Dr. Ian Holloway (Professor and Dean, Faculty of Law, University of Calgary, As an Individual):
Thank you very much, Mr. Chairman, and thank you, members, for inviting me to speak to you today. I will be happy to answer questions from any of you about any of the provisions of the bill before you.
I thought that probably the most useful thing I could do is tell you a bit about myself and my own perspective on this and then talk about how I see the context of legislation like this.
As the chairman noted, I am currently the dean of law at the University of Calgary; formerly I was the dean of law for 11 years at the University of Western Ontario. I've been a member of the bar for 26 years now, and I hold the rank of Queen's Counsel in Nova Scotia.
Unusually, I think, for someone appearing before you, I also spent 21 years in the Canadian Forces, as we would say in the navy, as a rating, or in today's language, as a non-commissioned member. I had the experience of having been subject to the code of service discipline and to the apparatus of the military justice system for well over half my adult life. Perhaps that gives me a different perspective from that of some of the people you'll hear from who may have military experience but not from the perspective of an enlisted person.
I think my experience in discussing things like this with people whose background is primarily civilian is that the hurdle is not so much in the details but in appreciating the very different social contexts in which the system of military justice exists.
The purpose of a civil society, the society that we all live in, is to maximize freedom, to maximize liberty, to minimize the interference in our personal liberties by the state.
The purpose of military society is to protect civil society. To do that, we Canadians need a body of people who will do unnatural things. When ordered to do so, they will place themselves in harm's way, and when lawfully ordered to do so, will take the lives of other people, from which there is no lawful recourse. If a lawful order is given to take the life of another person, the only alternative for a service person is to comply with that order. To a civilian, that's a very unnatural way of structuring a social organization, but like every society governed by the rule of law, we need that. We need the police to protect us from within and we need the armed forces to protect us from without.
The price we pay for demanding that very unnatural commitment from members of the armed forces is that we have to be willing to accept that their values can be different from ours, not completely, but profoundly in some ways. That is they place a premium on social cohesion and on the maintenance of internal discipline and order that is alien to civilians. When comparing our system of justice, the civilian system of justice, with the military system of justice, it's very easy for us to assume that we're making an apples to apples comparison, when the underlying premise of society, this social organization, is really quite different.
I had a chance to study the bill and in my submission it represents an attempt to draw a balance between the appropriate relevant needs of the military to maintain fighting order and efficiency. Remember, even when the military is engaged in peaceful operations, it's able to accomplish them because it is a fighting force. It's a balance between the need of the military to maintain its effectiveness as a fighting force, a balance of that along with an attempt to, as much as possible, provide service people, people who make a tremendous sacrifice for us, with as much protection and liberty that is consistent with the need to maintain a fighting force.
Mr. Chairman, that's what I'll say by way of opening remarks. As I said at the beginning, I'd be happy to take questions from you or any member of the committee later on.
Mr. Bruno Hamel (Chairperson, Canadian Forces Grievance Board):
Thank you, Mr. Chairman.
Mr. Chair, honourable members, good afternoon.
It is a pleasure to be here with you today to answer your questions concerning the role of the Canadian Forces Grievance Board in the military grievance process, given that there are provisions in Bill C-15 that directly affect us.
I would like to begin by giving you an introduction to the board.
In operation since June 2000, the Canadian Forces Grievance Board is a quasi-judicial tribunal, independent from the Department of National Defence and the Canadian Forces. It is, in effect, the only external component of the Canadian Forces grievance process
Since its creation, the board has earned a reputation as a centre of excellence in analyzing and resolving military grievances. It has developed substantial expertise on a variety of subjects relating to the administration of the affairs of the Canadian Forces. In addition to reviewing individual grievances, our work enables us to identify larger trends and areas of dissatisfaction, which we are then able to share with the senior leadership of the Canadian Forces.
In law, the board is mandated to review the grievances referred to it under the National Defence Act and the Queen's Orders and Regulations for the Canadian Forces.
Operationally, the chairperson is responsible for delegating the work among board members. Once a grievance is assigned to a member, he or she is responsible for the review of the file, as a sole member. Upon completing the review of the grievance, the board member simultaneously submits findings and recommendations to the Chief of the Defence Staff and the griever, and the Chief of the Defence Staff is the final authority. The Chief of the Defence Staff is not bound by the board's findings and recommendations; however, he must provide reasons, in writing, should he choose not to act on them.
Turning now to Bill C-15, I am pleased to note that the bill includes a proposed provision that would change the board's current name to military grievances external review committee. This may appear to be a minor matter, but it is in fact an important change, and one that has been long sought by the board.
The board has found that its current name often leads to misunderstandings and complications. The proposed name change will lead to a better understanding of the specific and unique role for which the board was created. It will also underline its institutional independence while clarifying its mandate. In his December 2011 report, Justice LeSage agreed with the board’s reasoning, and supported the name change, in recommendation number 48.
Bill C-15 is intended to be the legislative response to the report on military justice submitted several years ago by late Supreme Court of Canada Chief Justice Antonio Lamer. Therefore, I would like to reaffirm the board's support for the 18 recommendations related to the grievance process that are included in his report.
Several of the recommendations have already been implemented and others are included in Bill C-15. Unfortunately, three recommendations that specifically relate to the board and that were intended to facilitate its work do not appear in the bill. One of these recommendations proposes that board members be permitted to complete their caseload after the expiration of their term. A second would provide the board with a subpoena power, while the third calls for the alignment of the board's annual report with the fiscal year rather than the calendar year. To give effect to these recommendations, legislative amendments to the National Defence Act will be required.
The importance of these three recommendations cannot be overstated. For example, the inability of board members to complete the review of their assigned grievances following the expiration of their term has recently had negative consequences for the board directly. From file receipt, it takes, on average, two to three months for a board member to complete their review and issue their findings and recommendations report. Accordingly, last fall, I was unable to assign grievances to three experienced board members during the last three months of their tenure, despite having files that needed to be reviewed.
I would now like to turn to an ongoing matter of concern for the board, that only certain types of grievances are sent to the board for review. The National Defence Act places no restrictions on referrals to the board. However, under the regulations, only four types of grievances must be referred to the board. This represents approximately 40% of the grievances that reach the final level of the grievance process. Other grievances can also be referred to the board, on a discretionary basis.
Because of this, the majority of Canadian Forces members whose grievances reach the final level do not benefit from the external and independent review of their grievance by the board. We believe that every Canadian Forces member should, at the final level, have their unresolved grievance reviewed by the board, regardless of the subject matter. This is a question of fairness, transparency, and access, concerns that were raised by Chief Justice Lamer in his report.
As you may also be aware, the latest review of the National Defence Act completed by Justice LeSage last year made a recommendation to the effect that any grievance not yet resolved to the Canadian Forces member's satisfaction should be reviewed by the board once it reaches the final authority level.
In Justice LeSage’s opinion, the board’s review would provide a more balanced input to the Chief of the Defence Staff. The board shares this view and feels that if all unresolved grievances were reviewed by the board, Canadian Forces members and the Chief of the Defence Staff would benefit from an independent and expert review, and the board's potential to contribute to the grievance process would be optimized.
The board firmly believes in the benefits of a new model of referral, as supported and recommended by Justice LeSage. We are optimistic and hopeful that it will be adopted and implemented by the Canadian Forces.
Finally, during the debate on Bill C-15 in the House of Commons, I noted the interest of many honourable members in the makeup of the board. Some members proposed that 60% of the board's members should not have any experience within the Canadian Forces.
While the appointment of board members is the responsibility of the governor in council, as the chairperson, I would like to take this opportunity to share with you some of my experiences, as well as my concerns on this issue.
The independence of the board is essential for delivering on its mandate. The board is not part of the Canadian Forces or the Department of National Defence. It is established by statute, and board members, as mentioned before, are appointed by the governor in council. The chairperson, vice-chairpersons and board members serve during good behaviour, not at pleasure, for a term not exceeding four years and can be reappointed. The chairperson is the chief executive officer of the grievance board, supervising and directing its work and staff.
Finally, as a deputy head, the chairperson is accountable to the portfolio minister and before Parliament for ensuring that the board functions effectively and fulfills its mandate. These, in my opinion, are all safeguards already in place that provide for the independence of the board.
That being said, the independence of the board from the Canadian Forces must be shielded and preserved. However, as I testified during my previous appearance before you in February 2011, the current statute does not provide such protection. Section 29.16(10) of the National Defence Act allows for the appointment of an officer or a non-commissioned member, on secondment, to the board as a board member.
One of the fundamental reasons for the creation of the board was the provision of an external review to the Chief of the Defence Staff and to the Canadian Forces members who submit a grievance. Should a serving Canadian Forces member be appointed as a board member, the board’s independence from the chain of command would be in jeopardy. In his report, Justice LeSage recommended that serving Canadian Forces members not be appointed as board members. I agree.
I hope that through the work of the honourable members of this committee, consensus can be reached during the review of Bill C-15 so that this provision is removed from the National Defence Act. This would go a long way in ensuring that grievances are reviewed independently and externally from the Canadian Forces.
With respect to the composition of the board, after four years as the chairperson, I can attest that having a military background is definitely an asset for a specialized tribunal like the Canadian Forces Grievance Board. That being said, I also believe there is a place for diversity among board members. In fact, in his report, Justice LeSage indicated, “appointments made to the Board/Committee should reflect a variety of backgrounds, including persons who do not have a military background.”
Knowing that the board’s mandate is entirely devoted to the review of military grievances, I believe it would be a mistake to exclude potential candidates on the basis of previous military service or simply because a set quota has been reached.
Experience and knowledge of the Canadian Forces, a complex, dynamic, and unique military organization, is undoubtedly an asset. As with many other existing specialized tribunals, boards or commissions, experience and knowledge of the profession from which the acts, decisions, or omissions being reviewed have originated is always considered an asset, if not a requirement.
It is not unusual for professionals to review professionals. The profession of arms should not be treated any differently. Board members with previous Canadian Forces experience understand the language, the structure, the modus operandi, and the culture of the profession. Their knowledge allows them to understand issues faced by the griever and to put arguments in context and perspective. Their experience allows them to ask the sometimes probing questions and to question the right individuals.
In my opinion, having some military experience, especially in the context where currently all unresolved grievances, regardless of type, may ultimately come to the board for a review, should be viewed as an asset rather than an impediment or employment limitation.
In addition, imposing a quota may also delay the appointment process given that labour, employment, and regulatory law in a military setting may not be so appealing to many, particularly in the cases of part-time board members. Ultimately, it is my belief that the decision by the Governor in Council to appoint a board member should be based on competency, experience, and knowledge. Only the best candidates should be appointed, regardless of their background. Canadian Forces members, the Chief of the Defence Staff, and Canadians deserve no less.
Mr. Chair, in conclusion, the board welcomes the name change proposed by the bill, believes in the benefit of having all unresolved grievances reviewed by the board at the final authority level, requests the removal of the statutory provision allowing serving Canadian Forces members to be appointed as board members, and supports board membership diversity where competencies are not compromised.
I thank you for inviting me to speak here today. I would be pleased to answer your questions afterwards. Thank you.
Mr. Jean-Marie Dugas (Former Director, Canadian Forces Defense Lawyers, As an Individual):
Mr. Chair, members of the committee, I would like to thank you for inviting me to take part in the discussion on the amendments to the National Defence Act. Appearing before you is an honour, and I will do my utmost to rise to the occasion.
This year will mark the 10th anniversary of the Lamer report. There were very good basic principles in that report. Mr. Lamer said that unless there was a very good reason to have discrepancies between the National Defence Act and the Criminal Code, then the act should be as close as possible to the Criminal Code.
I intend to keep my comments brief.
I wish to make three points that I feel are very important and that I would encourage you to consider.
I fail to see any reason for panel members to exclude any ranks of the Canadian Forces at a court martial. If you look at the section, we don't treat officers the same way as we treat privates. When you look at that under the Criminal Code, those same privates, with the same people involved—because you know that on some occasions both a court martial and a civil court have jurisdiction over a case, so you could see a case where a high-ranking officer would be charged with, for example, assault or sexual assault—could be called and be members of the jury, but in the forces, he would be precluded and excluded. If that same private is charged with any offences, he is not entitled, under my reading of the act, to have a peer appear there, because the lowest rank would be sergeant.
Again, I suggest that there is no reason to have that kind of discrepancy.
The second part on that panel, if you look at the National Defence Act and the way it's done, contrary to the criminal civil court, none of the parties in court have any say in who the panel members will be. There's no challenge process. There's an informal one where you can have a look at the people, but it's only at a court martial.
I understand that there would be something to be made out of that. It has to be addressed differently because sometimes the court martial is far away, but with the technology today, I suggest that the court martial administrator should have some responsibilities toward both the prosecution and the defence in the selection process. You end up with panel members at a court martial and you don't know how they've been selected.
The process is also said to be random, but at the end of the day, it is more or less clearly explained.
Lastly, as a former director of the Canadian Forces Directorate of Defence Counsel Services, I would point out one thing. While it is positive that the four-year term can be renewed, keep in mind that renewal is once again at the discretion of the authorities.
By its very nature, the role of the director of the Directorate of Defence Counsel Services is somewhat at odds with the organization. Indeed, in light of all the amendments, the various courts and the motions related to the likely amendments to the National Defence Act, the director may be the target of some animosity. It's human nature.
From my experience, I would once again suggest that the term of the director of the Directorate of Defence Counsel Services be renewed at the director's request, instead of further to a decision by the administration.
Thank you. I would be happy to answer questions.
Ms. Christine Moore (Abitibi—Témiscamingue, NDP):
Mr. Holloway, I would like to pick up on the matter of summary trials and clause 75 of Bill C-15.
According to the Queen's Regulations and Orders for the Canadian Forces, or QR&Os, prior to passing sentence, the presiding officer of a summary proceeding shall take into account many factors, including the number, gravity and prevalence of the offences committed, as well as the family problems and financial situation of the accused. What that means, then, is that, when two individuals of the same rank commit the same offence, there is no way to ensure that both receive the same sentence, owing to the numerous factors the presiding officer must take into account. I don't object to the requirement to take those factors into account.
Pursuant to clause 75 of Bill C-15, and even in its previous incarnation, Bill C-41, the determination as to whether the accused will be subject to a criminal record is based on the sentence imposed on the accused. I would like to hear your take on that.
Furthermore, looking at the amendments contained in Bill C-41, among the sections of the National Defence Act that were added, some were not added to the amending legislation. For instance, section 98 of the act concerns those who aggravate disease or infirmity. That was not included in the amendments under Bill C-41.
I have met people who were accused and subjected to a summary trial under section 98, because they had sprained an ankle during a particularly challenging leader's course and had asked for a bandage in order to be able to walk on the ankle for three days, as they did not want to have to start the very difficult course over again. It's common for people to do that kind of thing, depending on the mission. Since that section was not included in the amendments under Bill C-41, the accused could have been subject to a criminal record.
In light of the fact that numerous factors must be taken into account, I would like to know whether clause 75 of the bill could not use more effective wording, to prevent people from having criminal records as a result of a conviction or summary trial, a proceeding that would not have happened in the civilian justice system for the same offence or act. I realize, of course, that we're talking about legal language for a bill and that kind of thing isn't done on the fly. I would appreciate it if you could provide some suggestions in writing afterwards.
I'd like to hear your take on what I just said.
Mr. Jean-François Larose (Repentigny, NDP):
Thank you, Mr. Chair.
My question is for Mr. Dugas.
Thank you for being here. It's an honour to have you.
I want to discuss the issue of summary trials. I would say that context and culture are important factors. A bit earlier, we talked about the quality of the officers responsible for advising people who are subject to a summary trial. I do not agree. I want to tell you about something that happened to me.
In 1994, I was in training in Shilo, as a recruit. I spent seven weeks there. The environment was very challenging: very little sleep, intense training, temperatures of 30 degrees below, and so on. The instructors were tremendous. Our NCOs and officers had combat experience and wanted to teach us everything they could to ensure we were well-trained.
One day, an instructor even started crying because the situation was emotional. He had lost a friend in combat. At one point, we were given a day of rest, and when we got back,
we got charged. We had no idea what we were getting into. We were very nervous. Frankly, the only thing that was going through my mind, and there were six of us at the same time, was that we wanted to go to Mexico, because we had no idea what we were getting into. When we sat down with the officer who explained the process to us, we didn't hear anything. You have to understand that we were tired and we were nervous.
The fact that today we're talking about choices, I find that a little ironic. I think there's a double standard here. We say that the Canadian armed forces is unique, and yet we expect that human beings are going to respond normally as if everything is hunky-dory. We ended up going in front of the commanding officer and being charged three days pack drill. It was a basic mistake. I can only imagine people going overseas in combat situations where an officer is going to give them a choice.
I think Bill C-15 is good. It goes a certain way, but it doesn't go all the way.
Do you think Bill C-15 needs some improving as far as summary trials are concerned? I told you what happened to me, but I would say a lot of other members have had all kinds of experiences, including yourself, for that matter.
Mr. Bruno Hamel:
Thank you for your question. It's an excellent one.
It comes back to our education or training process, if you will, when a new member is appointed to the board.
Generally speaking, files are assigned to a single member. But, when a member is new to the panel, whether that person has military experience or not, the chairperson usually puts two members on the case, to help the new member learn and fully understand the process. There is a training period.
The other thing to bear in mind is that, although a member sits on the panel alone, they are supported by a team, a bit like a judge has clerks. Every case has a legal advisor. We also have a team leader and a grievance officer. These are people with years of experience working for the board. We have former members of the military, civilians, sociologists and lawyers who do not work as such.
We surround members with a good team to ensure the board's approach is a consistent one. Although every member makes decisions independently, there is still a collective effort. On top of that, members are always available to help another member who may have questions. We have procedures in place.
To my mind, it's an asset, not necessarily a prerequisite. I am for diversity, but not a quota. I believe in appointing the right person, at the right time, to the board, in order to achieve the best review, the best recommendation to the Chief of the Defence Staff and the best possible resolution for soldiers whose grievances the board is reviewing.
I don't want a board made up solely of civilians or former members of the military. I want to see the right person appointed. I am against quotas.
Mr. Bruno Hamel:
Thank you for the question, Mr. Chair.
There's a number of sub-questions in that question. I'll try to be brief.
The question of bias is one that has been raised and discussed in the House of Commons. I look at myself as a board member over the last four years. The issue of bias, whether real or perceived, was never raised once by a soldier whose grievance I was reviewing, or by a Canadian Forces authority, which decision was also reviewed, or by any legal counsel representing a CF member in the grievance process. It was never raised.
There is an objective test to be done by the decision-maker when an issue of bias is raised. In the last four years, I've never had to do this test. Before coming here, I asked my vice-chairperson about it. He has been in the position for eight years. The question of bias, real or perceived, was never raised for his attention in any files. In one way, that speaks for itself.
Yes, we do take an oath, and the oath is taken absolutely seriously. If you look at the last page of my opening statement, you'll see that I've put there some statistics from over the last five years. That will show you the trend of the board's decision-making powers and ability, because at the board we make decisions, and our decisions become recommendations.
When a board member sits on a case, he or she makes the decisions. You will see that the tendency is actually going the opposite way. Over the last two years, 55% of the time on the board, with previous military experience for board membership, we recommended totally or partially in favour of the member, versus 45% where we stated to the chief that the institution made the right call. If you look at the three years before that, the ratio was reversed: it was 55% and 45%.
Historically, we're currently now at 50-50, really, and we're not there to advocate for the complainant or the CF. As a tribunal, we take the oath seriously. We look at the facts. We apply the rules. We apply the law. We apply the jurisprudence. We make what we believe is the most appropriate finding and recommendation to the decision-maker. It just happens to be that we're close to 50-50, but the last two years at 55% and 45% are an indication.
I do not think that having a military person's experience hinders your ability to be neutral. Actually, as I referred to in my opening statement, it allows me, when I ask questions, to know where to go. I know what to ask. I know who to ask. I have a kind of sense if what I get as an answer is really the answer or not, and I'm not afraid to go back, because I know how to do it. Also, I'm surrounded by a good team.