Good afternoon, everyone.
I call this meeting to order.
Welcome to meeting number 22 of the House of Commons Standing Committee on National Defence.
Today's meeting is taking place in a hybrid format, pursuant to the House order of January 25, 2021; therefore, members are attending in person in the room and remotely using the Zoom application. The proceedings will be made available via the House of Commons website. Just so that you are aware, the webcast will always show the person speaking rather than the entirety of the committee.
If interpretation is lost, please inform me immediately, and we'll ensure that the interpretation is properly restored before resuming the proceedings. Before speaking, please wait until I recognize you by name. If you are on video conference, please click on the microphone to unmute yourself.
I'll remind you that all comments by members should be addressed through the chair. When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute. With regard to the speaking list, the committee clerk and I will do the best we can to maintain a consolidated order of speaking for all members, whether they are participating virtually or in person.
Before we introduce our witnesses for today, there are two issues that I'd like to bring to the committee's attention.
The first is that the law clerk has completed his review of the documents pursuant to the production order issued by the committee on Monday, March 8. We received a letter from the law clerk this morning.
I'd like to bring to your attention the following extract from the law clerk's letter:
In the course of our review, we noted that certain records contain sensitive personal information that does not fall within the categories of redactions expressly allowed by the Committee’s Order. My Office has highlighted this information in ‘yellow’ in the documents for the Committee’s consideration, should it wish to redact that information before distributing the documents or making them public.
We can actually give him permission to do this or we can distribute them with certain guidelines about the confidentiality of the information that is included in these documents. Does anyone have a significant preference?
Go ahead, Madam Gallant.
Mr. Garrison, you are correct.
We'll do our steering committee meeting afterwards.
Are there any other contributions to this discussion?
Thank you. We have part of a plan going forward.
Thank you to our witnesses for being with us today and for your patience while we got done a couple of details that needed to be ironed out.
Pursuant to Standing Order 108(2) and the motion adopted by the committee on Tuesday, February 9, 2021, the committee is resuming its study of addressing sexual misconduct issues in the Canadian Armed Forces, including the allegations against former chief of the defence staff Jonathan Vance.
With us today by video conference: Janine Sherman, deputy secretary to the cabinet, senior personnel and public service renewal at the Privy Council Office; and retired lieutenant-colonel Bernie Boland. Welcome.
Up to six minutes will be given for opening remarks.
I'd like to invite Ms. Sherman to begin with her opening statement.
Thank you, Madam Chair and members of the committee, for the opportunity to appear again before you today, following my appearance February 19 alongside the deputy clerk of the Privy Council.
I have been the deputy secretary to the cabinet for senior personnel and public service renewal since May 2016. Prior to that, I was assistant secretary to the cabinet for senior personnel, a position I had held since October 2014. As deputy secretary to the cabinet, my responsibilities include advising the Prime Minister and cabinet on Governor in Council or GIC appointments.
The Privy Council Office supports the government in circumstances where issues arise with GIC appointees. In doing so, we provide independent, non-partisan advice and support to the government. When there is evidence of inappropriate conduct on the part of a GIC appointee, we provide our best advice to the government on how to address the issue.
In my previous appearance before the committee, I felt it was important to protect the confidentiality of my discussions with the former ombudsman for the Department of National Defence and the Canadian Armed Forces, and the integrity of the ombudsman's office and its processes. Since that time, the committee has heard a number of witnesses, and further information has been presented.
With certain details having been shared by the former ombudsman, I can confirm that in early March 2018, the Clerk of the Privy Council asked that I follow up on an issue that the ombudsman had raised with the regarding potential allegations of misconduct against the chief of the defence staff. I was asked to follow up immediately, which I did.
A follow-up exchange of emails between me and the former ombudsman took place March 5 and 6. In that exchange, I explained that I was seeking to better understand the nature of the complaint, in order to provide advice to the in the context of his role in supporting the and the Governor in Council on appointments.
I met with Mr. Walbourne on March 16. In my email exchanges and in my meeting with Mr. Walbourne, I did not receive information upon which to take further action.
On the specific issue the committee is studying, given that the Canadian Forces national investigation service has opened an investigation, I am limited in the responses that I can provide, to respect the integrity of the investigative process. Protecting the confidentiality and integrity of any investigative process is critical for ensuring that individuals feel safe to come forward and that we respect their privacy.
I know we all agree that any instance of harassment is unacceptable. Every situation is unique, but the right to a safe workspace, where individuals are treated with respect, dignity and fairness, applies to everyone working within a federal workplace. As a senior member of the federal public service, this is a fundamental focus for me in carrying out my responsibilities.
Once again, I thank the committee for the opportunity to appear before you today. I would be pleased to answer any questions you may have to the best of my ability and within the limitations that I have noted. I can also provide information of a general nature regarding PCO's role in the management of GIC appointees, should the committee wish.
Madam Chair, thank you for this opportunity to testify. I'm Bernie Boland, a retired lieutenant-colonel who served honourably in the Canadian Armed Forces for over 30 years. For the past 12 years, I was an engineer in the public service. I retired on December 30, 2020.
I'm testifying because DND has demonstrated an inability to act in an independent judicial fashion that honours due process, defends procedural fairness and respects the rule of law.
In 2016 I reported wrongdoing and misconduct when an employee I had the privilege of supervising requested that I report her harassment and human rights violations by a senior engineering manager. As compelled by oath and the code of values and ethics, I reported it. Her case is now at the Canadian Human Rights Tribunal awaiting adjudication on discrimination and deferential treatment due to age, gender, ethnicity and being a Muslim.
Once I reported, everything in the workplace changed. I faced reprisal and retaliation. I was silenced, denied due process and had my procedural fairness rights withheld. To date, external to DND, I have submitted to the Federal Court of Canada an application for judicial review of DND's grievance dismissal, given notice to the registrar of the Canadian Human Rights Tribunal to be a party to a tribunal hearing, and filed a complaint with the Ministry of Labour on DND's breach of my Bill rights. Internal to DND, I have submitted formal complaints and grievances, all to no avail.
I also provided to the deputy minister detailed analysis of the lack of due process, procedural fairness violations, conflict of interest and decision-maker bias. Additionally, I provided to both the DM and independent analysis—the Lowry report—from a retired RCMP fraud investigator that confirmed and corroborated decision-maker bias, conflict of interest, denial of due process and violations of procedural fairness. It was ignored. However, because I reported the harassment and human rights violations of the employee I supervised, DND secretly, in a formal departmental submission to the Canadian Human Rights Commission, made me the scapegoat to exonerate those responsible and culpable. This DND submission was made without my knowledge and with no opportunity to defend myself. It was condemnation without any representation.
Once I became aware of DND's secret scapegoating submission, I formally complained because the director general, workplace management, secretly made me the scapegoat; Troy Crosby, assistant deputy minister, materiel, determined that it was proper conduct for the DG to secretly make me the scapegoat; and Jody Thomas, the DM, condoned DND's secret scapegoating of me as proper departmental conduct. Without any investigation, DND dismissed my complaints.
I also submitted a grievance and a request for an independent ethical review on the myriad conflicts of interest, bias, denial of process and withholding of procedural fairness rights. DND summarily dismissed these.
DND's justification, as stated by assistant deputy minister of human resources, civilian, Mr. Choi, is the following: “Mr. Boland speaks to not having an opportunity to defend himself. It is to note that it is the parties to the CHRC complaint (the DND and the complainant to the CHRC) who are entitled to procedural fairness rights. The DND, as the respondent to the CHRC complaint has no responsibility to gather information from all potential witnesses: this is the responsibility of the CHRC appointed investigator. The conduct is therefore not considered improper. ...the complaint pertains to a single matter and does not meet the threshold for a severe incident. It will not be investigated.
He goes on to say that “the complaint pertains to a single matter and does not meet the threshold for a severe incident” and it will not be investigated. The CHRC submission is a protected document: “Mr. Boland does not have access rights to the submission and therefore Mr. Hooey could not have reasonably known that it would cause offence or harm, nor can it be considered ‘directed at’ Mr. Boland.”
Mr. Choi's justification makes it unequivocally clear to me that DND will not act in a procedurally fair fashion. DND takes no responsibility to ensure that human rights are fulsomely and truthfully addressed in DND by DND. DND considers it proper to secretly make those who dutifully report misconduct the scapegoat for the misconduct they report.
Despite its zero tolerance policy, DND will unilaterally and arbitrarily dismiss misconduct to excuse its obligation to investigate it.
DND believes institutional secrecy absolves its wrongdoing.
Since 2016, in my effort to be heard, have due process applied and be treated in a procedurally fair fashion, I have formally engaged many, including the ; ; my member of Parliament, ; the ; and the ombudsman.
Despite these efforts, DND refuses to honour its commitments, and render due process and respect for the rule of law.
On January 1, 2021, Bill and workplace harassment and violence prevention regulations came into force. The deputy minister assigned Mr. Choi coordination and implementation responsibilities. Mr. Choi violated my rights, enshrined in this legislation, by denying my right to an investigation.
On March 3, 2021, on the advice of my legal counsel, I requested the to restore my rights and remedy this breach. I have yet to receive any acknowledgement from the Minister of Labour.
Thank you, Madam Chair.
Thank you, Madam Chair, and thank you to our witnesses.
Lieutenant-Colonel Boland, thank you for your service, and thank you for coming forward, outlining the disturbing culture within the Department of National Defence. We thought we were only dealing with the Canadian Armed Forces, but it seems there are cover-ups happening at the department. I'll be asking questions of you later on in the committee.
I want to concentrate my questions first to Ms. Janine Sherman. Welcome back to committee.
You said in your opening comments that you did not receive information upon which to take further action back in March 2018, so I suspect you'll have lots of latitude in answering the questions we have for you today, since you never found anything, in your opinion, that warranted an investigation in 2018.
Can you tell us, Ms. Sherman, exactly who, from the Prime Minister's Office, instructed the Privy Council Office? You said it was Michael Wernick, the Privy Council Clerk at that time, who asked you to meet with the ombudsman.
Who told you and Mr. Wernick to follow up with the allegations about General Vance?
Thank you very much, Madame Chair.
I wanted to start by acknowledging that it's Purple Day to enhance the understanding of epilepsy.
Thank you to the witnesses for coming. It's very helpful to help improve our understanding and to improve the processes at DND.
Ms. Sherman, I have a couple of questions for you, but I want to make sure that in the answers you don't say anything that would jeopardize the ongoing investigation.
In a general sense, could you let us know what process the PCO follows when there are allegations of any type of misconduct that are brought against one of its GIC appointees?
I would be happy to provide some background in terms of the processes we use.
First of all, I think the process is always dependent upon the nature of the complaint. Our role in the Privy Council Office is to provide advice to decision-makers throughout a complaint process that involves a GIC appointee. As I've mentioned, every case is unique, and our advice has to take into account the specifics of a circumstance.
There are four main principles that really underpin our approach. They are a respect for procedural fairness to all parties; supporting investigations that are independent, fair and free from bias; safeguarding personal information of all of those implicated, in accordance with legislative frameworks, and notably, as I have mentioned, the Access to Information Act and the Privacy Act; and respecting the confidentiality of the advice that we provide back to ministers and to the government of the day.
In general terms, when we have information to provide advice on an issue that is related to the conduct of a GIC appointee, we base our advice on those legislative and policy frameworks that govern workplace well-being.
We could, depending on the nature of the issue, the specific case [Technical difficulty—Editor] a course of action that would be an administrative review. It could be referral to an independent third party for investigation, or we could need to refer the matter to the appropriate police authorities, whether that is local police, RCMP or the CFNIS. It all depends on the nature of the information that is brought forward.
If a complaint comes forward that falls under the purview of the new Work Place Harassment and Violence Prevention Regulations, which came into force in January of this year, we would provide advice to our colleague on how best to address the complaint under that policy and legislative framework.
Our role is really providing advice to decision-makers and the officials who are overseeing the complaint at various stages throughout the process. At the initial stage, we can advise on best practices for determining whether an occurrence that was described in the complaint meets the test for the definition of harassment, and that is set out in the Canada Labour Code.
If the complainant, the principal party, requests an investigation, we can then advise on ensuring due process, for example, ensuring that the complainant and the responding parties are able to review portions of the draft report in a way that protects the appropriate level of confidentiality.
We would also advise officials on the steps that will follow upon the conclusion of an investigation in terms of assessing the findings and providing advice to a decision-maker. We do that in support of what the outcome would be from the investigation.
Then we also provide advice for the Governor in Council at the conclusion of a complaint process. That could range from a recommendation to take remedial actions—training and development, for example—or potentially a recommendation for removal if the findings of the investigation are such that the appointee has lost the confidence of the Governor in Council.
I hope that answers your question.
Thank you very much, Madam Chair.
I want to start by echoing the thanks to retired lieutenant-colonel Bernie Boland for being with us today. It's an unfortunate task he's had to take on in corroborating the culture within the Canadian Armed Forces and DND, which appears not to have been one of zero tolerance, but one of willful blindness toward complaints of sexual misconduct.
I'll return in my next round to him, but now I want to stay with the Privy Council Office.
Let me start by saying, Ms. Sherman, that I take no pleasure in having to question you in committee, but the committee was left with little choice since both the and the referred to your office as an independent investigating authority. They actually directed our questions to your office. I would much rather have had a more fulsome explanation by the ministers responsible.
The question I have for you to start with it, the military ombudsman came to you saying, “I have seen evidence that [Technical difficulty—Editor] and it requires an investigation of General Vance on the grounds of sexual misconduct.”
Why do you need to know more than that before you would launch—not you personally—but before an investigation would be launched?
If I could clarify that, it is not my intent in any of my comments today to discredit the former ombudsman. In fact, our respect for his office, for his mandate and for his ability to manage the complainant and their wishes in regard to confidentiality and how next steps should be undertaken is what we focused on.
My concern, Madam Chair, was simply to clarify that I did not have a complaint that, to my understanding, had been investigated or for which there was an undertaking to do an investigation at that stage back in March of 2018. Because we take the safety and security of the workplace to heart—this is a very important, fundamental responsibility we have—we do in fact want to make sure that the conduct of GIC appointees is looked into, and we tried to get information that would help us to determine what those next steps were.
Our role in the Privy Council Office, and my role in supporting , and the government in terms of managing the conduct of GIC appointees where an issue has arisen, is to provide advice and some counsel on what next steps could be taken. That was our objective in terms of trying to understand what information the ombudsman could share that would be consistent with his responsibilities as ombudsman and in protecting the confidentiality of the person who had raised some concerns and an allegation that we did not have information about.
I want to be careful in terms of the information that I can share. I'm trying to stay within the confines of the information that is available through our email exchanges. The conversation that we did have remains...I think it's important to keep that confidential
I would say, though, as a matter of course, and as I think the ombudsman's emails indicate, that the concern for the complainant who has come forward is paramount. In these kinds of situations, and I think as I have described a little bit about our role in PCO in terms of providing advice and looking at the process and the way forward, it would not be unusual for me to offer support in any way that we could in terms of whatever direction the complainant provided to the ombudsman.
As someone who is concerned and responsible for the conduct for managing the issues that arise in the conduct of a GIC appointee, we would want to be supportive and available should there be any information that could be shared. That is a general principle in how we would approach those kinds of conversations.
Thank you, Madam Chair.
Ms. Sherman, I would like to return to where I was earlier.
I am putting myself in your shoes, in your role at the Privy Council Office. The ombudsman goes to the with a serious situation, namely allegations of sexual assault against General Vance, the top man in the Canadian Armed Forces. The minister tells the ombudsman that he does not want to touch it, that the issue is too hot and that he wants nothing to do with it. The minister shares that with you. You then talk to the ombudsman. You ask him for more information, but he says he can't give you any because he doesn't want to reveal the victim's identity. You then decide to close the case and take no further action, since you do not have enough information.
Don't you feel this is still an extremely serious situation, even a critical one? The reason the ombudsman went to the , who then came to you, is that he was able to assess the credibility of the allegations, based on the information he had obtained from the witness and the victim.
I am trying to understand how it came to be that the case was closed without going any further.
The is consulted in the annual performance management program in respect to GIC appointees within his portfolio.
I would like to clarify, though, just because I think this question has come up, my responsibilities in terms of managing GIC appointees throughout their tenure and in particular the performance management program is that those annual reviews are the basis for salary adjustments either in terms of level or progression through a salary range. We also manage economic increases that are approved by the Governor in Council, often retroactively.
The is consulted through the performance management program. Many factors play into that. I have described that in my previous appearance. I'm happy to give more detail that might be helpful, but in terms of the decisions on how the setting of the salary are managed, the minister himself does not make that decision. It goes through the annual process.
Madam Chair, thank you very much.
I'd like to join my colleague, Mr. Bagnell, in acknowledging that it's Purple Day, a day on which we amplify our efforts to raise awareness for epilepsy.
I'd like to thank both of our witnesses, Ms. Sherman and Colonel Boland, for their service and for appearing today.
Ms. Sherman, in a previous phase of my career, I had the privilege of serving in the PCO. Could I ask you to back up for a minute? Canadians who are watching will be finding themselves, periodically through this committee and other conversations, in acronym land. We're talking about the DND, the CDS, PMO and PCO.
What is the PCO, and why is it so important to have an independent, professional, impartial organization, a central policy-planning agency, at this moment in the midst of an important question and investigation going forward?
I appreciate the question, and I apologize if I am using acronyms randomly or too frequently.
The Privy Council Office is, effectively, the department for the Prime Minister. Our responsibilities are to support the cabinet decision-making process that supports our system of government. There are various parts of the Privy Council Office, of course, that are aligned with supporting the whole variety of cabinet decision-making processes.
I won't go into those details, but, as you've mentioned, our role is to be a non-partisan, professional public service. We are able to provide advice impartially and based on principles of good governance to the government of the day. We serve each government as it comes into office. We provide continuity in terms of the structure and operations of government. We provide advice and support to the government in managing, and achieving the priorities it brings to governing as duly elected representatives of Canadians.
Our role is very important in that context, in terms of providing the advice and support that will enable decision-making systems of government to function effectively.
Thank you for that question. It's enormous, but I thank you. It raises very important issues.
We know that change management is difficult in any context, and culture change in particular is challenging.
My work in terms of the other part of my job, public service renewal, is very much about ensuring that we have an organization in the public service that is up to the challenge, agile, inclusive and equipped. That's the frame in which we think about change management.
One of the most important things I believe in is certainly commitment from the top, but more importantly the engagement of the people who are affected. I think when you're thinking about the Canadian Armed Forces, it is important. The voices that are being brought to bear now are providing a very important message. One of those messages—I think of my work in terms of the safe workspaces initiative that we did in 2018—was that you need to make sure you have the structures and processes in place, but you need to make sure they work for people. You need to understand, if there are systemic barriers to people coming forward and to some of those voices being heard, and you need to make room for that conversation and act on the real experiences that people are having and try to make sure that there is a way to adjust, adapt and provide the structures and systems that support people.
Thanks very much, Chair.
Ms. Sherman, before I ask my first question, I wanted to reiterate something that I had said in our last committee meeting. You were not present, but the other committee members were.
During that meeting, I and a number of members went to great lengths to highlight that we thought the victims of sexual assault and sexual harassment would want us to be talking about how we move forward. That was in the context of a discussion we were having within the committee. I wanted to highlight that subject again as we get to the tail end of this meeting because I think this meeting reflects that we, for the most part, aren't doing that at all. I think that's a shame. I think we all have a duty to do that and should make that a priority going forward.
With that in mind, Ms. Sherman, I'm going to ask you a question that follows up on Mr. Spengemann's last question how you approach a culture change. At the tail end of your answer you spoke to the need for certain structures to be put in place. I think that's when your time ended. I'm wondering if you could elaborate on what kinds of structures you were referring to. Could you give some examples of that?
Thank you for the question and for your remarks.
When I was speaking about structures, we often have policies, processes and frameworks that are constructed and intended to support the objective they are initially developed for. Particularly where we're looking for change and innovation in how we actually manage within the public service—not just in the context of complaints and harassment and workplace well-being—we do need to make sure that those systems remain relevant and effective.
To get back to the safety and security of the workplace, if people are not comfortable coming forward and if there are fears of reprisals, all of the systems we have in place aren't doing what we need them to do. My comment was really focused on understanding why that is.
You can't proceed with change management.... You may have an objective, but you need to also understand where you're coming from and why you aren't getting there. Systems and structures need to be adapted based on the real experience of people who are trying to use them for the purposes for which they're intended. When that's not working, we need to hear from people and figure out how better to develop and design systems and structures.
We certainly can always learn from others. One of the things we do try to focus in on in terms of innovation in the public service is not reinventing the wheel but taking good practices from others. In some cases, we know that they exist within the public service. We look at those and think about scaling up in terms of something that has worked well in one situation and might be applicable to another. Innovation is certainly a theme and an underlying principle of the change we're trying to achieve.
I think in terms of best practices, I will keep coming back to what we call in the public service renewal world the “user experience”. There are examples of departments that have, for example, looked at how their call centres run. With dropped calls, client dissatisfaction, people not getting the answers they need, or people waiting too long on the phone, there are instances of where a particular department or agency has taken that apart, looked at what's happening, and put out a challenge, for example, to different groups: How can we fix this? What are the issues?
Thank you very much, Madam Chair.
I want to go back to Ms. Sherman. First, directly to you, and for the record, none of my questions today have as their intent to impugn your integrity or your record of public service. I have the utmost respect for that. As I said, I think it's unfortunate that both the and referred the committee to you.
I do think what your testimony reveals today is a parallel to the culture of denial and deflection in the Canadian Armed Forces, and also, to one which we heard from Colonel Boland today about deflection and denial within DND. The parallel here seems to be that the privacy of the accuser seems to be much more important than responding effectively to the complaints of sexual misconduct.
With regard to Mr. Baker's comments that the committee is not actually pursuing a solution, I beg to differ. What I have heard very distinctly from those who have filed formal complaints, and many who have not, is that they want to know that there's an understanding at the top level of what sexual misconduct is, and there's a commitment that there will be effective action taken on those complaints.
Without that confidence, we're left with a program like Operation Honour, which failed precisely because it didn't have that understanding and support at the highest levels.
Ms. Sherman, let me go back then and say, once you had reported to the Clerk of the Privy Council that you could not proceed—I won't dispute with you again, whether or not you could have—was there any reason that the or the would have believed there was an investigation taking place on the sexual misconduct allegations that were presented by the military ombudsman?
Thank you, Madam Chair.
I want to go back to the Privy Council Office.
We know that on May 9, General Vance was moved up from a DM2 to a DM3 through an order in council, giving him a $50,000 pay raise, plus it was backdated to April 2018. We also know there were a total of 34 orders in council signed on May 9.
Does that, Ms. Sherman, suggest this was done in a full cabinet meeting?