I call the meeting to order.
Ladies and gentlemen, please take your seats. This is meeting number 20 of the Standing Committee on National Defence. Pursuant to Standing Orders 110 and 111, we are considering the order in council appointment of Bernard Blaise Cathcart to the position of Judge Advocate General of the Canadian Forces, referred to the committee on Wednesday, May 5, 2010.
For your edification, Standing Order 111(2) states that: “The committee, if it should call an appointee or nominee to appear pursuant to section (1) of this Standing Order, shall examine the qualifications and competence of the appointee or nominee to perform the duties of the post to which he or she has been appointed or nominated.” That's just so you know the parameters we're dealing with.
Colleagues, in the spirit of summer, although we couldn't get a barbecue, all the food is outside. It's a venue that's a little different. I'm a new chairman and I thought I'd try something different.
The chairman apologizes. He is unable to attend, due to his daughter's graduation.
I want to welcome members of the committee. We are pleased to have with us Brigadier-General Bernard Cathcart, Judge Advocate General of the Canadian Forces.
General, you have seven to 10 minutes for whatever you want to say. Then we will go to the official opposition for the first question.
Thank you, Mr. Chairman and members of the committee.
Good morning. I would like to thank the committee for inviting me to appear today. I was appointed as a Judge Advocate General effective April 14, 2010, so it is truly a pleasure to have this opportunity to meet with you so early into my appointment.
As you are aware, pursuant to section 9 of the National Defence Act, the NDA, the Governor in Council may appoint an officer of the Canadian Forces who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces. According to section 9.4 of the NDA, the minimum rank for the Judge Advocate General is brigadier-general.
I am truly pleased and deeply honoured to have been named to the position of Judge Advocate General, an appointment that was the culmination of a competitive selection process involving those who met the statutorily required qualifications I have just described.
I understand that you have all been provided a copy of my biography, so my intention is to briefly identify the role and function of the JAG and then provide you with an overview of my background and experience.
As JAG, I am the legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces in matters relating to military law. In addition to this, I am statutorily responsible for superintending the administration of military justice in the CF and am required to report annually to the Minister of National Defence on this subject.
This superintendence function, which includes monitoring, reporting, and policy development, helps ensure that the military justice system meets the needs of Canadians, including the men and women of the CF who have volunteered to serve their country.
Military law is not specifically defined in legislation; however, it is evident both from the breadth of authorities to whom the JAG is responsible to provide advice and from the unique role of the office of the JAG since its inception in 1911, that “military law” captures all international and domestic law relating to the Canadian Forces, including its governance, administration, and activities. This includes operational law, which is the domestic and international law applicable to the conduct of CF operations both at home and abroad.
My military career and formal education have provided me with exposure and experience across this broad spectrum of law. I have been a member in good standing of the Nova Scotia Barristers' Society since 1989. Prior to joining the CF, I obtained a Bachelor of Arts with honours from Saint Mary's University in Halifax, a Master of Arts from the University of Ottawa in English Literature, and a Bachelor of Law from Dalhousie Law School.
Later in my career, I attained a Master of Laws, an LL.M., from the London School of Economics in the U.K., where I graduated with distinction from the Master of Laws program in public international law. I was also awarded prizes for top student in the international law program, best dissertation, and for the overall top performance at the final examinations for the LL.M. programs of all the law schools comprising the University of London.
Since joining the CF in 1990, I have served in a number of positions within the Office of the JAG at National Defence headquarters in Ottawa, have been deployed on various operations, and have held a number of positions as a unit and regional legal adviser on bases from coast to coast in Canada. These positions include: Deputy Judge Advocate, Atlantic Region, in Halifax, from 1990 to 1991; Deputy Judge Advocate, Pacific Region, in Victoria, B.C., from 1993 to 1996; and Deputy Judge Advocate, Prairie Region, in Calgary, from 1996 to 1997. In this capacity as a unit and regional legal adviser, I advised daily on all aspects of military law and also fulfilled the role of a prosecutor within the military justice system.
In Ottawa, I advised within the Directorate of Law/Claims from 1991 to 1992 and the Directorate of Law/Human Rights and Information from 1992 to 1993. This was a busy period of time of evolving charter jurisprudence in the human rights area, which had a direct impact on CF personnel policies and practices. I was also the legal adviser to Joint Task Force Two, the Canadian Forces counterterrorism special operations unit from 1997-2000.
I deployed as a legal adviser to the commander of the Canadian contingent, United Nations Protection Force, UNPROFOR, and the United Nations Peace Forces, UNPF, in the former Yugoslavia in 1994 and 1995. I then deployed again as the senior legal adviser to the commander of Canadian Task Force Bosnia-Herzegovina, SFOR, from February to September 2000.
In 2000 I was promoted to lieutenant-colonel and held the position of director of operational law from 2000 until 2003. After the completion of my LL.M. studies, I assumed the duties of director of international law from 2005 until 2006.
After being promoted to the rank of colonel in June 2006, I had the pleasure of serving as the deputy legal adviser and general counsel, military, in the Office of the Legal Advisor to the Department of National Defence and the Canadian Forces. That was from 2006 to 2007. This was a position that permitted me to work very closely with lawyers and colleagues within the Department of Justice.
From 2008 to 2009 I had the pleasure of holding the position of deputy judge advocate general in military justice and administrative law. There, I was responsible for providing DND and CF authorities with legal support in relation to military justice, military administrative law, compensation and benefits, and a number of other military personnel matters.
From 2009 until my appointment as JAG, I served as the deputy judge advocate for operations. In this position, I was responsible for the provision of all military legal advice relating to international and domestic operations.
I have always been very proud to be both a member of the CF and a member of the office of the JAG. I am even prouder today to have been extended the honour and privilege to serve in this capacity as the Judge Advocate General for the Canadian Forces.
As JAG, I exercise command over all legal officers working in the office of the JAG, including those deployed on operations worldwide, whether that be in Afghanistan, on warships, in Africa, or elsewhere around the world. These deployed legal officers work in difficult and challenging environments, providing advice to Canadian commanders across the full spectrum of military law. I can tell you that they do an excellent job under demanding circumstances.
As of June 1, 2010, there are 158 regular force and 53 reserve force legal officers serving across Canada and abroad. While most of these serve in the office of the JAG, this number also includes legal officers on post-graduate and other academic training, as well as those legal officers serving at the Canadian Forces Military Law Centre in Kingston on exchange.
Permanent legal offices are located in Ottawa at National Defence headquarters and at the four operational command headquarters, at regional assistant judge advocate general offices, and at separate deputy judge advocate offices in Canada, Europe, and the United States.
Mr. Chair, that concludes my opening remarks. Again, it is a true pleasure to be invited here today. I look forward to answering your questions.
That's a very good question. My biggest challenges are twofold. One is to continue the history and the legacy built before me by my predecessors, by the folks who had come before me, to provide my clients--the minister, the CF, the department--with operationally relevant and timely legal solutions to their legal issues.
The second and most important aspect is the welfare and care of the folks in my command. As you can draw from my comments, we are a small office, the office of the JAG, and if anybody in this room is familiar with our colleagues to the south, they know that they're an extremely large organization militarily. That includes their individual legal shops, so when we compare ourselves in terms of numbers, we pale in comparison, to use a phrase.
However, I use the phrase often and with accuracy that we're a low-density high-demand asset within the Canadian Forces and the Government of Canada, and we punch well above our weight. My folks, who I've worked with as colleagues and now as their leader, continue to do that on a daily basis, so when we're providing that operationally timely and relevant legal advice, because we do so under very extremely stressful circumstances...
Many of you have just returned from a trip to Afghanistan. We have seven legal advisers deployed to Afghanistan currently, and they're at the right hand of the commander for every decision the commander is making that requires legal advice, and that's not in a comfortable office at 10 o'clock in the morning over a coffee.
Those are extremely demanding circumstances, so when we're providing that advice, whether it's here in Ottawa, which can equally be stressful at times, or across the country, or on deployments, I have to make sure that my people are taken care of and that they're not burned out as well.
Those are my two biggest challenges, Mr. Chair.
Again, that's a very good question, Mr. Chair.
There are different avenues in which I may play a role. You used the term “adjudicate”. That's a broad term.
Obviously, as command, and command over my folks, I have to make sure that my own folks are properly trained, equipped, and educated to be able to deal with those issues, because they provide legal advice, as I've said many times, which I think is commonplace knowledge now. They provide advice primarily to CF, but to the department as well, so we have a constant process of providing advice in a solicitor-client privilege scenario. During that interaction, whether at the lowest levels or at my high levels in Ottawa, we're always very cognizant about the rule of law, the importance of the rule of law, and ensuring that all CF operations, domestic and international, comply with the rule of law.
So we come in on a daily basis in terms of advice. As a superintendent of the military justice system, I play a superintendent's role, so that if there are cases that end up involving a Canadian Forces member for violations of the law of armed conflict--also known as international humanitarian law--I may play a role. That's largely with the independent prosecution service and defence and judge, but again, if there's a particular aspect that looks like it's going off the rails, to put it in basic terms, I may have to play a public role to intervene at that point.
Welcome, Mr. Cathcart.
I want to discuss the issue of solicitor-client privilege. Your predecessor, Mr. Watkin, made it clear that he could not answer some of our questions because he had to protect his client.
Nevertheless, I am trying to find an approach that would allow Parliament to exercise its authority to determine whether the government has been effective and efficient. Unless I am mistaken, it even says in the Constitution that the entire opposition, not just the official opposition, must ensure that the government is administering and spending tax dollars appropriately.
But, sooner or later, we seem to hit a brick wall. I would like to know what kind of agreement we can reach to break through that wall. I will explain.
You said that, as things stand now, you can tell the committee that you cannot answer certain questions. In your opinion, what needs to be different in order to change the way “things stand now”? Would it take an amendment to the National Defence Act, a constitutional amendment, a regulatory amendment? What would compel you to answer the committee's questions today in full?
: Merci, monsieur le président
. C'est une bonne question
Again, I'm here to speak to my qualifications. Your question invites me to speculate on possibilities of making what are essentially legal changes to the current state of the law.
With respect, Mr. Chair, that's not my role. Even if that were the object of this particular inquiry, which it's not, I could not address that specifically.
There are many complicating factors. There are policy decisions and, more importantly, from my perspective, legal precedents. As you may be familiar with, Mr. Chair, much of this issue of solicitor-client privilege has been dealt with and is constantly dealt with in the courts across Canada, and the Supreme Court of Canada has spoken on it frequently.
I think the most recent significant case, called the Blood Tribe case, clearly outlined that from the court's perspective the existence of the solicitor-client privilege is alive and well both in the private and the public practice of law and that it is something to be truly protected.
Perhaps we can debate the policy reasons behind that in a fair and open way, Mr. Chair, but again, that is not my role today. Frankly, I doubt the government would give me that honour to do that debate in the future either.
That's another very good question, Mr. Chair.
No, the officers who work for the office of the JAG don't control the courts-martial process. They provide advice to the chain of command within the process.
As you're familiar with--and I know the chair is as well--the military justice system has two main components, one called the summary trial system, which largely deals with disciplinary matters and charges before commanding officers and chain of command, and then a more formal court martial, where we have a military judge, defence counsel, and a prosecutor.
My folks advise the chain of command as incidents occur. Either there are charges laid, or charges are contemplated during the investigatory stage and during the process are laid, but once this enters formally into the courts-martial process and it's handed over to the director of military prosecutions, that office is essentially an independent actor and makes its own decisions in terms of whether charges proceed or not.
Likewise for the accused, defence counsel, when they're appointed, could be from our defence counsel services, which are uniformed legal officers. They could also be civilian if they accused so chooses. I don't control it. It's an independent office. I can have aspects of personnel issues, but as far as their decisions and actions vis-à-vis their client, the accused, are concerned, I have no role in terms of providing advice on that. Similarly, of course, the judges are independent.
Thank you, General, for your remarks and for your appearance here this morning. I will say as well that your credentials are extremely positive.
I'm also very proud to see that our forces have such capable, experienced, and clearly top-of-the-line people in this type of position. I want to congratulate you on your resumé. I will say, as a fellow graduate of the London School of Economics LL.M. program, that your distinction in receiving these awards that are listed here, not only for LSE, but for all of the University of London students, is indeed a great distinction, and I want to congratulate you on that. The people who were in this program are not your average lawyers, so your distinction there is indeed a mark of your ability.
On that line, I'm impressed by the topic of your dissertation. I wonder if you could make available a copy of it to our committee for our perusal. This is certainly very topical in view of the events of the last couple of years and certainly of the last six months in the House.
I don't want to dwell overly on the issue of solicitor-client privilege, but it has obviously been an issue in this committee this morning and before. I will say that I've researched this issue extensively from a parliamentary privilege point of view in the recent while.
I understand that parliamentary committees would not willy-nilly seek to have solicitor's advice before a committee, and I think the principles that are at work here is that parliamentarians should act with great restraint. I appreciate the diplomacy of your answer to the first rounds of questions.
I take it, though, and assume that at the end of the day you would recognize, after the proper process with the kinds of procedural protections that may be required, the supremacy of parliamentary privilege in these matters, in accordance with the rulings, history, and the place of parliamentarians in our legal system. Would you not?
That'll do it, because it is a part of the law. That's fine.
Tell me, maybe just as a background for some of us here, you as the Judge Advocate General, do you have...? The judges within the court marshal system, are they lawyers who are not necessarily under your direction, but under your team--the judges, the defence counsel, the prosecutors...?
How do you manage to keep your distance, as it were, from the process of an independent judge in a court martial, an independent office of prosecutors who make decisions about prosecutions and the charges, and on the other side, the defence? You did say that defence counsel is appointed. What role is in the appointment process versus a choice of a soldier who may be subject to a court martial?
Within your bailiwick, how do you manage all of these Chinese walls, if you will, between the judges, the defence counsel, and the prosecution? Can you explain that a little bit?
Thank you for that question. It's another very good one for me to talk about the military justice system, which I believe is an outstanding and reputable system. One of my goals will be to educate the public much more, because there is not a lot of common knowledge in the Canadian public about the Canadian military justice system, and it is an extremely sound and competent one.
Mr. Chair, in a word, it is certainly a challenge as a superintendent, because you are playing with independent actors. The Office of the Chief Military Judge is a separate independent unit within the Canadian Forces, and it's led essentially by the chief military judge. Similarly, the director of military prosecutions and the director of defence counsel services are independent actors and their offices are independent actors.
I manage it by trying to have open lines of communication. We have informal and formal meetings. As for my staff, for example, I have a deputy judge advocate general in charge of military justice and administrative law, and they have staff, and regularly, when they're developing policies, when they're looking for ways to improve the system, they do so in consultation with those various independent actors. But at no point are we imposing our will or our desires to have them act in a certain way other than in accordance with the rule of law in a general sense.
It's a two-way consultative process. If they have issues or difficulties, particularly on process, they'll bring it to my folks and we'll address it.
Thank you. Again, that is a another very good question that allows me to speak to this area that we refer to as operational law.
If I may, I'll give some context for just a moment, because it is important for context to understand that the term “operational law” applies to all the legal issues arising from CF operations, international and domestic. It really started... In fact, when I joined the branch in 1990 as a young lawyer, a captain, I asked operational law when I would get deployed and the answer was pretty much that they didn't do that, that their deployable operation was a posting to Germany, and it was in Lahr at that time.
For those who knew it at the time, it was a demanding job at times, but it was a pretty nice spot to be posted to. Coincidentally, perhaps, in terms of the historical peace, we had incidents, both domestic and not, like the Oka crisis, and then the first Gulf War, which really focused a number of legal issues that perhaps in the past Canadian Forces commanders didn't understand in the same way that they would in a more modern approach. But it certainly required legal advice to be given almost immediately, not from an office sitting in a chair in Ottawa, but on the ground beside the commander.
So it has really been since that point in 1990, when we began to develop the deployment concept of having lawyers deployed with commanders. We usually tried it at the command level, whichever command level that was, whether it was the whole task force, or battle group, or brigade, or even lower levels, and similarly with the air force. If you are targeting, as we did in the Kosovo campaign in 1998, we had lawyers in the targeting process as the target files came through who were providing advice to our Canadian Forces commander and the pilots who did the bombing missions in Kosovo.
Similarly on ships, we send lawyers. We just had a lawyer come back with HMCS Fredericton from its deployment off the Horn of Africa, working on counterterrorism and counter-piracy missions. We have a lawyer who advises the commander directly.
In that role, the chain of command over the years has evolved and has understood very much the importance of having that immediacy, that sense of legal advice on the spot, in the moment, rather than trying to reach a place like Ottawa over several time zones.
They have willingly opened up to our folks coming into the operational planning process so that we're not literally at the moment of things like targeting; we're far before that, as the operation is being planned, at all levels, in Ottawa, at operational headquarters out on Star Top Road, and in the field, as in Afghanistan, onboard vessels, or in targeting cells with the air force.
We very much have that immediate legal advice on the spot. From my perspective, it has worked extremely well, and the chain of command has been well served by it.
Thanks again, Mr. Chair, for the question. It's starting to feel like a Toronto Blue Jays game here, but that's okay--they're winning these days. In any event, that's a good question.
I'll give you a short answer. That would be a lovely session, I think, for a future debate, because there's a lot of good, fertile ground on future missions and the types of missions. But certainly from a legal perspective, I think a point to remember is that whether we're engaged in what we call combat operations, as in Afghanistan, or peace enforcement operations, as we did in Bosnia, or more like the traditional peacekeeping mission--and I think the closest one we last did was Eritrea-Ethiopia--you're going to have a number of the same legal challenges and operational challenges. One that the committee is obviously very well aware of is detainees. Use of force is another issue in terms of the international law aspects.
So I would encourage parliamentarians and committees and, ultimately, I guess, Mr. Chair, your researchers to look into those areas, because Canada will continue to be called upon by the world community to go to places where, frankly, the rule of law is broken down, if not broken. As for how we are able to assist not only in terms of a physical combat role or military roles on the ground, but in rebuilding and helping states rebuild, as I said, as we're currently doing in the Congo with the rule of law mission there....
I think the main message would be that it may be a different mission--you may wear a blue beret--but a lot of the legal issues will remain the same.
Thank you very much for that question.
Again, as I've said, it's part of my mandate for the next four years to try to assist everybody within and outside the Canadian Forces in better understanding military law and military justice.
The military justice system is a stand-alone system of justice, separate from the civilian system. It's recognized constitutionally, like any justice system. You'll note that the Canadian Charter of Rights and Freedoms highlights that jury trials don't apply to the military justice system. The real heart of it, at the end of the day is about discipline. The CF is different from the civilian population because of that important aspect. Without discipline, you don't really have a functioning, efficient, and agile operational force.
In order to give the tools to the chain of command to maintain discipline, there are many tools, and one of them is a separate system of military justice. Within that military justice system, as has been recognized by the Supreme Court of Canada in a case called R. v. Généreux, discipline is the heart of the system.
Therefore, the reason, the rationale, for having a separate system in which you have players who are also members of the military is extremely important. It helps to bring a context to people so they understand the proper context. Not that civilian judges don't understand the law, of course, but do they really understand the context?
As members of this panel who have gone to Afghanistan recently, I'm sure you perhaps saw a different context from your understanding of it just sitting here in Ottawa... It's the same with military justice. You have to understand the rules, the regulations, and the context in which soldiers, sailors, and air-persons operate to bring that difference to it.
So when you focus on it and you want to look at it, really, the heart of it is discipline. That separates us from the civilian justice system.
Thank you for that question, Mr. Chair.
Of course, it's a challenge. Like many folks, you equally are very busy in terms of balancing, and I'm blessed, frankly, with two great support systems.
My people are number one We have outstanding lawyers, not only regular force lawyers, but reserve force lawyers who are essentially private practitioners and who step up to the plate and provide services. Not only do they provide services in terms of, say, backfilling for regular force lawyers in Canada when they deploy, but we also have reservists who deploy to places like Afghanistan. We currently have a lieutenant-colonel in the reserve deployed to Afghanistan. So we have a number of great people, including my civilian staff. Nationwide, we have about 100 civilian support staff, some of whom are paralegals.
So all of those folks, as I said, answer the bell each and every time they step up to the plate. I do have to watch it, because many of them, frankly, will burn themselves out; they're so dedicated to the cause in supporting the Canadian Forces and the Government of Canada that they will do that.
My second main support system is my lovely spouse. She puts the reality check on my time and space at the end of the day.
Again, thank you for that question.
As I said, the structure of the defence counsel services is such that they are independent. The appointments in terms of the people are made by the minister, not by me. There's constant consultation between the director, who currently has a rank of lieutenant-colonel, a commander in the navy rank... They often have majors and captains working for them. I leave the consultation process in terms of the skill sets and what training they need with the director. I support it when they need resources and money.
If it came to an issue that I would have to give direction on, such as, say, personnel issues that might affect the people working in DDCS, defence counsel services, I would have to make that a very public statement so the director could talk about it publicly and, if required, challenge the JAG and his function openly.
I think the Canadian Forces, parliamentarians, and Canadians writ large can be very well assured that there are many mechanisms and processes in place that allow the defence counsel services, and indeed all the players—prosecutors, and importantly, the judges—to act fully independently of my thinking and my decision-making.
Thank you. Again, that's another very good question in the operational law area and my sense is that most Canadians would not understand it. One of the reasons, in fairness, is that a lot of issues surrounding rules of engagement are classified. Specific rules of engagement are classified.
But I can tell you that the process is one in which the rules of engagement are ultimately approved by the Chief of the Defence Staff, so it's always an operational issue to do the rules of engagement. Despite what people may have heard, or television shows, it's not the lawyer who says “this will be the rule of engagement for the mission”. We just provide advice.
Again, from the planning process, no matter what type of mission it is, an international mission, a domestic mission in support of law enforcement, as we did recently in Vancouver at Op Podium... By the way, in dealing with that, I'll take the opportunity to remind folks that we had 13 legal officers providing advice, largely on the ground in Vancouver, but back here in Ottawa and with NORAD as well.
So right from the very beginning, it's just like any other aspect of those familiar with what we call the operational planning process: when the chief is tasked with a mission, we immediately start looking at all the legal issues involved, including the rules of engagement. And if you were to go online on the operational side... I haven't checked it this week, but often they have the unclassified part, the front part of what we call our use of force manual, and that lays out the guiding principles and definitions that the Canadian Forces uses for creating rules of engagement in use of force. In that, it describes the rule of engagement creation project or process, which involves operators, intelligence officers, policy officers, all the people you would expect to be involved, including legal advisers, who create the legal framework in which the operators can then say, “We need to use this level of force, so can we use it from a legal perspective, yes or no?”
It's a very detailed process and is one that is followed each and every time rules of engagement are created, for each and every operation.
Thank you for another good question.
I'll just start by making a quick statement about discipline. As I alluded to earlier, it involves not just the military justice piece, which, as I described, is summary trial and courts martial. It involves other tools, administrative tools like removal from command, for example. So the term “discipline”...I just think it's important for people to understand it doesn't just end itself within the military justice system. It applies to all the tools available to the chain of command.
Regarding the specific question, yes, in terms of the system under the code of service discipline, which is a part of the National Defence Act and lays out the process and the offences to be charged under the code of service discipline, it breaks it down as you break it down through the NDA and through the Queen's Regulations and Orders to a number of charges that are only triable by summary trial by the chain of command. Those are often considered to be less serious charges.
Then you have a set of charges that are tried only by court martial. Those often would be considered the more serious charges. Then there are some that may appear to be not so serious in terms of the act itself, but depending on the circumstances, the chain of command may feel that the punishment that might be contemplated might be in the level that's higher. In those cases and for other reasons, they offer an election to the accused to go either to summary trial or to court martial.
So once you're into that zone--and there are a number of charges that fall into that category of electable charges--it's by that choice. We've had recent changes to the NDA from the case I mentioned earlier, R. v. Trépanier, from the Court Martial Appeal Court, that now make it much clearer that the accused makes the choice in certain circumstances in terms of what offence they made. Or the chain of command may simply say that it is going to be too serious a matter. As you know, members of the chain of command are not legally trained as lawyers and judges, so they don't have the competency, for example, to deal with—nor should they and nor do they want to, frankly—charter arguments. That's left for the courts martial.