Good afternoon, colleagues. This is meeting 113 of the Standing Committee on Public Accounts, on Monday, October 22, 2018.
We are here this afternoon in consideration of report 3, “Administration of Justice in the Canadian Armed Forces”, of the 2018 spring reports of the Auditor General of Canada.
I remind our committee that we are televised today, so I would kindly ask that you turn your cellphone or any other type of communication device to mute or vibrate, or whatever causes fewer interruptions.
We're honoured to have with us from the Auditor General of Canada's office, Mr. Jerome Berthelette, Assistant Auditor General; Mr. Andrew Hayes, Senior General Counsel; and Ms. Chantal Thibaudeau, Director. From the Department of National Defence, we're pleased to have Ms. Jody Thomas, Deputy Minister; and Geneviève Bernatchez, Judge Advocate Ggeneral of the Canadian Armed Forces. Welcome.
We will turn the floor over to you, Mr. Berthelette, on behalf of the Office of the Auditor General.
Thank you, Mr. Chair, for this opportunity to discuss our spring 2018 report on the administration of justice in the Canadian Armed Forces.
Joining me today is Andrew Hayes, who is the principal responsible for the audit and is now our senior general counsel. Also joining me is Chantal Thibaudeau, the director of the audit.
Canada's military justice system functions in parallel with the civilian justice system. The purpose of the military justice system is to maintain discipline, efficiency and morale in the Canadian Armed Forces. Like the civilian system, the military system must be fair and respect the rule of law.
Charges in the military justice system can be dealt with through a summary trial or by court martial. The circumstances of each case, including the nature of the charges and the rank of the accused, will determine the type of trial. In some cases, the accused can select the type of trial.
Summary trials are intended to dispense prompt but fair justice for less serious offences. These trials are presided over by commanding officers or other authorized officers. A court martial is a formal trial presided over by a military judge. A court martial follows many of the same rules that apply to the criminal proceedings dealt with by civilian courts.
This audit focused on whether the Canadian Armed Forces administered the military justice system efficiently, including whether they processed military justice cases in a timely manner.
We concluded that the Canadian Armed Forces did not administer the military justice system efficiently.
We found that there were delays throughout the various stages of the military justice process and that the Canadian Armed Forces did not set time standards for some stages, which contributed to the delays. For example, we found that it took a long time to lay charges. For court martial cases, it took a long time to refer cases to prosecutors to decide to proceed to court martial and to set the date for hearing.
The Supreme Court of Canada has established a principle that most trials should be completed within an 18-month timeline after charges have been laid. For the 20 court martial cases we looked at, we found that the average time to complete the cases after charges were laid was 17.7 months, and that nine cases took more than 18 months to complete.
In the 2016-17 fiscal year, a court martial dismissed charges in one case because of the delay. In nine other cases, delay was one of the military prosecutor's reasons for not proceeding to trial. Canadians expect their armed forces to be disciplined and to address unacceptable behaviour promptly. The Supreme Court of Canada has also emphasized the importance of prompt administration of justice.
We also noted that the frequency of rotation of legal officers across the various legal service areas prevented prosecutors and defence counsel from developing the necessary expertise and experience to effectively perform their duties.
Furthermore, we found that the office of the judge advocate general did not provide effective oversight of the military justice system. The regular reviews of the system that were required had not been conducted, and case management systems and practices were inadequate. Some military units had their own tracking systems, but they did not capture all the information needed. Other units did not have any system or process to track and monitor their military justice cases.
We found that prosecutors had rarely documented their reasons for proceeding to courts martial. Prosecution decisions involve a high degree of professional judgment, and poor decisions may undermine confidence in the military justice system.
Without information about why prosecutors decided to proceed with court martial cases, the Director of Military Prosecutions cannot monitor and show how prosecutors applied legal principles and exercised professional judgment in each case.
We also found the Canadian Military Prosecution Service did not develop clear and defined processes to implement its prosecution policy. The delegation of prosecutorial duties and functions was not always documented, and the procedure for assigning cases and decision-making authorities was not clear.
National Defence agreed with our recommendations. The Department has prepared an action plan with milestones and time frames to address the recommendations. We have noted that, according to the action plan, some actions and milestones identified by National Defence should have already been completed.
Mr. Chair, this concludes my opening remarks. We would be pleased to answer any questions the committee may have.
Good afternoon, Mr. Chair and members. I am pleased to be appearing before you today alongside Commodore Geneviève Bernatchez, the judge advocate general. She does not like me to talk about this, but Commodore Bernatchez is the first woman ever to hold the position of judge advocate general in Canada. She was appointed in June 2018.
Before we begin, I'd like to thank Mr. Ferguson, Mr. Berthelette and their team for their hard work and insights on the administration of justice in the Canadian Armed Forces.
I also appreciate the committee's interest, and your contributions to enhancing military justice.
The military justice system is an important part of enforcing the high standards the Canadian Armed Forces hold themselves to.
An efficient and effective military justice system helps maintain discipline, efficiency and morale within the Canadian Armed Forces, which means that the Canadian Armed Forces is better prepared to defend Canada and Canadians at home or abroad in times of peace or conflict.
The Auditor General's report identified areas in the administration of our military justice system where we need to do better. We are committed to addressing them. We recognize that some of the Auditor General's observations reflect previous recommendations from other reports that were not fully actioned. We're acting on them now.
Commodore Bernatchez is implementing an action plan that ensures each of the Auditor General's recommendations is addressed and results in meaningful change.
This will allow the Canadian Armed Forces to strengthen the military justice system and ensure that the judge advocate general has proper oversight of that system. Today I will focus on what we've done in these areas so far and how we will continue to improve. I will keep these remarks short in order to leave more time for discussion.
The Auditor General identified a concern that some of our prosecutors and defence counsel have been rotating through their positions too quickly.
Commodore Bernatchez acted quickly to address this and has lengthened current postings to the recommended five years.
This will be the minimum duration for these positions from now on.
We also agree that the office of the JAG has not always had the information it needs to provide meaningful oversight of the military justice system. We appreciate the Auditor General's attention to this important point. We have been working on an electronic case management and monitoring system—namely, the justice administration information management system, or JAIMS—since 2017. JAIMS will track military justice files from the very first report of an alleged infraction through its investigation and the laying of charges to the trial disposition and review in both summary trial and court martial processes.
JAIMS will be used by key actors within the military justice system, including investigators, those laying charges, presiding officers, review and referral authorities, legal advisers, prosecutors and defence counsel. They will update JAIMS at each stage of the process so that files can be tracked in real time. JAIMS is nearing completion. We will begin pilot-testing it in early 2019. We are confident that this will improve the JAG's ability to oversee the military justice system and its administration.
We will also finish reviewing the time requirements for each stage of the military justice system early next year.
And we will establish clear new time standards, as the Auditor General recommended. These standards will respect the rules of fairness and legal requirements.
They will be incorporated into JAIMS so that key actors in the military justice system are prompted to move cases forward steadily. If anyone is unable to meet these time standards, the system will require that they provide reason for delay and they will tell us what has caused the delay so that we can figure out how to fix it.
These standards will also contribute to the timely disclosure of information to those charged with an offence, and these same time standards will be incorporated into the performance measurement system that we are developing. We will know when our standards are not met, and we will know why they were not met. That information will allow us to continue to improve the military justice system.
Because our work does not stop once we address Mr. Ferguson's recommendations.
We will continue to build on the excellent work that he and his team conducted with periodic, formal reviews of the military justice system.
We will act on the information that those reviews provide. The changes that we are making to how we manage our people, our communication and our case files will mean that the military justice system will be stronger. It will have appropriate oversight and will be responsive to the needs of the Canadian Armed Forces.
We look forward to discussing this in detail with you this afternoon, and we welcome your questions. Thank you.
Thank you very much, Mr. Chair.
Commodore Bernatchez, you will probably be able to give me an answer.
How have prosecutors been able to justify the lack of a way to track decisions? It seems a little strange to me, in a legal setting, that decisions are not tracked, because ultimately they have repercussions on the lives of individuals.
So what reason has been given for not keeping track of those decisions?
First of all, I want to state that the comments made by the audit team and in the Auditor General’s report point to shortcomings in documenting those decisions.
I want to assure the committee that the Director of Military Prosecutions’ team made those decisions and justified them regularly. As I told you, that is one of their obligations.
The problem that was brought to the attention of the director of military prosecutions, and which is well founded, is that this was not done, or documented, in a strict and systematic way in each case.
The Director of Military Prosecutions reacted immediately to that comment, that observation. He issued directives last summer to make sure that each time a decision is made by one of the prosecutors in a case, it is recorded by the prosecutor assigned to the case.
I also want to draw to the committee’s attention the fact that the Director of Military Prosecutions also completely reviewed the entire group of policies that apply to his prosecutors to make sure that there was an immediate response to the comments and observations made by the Auditor General.
I have the full review of the policies here, in English. I will try to translate it as I read.
The DMP looked at updating all the policies related to the change to instruments for appointment of prosecutors, clarifying the limits of the powers of a prosecutor on a file and indicating at what level charges could be disposed. Also, he reviewed all the policies that specified the timeliness of disclosure to the accused, which was also raised very validly by the Auditor General's reports.
He has also issued a policy regarding better communications between his prosecutors and investigators at all stages of a file, and has issued policies regarding the specific time frames for the scheduling of courts martial, which was also noted in the Auditor General's report.
Not only did he address specifically what had been
used by the Auditor General, but he went further by doing a complete audit of his policies to make sure that they are current and adequate.
If I may, I would refer you, Deputy Minister, to paragraph 3.73, page 17, of the report of the Auditor General—the overseeing of the administration itself—and the reference made to the insufficient reviews of the office of the judge advocate general.
We have a new judge advocate general, and I congratulate Commodore Bernatchez. How did the fact that there were no reviews or very insufficient ones impact the administration of justice in a very real way, a concrete way, for personnel who have had to deal with the system? Was this a question of human resources? Was there a problem with staffing the JAG? What was the issue?
I certainly will invite the JAG to jump in. I think the question at hand was that we could always use more people. There's absolutely no doubt, and I think that Commodore Bernatchez herself would say, yes, she'd like to have more people, but the core of the problem was a lack of adherence to policy, a lack of review of those policies and a lack of follow-up periodically to ensure that cases were properly documented.
The impact was that we did not proceed to prosecution because of timeliness in at least one case, and then there were problems with another nine. That doesn't sound like many, but with the number of prosecutions in the course of a year within the Canadian Armed Forces, it has an impact. If anybody is denied justice because of a procedural problem, that is a problem for the Canadian Armed Forces both in the administration of general military discipline and reputation.
Rather than just looking for more people, the judge advocate general has done a complete review of policy and the implementation of the new tracking system—the case management system, essentially. She reports to the chief of the defence staff, me and the minister, depending on the situation. Now we can go in and questions can be asked, timelines can be assessed and we can ensure this system is being properly administered.
Thank you to the team from the Auditor General's office.
Usually I start with questions of the Auditor General. I'm going to skip right over that to get the deputy minister to answer some questions here.
What I find frustrating as I look through the response to the report is that there's a lot of “will”, “will”, “will”, and I hope there is the will to get it done, because it hasn't been done in the past. As you mentioned, these are items that have been consistently brought forward through previous audits.
What I find perplexing is.... Let me start here. What is the target timeline you put in place to get through a case? I realize there are going to be complex and simple cases and everything in between, but what would be a target timeline example? Do you have targets put in place for different offences?
The judge advocate general will get into the detail with you, but the response to that is, absolutely.
I will just take a minute to address the “will”. Most, if not all of the management action plan items are under way. We say “will” because they're not yet done, and we're happy to report back to you, and we do report back to the committee when things are completed in the management action plan. Many of them started before the audit was finished, because Commodore Bernatchez recognized that there were changes that had to be made. We have accepted every recommendation because we agree.
In terms of things that haven't been done previously that we had agreed to, we have put a new oversight view into the department. We're tracking things through data analytics in a way we never have in the past. We acknowledge, as a department, that in not just this audit but other audits, we have not always followed up and completed the things we said we would.
I understand that, and I respect that completely. There are lots of things that I can't speak to for previous governments, etc., even governments of my own persuasion.
At the end of the day, you're not here representing yourself. You're representing the department. When I look at this, it is.... We track these things in our daily lives that are so simple, yet we can't track something that is so clearly important when the Supreme Court identifies a timeline to say this is a timeline in which justice can and should be served. We can't track, in the department, how long it's taking to do that overall—it takes the Auditor General's office to do that—and then we can't track each step of the process to say where we're falling short, where we need to do better, and where we have already hit the targets. We come in 2018 and say that we're going to put new systems in place; we have this great system we're going to put in place.
I don't think it's a new system that needs to be put in place in terms of what you're talking about here. I think that this is straight-up discipline of personnel to hold them accountable and to hold the people below them and above them accountable. The fact that we're talking about discipline related to the Canadian Armed Forces justice system is mind-boggling.
It should be the gold standard.
Thank you all for being here, in particular, Deputy and Commodore.
I spent a few months as my party's defence critic. One of the things I came away with was a better understanding that esprit de corps in the armed forces is everything. It is so critical.
I have to admit that as I was going through this, my emotion was one of sorrow more than anger. I was saddened that we, you, the department, let our forces down so severely in an area that is so crucial to Canadian values, and that is a fair justice system. For the most part, when you sign up, you pretty much turn your life over to the department, and there is an obligation.... It's disheartening to think that an important part of our defence department could be operating so poorly and so incompetently.
There are two pieces to this, as I see it. One is the deputy minister being accountable for the implementation of policies overall. There's a failure here. That's at your doorstep, Deputy, and that's partly why you're here. That's part of the accountability process. That stands alone. You and your minister carry the can for that.
Now, drilling down and being a bit more fair-minded, I can appreciate that you and the minister and the chief of the defence staff would rely on JAG for legal advice and the legal system within the department, so I'm putting a lot of the details for responsibility on the part of JAG. If I put myself in the shoes of the minister, that's who you rely on to give you the expert advice, that's who you rely on to make sure that the fundamental rights of Canada are being upheld.
To me, Commodore, you're a bit on the spot here. I don't want to leave the deputy's responsibility, but I do want to talk about the audit.
The objective of the audit was to determine whether the Canadian Armed Forces administered the military justice system efficiently. Under “Conclusion”, it says, “We concluded that the Canadian Armed Forces did not administer the military justice system efficiently.” Deputy, overall you own this.
However, when I go to page 14, headed up “Overseeing the administration of the military system”, and I quickly look at 3.62, “Context”, it tells me, and this is from the AG's report, “The Judge Advocate General is responsible for ensuring that the military justice system operates efficiently, effectively, and in accordance with the rule of law.”
The subheading, under “Overseeing the administration of the military justice system”, says, “The Office of the Judge Advocate General did not provide effective oversight of the military justice system”. The first point on that page, "Overall message", says, “Overall, we found that the Office of the Judge Advocate General did not provide effective oversight of the military justice system.”
This process here is about accountability.
Commodore, explain yourself and this department's complete failure to ensure that there was a proper justice system in our military system. Please explain how we got in this mess.
I think to put things in context, we need to nuance what has been said by the Office of the Auditor General. What they have said is that there was not “effective oversight”. The Auditor General has never said that there was no oversight. We fully agree, as the deputy minister said, that this oversight has been fraught with challenges for the last several years, and that's what we're trying to fix.
It's a military justice system that spans across the entire territory of Canada and is even administered overseas. As mentioned in the Auditor General's comments at the beginning, it is one that is administered not only by courts, by service tribunals that are courts martial, but also by units all over Canada.
What the Auditor General has found, and it's completely accurate, is that currently the units are taking stock of how things get done on pieces of paper, on Excel spreadsheets. This data is then communicated to my office in order for us to maintain visibility on the aspects of how many summary trials, what charges, what are the outcomes...so there is performance measurement. There is oversight and monitoring, but that is not sufficient in 2018, and we recognize that.
With the justice administration and information management system that we will put in place and that we're currently developing—it's at stage two of its development, and we're testing every single phase as we go through—that will allow not only me, but every single actor that has a role to play as a decision-maker in the military justice system to see in real time where a case is and whether the time standards that have been defined and included in this computer-based system have been respected. If not, why not? Because they will be required to enter into that system the reasons that time standards were not met.
Ms. Thomas and Ms. Bernatchez, as a follow-up to the questions from my colleague Mr. Christopherson, can you explain to me what prevented the implementation of a case management and information management system?
Given that most departments and most lawyers’ offices have, for a number of years, implemented systems to help them properly manage and administer their files, how is it that such a system has still not been implemented today? How do we explain why the department is so slow in implementing a system of that kind?
Thank you very much for the question. I'll begin. Certainly, the commodore can jump in.
It wasn't a priority within the department. Other systems were a priority—operational systems for the forces out fighting, systems for the air force, army, navy, to support them as they were conducting operations. This system has now been prioritized as a result of the Auditor General's report—there is absolutely no doubt—and as a result of Commodore Bernatchez's leadership.
One of the reasons we're putting a system in place is, yes, because it's overdue and things should be tracked electronically and through a case management process, but also, we no longer want the priorities, the measurement, the management of the office of the JAG to be individual and personality-dependent. This particular JAG has a very broad interest in ensuring proper oversight of her operations. The next one might not, which is not acceptable. I totally understand that, and I am accountable for ensuring the proper administration of the department, but we want to remove personality from the process and ensure that we have proper data management.
It wasn't a priority previously. It is now.
Let me put things in perspective and explain for the committee.
The military justice system has all the independent participants found in a justice system. By that I mean investigators, prosecutors, defence counsel, judges and upper courts that review cases. It’s a complete criminal law jurisdiction that has to be contained within a self-sustaining system.
Let me go back to the question you first asked. You asked me why we had not implemented a case management system on the scale of JAIMS before now—
This is to Ms. Bernatchez through you, Mr. Chair.
You developed a game plan for implementing the system. In your action plan, you targeted the 2018-2019 financial year, together with your assistant deputy minister. There will be a trial period at the beginning of January and then the system will be launched in September 2019.
In order to be able to establish a specific action plan, you probably know how many people will be using the system. If not, it would be a little difficult to establish an action plan when you do not know how many people will be using the system every day.
Thank you, and I am sorry for the problems with procedure. I have certainly taken note of it.
At the moment, we are not in a position to have exact numbers, because it will vary. However, we do know the number of files that the system will generally process. It's about 2,000 files per year, from the filing of the complaint until the case is completely processed.
You also need to know that the case management system will need to authorize specific access for each person involved, so that the information is protected. Not everyone will have access to all the information. If they did, the system would not be watertight and robust.
To go to the comment on ensuring that people are doing what it is that they're supposed to be doing, entirely, that's a question of ensuring that we have proper oversight and proper control over what people do.
As it pertains to unit disciplinary investigations currently being carried out, it's very difficult to predict, just like in the civilian system, how long an investigation will have to take and how long it will be carried. On the fact that it took, on average, five weeks, I don't think that we can take the time that it took to investigate as the only standard.
What is for sure though is that by reviewing the time standards—which we're currently doing with all of the military justice stakeholders including the Canadian Forces provost marshal, including representatives from the chain of command—establishing the time standards and making sure that they are part of our electronic management system and monitoring system, that will allow us to see where the choke points are. If somebody doesn't meet the time standards, they will have to indicate why, and as the superintendent, I will be able then to have access immediately to these results to identify where the vulnerabilities are, where the challenges are, and go to the heart and the roots of the reasons why it is taking longer than expected. Is it an issue of training, for example, for unit disciplinary investigations? Do our unit investigators need more training in order to be able to do their jobs more efficiently? Is it a question of resourcing by units that are deployed on operations and have not the flexibility to allocate sufficient resources for investigations?
These are the types of things that will be yielded by the justice administration information management system.
If I may respond, you're absolutely highlighting a point that we haven't brought out.
Obviously for us, the system will help provide information to us, but if the underlying human behaviour doesn't change and we don't prioritize investigations and we don't train commanding officers differently and ensure that they give this kind of work and their responsibilities in the system for discipline the attention it needs, nothing will change other than the JAG will have better information about what's going wrong.
Therefore, there has to be a systemic view and investment in commanding officers and everybody who plays a part in this system to ensure that they understand their responsibilities. Certainly this audit is a first step in that. The JAG has a role, the chief of the defence staff has a role, the department has a role, as do commanding officers across the system. It is critical that we change human behaviour in this process.
Timeliness is at the heart of the military justice system.
That's what it is all about.
It's a system that needs to respond to the requirements of the Canadian Armed Forces in a timely manner and that needs to be portable. In order for that system to deliver what it needs to deliver, absolutely, it needs to respect timelines.
In 2016, the Supreme Court of Canada, in the Jordan case, established time standards. For our courts martial, it has been determined that the 18-month time standard applied to the military justice system. Just like the civilian justice system—
This is two years ago, so what is that line?
All I'm trying to figure out is this. On day one, we know it can't take longer than 18 months, or it shouldn't, except for some very difficult circumstances that may be the one in 100 case. For the other 99 cases, what targets do you set up? What are the established targets within the military justice system to be met?
I'm finding this very difficult, Mr. Chair. I've asked the question three or four different ways and it might be that I'm not asking it the right way. I understand that, or I might not have the right language, but—
Thank you for coming to meet us today. It is very pleasant and very important. My thanks to you all.
[The member spoke in Cree.]
I'd just like to ask a few little questions.
I have a bit of a different perspective, in fact, from that of, I think, most of my colleagues. I was in the armed forces for about 22 years. I was actually the disciplinarian in my many units, either in the navy, as the regulating petty officer, or in the 5e brigade, where I was the sergeant-at-arms. I was actually the one doing the investigations and helping to lay the charges against personnel who had committed infractions of the code of service discipline.
I would just like to confirm with Commodore Bernatchez whether it's within three years after an infraction has been committed that you have to lay a charge. If someone commits an infraction, do you have three years from that date? If they commit the infraction, let's say, today, is there three years? Is that true, or is there unlimited time?
This is actually my criticism of the report from the Auditor General. In fact, I don't think you look at anything related really to the education system within the Canadian Armed Forces—for instance, in the Osside school for the non-commissioned members, the senior NCOs and the non-commissioned officers who actually do disciplinary hearings and charges and who actually have to come up and read the code of service discipline to find out what the charges are, obviously in conjunction with prosecutors. I don't think you reviewed that.
One of the things that irked me quite a bit is that you have a chart here, which is exhibit 3.2, “Primary roles and responsibilities for military justice”, and you have commanders of military units, but you actually don't have the NCMs. Once again, you're going back to the old way of doing the military system, where you have officers but everyone else is kind of forgotten about.
For me, obviously you could delegate some of these authorities, but often they are always delegated to people like me who have to carry out that work.
What I found in my time in the Canadian Armed Forces was that there was a lack of education. We had a very, very brief overview of some of these issues and what needed to occur. Because of that lack of education.... For instance, in the advanced leadership course or the intermediate leadership course, because they're so short—two weeks, three weeks—there is not enough time to really gain any greater understanding of the military justice system. We look at the charges in front of us and sometimes it makes it very difficult for the NCMs, the non-commissioned members, and the senior NCOs, the non-commissioned officers, to actually proceed with charges in a timely way.
Because obviously the Canadian Forces are supposed to be about team and how we work together, I'd actually like the Auditor General's office to reconsider their report and what they have done, because I think they've actually missed a major component of the report. I can read it here and what you have examined, and while it's very good and interesting, I think you've missed the essential component of it and who is actually responsible for doing that.
I must say that I was also—
Thank you very much, Mr. Chair.
Of course, as the honourable member mentioned, training is important. Obviously the success of the military justice system falls on the people who have to implement it.
Our audit focused on those who were accountable, so of course powers are delegated, but at the end of the day there is an accountability that rests with the commanding officers for the military units. Training, of course, as the commodore has mentioned, is going to be an important feature in how this military justice system is improved.
I suspect I am sharing some of the frustration I think Mr. Nuttall is showing.
Part of this process is that, yes, we acknowledge that we screwed up and we're going to make it better and here is how we're going to do it, but that doesn't end the accountability. I haven't heard a lot of accountability. This is a bad report. There is not much in here, Deputy, that is positive. I can't think of anything. There might be, but it certainly doesn't stand out. It's all negative.
My first question is this. Has anybody been personally held to account at a supervisory or senior management level for this boondoggle?
Thank you for the question, Mr. Christopherson.
The answer to that is no. There is a new judge advocate general, and she has a new staff. She came into the job in June 2018, and she exercised leadership to change the process before the Auditor General's report came out, but in conjunction with it. I don't think she disagreed with a single recommendation that was made, and she has worked with the Auditor General.
Sorry, she came in, in June 2017.
We're going to be following this, as you know.
I want to ask about the cases that were dropped because of the delay. It comes back to where Mr. Nuttall was, I believe, in terms of, okay, you have new standards.... It's on page 4:
||In the 2016–17 fiscal year, a court martial dismissed charges in one case because of delay, and delay was a reason why military prosecutors decided not to proceed to trial in an additional nine cases.
Even though there are new standards in place and new tracking, there must have been something in place. We're talking about lawyers who, for the most part, care about the justice system. How could they let that happen? How could all of this keep going on? It would still be going on if the Auditor General hadn't come in. How could that be? Are we back to, “We didn't have a very good JAG”?
Thank you, Ms. Thomas and Judge Advocate General.
I'm the son of an officer. I know how military training works. I grew up in a household where my dad had those standards and we all had to adhere to them. I'm also a lawyer, so I know how justice delayed is justice denied. Timely disclosure and performance measurements are all basic departmental requirements, whether you do them on Excel or in a fancy computer. If there's no attitude or will, nobody is going to implement them. It seems like there's a big attitude or will problem because, on its own, I don't think the technology is a reason for delay. I'm a little concerned that, if we're implementing a technology next year, we're going to have problems and we're going to blame it on the technology. I think it should be beyond that.
Military is usually one of the best organizations where systems, checklists, timelines, accountability and follow-throughs are ingrained in an officer's, or a soldier's, or a JAG member's psyche. In fact, I would hope that JAG was a standard that, across the country, other departments of justice would hold to and say they do really well. In fact, it's the other way around. The Canadian Bar Association has critiqued the previous system as being inadequate. It should be the other way around, where departments of justice should take leadership from JAG, by looking at how well they do it, how timely and how effectively, just because of the culture of how military should operate.
What is the timeline for the new system and can we ensure that there's no gap, for example, if the deputy minister or the commandant is changed, so that we don't have this delay again? It seems to be an epidemic that whenever senior staff is changed then the new staff says they don't know what the other staff did. These are simple things, like when a teacher runs their curriculum, they have a system in a binder, so that if they're sick or away, the substitute can come in and pick up right from there and the class goes on.
How are we ensuring that this new system will be managed well, so we don't have those changes?
I want to reaffirm here for the committee that inappropriate sexual behaviour is not accepted in the Canadian Armed Forces and that our chief of the defence staff completely committed to ensuring that this would be dealt with. The military justice system is one of the important tools put at the disposal of the chain of command to ensure that we eradicate these behaviours within our midst.
You're absolutely correct that a computer system cannot, in and of itself, solve everything. When we're talking about timeliness, when we're talking about the effectiveness of the system, there needs to be a complete cohesion of things coming together. The solutions we're looking at and are currently working on are the time standards and the litigation experience, as has been noted by the Auditor General, to ensure that our prosecutors and our defence counsel have the expertise required moving forward. That requires training as well from all actors in the military justice system.
Going back to a previous question or comment, the Canadian Armed Forces disciplinary advisory committee, made up of senior NCOs, is the key advisory body for the Canadian Armed Forces in that regard. Better communication between actors was also noted in order to ensure that the system runs smoothly and benefits from the perspective, the expertise and the points of view of all of the major actors.
I would be remiss not to mention also Bill , which is currently before Parliament for discussion. That is expected to significantly reduce the delays within the military justice system, because it will simplify summary hearings and bring them back to simple disciplinary infractions that commanding officers, delegated officers, can deal with.
I want to thank our witnesses for being here.
I read through report 3 from the AG's office. It is a condemnation of our military justice system. I have to say that when you look at all the recommendations here and the conclusions, it's disappointing. Then you look at the delays and you look at the decision by the Supreme Court on the Jordan decision. Essentially, justice delayed is justice denied.
Why is this happening? Is it a human resource problem? Do we have not enough judges, not enough lawyers, not enough investigators? Even the investigations are taking beyond 30 days.
Deputy Minister Thomas, why is this happening? Why isn't our military justice system properly resourced?
I have spoken to Commodore Bernatchez about her resource level, and she believes she is properly resourced.
I think there are a number of elements. There is no one answer. I can't give you a simple answer as to why there are delays. Sometimes the victim doesn't want to come forward, or the people involved in the case are deployed. It's an operational organization where people are moving all of the time. Time delays within units have to do with being deployed on operations. Sometimes it has to do with training. Sometimes it has to do with the availability of judges or prosecutors. There are a number of factors.
I do believe, and I may be alone in this, that data will help Commodore Bernatchez manage the operation differently, because she will see.... She believes she has enough resources; perhaps she doesn't, and we will see a particular bottleneck in one part of the country or one part of the process or the way in which we execute certain parts of the process.
But there's no doubt that by having these delays, you're undermining your own rules and service codes, such as the code of service conduct, that are in place today. When you try to maintain good order and discipline, when you try to maintain that morale, how do you get that when you have everybody languishing in court?
I know that you guys are well versed on the Beaudry decision by the Court Martial Appeals Court. Is maybe part of that decision of actually pulling everything out that would be considered a court martial and moving all of those into the civil court rather than their being in the military justice system the solution? There are people out there who are advocating and some have been advocating for years that it should be outside of the military justice system, but I believe it really does undermine the code of conduct. It undermines the military ethos and it undermines the chain of command.
I'm glad CAF is appealing that decision to the Supreme Court and asking for a stay of proceedings, but at the same time, when we see reports like this—you have your critics out there, outside of the AG's office—aren't you just adding fuel to that fire?
It is recognized that in order to be a performing litigator, one needs experience and needs expertise. This was noted by the Bronson reports in 2008 and 2009.
We acknowledged that, and I've issued orders to my chief of staff that the vast majority of litigators who are part of the military justice system stay in place for a minimum period of five years. Of course, this will be done as per the director of military prosecutions' and director of defence counsel services' wishes as well, because certain people are just not cut out to be litigators, so they need to have the flexibility to say this person is not working and they will need a replacement.
That will build the expertise, but you're absolutely correct. We need to look at the entire organism that is the office of the JAG and see where we need to balance in order to ensure that there is also the generalist approach, because the office of the JAG is responsible for providing legal advice in all areas of military law and we need to develop the knowledge of it.
What I've asked for the support of the Canadian Armed Forces to do, and we've started this fall, is an occupational analysis of legal officers to see where we need the training, how long the posting should be, and what types of experience the legal officers need, whether they are litigators or generalists within the office of the JAG.
It's quite a long process. It usually takes five years in order for it to be meaningful. After we have completed the occupational analysis, we will be able to determine how we adjust our personnel management practices to ensure that we yield the best results for our clients.
It's related to the idea of summary trials. Obviously, before Bill , which is in Parliament right now, that left you with a record. You were criminally responsible. It was a criminal case. Now it has changed.
Is there going to be an education program? One of the issues with the military justice system is that people were very afraid to use it. If you were late, you were charged and you would eventually have to go and get a pardon, at some point in the future. A lot of people were very wary, because 20 years ago you could be charged and you would have a criminal record for life when you left the military, just for having been 15 minutes late.
Now it's changing. Will there be an education program through the NCMs and the units on the ground to actually ensure people know that this instrument has changed, that they can use it, that they can go about and actually start imposing the discipline? Discipline is important for one reason. If people make mistakes, people can die. If you don't use your arms properly, your weapons, if you discharge your weapon in an inappropriate way, if you're doing things that are inappropriate, your comrades could die while in operations, and obviously, we don't want that.
What are you doing to help ensure that the disciplinary structure is flexible on the ground, related to education?
You are correct in stating that some of the offences currently tried by summary trial could eventually lead to records that are akin to criminal records. The changes that would be brought by Bill would ensure that everything that is done by summary hearings doesn't result in penal or criminal consequences.
That will be a sea change. If we go from the summary trial process to the summary hearing process, it will require significant training of all actors within the military justice system. That's something that the office of the judge advocate general and the Canadian Armed Forces did in 1998 when there was a sea change in the military justice system, and we're quite used to doing this. It will be significant. It will need to be deliberate.
As you mentioned previously, it will need to address not only the officers within the Canadian Armed Forces, but all of the disciplinarians—the senior NCOs, the NCMs, everybody who has a role to play, from the person who receives a complaint to the person who leads the investigation, to the person who lays the charges, to the person who finally hears the summary hearing process.
I have a question that I would like to ask our guests. We do a study and we do a report. We table a report in Parliament as to the study that we have undertaken in regard to the Auditor General's study. My analysts here have given me one question that we would like to have for the report that we will build. That is the question regarding the department's response to paragraph 3.86, pertaining to the independence of the two directorates.
Let me just read into the record what the recommendation is from the AG, and then your response to that. Paragraph 3.86 reads:
||The Judge Advocate General should assess whether its practices and processes affect the independence of the Director of Military Prosecutions and the Director of Defence Counsel Services, and whether any adjustments or mitigation measures should be established.
In your response to that, you agreed with him and said that:
||By January 2019, the Office of the Judge Advocate General (JAG) will perform a thorough review of its relationship with the Director of Military Prosecutions and the Director of Defence Counsel Services to ensure their respective independent roles within the military justice system are respected. This will encompass a review of all existing policy directives to the Director of Military....
How is that review coming? You're going to have it completed by January. It's not very far away. How independent are the directorates, the prosecution and defence? What can you tell us as far as how independent they are currently?
In reality, independence and the perception of independence are crucial for a legitimate military justice system. We take this matter very seriously.
The independent role of both the director of military prosecutions and the director of defence counsel services is provided for in the National Defence Act. The reporting relationship, or the general supervision that is exercised by the judge advocate general, has been provided by Parliament to the judge advocate general vis-à-vis those two actors.
In practice, on a day-to-day basis, I am exceedingly mindful of the independence of these two actors. In my strategic policy direction for the next three years, I have issued an obligation for all members of the office of the judge advocate general to assist me in the superintendence of the military justice system, in full respect of the independence of these actors.
As we're speaking, we have also completed a complete policy review of all the JAG policies as they pertain to the director of military prosecutions and the director of defence counsel services. We did that in consultation with these two directors, and we found no issues related to independence as far as these policies were concerned. The next thing we are doing currently is to continue to consult with the two directors to see what better practice we could develop to ensure not only factual independence but also the very important perception of independence.
One of the practices I've put in place this year for the reporting period is that, for the first time ever, I told the director of defence counsel services and the director of military prosecutions that they are responsible for their own personnel evaluation. I will have absolutely no role to play in this. They will evaluate them and send them directly to the centre for the selection for promotion.
I've also agreed with the director of military prosecutions' suggestion that he engage directly with the Minister of National Defence for matters that pertain to prosecution. He fully agreed with this. Where there could have been the perception before that the JAG had a role to play in that relationship, I am ensuring that, perception-wise, this is no longer the case.
When the director of military prosecutions and I discuss matters, they are strictly related to the administration of his office, the resourcing of his office, where cases might be pursuant to his determination. The National Defence Act provides for the fact that I could issue general or specific guidance in certain cases. This has never been the case. I have never issued such guidance. On the record, my predecessors who have always accomplished their duties to the very best of their abilities and very professionally have not issued such guidance. If I were to have issued such guidance, it would have to have been made public. I could issue general guidance for the director of defence counsel services. This has never been done. This would have to be made public.
Finally, these two independent actors have never brought issues of independence to the judge advocate general's attention, via their annual report mandated through the National Defence Act. They have never questioned whether in practice or in perception there was a concern in that regard. Because this is so crucial, because this goes to the heart of the legitimacy of that system, we are currently reviewing means and manners to interact that will reinforce the independence, not only factually but also the perception.
Thank you all for being here.
I usually sum up a day like this by just saying that when you leave here, you may go over in your mind some of the questions that were asked and some of the answers that you gave. In the course of doing that, if you feel that you could better provide information to this committee, we would encourage you to send information in if there's anything you would like to expand on. As we build our study fairly soon, we always leave the door open for you to get hold of our clerk with that added information.
We do thank you for coming. Democracy is great, and as Mr. Nuttall, Mr. Christopherson and others have said, Canada really is the shining light in that. This is part of that. This is the transparency and the accountability part—this committee—on how government resources are spent and delivered so that Canadians can have confidence in the system.
We take the action plan very seriously. When you send us an action plan, this is the road that we're going to go down in order to accomplish the recommendations that we've agreed with. We follow up on them. We have researchers who go through it and analyze whether it's efficient or not. If it isn't, we invite you back. Really, you probably don't want to come back when that happens.
We thank you for letting us know if any of these timelines change. If you're advanced, if you're ahead of schedule, that is also good to know. We thank you for being here.
Thank you, committee, for the good questions and good day. The meeting is adjourned.