia was lack of accountability in many areas, and that the system was very much a closed system, in fact. The fact that it was a closed system was clearly evident in many ways by the demeanour of some of the senior officers who appeared before us and who seemed to resent the fact that we, representing the people of Canada, dared to inquire about what they were doing and dared to ask them to explain and to justify.

In that sense, we were very responsive, I think, to suggestions as they emerged that civilian control of the military should be strengthened. We saw the creation of the inspector general's office as a key sign that this would be happening. Unfortunately, that's been watered down in the bill.

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Mr. David Price: One of the parts of it that I think I looked at the closest was chapter 44, the need for a vigilant Parliament. I think that was a very important part, and in fact I asked the committee here to have the three commissioners come before us. Unfortunately they voted the idea down.

The military does have to be more accountable to the public, and as far as I'm concerned Parliament is the way to do that, and I think that's exactly what you were aiming at in 44.

Could you maybe comment on Parliament's role, what it could be and should be and whether it should include a permanent joint committee that includes the Senate? What would your feelings be on that?

Mr. Peter Desbarats: I think anything that strengthens civilian oversight of the military is productive. As you indicated, and as I indicated, I have a hard time not necessarily understanding but sympathizing with the military's suspicion of that kind of oversight. I think it can add credibility to the military, in fact. Obviously, the military, particularly in wartime, has certain secrets that can't be divulged, but that's not true for most of the military activities in our case. I think the creation of a permanent joint committee such as the one you suggested would be a very effective mechanism of ensuring regular and close civilian scrutiny of the armed forces. That's certainly been a great lack in the past.

Mr. David Price: I read an interesting comment yesterday from Justice Dickson regarding the inspector general. After the study, they found that the inspector general wasn't needed. But he did say that maybe five years from now, maybe down the road, it's something that could be changed. He went in the direction that it probably wasn't needed at this point because of numbers, because we've downsized so much. But I'm not totally comfortable with that argument. I'm wondering if you'd like to comment on that.

Mr. Peter Desbarats: I'm not aware, apart from what you say, of what Judge Dickson said, but if it's a good idea four or five years down the road, why isn't it a good idea today? I think the principle is either valid today or it's not valid. I don't think it has anything to do with the downsizing. The military is still a very significant organization, a large organization, and the principle of civilian oversight isn't affected by taking 10,000 or 15,000 men out of the army or adding 10,000 or 15,000 in at some point. I don't think that's a relevant issue.

Mr. David Price: Maybe we can talk about the JAG and military judges. Your recommendation was for a civilian JAG, and I asked Justice Dickson yesterday if he thought your conclusion had been totally ignored. I'm wondering how you feel it is being addressed in this bill. Is it just being totally ignored, or is there a way that they're working around it that you might be a little bit comfortable with? Or do you feel it's going in the right direction at all?

Mr. Peter Desbarats: I think it's being essentially ignored. The recommendation in our report was that the JAG office itself should be eliminated, as I recall, and replaced with other structures, and that obviously hasn't been followed. We would certainly have been in favour of at least the possibility of a civilian appointee to that position and no requirement that the JAG would hold military rank. That hasn't been followed. I of course feel that our initial suggestion is a good suggestion in principle, and I'm not particularly happy that it hasn't been adopted.

Mr. David Price: Your feeling was, I imagine, that the JAGs couldn't be military because the military will tend to protect themselves.

Mr. Peter Desbarats: It's related to this general principle of openness and independence in the structures from the high command.

We saw a number of instances at the inquiry where the fact that the military police and the JAG are part of the command structure, and the JAG in particular is part of policy discussions sometimes, meant there are obvious possibilities for conflict of interest.

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The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Desbarats. Thank you, Mr. Price.

We move to Mr. O'Reilly, followed by Mr. Richardson.

Mr. John O'Reilly: Thank you very much, Mr. Chairman. Thank you, Mr. Desbarats, for appearing before us. You indicated that you didn't have a copy of the bill, so I was trying to do some analysis as to how you could compare this bill to the Somalia inquiry and whether it in fact mirrors the Somalia inquiry recommendations.

In the summary, there is some commentary at the back that says the Somalia inquiry and the Dickson panel recommended certain things and that this bill mirrors it. In that part of it I find it a little tough to have your analysis as to whether it actually does or doesn't mirror in certain areas. I've been told that some of the reasons for not adopting parts of the Somalia recommendations were legal in context. I would guess that—

Mr. Peter Desbarats: Mr. O'Reilly, if I could comment on that, I did read the summary quite carefully. The summary itself runs to 47 pages, and there is the comparison between the Dickson panel and our inquiry at the very end, dealing with just one section of the bill. But throughout the summary there are constant references to the inquiry and to the Dickson report and constant indications as to what sections of the bill follow the recommendations of the inquiry or Dickson report and what sections don't follow recommendations of the inquiry or Dickson report, and in some cases both. It seemed to me that the summary in fact was a fairly good guide to the way the people who drafted Bill C-25 were guided or not guided by our own inquiry.

Mr. John O'Reilly: In the Somalia inquiry it became an extremely hostile attack on the top people in the military.

Mr. Peter Desbarats: I don't accept that, Mr. O'Reilly.

Mr. John O'Reilly: That was my interpretation.

Mr. Peter Desbarats: We were handed very detailed terms of reference by the government. We had to cover the ground that was listed in those terms of reference. Like any inquiry, in doing that, we had to examine senior officers. That's what we did.

Mr. John O'Reilly: It appeared in my estimation, and from the letters I received from constituents of mine, that it was hostile, but that is an interpretation.

You started out your presentation by saying that most of the people at the top in the military were incompetent and that they bred incompetence by hiring people who were stupid. Rot at the top, I think you called it.

Mr. Peter Desbarats: I think that's a fair characterization of what I said.

Mr. John O'Reilly: We had many people appear before this commission, and it appears that everyone who retires from the military in a high post or a senior command develops a conscience at the first pension cheque.

Mr. Peter Desbarats: I think the first pension cheque actually waits for a little while or sometimes arrives in conjunction with the first cheque from a military contractor.

Mr. John O'Reilly: However, in analysing and trying to get information from senior retired military people, some of them would actually say they should have done certain things when they were in that position but they didn't, and that if they had to do it over again they would have done it differently. As I said, that conscience at the first cheque coming in seemed to be evident in what we have heard. So I appreciate your remarks.

In some of the operational changes, do you feel the structure would actually have two systems, one when you're at home and one when you're in an operational field? Have you analysed that as to how the military can operate in a place like Somalia differently from how they would operate when they're not in an operational theatre? Was there any thought given to that?

• 1155

I read your Somalia inquiry report. I didn't agree with it being cut off. That's a strange thing for someone on the government side to say, but I felt that it should have had a longer time and covered some of those areas.

I find that there seem to be two sets of rules in the military, one for peacetime at home and others for when you're in an operation.

Mr. Peter Desbarats: Of course, one of the things that was wrong was the fact that quite often there weren't clearly defined rules for operating in the field. We were surprised to find that when the Somalia mission was being prepared, people were scrambling around looking for reference material on basic things like the rules of engagement. We thought that after all these years of peacekeeping there would be some sort of manual and procedure that you would follow, and yet every mission seemed to be put together almost from scratch. I think that in fact is starting to change.

I don't think there's a clear division between problems that occurred in Canada and problems that occurred in Somalia. In our report, we saw one contributing to the other. We spent a great deal of time, as you know, looking at problems within the airborne regiment during training and recruiting, when the regiment was being put together and selected. We looked at problems of command and supervision during the training period. We related those directly to what happened in Somalia.

One of my overall conclusions, of course, from the Somalia affair is that it should have been, as I said, so easily preventable with almost a minimum of good management. I won't go into great detail on this, but after all, the Canadian Forces in Somalia were posted to a very peaceful sector. It was a sector in which international aid was being distributed before the soldiers arrived. Not one Canadian soldier was killed or even wounded by hostile fire in Somalia. There were very unpleasant conditions, admittedly, as it was hot and dusty and so forth, but all they had to do was establish themselves on the ground in Somalia, look after themselves, look after their own property, and patrol a relatively peaceful sector. There was always the possibility that it might not be peaceful sometime in the future, but that in fact didn't happen. But our army wasn't able to do that. They weren't able to look after themselves.

In any third world country you're going to have problems with pilfering and thievery. It's one of the standard problems, and there are standard ways of combating that. You lay out the camp, put up watchtowers, put up lights, build barriers, and surround the camp with protective devices and so forth, but they weren't able to do that.

So what should have been an easily controllable problem—petty thievery—because of a lack of leadership became a major problem and led to unjustified killings. You have to trace that back to problems in the command structure, with the way leaders are trained, and with logistics, which are all problems that initiated back here in NDHQ in Ottawa, which was primarily responsible for this.

The Vice-Chairman (Mr. Bob Wood): Thank you.

We'll go to Mr. Richardson, followed by Mr. Clouthier, and then back to Mr. Price.

Mr. John Richardson: Thank you, Mr. Chairman.

Mr. Desbarats, I listened carefully to your comments about your commission. It was a long, drawn-out commission. It took them many hours longer than we ever expected it to take.

Mr. Peter Desbarats: It was of about an average length and cost for a commission of that nature.

Mr. John Richardson: You're loaded with opinions. You're entitled to them, like any other citizen in this country, but that's all you're entitled to.

Mr. Peter Desbarats: I think it's important. I would refer to an article that the Globe and Mail wrote at the time—

Mr. John Richardson: Wait a minute now. You just said that another commission led by an honourable man, Justice Dickson, as well as General Belzile— You made a comment that was loaded, jaundiced. What kind of—

Mr. Peter Desbarats: I made no reflection on Judge Dickson.

Mr. John Richardson: Oh, wait a minute. Well, that was his report.

Mr. Peter Desbarats: I reflected on the process of appointing that—

Mr. John Richardson: Well, I'll tell you that you certainly didn't leave a very good taste in my mouth from a person who is supposed to be level-headed and fair-minded.

Mr. Peter Desbarats: I'm very fair-minded.

Mr. John Richardson: Well, that's your opinion, I said.

• 1200

Steps have already been taken to enhance the independence of the military justice system by, one, organizing the Office of the Chief Military Trial Judge as an independent unit of the Canadian Forces effective 27 September 1997, and establishing the National Investigation Service effective September 1, 1997, an internal police agency that reports through the provost marshal to the Vice Chief of the Defence Staff, which is independent of the chain of command and, as of November 30, 1997, will have the ability to lay charges. These are all flowing from some of the recommendations from the Somalia inquiry.

Bill C-25 will provide further independence by providing a clear institutional separation between judicial, prosecutorial, defence, and investigative functions of the military justice system. It will set out the responsibility of the chief military judge in the National Defence Act and establish, one, a director of military prosecutions, as appointed by the minister, who will act independently of the chain of command and who will make the final decision on what charges are to be tried by court martial and determine the type of court martial to try the charges under; and two, a director of defence counsel services, as appointed by the minister, who will be solely responsible for providing legal services to persons to be charged and tried under the code of service discipline.

Furthermore, the oversight and review of the military justice system will be provided by amendments to the National Defence Act to establish a Military Police Complaints Commission, which will receive and investigate complaints by any person concerning the conduct of the military police as well as allegations of improper interference by members of the Canadian Forces and senior officials at the Department of National Defence and in military police investigations, provide for a superintendent of administration of military justice in the Canadian Forces by the JAG, provide for an annual public reporting to the House of Commons, the Senate, and the JAG, and establish the Military Police Complaints Commission and the Canadian Forces Grievance Board.

Most of these things flow directly from the suggestions by the Somalia committee. On top of that, there's the Dickson report on the revision of the Queen's Regulations and Orders and the National Defence Act, which streamlines and amends, where possible, the justice system within the military. That was another thing that was recommended by your commission.

Don't you believe that this bill is incorporating a large number—I have more and more to read out here—of things that flow directly from the Somali inquiry? Do you think this Bill C-25 still has some inherent weakness because an inspector general wasn't in it? Certainly there are inspector generals in the armies of the world, but they're not in every army, so the argument is one or the other. So you can't base it on the fact that because the Americans have it, it's perfect. Take any other country. I think the Germans were the first ones to have one back in the 1950s. So I think that a lot of due deference was given to the Somali inquiry recommendations, and these were incorporated in this bill.

Mr. Peter Desbarats: You're absolutely right, Mr. Richardson. I tried to indicate that. I'm happy, in fact, that much of the work that we did on the Somali inquiry is reflected in the bill. Some of the various elements you mentioned in the bill either are identical with or certainly were influenced by structures that we recommended in the inquiry. In that sense, I'm quite proud of the fact that I served on a commission that was so useful to the government. In fact, I think that was perhaps another reason why we should have been allowed to be even more useful by being able to complete what we had done.

But that doesn't make me feel completely satisfied with the bill, obviously, because I think there are some important omissions. I said from the beginning, when the government first indicated what its response to the bill was and rejected the idea of an inspector general, that I felt that was an important omission from the bill.

I think there are other areas where the bill certainly does not follow exactly the kind of structures we laid out. I think in our own recommendations—I'd have to refer to the report to verify this—we had recommended, for instance, that the director of military police should report to the Solicitor General rather than to the Chief of the Defence Staff.

There were other areas like that where we were intent on opening the door a little bit more and providing accountability outside the system, but the government has drawn back, to some extent, from following those recommendations fully.

• 1205

So, no, I'm not completely happy with the bill, but I'm not saying it doesn't represent substantial improvement over the present system.

The Vice-Chairman (Mr. Bob Wood): Thank you.

Mr. Clouthier.

Mr. Hec Clouthier (Renfrew—Nipissing—Pembroke, Lib.): Mr. Desbarats, in your opening statement you made a rather damning assessment of, I guess, the chain of command in the Canadian military. I believe the words were “the higher the rank, the poorer the quality”.

We as a committee have interviewed and have spoken to everyone from generals to privates. Far be it from me to defend the upper echelons of the Canadian military, but for you to indicate that there seems to be cronyism at play and that the better people are not promoted because they're not so-called pals with their superiors— I'd be a little upset if I were some of the upper echelons of the Canadian military.

Granted that some of them have had a veritable epiphany after they retired, but I guess it's a lot easier in most instances, not just in this particular instance but in life, to look back and say, well, perhaps we should have done things differently. But when you're in the venue or you're doing something, perhaps it doesn't occur to you.

I disagree with you in that regard. It's kind of a broad brush with which to be painting the upper echelons of the Canadian military. If they were that bad, I don't know how we would be accepted worldwide as one of the best military-led countries throughout the world.

Mr. Peter Desbarats: This is a bit of an illusion sometimes. I was surprised, in fact, during the course of the inquiry when I came across a report on peacekeeping in Central America. I'm afraid I can't recall the name of the former senior Canadian military officer who had done this report, and I can't remember the exact country in which the peacekeeping operations had taken place, but this was a report that was in fact very critical of the record of Canadian peacekeepers in that particular operation. It ranked us down near the bottom of nations that had been involved in that particular operation.

I could give you the reference if I had time to look for it, but—

Mr. Hec Clouthier: Anybody can bring up a singular report and say— I can probably find some on the other side of the coin, probably more, that say, listen, the Canadian military is very highly respected and well thought of throughout the world.

I just want to make that point, that I believe it was kind of a broad-brush statement, a generalized statement.

Mr. Peter Desbarats: It comes out of the two years I spent with senior military officers on the stand in front of us, in many cases uncooperative, playing around with the truth in some cases, resenting the fact that they were being called to account. I contrasted that with the men and the junior officers that we met in the camps, the same kinds of people you've been talking with over the months, who I found extremely impressive in many cases and dedicated to a kind of military ideal that didn't seem to exist, or certainly existed in a very weak form at the top.

We heard continually that the traditional military officer, the traditional ideal of a military officer, was someone who put himself or herself ahead of the men or women serving under them. The officer ate last, after the men had been fed—I think that was said to us dozens of times.

Yet what was actually happening in Somalia was exactly the reverse. The senior officers in Ottawa were intent on—“careerism” is the word that has been used—promotion, pensions, salaries, ranking, and so forth, and tended to forget about the interests of the men and women who served under them.

From the media reports I've read, in fact your committee, travelling across the country, has seen the results of that. Don't you think that is a commentary on the leadership of the people who've been appearing before you?

Mr. Hec Clouthier: Mr. Desbarats, I come more from the field of business than politics, and one thing that has continuously irked me in the public realm is that when things don't go according to your perspective of the way things should go, people in general want to lay the responsibility on someone else.

I move ahead to where you did say if they had been adequately led, the Somalia incident would not have happened. But I have difficulty with that, because again, you're painting with a broad brush. You're saying, listen, it's the generals' fault or the colonels' fault that somebody did something untoward to another human being.

• 1210

You're the dean of journalism, I believe you said, or a past dean, for the University of Western Ontario. If one of your students happened to make a mistake or do something wrong, is that then looked upon as Peter Desbarats lacking leadership? I think not. I believe people have to be personally responsible.

Mr. Peter Desbarats: If you're talking about those who were my students at the time that something happened, and that something happened in the course of their role as students, yes, I would certainly be responsible.

Mr. Hec Clouthier: So you would resign and walk away, and take full responsibility. If one of your students went out and robbed a bank, say, it would be your fault.

Mr. Peter Desbarats: No, that's not in the course of being a student. If a soldier on leave goes out and robs a bank, it's not the problem of the senior officers. But if a soldier in the camp is pilfering property, and the senior officer becomes aware of it and doesn't take proper action, that is a responsibility.

So I would have a certain responsibility to students acting as students under my deanship.

Mr. Hec Clouthier: So the student then can just pass off the responsibility for whatever he or she does and say, “It's all Peter Desbarats's fault”. Even if you didn't know that particular student at the University of Western Ontario, if they wrote some kind of scandalous article in some local paper, it would be all your fault.

Mr. Peter Desbarats: If the rules weren't clear, if they hadn't been explained to the student, and if the rules weren't correct, yes, it might be partly my fault. That was exactly the situation in Somalia. The rules weren't clear.

Mr. Hec Clouthier: Well, I believe the rules were clear in Somalia.

Mr. Peter Desbarats: No, they weren't.

Mr. Hec Clouthier: I believe the rules were clear. They just said you don't go and kill someone. Right?

Mr. Peter Desbarats: The soldiers were told at one point in Somalia that it was okay to kill people who were suspected of being thieves even if they weren't caught in the act and even if they weren't caught with stolen goods.

Mr. Hec Clouthier: They were definitely told—

Mr. Peter Desbarats: Yes, absolutely.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Clouthier.

Mr. Hec Clouthier: I'm not done.

The Vice-Chairman (Mr. Bob Wood): You're out of time.

Mr. Price and then Ms. Longfield.

Mr. David Price: Thank you, Mr. Chairman.

You mentioned the case of Lieutenant Colonel Morneault, who sought an order to quash the findings made against him in the commission. The courts found that your comments against him were invalid.

In your opinion, would you say this is the government again trying to quash things as far as the findings in Somalia, trying to bottom things out?

Mr. Peter Desbarats: I think there's no doubt that the government in this instance is in a direct conflict-of-interest position. The government that publicly criticized the inquiry, and had so little faith in the inquiry that it cut it short, is now placed in the position of defending the inquiry. The evidence so far, as far as I'm concerned, is that this defence is not being handled properly, and in fact is being handled ineptly.

My understanding in, for instance, the Morneault case, is that Colonel Morneault submitted an affidavit running to something like 87 pages. The government didn't respond to that with an affidavit at all but relied simply on a presentation made during the hearing in court, a presentation made by a lawyer for the Department of Justice who was not as intimately acquainted with the file as he might have been.

My understanding is that there had been an agreement, in fact, that one of the commission lawyers who understood the file in detail would play a vital role in that case, when in fact that lawyer only read in the media about the fact that the case had been heard and the decision rendered, and was not called on.

I'm also concerned about the fact— I think there should have been some consultation with me as these things progressed. It's not just the commission report that's at stake; my reputation, in a sense, is also being assailed in these actions.

There now is no entity as the commission, as such, but simply three former commissioners. In fact, there's no legal entity as the commission at all. As I discovered during the course of the inquiry, there are three commissioners appointed independently and in their own right. One happens to be named the chair. In fact, it's not even adequate, in dealing with this, for the government to consult with the former chair. I think the government has to consult with all the commissioners who were intimately involved.

I've had absolutely no consultation. I read about the results of the trial in the media. I think that's outrageous.

• 1215

Now the government is trying to decide whether to appeal that particular ruling. I haven't received a copy of the judgment from the government. I've received no communication from the government, and that decision whether or not to appeal is being made in complete isolation from me, while I am intimately involved and affected by that process. It's not right.

Mr. David Price: It looks like it's going to be ignored, basically. If that happens, though, I guess we'll see Colonel Labbé end in up in a general's uniform pretty soon?

Mr. Peter Desbarats: I don't know. I don't think we've seen the end of the controversy that I'm opening up today, in that sense. I'm just speaking for myself, but I think the other commissioners are also extremely upset about this.

Mr. David Price: Just to follow up on what Mr. O'Reilly was talking about, the Dickson commission concluded that the military justice system must work in both peacetime and war. Could you comment on whether you feel the bill does address this?

Mr. Peter Desbarats: I think it recognizes the fact that since the Second World War, we haven't been caught up in a massive global war situation. A symbolic recognition of that fact in the bill, I suppose, is the abolition of the death penalty, which is long overdue.

Mr. David Price: We're getting closer to a civil law system, and also getting closer, of course, to our—

Mr. Peter Desbarats: Reorganizing the whole process, yes. That's right.

Mr. David Price: Do you agree with that in the sense of how we see ourselves, as Mr. O'Reilly mentioned, where we have one situation dealing with activities in Canada, let's say, and another situation where they are dealing with situations in-theatre? Do you agree that the rules should be the same?

Mr. Peter Desbarats: Largely yes, I think, in principle. I think the progress that has been made in the current bill reflects the reality of today's military, yes, and not yesterday's.

The Vice-Chairman (Mr. Bob Wood): Thank you, Mr. Price. We'll go to Ms. Longfield, and then one last question to Mr. Clouthier.

Mrs. Judi Longfield (Whitby—Ajax, Lib.): Thank you.

Thank you, Mr. Desbarats. I certainly appreciate your coming here today, and a number of the questions that I had have already been put to you. But I want to get back to—and I don't want to put words in your mouth, but is it fair to suggest that you're measuring government's acting on reform to be separating military justice from the chain of command? Is that a fair assessment—that you would judge how well we were responding?

Mr. Peter Desbarats: Yes; as much as possible, yes.

Mrs. Judi Longfield: Okay. I want to then ask you about some of the things we've done that we feel have tried to address it, albeit not exactly in the way in which you had recommended.

My understanding is that one of your greatest—irritants is probably not the right word, but disappointments, is that there wasn't the appointment of the inspector general, specifically because you had envisioned that the inspector general would have the ability to initiate.

Mr. Peter Desbarats: Yes.

Mrs. Judi Longfield: Okay.

The NIS, which is already up and operating as a result of suggestions made by Dickson and the other advisory group, has been given independent authority. It doesn't report directly to the chain of command, and it does have the ability to initiate and lay charges. Does that in, your opinion, go somewhat towards your view that there should be the ability to initiate charges outside the chain of command?

Mr. Peter Desbarats: I'm afraid I'm really not familiar enough with all the details about the NIS to give an informed answer to that question. Who does it report to?

Mrs. Judi Longfield: It's independent. To my understanding, it reports right to the minister, but I'd have to get more information. I guess I'm not familiar enough with the NIS. I hoped that you were. Perhaps if we both find out some information, if you find out what it is supposed to be doing and whether it in some way addresses the concerns— because I'm led to believe that it does, so I would like—

It responds to the VCDS, I am told.

Mr. Peter Desbarats: Well, then it's within the chain of command.

Mrs. Judi Longfield: But that would be above the operational chain of command.

Mr. Peter Desbarats: It doesn't resemble the proposed office of inspector general in that very important sense.

Mrs. Judi Longfield: All right. Thanks for that.

• 1220

Now we come to the JAG. Currently the JAG answers to the Chief of the Defence Staff, and under the proposed amendments he would answer to the Minister of National Defence. In that in your opinion—

Mr. Peter Desbarats: I think that's an improvement, yes.

Mrs. Judi Longfield: Okay. A previous witness thought we should spell out even more clearly that the JAG did not— I think now it just says it reports to the Minister of National Defence, but they wanted it to say that in no way was he reporting to the CDS or the deputy minister. Would you like to see it spelled out in those terms or is it sufficient under the current—

Mr. Peter Desbarats: Well, I haven't thought a great deal about that particular aspect. It sounds to me like the principle of reinforcing reporting to the minister, rather than within the chain of command, is a good principle for them to follow, yes.

Mrs. Judi Longfield: Dr. Bland also suggested that we should spell out very clearly in perhaps the bill the duties of the deputy minister.

Mr. Peter Desbarats: Yes. We discussed that a lot in the inquiry, particularly with Doug Bland, who as you know is one of our advisers—and a very valuable one. We discussed a great deal the confusion in roles and responsibility between the Chief of the Defence Staff and the deputy minister. I think there's been some progress made since our report came out in trying to disentangle those. For instance, I think that when they now sign orders they don't necessarily sign jointly but they sign individually. It certainly appeared to us that there was an overlap and confusion of responsibility right at the top of the system, and this spread confusion throughout.

So I would probably agree very much with what Doug Bland said. He made a lot of sense to us.

Mrs. Judi Longfield: But do you think it needs to be spelled out in the bill, or could it be spelled out elsewhere?

Mr. Peter Desbarats: I think it would probably be more effective to spell it out in the bill. I think, dealing with positions at that level, it wouldn't be inappropriate to cover it in legislation.

Mrs. Judi Longfield: Do you also believe, then, as Dr. Bland indicated, that we should spell out very clearly what the vice chief's role would be if the CDS is absent? I think he suggested when the CDS is incapacitated or under temporary direction.

Mr. Peter Desbarats: I think the whole concept of accurate job descriptions in that sense at those levels is important, and when we were looking at some of these positions we felt there was certainly confusion about that. Now, how far down the line you want to go in putting exact job descriptions inside the bill I'm not too sure. Once you start dropping down from the very top positions, you may want to put it in regulations someplace. So I really can't say where the cut-off point is.

Mrs. Judi Longfield: Thank you.

The Vice-Chairman (Mr. Bob Wood): Mr. Clouthier, one last question.

Mr. Hec Clouthier: Mr. Desbarats, the question I was going to ask you I'm not going to ask you now, because Judi brought up Doug Bland's name. This morning Doug said that ultimately the responsibility should rest with the parliamentarians—we, the elected members of Parliament. You also brought into the conversation this morning— you said you thought the most important thing was the accountability. Now, do you agree with me that this committee, made up of parliamentarians from all parties, ultimately will have the accountability when we submit this Bill C-25 because we have to answer to the electors?

Take yourself, for instance, Mr. Desbarats, and the other two Somalia commissioners. There's a dichotomy between your thought and my thought on this. I may be a little biased, but my preference would have been for this committee to host the Somalia inquiry because ultimately we are accountable to the Canadian people, whereas ultimately Peter Desbarats is accountable to Peter Desbarats because you don't have to fight another election.

So I don't know if you agree with me that perhaps at the end of the day a committee such as this should have been conducting the Somalia inquiry or other inquiries. For all intents and purposes, I guess, that is basically— In one way, what we're doing is going around the country, getting depositions from all levels of the military. We're going to submit the report, and there's certainly going to be a differentiation of opinion perhaps again between ourselves and the members opposite. But ultimately Bill C-25 will be submitted, and we'll be accountable, because if the Canadian public judge that we have made a mistake, well, next election—as we say in the Ottawa Valley vernacular—we're toast.

Mr. Peter Desbarats: I'm in favour of as strong a role for Parliament as possible, yes. But I think there will always be situations that arise that are very hot, difficult—

• 1225

Mr. Hec Clouthier: We're used to that.

Mr. Peter Desbarats: —for parliamentarians to handle sometimes, and where the only device that seems to satisfy both the public and the political process is an independent public inquiry. There are going to be other public inquiries appointed in similar circumstances in future. The appointment of those inquiries is going to be made much more difficult by our experience, but that's a whole other discussion.

Mr. Hec Clouthier: Mr Desbarats, you can't get much more independent of thought than sitting around this table, let me tell you, because we have five political parties involved here. So you certainly get the odd differentiation of opinion.

Mr. Peter Desbarats: I think that if a parliamentary committee can function with sufficient unity and can be supplied with the resources—and they're substantial—to do a thorough inquiry, then that's not an inappropriate forum. But I think those are big “ifs”.

Mr. Hec Clouthier: Good. So you endorse this committee. Fine.

The Vice-Chairman (Mr. Bob Wood): Thank you very much, Mr. Clouthier.

Thank you, Mr. Desbarats, for being with us this morning. We certainly appreciate your candour and your forthright thoughts. We appreciate your being with us.

Mr. Peter Desbarats: The longer I covered politics, the less I wanted to do it.

The Vice-Chairman (Mr. Bob Wood): We'll adjourn. We'll convene again this afternoon in room 536 of the Wellington Building. Thank you.

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