NDVA Committee Meeting

STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS

COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, April 28, 1998

• 0910

[English]

The Chairman (Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.)): Colleagues, good morning. Welcome to what I guess is one of the first meetings we have scheduled to study Bill C-25.

We're not that many. Apparently there's a more popular subcommittee, where a lot of the MPs are this morning. But I'm sure the ones who are here will have some quite good questions for Colonel Mitchell.

[Translation]

Mr. Ghislain Lebel (Chambly, BQ): We have a quorum both to hear the witnesses and to ask questions.

The Chairman: Not to hold a vote, but we have a quorum to hear the witnesses.

So, as I was saying, we are here this morning to study Bill C- 25.

When the sub-committee met last week, we decided to hear a base commander in order to know exactly how Bill C-25 will affect the way things are being done on a Canadian Forces base. It is the reason why we are very happy to welcome you here this morning, Colonel Greg Mitchell. We went to his base of Petawawa last week. I want to say that we received a very good reception. On behalf of all the members of the committee, thank you very much for the warm reception.

As there is no presentation, we are going to start immediately with the question and answer period. I will ask my colleague from the Reform Party, Mr. Hart, to go first.

[English]

Mr. Hart, it's up to you.

Mr. Jim Hart (Okanagan—Coquihalla, Ref.): Thank you very much, Mr. Chairman.

Welcome, Colonel, to the meeting. I'm sorry there are not more people here to question you on this very important aspect and on changes to the military justice system.

In particular, as the chairman has mentioned, we are concerned about how it affects base commanders. Maybe you could just give an overview about the relationship, for instance, between the military police and the base commander as it is now, and what changes will take place with Bill C-25.

Colonel Greg Mitchell (Base Commander, Petawawa, Department of National Defence): In fact, sir, I'm not sure there is a great deal of change within the bill with respect to military police—that's my understanding—and many of the changes were brought in as procedural changes last November. So what I'm going to explain to you is the current relationship that changed last November and will carry on, I believe, regardless of the bill, with some minor changes, which I'll go into in a minute.

The military police at Canadian Forces Base Petawawa are a field and garrison support platoon, and they provide field support to the brigade commander in operational roles. In garrison, they are responsible to me for community policing, military discipline, and so forth.

With the latest changes in regulations, there are two major changes. One is that the level of and the type of thing they can investigate has now been generally restricted to those areas that are probably most likely to happen on a base and are the most common sort of low-level things. Anything more serious becomes the purview of the National Investigation Service, which is a newly reformed and reorganized group and is a national organization. It's not a base organization and they're not stationed on my base.

• 0915

The other change has to do with the jurisdiction over families and civilian employees of National Defence. Under many circumstances now we must turn over jurisdiction in investigations to the local civilian police, which in our case are the Ontario Provincial Police. Those are the two major changes.

With respect to Bill C-25, it has to do more with the Military Police Complaints Commission, which has really nothing to do with the base other than being a procedure that we could or could not make use of.

Mr. Jim Hart: Under the procedure now, if there is an investigation of a military nature, not a Criminal Code of Canada violation but a military violation, how does the base commander get involved, or does the base commander at all get involved in that type of investigation? Do you get involved in the process of actually laying the charge?

Col Greg Mitchell: It would be rarely that I personally would be. There are officers and certain senior non-commissioned officers who are appointed to and given the authority to lay charges and that sort of thing. Those are mostly done within units or, in my case, in the branches within the base. They are normally the ones who, in the case of a minor offence, would do their own investigations or have them conducted and would make the decisions to lay charges. Somebody would lay charges and somebody else would hear the case and so forth.

Since my time, two years in base command, I have never been involved in laying a charge for a service offence and I've never heard a summary trial.

Mr. Jim Hart: Okay. I'd like to direct you to the bill itself now—proposed subsection 29(4). It states that no one can be “penalized for exercising the right to submit a grievance”. That's probably a very welcome change, but it doesn't appear that statement has any teeth.

The chain of command is not removed, and this is where I have a concern. If you have someone who wants to lay a grievance but they have fears of their careers being affected, that could cause a problem. I was wondering if you have any comments on that. It seems that if you lay a grievance, somehow there should be an ombudsman-type situation or a way that there can be complete independence from the chain of command in doing that. How do you feel about that?

Col Greg Mitchell: First, if I can explain my understanding of the new grievance procedure that's being proposed, yes, it still follows the chain of command in that if, for example, somebody had a grievance against me, then the grievance would be submitted to my superior and so on up the chain. It's not a matter of my dealing with a grievance against me, for example.

From that perspective, my belief is that it is very fair. You always can go to the next level. Two, if the response to that grievance isn't satisfactory to the person who placed the grievance, they can always bounce it up to the next level and so on and so forth, until it reaches the very highest level and a final arbitration is made. Unless one believes that the entire chain of command is involved in a conspiracy against that particular griever or is entirely untrustworthy, then I feel it's a very, very fair system.

Mr. Jim Hart: If I could interrupt for just one minute, you are a senior officer in the Canadian Forces and I understand that, and I also have a great deal of respect for the chain of command. But I think if you're looking at junior ranks—private or corporal, or maybe even a senior NCO, a sergeant—they may have some reluctance when it comes to laying a grievance when it's a superior, maybe even a commissioned officer.

• 0920

Col Greg Mitchell: I have no doubt that in many cases they do. Whether that is founded in reality or founded in concern is another matter. When the committee was in Petawawa last week I gave them an example of—nothing to do with a grievance—a case where I thought a family was unduly concerned about the spouse's career because of a complaint they were going to lay about a condition within their housing. It's an unfortunate thing that, whether it be based on unfounded fears or past experience, yes, people are afraid to come forward sometimes with their fears and concerns.

Mr. Jim Hart: Given that, would it not be reasonable then to suggest that there should be some form of ombudsman, some person or some way to alleviate those fears and give some real teeth to this change in the legislation here, by making it independent?

Col Greg Mitchell: Two things. First of all, I still believe it has teeth, and I still think overcoming the concerns of the junior ranks is an education of leadership issue. Believe me, we're working hard on that issue, and I think personally, at least in Petawawa, we're making progress with that issue.

Secondly, the bill, as I understand it, is introducing a new grievance committee, I believe it's called. Pardon me, I don't know the correct name. But it is an independent committee at the most senior levels that I believe is appointed by the Governor in Council, if I'm correct, and that will deal with those grievances that Governor in Council directs it to or that the CDS asks it to. So it is in effect another independent body outside of the chain of command.

It's also my understanding, although I don't believe it's in the bill, that there is an initiative within the department to initiate an ombudsman position, I believe, but I don't know much about that one, I'm sorry.

Mr. Jim Hart: The problem as I see it, though...and you're correct that the grievance committee will have non-commissioned and commissioned members part of that group, as I understand it, but still, there are no ombudsmen-like duties that have been stated for those people. There are no responsibilities, there are no protections stated or delineated.

That is my concern—that if you just have a group of people, all of whom are concerned about their careers when it comes to a grievance, and how they're going to proceed because they have this fear, why then wouldn't we have a true ombudsman who has independence from the chain of command, who can look at these grievances and make a rational decision based only on the facts and not have this problem of being in the chain of command?

Col Greg Mitchell: I'm sorry, I'm not aware of the make-up of that grievance committee that you're speaking of, so I'm really not too sure how that's being looked at. I didn't read that anywhere in the bill aspect—sorry, I apologize for that.

May I offer an opinion?

Mr. Jim Hart: Sure, yes.

Col Greg Mitchell: The grievance system, although it tends to get bogged down simply because of the staff work involved in it, and people wanting to do a lot of effort in staffing to make sure that it's done correctly and so forth—sometimes the time lines are difficult to meet—essentially, in my understanding, meets the greatest majority of the needs of the grievers and is able to provide redress for those grievances. I've been involved in a lot of grievances, in assessing them, and the responses we were able to give satisfied the needs of the grievers in most cases.

So I don't personally believe there's a necessity to take that entire grievance system, do away with it, and replace it with something outside the chain of command.

What I do think is useful is for those rare cases—I'll use the word “rare”; I don't know how rare they are, but let's say 5%—that don't fall within that grievance system for whatever reason or don't seem to meet the needs.... Perhaps there's still the fear that there is some lack of independence or some problem with the chain of command. If so, then, yes, it doesn't hurt to have an outside check and balance.

• 0925

From an operational commander's point of view, I still feel it is our responsibility to look after our troops. Part of that looking after means looking after their complaints and concerns as well as their training, and I need to be able to do that within the chain of command. That's the grievance system as it stands now, and I think it works.

Mr. Jim Hart: I probably don't have much time left.

The Chairman: You have enough for a very short question.

Mr. Jim Hart: Okay.

You say you've looked at a number of grievance cases. I understand the sensitivity with names and serial numbers, but maybe it would be instructional for this committee to actually have a sampling of the types of grievances you look at on a yearly basis—the types of things you deal with, their resolutions at the end of the day, how many came forward. I don't know if we can ask for that type of thing to be presented by staff, though.

The Chairman: It seems to me that it would be a very touchy—

Mr. Jim Hart: Well, maybe you could give us just a sampling. You wouldn't have to use names. It would just be the types of cases.

Mr. John Richardson (Perth—Middlesex, Lib.): That's the business of these professionals. They live and die on that. We're here to make policy and direction. We don't get our noses into the details of the operation.

Mr. Jim Hart: No, I'm not asking for details. I'm just asking about the kinds of cases, the types of things they are looking at.

Mr. Ghislain Lebel: He's just asking about types of cases. He doesn't want any names.

Mr. John Richardson: I don't mind his just making a summary of the types of cases.

Mr. Jim Hart: Yes, that's what I mean. Just a summary. I'm not interested in names, just types of cases and the kinds of resolutions that were derived from them.

Mr. John Richardson: No problem.

Mr. Jim Hart: Thank you very much.

The Chairman: You'll notice this morning's is not a regular kind of meeting. I know Mr. Richardson asked for a point of clarification.

Mr. John Richardson: Just to ride on the concern that the honourable member has mentioned about the ombudsman, I think the minister has been studying this for some time. I believe there will be an announcement forthcoming on an ombudsman for this. I understand his concern, but it's in the mill and will be forthcoming in the future.

Mr. Jim Hart: It's not in the bill, though.

Mr. John Richardson: No.

The Chairman: Thank you.

[Translation]

Mr. Lebel.

Mr. Ghislain Lebel: Good morning, Colonel. You answered to the question of my colleague that the military police which operates on the base is accountable to the chain of command and is under your authority on the base, for example. Is it true?

My remark is not aimed at you personally but is seems to me rather abnormal that the base commander intervenes when the military police is investigating on a case concerning him which could be very damaging for him. Would it not be better to make the military police operating on a base accountable to an authority independent from the commanding authority of the base?

[English]

Col Greg Mitchell: If you'll permit me, sir, I'll respond in English.

The Chairman: Go ahead.

Col Greg Mitchell: There is a definite possibility that military police will feel intimidated by investigating senior officers. As you've heard in various commissions and inquiries and so forth, apparently there are problems with that occurring. In my personal experiences, this has not been the case.

When I came in as a base commander two years ago, I sat down with my newly arrived base security officer—he was a captain, which is well below my rank—and told him that I had been hearing these things in the news. I informed him that if it ever appeared that I was interfering, then he should please let me know. His response was that I didn't have to tell him that, because he would be the first to tell me to back off. He's well within his rights to do so. So I think it's a matter in which the people involved must well understand their rights and responsibilities, must apply them, and must not be swayed by rank or whatever.

• 0930

Having said that, it's my understanding that the bill has recognized that difficulty and taken the approach that one way to address it is by separating the types of investigations that can occur, and by expanding the size of the National Investigation Service and giving them a separate and independent chain of command where they are not answering through the base commander. At this moment I have a National Investigation Service group on my base at my request conducting an investigation, but they don't answer or respond to me, they answer to Colonel Samson in Ottawa. Does that answer the question?

[Translation]

Mr. Ghislain Lebel: I thank you for answering honestly to the questions, Colonel. I appreciate your testimony.

I would like to talk now about military courts, if you do not mind. I know, since I asked you earlier, that you have no legal training but I would still like to know your feeling on military justice as it is applied now on the bases.

Lets talk about military courts. Do you feel that the legal rules generally recognized by the representatives of the various parties, such as the impartiality of the judge or the right to a full answer and defence, are respected by the military justice as we know it now or as we are going to know it soon with Bill C-25?

[English]

Col Greg Mitchell: In my experience as a junior officer—I was an assisting officer, assisting people who were accused of various service offences about eight or ten times. As a major I was a delegated officer, a company commander, and held summary trials about ten or twelve times. As a commanding officer, a lieutenant-colonel, I held summary trials about the same number of times. I have been an observer at two courts martial. I have never been a witness or on a court martial panel before.

With that background, my observation and belief is that the military justice system in those areas is extremely impartial and fair. I think that because the people involved have a vested interest not only in the discipline of the unit but in the welfare of the accused. He or she is one of our people. We are interested in having justice served swiftly, and to be seen to be done to provide the deterrent effect and so forth. But we also realize that if the individual is found guilty and serves some term of punishment or whatever, they will be back as a member of our team and one of ours that we will entrust our lives with. So we have a vested interest in both sides of the issue.

I have seen—and I have done this myself as a platoon commander—a young officer give evidence against an accused for having done something that I witnessed. That accused was found guilty. When it came time to sentencing, the officer in charge asked me what type of a soldier this was. As his platoon commander I said, “This is the best soldier I have ever seen, this is a one-time instance and won't happen again.” It's almost like having a split personality—on the one hand being responsible for that discipline, but this is also our soldier.

As an anecdote—and I don't recall the actual case or who the lawyer was—when lawyers were allowed to sit in and observe summary trials, not participate.... A lawyer did do that in one case, and afterwards spoke to the officer conducting the case and said this was the fairest system he had ever seen, and that it was better than our civilian system. I can't back that up with names or evidence, but I do recall that distinctly, and it reinforced my belief in our system as being a very fair and impartial one.

[Translation]

Mr. Ghislain Lebel: Colonel Mitchell, as you know there are always exceptions. Unfortunately, I am going to have to remind you of the recent case of Colonel Vanier.

• 0935

Do you think that if Colonel Vanier had been judged by people who did not know him, who were completely outside the forces, the sentence would have been the same or perhaps less severe? Could you tell me what you think about it?

[English]

Col Greg Mitchell: Unfortunately you're asking me to speculate. I was not a member of the panel. I have not heard any of the evidence. I have read the newspaper accounts, and my experience with newspaper accounts is that they don't always have the complete and accurate truth.

I don't think it's a matter of whether they were the individual's friends or whatever. They were peers, and in that case, I guess, similar to a jury of your peers.

I guess the speculation.... I personally think that with officers sitting in judgment of other officers, you have an expectation, through your commission and what it states in your commitment and a position of trust, that you hold your fellow officers up to a higher level of accountability, perhaps, than others would. I would. I would like to think my fellow officers would, and in most cases they would. I suspect that would not be the case if they were sitting in front of a panel of civilians, who don't understand the position of trust, the position of leadership that's required, the standard of setting the example that's required.

So I personally think a harsher judgment would come from a panel of peers than would from a panel of civilians.

Does that respond to your question, sir?

[Translation]

Mr. Ghislain Lebel: In part. You have certainly heard about the case of Corporal Purnelle who wrote the book Une armée en déroute and who was judged very severely by his peers. If he was not forgiven, it is not so much because of the damage he caused or because of the move he made but rather because his book was directly aimed at the armed forces.

Reno Vanier acted in a much more problematic fashion. I am not a member of the forces but on your base, in Petawawa, and also in Trenton, members of the forces and their spouses came to the mike and told us clearly that it seemed to them that this was a two-way justice, according to the rank of the accused. This is the kind of things that we would like to prevent by passing this legislation. Even if I felt that it was true, it would not change anything here this morning.

In a case such as the Vanier case, when the accused has a senior rank, do you not think that the army and the military court find themselves in an awkward situation? I can tell you that no provisions of the act allows a military court to withdraw its decision. Thus, even if the accused has a very senior rank.. I can tell you now that if General Dallaire, who is a senior member of the forces, were in Belgium, he would be accused. So, the higher the rank, the more our military justice system seems to be hampered.

Therefore, in this kind of situation where the rank of the member of the forces is high, would it not be better to allow the court to withdraw its decision?

[English]

Col Greg Mitchell: It's my understanding from my reading, sir, that the amendments to this bill will address many of the concerns you have, one being the independence of the military police in order to conduct their initial investigations. In fact now the National Investigation Service will be allowed to lay charges without reference to the chain of command. So regardless of rank and so forth, they can now do that.

• 0940

The other change has to do with courts martial. In this case, if Colonel Vanier's was coming up, it would have an effect after the bill was introduced into law. It's my understanding that although there may still be a panel of peers hearing the evidence and deciding on guilt or innocence, it would now be the military judge—who once again is appointed separately, independently and outside the chain of command—deciding on the punishment.

As in a civil court, punishment would take into account the individual's experience; circumstances of the individual case, of course, because we don't have a cookie-cutter approach; and looking across the forces, what other similar cases have offered in the way of punishments and so forth. One of the considerations would obviously be the level of trust, knowledge and experience that the accused had. I think this is all included in the bill, and I think that addresses most of what you're saying.

The Chairman: Mr. Clouthier.

Mr. Hec Clouthier (Renfrew—Nipissing—Pembroke, Lib.): Colonel Mitchell, thank you very much for being here today. We really appreciate that you took the time to appear here on such short notice.

Colonel, as you know, the Dickson special advisory group recommended that commanding officers such as you receive special training or certification before conducting summary trials. Could you inform us as to what kind of training you personally have had in the past to conduct these summary trials?

Col Greg Mitchell: The type of training that we have in the military justice area starts and carries on throughout our career. Mine started in the Royal Military College, where officer cadets had their own system of punishment, if you like, for local college offences. The senior cadets conduct their own summary trials, issue charges, award punishment and so forth, on very minor-level things. Punishments are things like doing laps at the track and other things like that, so it's an introduction.

During basic officer and infantry officer training, we study some aspects of military justice, including the laying of charges and so forth. Through Canadian Forces Staff School, we studied summary trials, and touched on them on more at the Canadian Forces Command and Staff College. I personally have attended an international law of armed conflict course.

But when you get down to how I learned to conduct a summary trial, I took no course on that. It was something I learned from experience, from attending as assisting officer, from sitting through courts martial, witnessing at summary trials and so forth, and watching my senior officers conduct them; as well as through self-study in our officer professional development program, which is a series of examinations, one of which includes military law and which we must pass for promotion and advancement.

Did that answer your question?

Mr. Hec Clouthier: It did in a way, but do you believe it would be advantageous for commanding officers to undergo a special type of program with direct input on how to conduct a summary trial, and in which perhaps there was a certificate awarded at the end of the program? Or do you believe it's just gained through experience?

You came through the ranks, but suppose someone has recently been appointed as a CO. Do you believe it would be propitious for them to be conducting these types of summary trials? Would it give them a better understanding?

Col Greg Mitchell: Because experiences are different, and there are likely to be commanding officers particularly who have not served in the combat arms—as I have done through operational units—and perhaps in other corps and branches of the service, who will not have a similar experience, they will therefore perhaps be a little lost or have less experience when they get to be commanding officers.

I understand there is a requirement and a need for training or some sort of certification. The only concerns I always have with added courses are the time factors. It's my understanding that they're looking at perhaps a two-day course for this particular one for accreditation, and on its own, it stands in good stead. With all of the other training and requirements, it's like another straw on the back, I guess.

• 0945

Having said that, I think it would be very useful to have a detailed course so that people can take advantage of each other's experience, exchange ideas, do a bit of role-playing with legal officers, and so forth. At the end of it, it would be very clear when they're conducting these.

Right now, you have to refer to a legal officer, you have to get into the books and read them, and reassure yourself that you're prepared and good to go. For 90% of the time, it probably works; for 10% or whatever, perhaps there are problems, and maybe this accreditation course would fix that.

Mr. Hec Clouthier: I notice, Colonel, that you're currently in the process of completing a professional masters program in PA at Queen's University. Do you believe something like this would be propitious to help you conduct these summary trials, or would there be any part of that particular program that would be targeted toward this?

Col Greg Mitchell: I don't think it has any application at all to military law. The courses I'm taking, although defence-related, are in the areas of defence procurement and defence economics, and in policy analysis and so forth. There is no specific, direct relation to military law or justice.

Mr. Hec Clouthier: Okay, that's fine.

The Chairman: Thank you.

Does anybody else have any questions? Mr. Wood.

Mr. Bob Wood (Nipissing, Lib.): I have a couple.

Colonel, I just have a thought on one of the amendments, on what we're trying to do here. Under the new Bill C-25, when non-commissioned officers are being tried, other non-commissioned officers can now sit on or be appointed to a tribunal. I don't believe that's ever happened before. Are those people going to be qualified to sit on those panels? Will there be a selective few who are going to be asked to do that? What kind of training are they going to go through? Will it be much the same as yours? How is that going to work?

Col Greg Mitchell: I'm not aware of the details of how it works, but the idea behind a panel is to have a panel of your peers or other people who essentially can apply their experience that is similar to your experience. This is to provide a balanced judgment as opposed to a legal training background. That's why we don't have legal officers sitting on the panel. It's not a panel of lawyers or judges, it's a panel of your peers.

I expect there will be specific trades or positions that will be exempt, just as there are now for officers sitting on courts martial. I suspect there will be some consideration or method of challenging members on panels by lawyers to ensure they are going to be fair and impartial. For example, my brother would not be allowed to sit on the panel, or perhaps my best friend or whatever—I don't know—if I were being accused.

Apart from that, there are the instructions they receive from the presiding court martial judge, and their own knowledge of the military justice system. Our NCOs receive that through their own training levels, but I believe that's why they're only going down to the warrant officer level. By that time, they would have taken various leadership courses, including military justice training. I suspect that is the reason for that particular rank level.

Like civilian juries that sit, they're not qualified in the legal system any more than the normal person, yet they sit in judgment of their peers. I would put to you that, whether they're warrant officers or officers, military people sitting on a panel are more highly knowledgeable of a military justice system than a civilian jury in a civilian court would be. Of course, that's just my opinion.

Mr. Bob Wood: The bill obviously has some sweeping implications on the role played by people like you, and I think everybody recognizes the need for reform. I guess my concern is that the changes will be made but the implications will never be fully explained to base commanders and their staff. My question to you, sir, concerns what your level of confidence in the ability of NDHQ is in terms of properly explaining and implementing these changes? Do you anticipate any problems?

Col Greg Mitchell: No, I don't. The only problem I perceive is one that I mentioned to the honourable Mr. Clouthier concerning time—training time and available training time. There's a pretty full plate on people's desks right now.

• 0950

Having said that, last November we went through a three-hour introductory program for many of the procedural changes tied in with this bill and put into effect last November. Again, this was not for the amendments with the bill, but the procedural changes that are related to it. That training was for all officers and senior non-commissioned officers, including those who would be involved in the laying of charges and involved in summary trials in some detail. That program was produced centrally by National Defence Headquarters. It involved presentations, slides, and a sort of role-playing video of about a half an hour.

There have been several pamphlets and things that have been put out—quite a few, in fact—to explain the various changes and why, and the communications on the changes have actually been excellent. It's now a matter of communicating the changes to everybody when the bill is in place, if it is indeed enacted. At this point, though, based on that past experience of last November, I have every confidence that this can actually be done quite well.

Mr. Bob Wood: Just to take a minute, Colonel, I'd like to know whether you, any of your staff, your troops or whoever, were consulted for their opinions on the changes that were needed to the military justice system. Did anyone ever approach you or your colleagues to ask your opinion on the implications of Bill C-25 in terms of maintaining military discipline? You are the commander of one of the bigger bases in the country. Did anybody ever sit down and say, Colonel, what do you think of this, do you have any opinions on it?

Col Greg Mitchell: Personally, no, but to go back to when Judge Dickson was doing his surveys, in his report there is a long list of those people who acted as witnesses and who consulted and so forth. I understand he conducted quite a few focus groups across the country, but I was not personally a part of any.

It's my understanding that the group within National Defence Headquarters dealing with these amendments has gone through a fairly lengthy process of consultation with folks. I couldn't specifically say who; you'd have to ask them. I assume and hope they included a lot of operators. And I don't know whether they did it after they had put the things together or whether they got the input in order to develop the changes, but I am led to believe there has been consultation, sir.

Mr. Bob Wood: I don't know if you can answer my next question or not, but I'm going to ask it anyway.

Colonel, after you took a quick read of the bill—which you obviously have done—would you have liked to see any more changes? Are there any amendments that weren't made to Bill C-25 that might improve it, in your opinion? Are you fairly comfortable with it? Or, when you were reading it, was there something in there that made you think they should have changed that over to this and maybe could do that, and so on? Is there anything like that?

Col Greg Mitchell: There was one minor thing on which I think I've been proven wrong. In my initial assessment of it, it was one minor thing having to do with somebody being sent to detention. When they leave detention, they automatically get their pay and rank back. I was immediately concerned about that, because if a person was in a position of command and leadership, he or she shouldn't automatically get back rank and position.

In discussions, it was quickly pointed out to me that the person applying or pronouncing sentence can also add in a reduction in rank, and that stays in application after the person leaves detention. My concern is therefore covered.

It's just a matter of making sure that whoever is sentencing realizes this is a leadership position and that we don't want the person back necessarily in such a leadership position. They have to make that judgment, that call, before the person goes into detention. Before, it was automatic. When somebody came out of detention, they stayed at the lower rank and worked their way back up again. So that was one concern, but I'm told it is looked after, and I'm happy with that.

• 0955

The only general principle—and it is only a general principle, sir—is my concern that, only for a very good reason, we have now taken more direct authority away from commanders and commanding officers and put them elsewhere to ensure impartiality and fairness. This is to meet the Charter of Rights, to meet the concerns of individuals who have felt poorly dealt with in the justice system.

As I believe I mentioned during your visit to Petawawa, my only concern in all of this is that those who are held accountable—and should be held accountable—for the operational capability of the unit, including discipline within that unit, should have as much of the resources and authority as possible to ensure that this discipline and justice is carried out.

There are the changes in the bill that take powers away, the procedural changes in the jurisdictions of military police versus the NIS versus the civilian police authorities now, whereby I have three police forces having jurisdiction on my base, and two of them are not answerable to me. My concern with this is that my ability to carry out that responsibility is once again continuing to be slightly eroded each time.

That's not to say that it shouldn't be eroded, given what we're balancing off that. I'm just suggesting that from an operational commander's perspective. That is what is occurring gradually, and it causes me some concern.

Mr. Bob Wood: It should. Thank you. I have no other questions.

The Chairman: Thank you, Mr. Wood.

Mr. Hart.

Mr. Jim Hart: Thank you again, Colonel.

I'd like to go back to summary trials for a minute. I think everyone here wants to see the best military justice system possible for the good of the Canadian Forces and the men and women serving in the Canadian Forces.

But one of my concerns is that there's a lack of respect for the military justice system. There has been this lack of respect for quite some time. I'll go back in particular to summary trials in the navy, for instance. I know you're an army commander, but in the navy, on a ship, sometimes these summary trials are real kangaroo courts. That's the way the rank and file, the lower ranks, feel about summary trials.

When I was in the navy, for instance, there was an executive officer who would even go to the length of having a roulette wheel for the accused to spin. There would be things from “You walk free”, to 14 days' stoppage of leave, to a $50 fine. This doesn't build respect for the summary trial process.

In particular, when an accused person is marched in without their hat on, in front of their commanding officer, they don't have any right to counsel; there's no formal written record of what transpires in that process.... If you feel you've been unjustly treated, there is a way you can appeal, but the person who is going to hear the appeal is the person you end up in front of in the first place.

So to me there's a problem with that summary process at the unit level. It may be different on an army base. I've never served on an army base. But when it comes to a small unit like a ship, a submarine or maybe a smaller unit than that with closed quarters, it becomes very difficult. The effect is that there is no respect for that type of system.

Would you comment on that?

Col Greg Mitchell: Well, I've never seen or been subject to, or involved in—

Mr. Jim Hart: A roulette wheel?

Col Greg Mitchell: —that type of thing that you explain. If I were, it would shock me. If that is the type of difficulty that's causing these changes to the act, then the changes to the act are probably long overdue. I hope that's not widespread, but to me, from my perspective, that is a leadership problem.

The problem is not with the summary trial system; the problem is with that particular leader. If that particular leader were under my command, and I got wind of something like that, he wouldn't be in that position of leadership.

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I guess that is the essence of my concerns. For the sake of a few poor leaders and the very real concerns of those who have suffered under those poor leaders, we change entire systems. That is fine, except that they erode the capabilities and the authority of that majority of good leaders who are trying to do the best they can under what is essentially a good system. That's my concern.

Mr. Jim Hart: Shouldn't there be some way again, maybe an independent way, where this person who goes in front of a summary trial would have a proper right of appeal instead of going back through the same process they've been through? It just doesn't seem independent enough. You're asking someone to make a decision on something they've already made a decision on, and they're probably reluctant to change their mind or listen to new evidence.

It's very difficult. It's very intimidating for a young 18-, 19-, or 21-year-old to explain all of the things without counsel. I'm not sure what the fines are now, but if it's a $200 fine, or a month away from...or if it's stoppage of leave, or they can't go home to their family for a month, to have just an executive officer or a commanding officer make that decision without really listening to the case is a pretty terrible thing to happen to a young person.

Col Greg Mitchell: Well, sir, the bill includes a couple of changes that I think will address your concerns.

First of all, there is essentially an appeal mechanism now that skips that commanding officer or executive officer and goes to the next level. It's a review of some sort based on the severity of the sentence or the injustice of the....

I mean, if somebody were using a roulette wheel, that's obviously an injustice, and that would be great grounds for the next level of review to go back and quash those findings.

The second part of your concern is about the young individual, the lack of experience, the individual being afraid, and so forth. They've introduced a very clear set of regulations and guidance for the assisting officer now. No longer is somebody just named to go and do their best, and do research. There's very specific guidance and regulations that must be followed by that assisting officer.

The role of the assisting officer is increased now. They actually do speak and intervene on behalf of the accused, assist in giving evidence, questioning witnesses, and so on.

There's actually certification now on the proceedings; they have to state that this has occurred. It's signed by the accused and overseen by the presiding officer to certify that these various steps have occurred.

Mr. Jim Hart: Is there a written record of the proceedings now proposed in the new legislation?

Col Greg Mitchell: Like some reporting type of thing?

Mr. Jim Hart: Yes.

Col Greg Mitchell: No.

Mr. Jim Hart: Do you think that would be beneficial, if there was...we'll use the term “appeal?” I don't know what the term is.

Col Greg Mitchell: No, I don't believe so. Keep in mind that we are dealing essentially with minor service offences for summary trials. One of the goals of this is a swift procedure of justice. Any other bureaucracies or whatever that are added to it will not make it as swift a system as we need.

The idea is to have justice done reasonably quickly, and have that person return to their duties as quickly as possible.

Mr. Jim Hart: What are the maximum fines now, and the length of stoppage of leave for a summary...?

Col Greg Mitchell: I'd have to refer that question. I believe the maximum that commanding officers can get is 60% of one month's pay. With respect to stoppage of leave, I'd have to get into the books. I'm not sure what the new arrangement is.

Mr. Jim Hart: Okay. It's pretty devastating for a young private, if that was meted out as a punishment. That's a pretty tough thing.

I think the social policy review examining the social problems with the Canadian Forces may point that out, as well. It just seems to me that there should be a better mechanism now.

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I just want to talk a bit about the panel of peers. In the case of officers with courts martial, the panel of peers can only be officers. But when it comes to a non-commissioned officer being court-martialled, I believe only a minority of the panel can be from non-commissioned ranks. They have to be of warrant officer level.

We're going in the right direction, but it's a small step in the right direction. Why can't there be more senior non-commissioned officers on a court martial, as opposed to having almost all officer ranks?

Col Greg Mitchell: I'm sorry, I didn't read what you had mentioned there. I don't know that this is in fact the case. The only thing I read was that now warrant officers and above may be part of a panel.

I think what you're suggesting is probably an administrative thing as opposed to a legislative item, but I don't know.

Mr. Jim Hart: It's referred to in proposed sections 166 to 168 and 169 to 172, under clause 42 of the bill, pages 44 to 46, under courts martial.

It says that only a minority of the panel can be non-commissioned officers when it comes to a court martial for someone of a non-commissioned rank. But with officers it's a panel of all officers.

Col Greg Mitchell: Well, first, we don't have a junior rank sitting on a board assessing a senior, if you like. So it stands to reason that there would be no non-commissioned officers on there, okay?

Mr. Jim Hart: Well, my concern is that there seems to be a double standard. With officers it's all officers, but with non-commissioned ranks you only have a minority of non-commissioned ranks on the panel. It would seem reasonable that senior non-commissioned officers would be able to make up more of the panel than just a minority.

Col Greg Mitchell: I honestly don't know the reasoning for the percentages, and I really couldn't comment on it, because I haven't given it any thought. But I think the key point to keep in mind is that it's essential that the person be equal to or senior in rank. As for the percentages in numbers, I honestly don't have an opinion on that at this point.

Mr. Jim Hart: Okay. Thank you very much, Colonel.

Col Greg Mitchell: Okay.

The Chairman: Thank you, Mr. Hart.

I just have a couple of questions, Colonel. A while ago you were mentioning that in some circumstances you would have to deal with three police forces on your base—the NIS, the military police, and the civilian police—if I understood you correctly.

Col Greg Mitchell: Right.

Mr. Jim Hart: Who takes the lead role? Does it depend on the offence committed?

Col Greg Mitchell: In the initial stages my military police, under my jurisdiction, would always react, and they always must react. When they get into the case a little more and figure out what the problem is, then, yes, it would be the level of the offence or the type of offence. They would then have to either carry on with it or refer it to the applicable other police, who would then have to come and respond.

Although they're required to respond, they decide what level of response is appropriate or they can afford. For example, my local military police can deal with theft under $5,000 if a military member is involved. Theft above $5,000 by a military member is an NIS responsibility, unless the NIS says, sorry, we don't have the resources, you carry on with it. The same applies to the OPP, if the OPP come in and it's one of their jurisdictional cases, and they ask us to carry on with it

At the request of those two jurisdictions, my military police could then carry on. Otherwise, they have to pass those cases to those two jurisdictions.

Now, apart from being slightly complex, having three police forces on one base, which is a federal property, that is my base for which I'm responsible. Apart from that sort of principle, there is a practical problem. Perhaps I might use a particular case.

About a year and a half ago it came to our attention that there was some theft going on through our supply system. Our military got some information and began an investigation. If that investigation were going on now—it involves civilian DND employees—they would have to give it to the jurisdiction of the Ontario Provincial Police.

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First, the OPP, of course, don't necessarily see it as any more serious, or any more of a concern, than any other theft across the province or in their area. Second, they don't necessarily have the investigative resources to put to it in money. Third, they decide what to do. Fourth, they have no responsibility to answer to me or to keep me informed of their investigation. So they may or may not carry on with it, and so forth.

In this case, probably with the initial information they had, they wouldn't have carried on with it. They would have done some initial investigation and left it. I'm speculating, but this is on the advice of my military police officer. He says that this will probably have occurred.

When we started that investigation it was within our jurisdiction. The MPs carried on with it. It has caused the recovery of over $400,000 worth of DND property. Three civilian workers have all pleaded guilty and have been sentenced to reasonably lengthy jail terms. It has assisted me in identifying all sorts of problems within my supply business and within the Canadian Forces supply system. That has allowed me to clean up that act, it has sent a terrific deterrent message to the rest of my workers, and overall it has made it a better place in which to live.

So I guess I'm convinced that one jurisdiction and greater responsibility of my own MPs is useful. I'm rather sorry to see this change in terms of jurisdiction levels, because I can see the downstream effects.

May I give you another example?

The Chairman: Sure.

Col Greg Mitchell: This is a domestic dispute within the married quarters. A couple is fighting. The MPs respond first, as they always do. If it's the military member who's beating on their spouse, it remains a military police jurisdiction, and they will carry on. If it's the civilian spouse beating on the military member, then they have to call in the OPP. That's how confusing it can become.

The Chairman: You just opened up a few more questions here. In the first case you cited, did the military police lay charges against the civilian? You said that three civilians pleaded guilty.

Col Greg Mitchell: They investigated, and they worked very closely with the crown prosecutor downtown. These are prosecutions in the civilian court.

The Chairman: Okay.

Col Greg Mitchell: So no, the military police don't lay charges. I believe it's the crown prosecutor who does that.

The Chairman: Okay. The second example was about the military police who respond to family violence. Does the military police get special training for that? Are they sensitized to the problem, or is it just in their regular training?

I think it has started in the civilian police; they do get special training when it comes to family violence. I'm just wondering if it's something that's done in the military right now.

Col Greg Mitchell: I believe it is, but to what extent, I'm sorry, I can't answer. I don't have the details. I can find out, though, if you wish.

The Chairman: Yes, I would appreciate that.

I have one last question. I presume that if a military person commits a crime, it's on his personnel file. Does it stay with him?

Col Greg Mitchell: Yes, sir. Their conduct sheet remains for their career.

The Chairman: Now, how would that person, for instance, after five or six years...? He's been a model soldier, and he says he wants to erase that from his record. What's the procedure for him to get that erased from his personnel file?

Col Greg Mitchell: I think that for civilian convictions they can apply to—-

The Chairman: The Solicitor General?

Col Greg Mitchell: That way. As to military convictions, I'm sorry, I'm a bit at a loss. I'm not sure if that systems applies, if it can be wiped clean for military convictions. I'm sorry, I'd have to research that and get back to you. I don't recall offhand if that's possible or not.

The Chairman: Thank you. I believe Mr. Richardson has another question.

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

We're in the peace mode most of the time. When the bill is designed, it also has to have things in it that a lot of civilians would never understand. That is because when we're in war orders have to be given and discipline has to be held together. So some parts of the act would have to take into consideration the situation, whether it was peace or war.

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I think the old book, what we worked on, the QR and Os and the process.... I don't think a lot of people understood that the junior NCO program has a lot on how to lay charges. They get to know the fundamentals of the kinds of things they may run up against as a section commander, or a thing like that.

Things have changed a bit since I was around, Colonel, when they had to be inspected by their bedside, and charges could be laid for things that weren't in order if it was on a repetitious basis.

But what happens with you is that, as base commander, you're more like a mayor of a community as well as the commander in support of the operational units on that base. So a lot of people in civilian life don't realize the “double-hattedness” and the need to serve the military as well as to serve the full community of that base.

Everything on that base is your responsibility. You're it; you're the mayor. I don't know if they call you that very often, but it's the only thing I can think of with which to compare your role on an ongoing basis in the daily life of the base.

I was pleased to see you mention that the junior NCO course has a section on the study of military law and its role, how to lay charges, and the processes involved at that lower level. The same applies for the senior NCO courses.

I think the section on that is the same for chief warrant officer courses, and it's the same thing through all the professional officer courses. There has been a section on military law for a long time.

I don't think the public knows that military law and the military discipline system are cycling in a broader sense at every level. I know some of the problems come about from judgments, and those problems appear quite commonly.

Every day we see judgments in the courts, whether it's at the magistrate level at provincial courts or at a federal court. Some judgments come out, and you wonder where in the name of goodness did they ever come up with that judgment? But no one seems to want to finger them as not being ready, because I don't think there's a course that prepares anyone to be a judge. It's known through your work in the legal profession, maybe through the seminars you attended, or the political party you belong to. It's as fragile as all that.

So I listen to people criticizing the military one. At least there's a continuum that has started from the lowest to the highest levels to know their law, that military law. Now because of the incidents in Somalia we're making a wholesale change. Probably it was due, because of the time since the last one, and because society has changed considerably, and the way people operate on the base is considerably changed since I went in.

I mean, you could never get by...there was always a quarter guard on duty. There were all kinds of inspections. Those things are gone. They're not part of the ethos of the forces any more. The bases tend to be open, or more open, and there is less of that rigid control we used to have. We lose some and we gain some with the changes.

I would ask you, though, from the point of view of a person who has been around a long time and served the country well, do you see anything in this that may lead to something that would detract from the good order and discipline on the base, or within a regiment?

Col Greg Mitchell: I don't see anything particular in here that I would put my finger on and say that it would detract from good order and discipline. I see a lot of enhancements and clarifications, greater transparency, which is obviously demanded both by the Canadian public and by our own members. It is a balance and weigh-off, a gain and loss on both sides, as you mentioned. I don't see anything in there that is of immediate and great concern that would prevent me or another operational commander from doing our jobs.

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I would only suggest once again that the principle of the great trust we put in commanders to do things.... I guess I find it curious that we will entrust those commanders with our sons' and our daughters' lives. We expect them to be taken into harm's way. Only in the military do we have the unlimited liability that suggests that not only will we go into areas of danger, but as a commander you can knowingly send somebody to their death for military reasons.

We entrust those commanders after a great deal of training, selection, development over many years. There is careful selection of a commanding officer to put them in a position to do that, and yet we don't trust them to provide an impartial judgment of their soldiers in the field. We need an independent system to do that for them.

I have no difficulty with an independent oversight committee to ensure as a check and balance, to keep people honest, and I think that's what this system is providing. I just see in it the first seeds of taking away the entire responsibility from a commanding officer, because we don't trust that commanding officer.

I would pose the question, if you trust them with lives, why don't you trust them with justice? That's my only concern, but that's a principal one. There's nothing in here that would keep me or any other operational commander from doing our job and applying military justice.

Mr. John Richardson: Thank you very much, Mr. Chairman. May I have a follow-up question?

The one thing that concerned me—and I must admit that I've only had a chance to read it, though, and peruse the big thick book that goes with it—is that if it limited the role of the commanding officer or the brigade or divisional commander.... When you're in contact, you're under fire, and you're under duress and the stress of battle, you have to have behind you the right to charge. If people just wimp out on you from some form of stress, one way or another....

That whole system was based on discipline, and only because we want to have discipline in the face of fire so that they would be trained to take and execute the orders given by a superior officer or superior appointment. If it took away from that, I would be saddened to see that, because it takes away a very powerful training method for war. People don't like to hear that, but that's what we have armed forces for. As you mentioned, it is to go and put their lives on the line and win. You can only do that with a well-disciplined, well-trained force. Some of that requires rigid adherence to orders from the lowest level of master corporal through to the highest level of commanding officer.

I just put that as a comment, and it's more of an editorial. I hope it doesn't have the effect of weakening the traditional spirit of the combat-armed forces.

The Chairman: Thank you, Mr. Richardson. Are there any more questions or comments?

Colonel, I want to thank you very much for coming in this morning and talking to us about how Bill C-25 would affect you.

For the regular committee members, the clerk just handed me a schedule of the witnesses we had talked about. On May 11 the following witnesses are confirmed: the Quebec Bar and Justice Brian Dickson. On May 12 we will have Mr. Grainger, Mr. Desbarats—

[Translation]

Mr. Ghislain Lebel: Mr. Dickson confirmed that he would come?

The Chairman: Yes.

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[English]

On May 12 we have Mr. Grainger, Mr. Desbarats, and Mr. Bland. On May 14 we have the clause-by-clause reading. For your information, Mr. Granatstein has declined to appear.

Thank you very much. This meeting is adjourned.