Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 5, Evidence - Meeting of June 13, 2016
OTTAWA, Monday, June 13, 2016
The Standing Senate Committee on National Security and Defence met this day at 11 a.m. to study issues related to the Defence Policy Review presently being undertaken by the government; and to which was referred Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on National Security and Defence for Monday, June 13, 2016. Before we begin I would like to introduce the people around the table. My name is Dan Lang, senator for Yukon. On my immediate left is the clerk of the committee, Adam Thompson. I would like the senators to introduce themselves and state the region they represent, starting with our deputy chair.
Senator Jaffer: My name is Mobina Jaffer. I'm from British Columbia.
Senator Kenny: Colin Kenny, Ontario.
[Translation]
Senator Dagenais: Jean-Guy Dagenais, Quebec.
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Senator Day: Joseph Day, picture province of New Brunswick.
[Translation]
Senator Carignan: Claude Carignan, Quebec.
[English]
Senator McCoy: Elaine McCoy, Alberta.
Senator Beyak: Lynn Beyak, Ontario.
Senator White: Vern White, Ontario.
The Chair: Thank you. Before we begin our meeting today, I would like to express our sympathies to the families and friends of the victims of the terrorist attack in Orlando, Florida. The attack by this terrorist reminds us all of the need for greater vigilance and stronger national security strategies to prevent such incidents from happening in the first place.
Today we'll be meeting for four hours. During our first hour, we will consider issues related to the defence policy review that has been initiated by the government. We will then move, at one o'clock, to continue our study of Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures.
Joining us today for our first panel are the Honourable David Pratt and the Honourable Peter MacKay, both former ministers of National Defence. Mr. Pratt and Mr. MacKay, welcome. We appreciate you taking the time to join us today, as we consider the defence policy review as it relates to Canada's possible participation in UN peace support operations and other matters. I understand that each of you has an opening statement. Mr. Pratt, please begin.
Hon. David Pratt, P.C., former Minister of Defence, as an individual: Thank you, Mr. Chair. Honourable senators, I'm pleased to be here with you today to offer a few thoughts on the subject of peace support operations within the context of the defence policy review that the Trudeau government has initiated. It's also very nice to be here with former colleague Peter MacKay. I haven't seen you in a long time, Peter.
Hon. Peter MacKay, P.C., former Minister of National Defence, as an individual: It's a pleasure.
Mr. Pratt: I would like to congratulate the Trudeau government and Minister Sajjan for initiating this review. While I would have liked to have seen more parliamentary input into this process, as well as a more formal foreign policy and development policy review, I'm hopeful this review will produce positive results. The timing is good, and it is unquestionably a step in the right direction.
In reviewing Minister Sajjan's mandate letter on the renewal of Canada's commitment to UN peace operations, I agree with his approach. As the mandate letter outlines, the UN needs the sorts of specialized capabilities that Canada can offer: mobile medical teams, engineering support, heavy air lift, et cetera. The UN also needs a more rapid response capability to address emerging and escalating conflicts. Here they could benefit from the experience of Canadian specialists and officers in command, staff and headquarters positions. The idea of leading an international effort to improve and expand training for UN military and civilian personnel is also a good thing.
The action items contained in the minister's mandate letter appear to be inspired by the report of the High-Level Independent Panel on Peace Operations, which reported to the Secretary-General of the UN almost exactly a year ago. As I'm sure you know, this report identified many of the very serious and ongoing problems that have plagued UN peace operations for many years. That Canada is prepared to do its part in supporting the UN is, I believe, a good thing. But part of the responsibility that goes with support is the need to drive change and reform where it is required.
My impression is that the previous government simply threw up its hands and said, "The UN is too bureaucratic, too cumbersome, too slow, too riven with petty politics and too focused on the spoils system to achieve anything meaningful. Better to walk away than to engage.'' There is some truth to that view. But disengagement, in my view, is a road to nowhere.
Sixty years ago, in May 1956, then UN Secretary-General Dag Hammarskjöld said:
"We often hear it said that the United Nations has succeeded here, or has failed there. What do we mean? Do we refer to the purposes of the Charter? They are expressions of universally shared ideals which cannot fail us, though we, alas, often fail them. Or do we think of the institutions of the United Nations? They are our tools. We fashioned them. We use them. It is our responsibility to remedy any flaws there may be in them. It is our responsibility to correct any failures in our use of them.''
Mr. Chair, you have asked for a few recommendations in regard to Canada's support for UN peace operations. My first recommendation would be that this committee, in conjunction with the Senate Foreign Affairs Committee as well as the house committees on Defence and Foreign Affairs, undertake a study in some detail of the report of the High- Level Independent Panel on Peace Operations with a view to strongly advocating for the reform of UN peace operations. In other words, putting Canadian military assets at the disposal of the United Nations must be accompanied by a concerted diplomatic effort to work with like-minded countries to push reform and push it hard. To do otherwise would be to perpetuate the systemic weaknesses that exist, which waste resources and all too often do not achieve the desired results.
A second recommendation arises out of the first and relates to conflict prevention, which, again, is identified in the high-level panel report as needing more support. It is also mentioned in Mr. Dion's mandate letter, where he is directed to work "with the Minister of National Defence, to increase Canada's support for United Nations peace operations and its mediation, conflict-prevention, and post-conflict reconstruction efforts.''
I would recommend strongly that if Canada is going to offer more military and police support, it should also place at the disposal of the UN a highly trained civilian cadre of special envoys, mediators, leaders of political missions, governance, human rights and gender experts so that conflict prevention is properly resourced. I understand that Global Affairs has a national action plan in support of UN Security Council Resolution 1325. Again, working with like-minded countries, we must push the Security Council to aggressively undertake to prevent sexual and gender- based violence against women and girls in armed conflict, whether it is by combatants or by peace operations personnel, and involve more women in conflict prevention and peace processes.
A third recommendation flows from the second. It relates to the perception of what the government is trying to do. When they hear the words "Trudeau'' and "peacekeeping'' in the same sentence, many in the security community roll their eyes and think, "Okay, Justin wants to try to take us back to the halcyon days of the Blue Berets and Canadian soldiers giving candies to kids as they patrol a ceasefire.'' As Kim Mitchell would say, "Nobody hurts and nobody cries.'' This is not where I believe the government wishes to take us — nor should it. Peace operations today take place in some of the most dangerous places on earth. I would recommend that the government needs to more fully explain what it is attempting to do. This is serious work which has the potential to alleviate the suffering of some of the most vulnerable people on the planet.
This renewed engagement by Canada with the UN should be framed within the context of Canada's 70 years of support for the principles and the Charter of the United Nations. So much of what Canada has tried to promote in recent decades draws inspiration from the preamble of the Charter, whether it is supporting fundamental human rights in the dignity and worth of the human person or in the equal rights of men and women. Canada's promotion of the human security agenda and the protection of civilians in armed conflict, the International Commission on Intervention and State Sovereignty or the responsibility to protect, all have been perfectly aligned with the UN Charter.
My final recommendation relates to funding. If Canada wishes to be a leader — and I very much think it should — in the long-term campaign to make UN peace operations more effective, it cannot do so on the cheap. Leading by example is never an inexpensive proposition. Neither is it an either-or proposition in terms of our domestic security, our North American defence obligations or our NATO responsibilities. We must continue to execute on those priorities, and we must do them well and in concert with our friends and allies.
I believe there is a general consensus that the current dismal funding levels and the current defence program are unsustainable. The days of being able to rob Peter to pay Paul are long gone. Unless we are willing to pony up and allocate the resources needed to do this properly, we should be honest with ourselves and our friends in the international community and abandon this as a priority. To do otherwise will be interpreted as a cynical ploy to give the impression that Canada is supportive of the UN while doing nothing substantial to make things better.
A final comment: If the government takes this seriously and executes it properly, it would stand a very good chance of winning the Security Council seat it desires. Were that the case, a long-term agenda of UN reform would receive a significant boost, with all that that entails, for the future of the UN, effective peace operations and hope for those whose lives have been shattered by armed conflict. Thank you, Mr. Chairman.
The Chair: Thank you very much, Mr. Pratt.
We will start with Mr. MacKay.
[Translation]
The Honourable Peter MacKay, P.C., former Minister of National Defence, as an individual: Mr. Chair, Madam Deputy Chair, thank you for inviting me to appear before you this morning.
[English]
I also want to add my voice, Mr. Chair, if you'll allow me, to those expressions of sympathy and prayers that you extended to the victims of the tragic events in Orlando.
I would also similarly extend sympathies to the family of Robert Hall, whose life was taken in the Philippines by terrorist-linked al Qaeda.
As you mentioned, these sobering and tragic events are a firm reminder of the fragility of human life and the importance of the work that we're all here to accomplish and the work that Canadians do around the world to protect all of our freedoms.
Mr. Chair, it's a pleasure to be with this group and to support the important work that you have undertaken. As many of you will know, I served as Minister of National Defence for six years; and I can honestly say that, personally and professionally, this was one of the most rewarding experiences of my life.
This is my fifty-ninth committee appearance. It feels vaguely familiar, but it's my first as a private citizen. I'm eagerly anticipating the government's review of the defence policy in Canada. I'm also pleased to be here with the Honourable David Pratt, a friend and colleague from years gone by.
With the limited time allotted to me, Mr. Chair, I will not delve into an in-depth policy analysis of the future of defence, but I do want to touch on a few topics and outline in broad strokes a few thoughts for the future.
[Translation]
During the last election campaign, the Liberals promised, in their Real Change platform, that Canada would return to its peacekeeping role as part of the United Nations' international work.
[English]
An excerpt from the document reads, ". . . to better help those affected by war and violent conflict, we will contribute more to the United Nations' mediation, conflict-prevention, and post-conflict reconstruction efforts,'' which brings me to my first point and the one that goes straight to the heart of the subject matter being discussed by this committee: how National Defence and the Canadian Armed Forces can contribute to renewing Canada's commitment to the United Nations peace support operations.
Mr. Chair, honourable senators, any realignment of defence policy must take into consideration the geopolitical ramifications of both combat and non-combat interventions. While this government has committed to refocusing on the United Nations, it must not be at the expense of our current partnerships.
There is room to work within the limited constraints of the United Nations peacekeeping regime, but not at the expense of our most valuable relationships. While I wouldn't take issue with much of the characterization attributed to our government by my friend, I do note that our peacekeeping missions were kept at a similar level throughout our almost 10 years in government. So we did not step back in any way from our commitment to the United Nations peacekeeping.
There is room, of course, for improvement, and Canada and the world, I would suggest, are at a critical juncture. I won't deny any nationalistic pride in the past accomplishments of previous peacekeeping missions, as idealistically portrayed in the memory of the Canadian psyche. However, I caution the harsh reality of more recent UN contributions, which speaks to the capacity of the organization itself; and until key command and control issues are resolved, I hope this government will consider the true implications of its decisions.
These peacekeeping missions remain dangerous and demanding, as Mr. Pratt has said. The pure reality is that we live in a very different world and different time, as the minister himself acknowledged when he was before you. Asymmetric warfare has forced us to rise to this new challenge. We can no longer depend on conventional tactics to guarantee conflict success. In fact, where once we measured success in terms of kilometres, we are now content to measure centimetres.
[Translation]
I know the minister understands this, because he witnessed the acts of insurgent forces himself, but the government as a whole has to be on board with this, and serious thought must be given to whether a conflict based on values can truly be resolved using conventional and known methods.
[English]
The peacekeeping missions today that this government is talking about simply do not exist in this day and age. You need to look at the multi-purpose approach and combat-capable forces that we have at our command. These forces can protect and defend our interests against terrorist insurgents, who have consistently shown their disregard for the most basic of human rights. Soft targets, shopping malls, nightclubs, transit — these are not conventional combatants by any stretch of the imagination. While terrorism is one thing, insurgency is not state based. While they sometimes maintain property, they move, and they move amongst our population undetected.
There is a correlation between socio-economic conditions and the multilateral development organizations that we must have at the table. New technology is expensive, and the world is changing fast and not for the better. But capacity building in conflict zones can only occur when security is provided and a sense of stability secured. If a new defence policy has to be predetermined, as cynics might suggest, by the "real change'' doctrine, I would offer to the government, through you, a few reactions and reflections.
The fact is the United Nations has many partner nations that can support them, yet Canada has a unique role to play. Canada has a traditional role to play but also can provide staff officers, trainers, intelligence support and logistics. Canada has to lead, again as Mr. Pratt has emphasized. Our strength is in a smaller, more focused but integral role, such as command and control, intelligence training and this logistical support.
Afghanistan, which was a UN Security Council-mandated, NATO-led mission — as was Libya, a UN-mandated resolution — is an example of the broader challenges. We cannot abandon our current role, as I mentioned, in NATO. However and whatever we do, it must leave room for us to complete our NATO and NORAD obligations — and I'll come back to that point — which now, more than ever, remain at a critical juncture, with the Warsaw summit less than a month away.
[Translation]
Third, with respect to military procurement, to put it simply, the government has to set aside its partisan priorities and give our men and women in uniform the equipment they need.
[English]
If we are determined to begin a shift to a greater role in United Nations participation, we need to see a clear commitment of resources — not offered in the government's previous budget. Our government established a comprehensive defence policy through the Canada First Defence Strategy and a defence procurement strategy. It's an evolution as opposed to a change, I would suggest. These policies set out a well-established vision for the Canadian Armed Forces, with the objectives of delivering the right equipment for our military.
While there is most definitely room for improvement, these important achievements should not be overlooked during the current government's review. The defence procurement strategy was based on a whole-of-government approach through the application of early and continuous engagement, timely and effective decision making to guide and coordinate defence and major military procurements, while fulfilling the government's commitment to better ensure that purchases create economic opportunities for Canadians.
That strategy had three objectives: delivering the right equipment in a timely manner, leveraging our purchases to create jobs and economic growth, and streamlining the process. These key objectives remain as important today as when we conceived of them, and any new defence realignment should be done through the lens of those objectives.
We have a proud and storied history, Mr. Chair — a history that speaks to the determination of our will, our desire to see justice done, and one in which all Canadians take pride. Modern warfare has shifted, and the strategic norms of a past generation, sadly, no longer hold true. We witnessed first-hand the damaging fundamental extremism that happened not too far from this room on Parliament Hill. We cannot, nor should we, stand by as these new realities swirl around us. To do so, we would do at our peril. To those who are suggesting that Canada is back, I would contend we never left. It would be a mistake to try to recast a mythical Pearsonian era UN orientation now, because it is 2016, after all, and the world has moved on.
Finally, Mr. Chair, we as a nation have continually punched above our weight in the world. To step back now would be to punch below our weight class. I know that with your guidance and that of this committee, any recommendations put forward will have our country's best interests at heart.
I thank you for the time to be here and I look forward to your questions.
The Chair: Thank you very much. We'll start with Senator Jaffer.
Senator Jaffer: Thank you very much to both Honourable Mr. Pratt and Honourable Mr. MacKay for being here. We are certainly very appreciative. You quickly agreed to appear in front of our committee, and both of you have a lot to contribute to our committee. Thank you for your contribution and for your service to our country.
I want to start with you, Mr. Pratt. I know that you were the envoy to Sierra Leone and that you worked on the ground a lot. As you know, I was the envoy to Sudan and Darfur, and I worked with our men and women in uniform. I found that working with the UN and having them on board, working in a collaborative way, helped us establish our values in a faster, better way, because men and women in uniform sometimes can communicate better with others in uniform.
When you were on the ground, how did you see the peacekeeping operations work?
Mr. Pratt: Thank you for the question, senator.
The situation that the world confronted in Sierra Leone, going back 15 or more years ago, was really a precursor, in some respects, to what we have experienced over the last 15 years. We had armed groups, supported in this particular case largely by Charles Taylor from Liberia, who were coming into Sierra Leone and, in some cases, taking children, youth, feeding them drugs and recruiting them into the ranks. So you had gangs not of uniformed military but really vigilante gangs that were there to do nothing more than destabilize the country so that the country's diamond wealth could be stolen.
What we were talking about in Sierra Leone was terror tactics being used, but it was crime on a massive scale.
The world was slow to adapt to that, very slow to adapt to that. Initially, what occurred was that the Economic Community of West African States moved a force into Sierra Leone consisting of Ghanaians and Nigerians. Their ability to deal with the Revolutionary United Front, which was the nominal name of the group, was very ineffective, and when that force effectively was subsumed by UNAMSIL, which was a UN operation, many of the same troops were in place. Despite their best efforts, they were largely ineffective in dealing with this gang of ruffians. It pointed out, in very stark terms, the ineffectiveness of the UN in that particular instance.
We had a situation, for instance, where hundreds of peacekeepers were kidnapped by the rebel forces, and these were not sophisticated soldiers. It was a terrible situation for all concerned.
Imagine, for instance, a country where there was virtually no control. There were no police, no armed forces; it was chaos in most of Sierra Leone. The only place that had any kind of stability was Freetown itself.
So this was the situation that the world was faced with, and the world didn't respond very well in those initial phases. It wasn't until the British got very active in Sierra Leone. From my perspective, Tony Blair and General Sir David Richards, one of the commanders on the ground, subsequently the Chief of the Defence Staff for the U.K., were in some measure the saviours of Sierra Leone.
They understood the problem. They dealt with it in terms of getting at one of the factions of the rebel group, and effectively they put an end to that conflict. It took a few hundred soldiers from the SAS and the Parachute Regiment to do that, where thousands of UN peacekeepers had failed in the past.
For me, that was an indication that the UN needed to reform its procedures. The command and control issues were very much present there, and sophisticated troops with intelligence capability with, in some cases, special forces capability would have made the world of difference. Seventy-five thousand people died in that war, in my view, largely needlessly because the world basically turned their back on that situation.
I don't think that would be the case now. We have come a long way from that. This is a long-winded answer to your question, but I think there is still significant room for improvement in terms of how the UN conducts its business, and it will require the sorts of capabilities that the British brought to that particular instance at the time.
Senator Jaffer: Mr. MacKay, you touched on this. Since we have been doing this review, I'm preoccupied with the fact that for our men and women to be effective, we are going to have to change how we do business, especially around the issues of terrorism. You have had recent experience. Could you give one or two things that we could do to make our job easier around terrorism issues?
Mr. MacKay: I'll try to be succinct, Madam Chair.
Picking up on David's very salient point about how the world has changed, it has changed, and the use of special forces operations, in particular, being effective, surgical and precise in the way in which they conduct themselves in theatre. We saw that in Afghanistan in the early days but throughout that mission. They are breathtaking in their capability.
Canadian special forces operators are on par with any in the world. SEAL Team Six, Green Berets, Airborne, they are the best at what they do. Having that said, they are not always suited for the type of peacekeeping operations that we're talking about here, but in a counter-insurgency operation they are deadly effective.
In past missions in Somalia, Bosnia and Rwanda, we have seen sometimes how these missions have gone, but the point is we have to know the rules of engagement going in, what their mandate is, an exit strategy, and they have to be coordinated in their efforts.
What we saw in Afghanistan was commonly known as a whole-of-government approach, which works effectively after you have stabilized, after there is some semblance. It's cliché to say, but for peacekeeping to work there has to be some peace. It's much more about peacemaking now. And that you will hear time and time again, I suggest, from witnesses who will appear before you. Those are the realities.
When you see a caliphate, as we're seeing in the Syria and Iraq conflict where these organizations are moving across broad swaths of land, not respecting any borders, not respecting any rules of engagement, stopping them from their progress, first and foremost has to be the concentrated effort, and I would suggest that again as an example of how much things have changed.
Their recruitment efforts and their use of technology and the need for cybercombat, cyber-response also has to be a part of the way we cast our response to the challenges of this world.
So Canada is good at what it does. We're still very much in a niche capacity when it comes to our contributions. We want to continue to hold that ground and expand, if possible. Much of that is predicated on resources. We are limited only in the resources, the training and the ability to support our very best citizens, our Canadian Forces.
Senator White: Thank you very much to both of you for being here. Thanks for your previous service as well.
My question is going to focus on the shift we have seen in the last probably eight months now in discussion around a stronger support for peace operations or discussion. I would like a short response from both of you, as lots of people are going to ask questions.
Based on the recent Auditor General report that talked about funding priorities, things like NATO equipment and bullets, do you believe that, based on the budget we have allocated now this year, we're going to be able to make that shift and continue to actually support our men and women that are still out there, still trying to make peace, while at the same time trying to expand their operation?
Mr. Pratt: My own impression is that the defence budget has to increase if the government wants to do everything it has mapped out for itself to do. I think the peace operations support that it is hoping to provide could eat up significant resources. As I think we both believe, you don't want to take away from your responsibilities for the defence of Canada, the defence of North America and our NATO obligations as well.
One of the things that I think are clear is that in order to do those peace operations, you need the same sorts of equipment and capabilities that you would if were doing NATO operations or other types of international operations. You need the boots on the ground. You need that engineering support. You need logistical support, communications and intelligence, all of those things.
However, what happens — and this has happened, I think, too many times in recent history, Conservative and Liberal governments together — is they put too much pressure on the organization to perform, and you can only get so much out of the people and equipment that you've got. Beyond that, things move into kind of a failure mode, where you've got people off, for instance, on stress leave, you've got more instances of PTSD than you can possibly deal with, and the equipment starts to break down. Just looking at the engineering equipment, most of it, our heavy engineering equipment is well over 20 years old. That's one of the reasons we have a program to address that.
There are other areas where you need to be at the cutting edge of technology as well, and cyber was mentioned. That's extremely important, and other types of intelligence capabilities are vital.
As I say, it's an ambitious agenda that the government has mapped out, and I think it's absolutely critical in terms of international peace and security, but I'm just hoping that they will provide sufficient resources to get it all done.
Mr. MacKay: Following up on that, I think it's brilliant that we're having a defence policy review, but there really needs to be a broader national security review because these issues are so intertwined. I would say the same for the foreign policy review. It has to happen simultaneously.
On the equipment, as we experienced very quickly in Afghanistan, this is a brand new type of warfare as far as Canada is concerned in terms of the initial shock factor. We went there with force green uniforms and light-armoured vehicles, and we encountered IEDs, snipers and bombs that were planted around schools and public places.
To David's earlier point about how dangerous these missions are, if they're not well defined at the beginning, we're putting people in harm's way. Soldiers will always go. They will always put up their hands, grab their rucksacks and go. It's what they signed up for. It's what they want. But upon arrival, I would suggest it's incumbent — in fact, obligatory — that the government give them the maximum protection they need in a theatre of operations.
Therefore, interoperability is an important part of everything that David talked about in terms of our equipment and our ability to communicate with one another in these harsh environments and the ability to have the maximum armour. For example, when we brought main battle tanks into Afghanistan, it had a twofold effect; we never lost a soldier in one of those Leopard 2 tanks, but it also had a deterrent effect. The Taliban didn't want to have anything to do with us when they heard those tanks were arriving. The same thing happened with helicopters — our ability to evacuate soldiers when they were injured but get them into the strategy places they had to be in and out of in a hurry. Knowing the terrain and the parameters of the mission is critically important as well as providing the equipment and matching it up along with the training that's necessary.
So there can be no naiveté. There is no room for idealism in this world. Peacekeeping, again, I'm afraid there is a mythology that surrounds it. The Pearsonian blue-helmeted era is well behind us. What we did in the Sinai is legend, but what we did in Afghanistan I would suggest is also more emblematic of the warrior spirit that exists within the Canadian Armed Forces today.
Senator White: This question is actually going to be something I'm more familiar with, I guess, and that's in relation to peace operations and UN CIVPOL and policing. I think everyone recognized the importance when the RCMP went to Namibia in 1988, but after that it actually became a post-war stabilization effort along with training.
Could each of you give a short response as to what part you think Canadian peace operations is going to play when it comes to police officer involvement as well?
Mr. Pratt: Well, I can only say that I think it's a vital area in the whole security picture in any particular country that's been affected by conflict, and police are in some respects the key actors post-conflict because they're the people that interface with the population on a regular basis. We saw this in Sierra Leone with the Commonwealth Police Development Task Force. I don't know if you're familiar with that, senator, but it was, I think, very effective in training the police.
Corruption is a major problem in many of these countries, and getting training so that we try, to the greatest extent possible, to eliminate corrupt elements within police forces is absolutely critical.
Mr. MacKay: Senator, I would defer to your expertise in this area, but I believe that at many points in history there have been more police than actual soldiers on some of the UN peacekeeping missions, and they're well suited for it. I believe one of the UN officials said peacekeeping is not to be done by soldiers but they're the best at it. I'm not sure I agree with that. I think in certain types of missions police officers actually bring a level of expertise that is more applicable to the mission. But again, equipment, their ability to be interoperable and knowing the mission are key.
I would suggest we have a tremendous resource in Canada that we have not fully tapped into when it comes to the availability of police and retired police. We saw the incredible work they did in Afghanistan. I know I'm referencing that a lot, but I saw first-hand with operational mentoring liaison teams the ability to train the Afghan forces in domestic policing. It was critically important to the stabilization effort that was going on. I would suggest the same was true in Haiti and around the world. Much of this is coordinated out of the Department of Veterans Affairs.
Again, it's part of the whole-of-government effort. Police bring an important component to this.
I would just make one final point, and that is to stress that on peacekeeping or peacemaking operations, the instances of post-traumatic stress disorder or operational stress disorder are often higher than what you would find on a combat mission because of the internal conflict that soldiers and police feel in being unable to respond or having a hesitancy or a restriction in the mandate that allows them to step in and stop something like a genocide or the atrocities that we know happen in some parts of the world.
Senator White: Thanks to both of you. Again, thank you for your service.
Senator Kenny: Welcome. Good to see you both here. I'd appreciate it if you could talk to the committee about the challenges you've both faced in getting a decent budget. The impression the committee has is that it doesn't matter which party it is, defence spending is discretionary, and if something has to be cut or slowed down, it's going to be your budgets. The two of you have had similar problems in terms of having good plans and good people but no dough.
How do you address that problem? Also, while you're at it, could you talk to the committee a little bit about whether you ever considered a quadrennial defence review, which is popular in some countries, and I think useful to fine-tune defence policy going forward and also to make sure the population is thinking about defence issues, which may in turn help you with your funding?
Mr. Pratt: Well, in my case, when I served as minister, we were in the process of ramping up the defence budget in the early 2000s. I would have to say that was largely in response to our commitment in Afghanistan.
I continue to be one of those who believe that Canada should be spending a lot more on defence. NATO has set a target of 2 per cent of GDP, and in some respects I agree with the minister that that's a pretty rough calculation in terms of what some countries include in those expenditures.
One thing I think would be really important is for NATO to very carefully define what a bona fide defence expenditure is so that we're all talking about the same thing in terms of the numbers.
When I was Chair of the Defence Committee back in the early 2000s, we made a recommendation to the government that the defence budget should rise to about 1.5 per cent to 1.6 per cent of GDP over a period of time, not a dramatic increase. First of all, I don't think the Defence Department could absorb that kind of money, but ramp it up over time so that we would be doing more from the standpoint of our obligations in support of Canadian defence, North American defence and NATO.
To get to your second point, Senator Kenny, I also believe very strongly that periodic defence reviews are absolutely vital and critical, because, as you say, they sensitize the population to the need for and the importance of defence policy and capability, but they do a couple of other things as well. I think they also inform the population about the threats out there that the government is trying to deal with, but they send a message to both our allies and our adversaries as to Canada's intentions in terms of dealing with security threats.
The British and the Americans have periodic regular defence reviews. I think we should be doing the same thing. I think the fact it has taken us so long, from 2008 to now, to have a defence policy review is unfortunate and does not serve the issue of defence the way it should.
I have to say, as a final comment, that I didn't think the 2008 Conservative policy review was as comprehensive as it should have been, and to criticize my own government as well, back in 2004-05 I thought we should have had parliamentary hearings around defence policy, with the foreign affairs and defence committees of both houses engaging the population on this, hearing from experts and producing a good parliamentary report for the government to consider.
Mr. MacKay: I'll pick up back to front. I think the quadrennial review is a very good suggestion, and on reflection, I take David's criticism, constructive as it is, that the Canada defence strategy should have been a more comprehensive review. There was a sense of urgency because of Afghanistan, but it was focused on procurement. It resulted in heavy lift capability and purchasing or licensing of equipment that was needed in Afghanistan because of casualty rates and the rate of kinetic activity that was happening on the ground there, but those types of reviews bring certainty. They bring a much more in-depth understanding of the needs of Canadian Armed Forces and the ability to plan, which is often very difficult given budgetary constraints.
We did this, by the way, senator, as you would know, for search and rescue capability, which is something I hope will also be on your agenda because I think there is a pressing need for search and rescue and the replacement of fixed- wing SAR aircraft.
To come back to the main issue of how we go about ensuring sufficient funds are in the budget envelope, I think the 2 per cent of GDP aspirational goal at NATO is achievable over time if we're serious about continuing to make the type of contribution expected of us, if we're serious about defending Canada's interests nationally in North America and making the type of commitments that are expected of us, quite frankly, in this rapidly turning world.
Our defence budget went from $14.5 billion in 2006 up to over $20 billion by the time we left office. Was it enough? No. I think there was need for more investment in certain areas.
The recession befell some of those efforts at that time, but as to the ongoing need for sustainment, we are not as large and robust as we need to be, given some of the challenges we face in the Arctic. We have an arc across North America and across the planet starting in Alaska, through Canada, Greenland and Denmark, and we have unhelpful and sometimes aggressive neighbours to our north. We know that some of those challenges over our airspace are going to require a major investment.
I suspect we may get a question at some point about the purchase of F-35 aircraft, which we drastically need and soon. I'm very much lamenting some of the toing and froing going on currently over the purchase of fighter aircraft. Do I regret that we did not make a final purchase of that aircraft? Absolutely. We need it. It's good for industry and interoperability. We need it at NORAD. You will know, Senator Kenny, that it was a Canadian who was in the seat at Cheyenne Mountain when 9/11 happened — this is the level of trust — and we are going to risk disconnecting from NORAD and our capabilities if we do not have the same fighter aircraft as all of our allies will be flying not just in 10 or 15 or 40 years but in the next three to four. We will be decoupling ourselves from those important commitments in all of those areas around the globe.
Senator Kenny: He didn't need a question on that. If you're counting, I'd like you credit Senator Dagenais with it, if you could.
Both of you, I understand where your heart is, and I know the challenges you're facing. In terms of funding, even though you can point to some increases, this committee, when Mr. Chrétien was Prime Minister, took a look at what happened in the previous year, and we concluded that we needed a budget closer to $35 billion than the targeted $20 billion that we were going to have.
When you made the case, what did you find was blocking your case for a full budget?
Mr. MacKay: There were all these other pressures, I think David would admit. For us, because of the pace and the intensity of what was happening in Afghanistan, we were able to increase our budget significantly. We were able to move on major procurements. We were able to make substantial gains, I would suggest, on that aspirational higher budget that I know you've been a proponent of your entire career.
So those types of more, I dare say, pedestrian but also very realistic needs, whether it's health care or issues related to emergency response within Canada, there are always competing pressures. But the urgency with our Department of National Defence requires that there can't be any waste. There cannot be decisions taken that actually see billions of dollars that should be going into either capital procurement or going into specific defence budgets whether it's navy or fighter aircraft. We cannot have these types of delays that ultimately cost us sometimes billions of dollars. We saw that with the Sea King replacement.
You can't have money moved from one element to another, as has been promised, taking it from the air force to give it to the navy and defer spending by almost $4 billion out past the next four to five years.
So precision-like guidance of where that money goes is truly what is needed and taking the politics out. I dare say that has also bedevilled governments of all political stripes. We have to get to a point, and I think, maybe naively, that there are things still beyond politics in Ottawa. National security and defence has to be at the top of that list.
Mr. Pratt: My impression, senator, is that we have in this country what I would describe as an immature defence and security culture, for lack of a better term. We as policy-makers, and I'm including Parliament as a whole here and excluding generally the defence committees, do not see defence in the same way that some of our allies see defence because they've had experience, in Europe, especially. Obviously, it's ingrained in their DNA. Conflict has been part of their lives historically for the last 100 years, so they take a very different view of defence.
In Canada, we have enjoyed the protection of several empires, the French empire to start, the British Empire, and now the American empire. We have lived in this peaceful kingdom of ours without too much concern about our own security and well-being. We've never had the experience of being invaded, with the exceptions, of course, of the Fenian raids and the War of 1812, but those are far from memory in that respect.
If we want to do the things we think are necessary in terms of international peace and security, there has to be more public debate about where we want Canada to go and what we want Canada to do on these issues. I hope that this is part of that, but it needs a concerted effort. It really does, because there is lots of pressure politically. Politics is the art of the possible. Would I love see a $35 billion defence budget? Depending on how it was spent, but it's not possible to even think about that these days. So it's a question of how you ramp it up over time to be able to have Canada accept its responsibilities internationally and do a good job.
I think we've got an incredible amount of talent whether it comes to soldiers, diplomats or aid workers. We have extraordinary people who are doing Canada's work abroad. The old saying is the world needs more Canada. That's very true, but unless we put the resources in it they won't get the benefit of what we can offer internationally.
The Chair: To follow up on Senator Kenny's question, if I'm not mistaken, the question is should Canada have a regularly scheduled defence review by perhaps a legislative measure that guarantees that it takes place? In other words, it's a minimum every eight or 10 years in order to bring this back to the public and have the public have that discussion. I think that's part of our problem: the public isn't even aware of what our military is.
Mr. MacKay: I would say emphatically yes.
Mr. Pratt: Yes.
[Translation]
Senator Carignan: I have another question regarding the F-35 purchase you mentioned, Mr. MacKay. Can you elaborate on the consequences for Canada, first of all, of missing a payment for the F-35s, and also of not purchasing the F-35s and choosing instead the old F-18 model? Can you describe the real consequences that these decisions will have on the ground and on our relationships with our allies?
Mr. MacKay: The consequences will be serious and immediate.
[English]
My fear is that if we delay this purchase any longer, Canada will lose an important component of our national defence, particularly a country of our size — a country that has huge swaths of unoccupied land in the North. We need to step away sometimes from some of the rhetoric that has emerged on this file.
Our entry into this program began in 1997. We were nine years into investing in the F-35 when we took office in 2016. We continued along the program, put in more millions of dollars — I believe we're now approaching half a billion dollars of investment. Those investments have allowed us to be part of a developmental aircraft, which is exactly what we did with the F-18, the previous Boeing product. This is not new. There have been problems with the aircraft, mainly to do with a different variant, namely a vertical takeoff variant, which we're not buying. We're buying the conventional aircraft. For price; for capability; for stealth, which is very important; for interoperability, for the type of needs we have both domestically at home and around the globe, we need to have the most capable aircraft — that is, one that provides maximum survivability and allows our pilots and enablers to come home safe after having completed their missions. Whether we need to drop ordnances, as has been questioned, we were doing that in Syria and Iraq. We were doing it to great effect and with great precision and stopping the advance of ISIL. Let's never lose sight of what the goal is here, namely, to defer the expansion of that type of murderous chaos and to protect people and stop the extension.
I have looked at this issue extensively over the years. I've looked at all the analogies with other planes and the need for a competition. There was a competition in the initial days of the selection of what was then called the Joint Strike Fighter, and the F-35 won. Time and time again, whether it was in Norway or other countries, there are 12 now taking delivery of over 180 of these aircraft which are flying currently. Time and again that plane has emerged. It's a fifth- generation aircraft. Even the president of Boeing has conceded that they lost, that they're not able to make that type of capability when it comes to aircraft technology. They can make other things, which we've purchased. We purchased their Chinooks, their C-17s, heavy lift. They make great aircraft, but it doesn't compare. An F-35 kills a Super Hornet 100 per cent of the time when it comes to matching it up.
We don't have to match up against a North America-made product. This may sound a bit alarmist, but we're looking at who we may be up against in the future and what the type of mission set will be, their survivability and interoperability over North America. It's absolutely critical that we have that plane and have it soon.
The Chair: Mr. Pratt, do you have any comments on that?
Mr. Pratt: I really didn't come here to talk about the F-35. At the same time, my own view and impression is that the Conservatives had an opportunity. I was part of the government that supported the development costs on the F-35. At the same time, I believe that a full and fair competition did not take place. The government has said that it's going to do a competition. It has promised a fair and open competition. There has been a bit of chatter, obviously, on the periphery about an interim buy of the Super Hornet. In order to clear the air on this, the Conservatives had 10 years to do this. I don't want to get political about this, but the job didn't get done. We need an open competition in order to ensure that we're getting the best plane for Canada now.
The Chair: Colleagues, this is very interesting. Can our witnesses stay here for another 15 minutes? Do you have time? I know we're booked until noon. Can we go to 12:15?
[Translation]
Senator Dagenais: My question is for Mr. MacKay. Is Canada not making a serious mistake by putting its commitment to a UN peacekeeping mission ahead of its NATO missions? If so, I would like to know why.
[English]
Mr. MacKay: I don't know that it's a mistake to try to do both as we have in the past, but I would suggest that the priority still has to remain our NORAD commitments, our NATO commitments. For the type of missions that are classified as classic peacekeeping missions, we can provide other supports rather than large-scale troop movements or commitments.
I think Canada is an in a position, as a privileged nation, where we're able to do both. However, in order to get there and maintain and retain that capability, we have to make investments. We have to perhaps reorient ourselves a bit in terms of how we place police into that mix in a more robust fashion because of the demands that are placed on them.
I come back time and again to the fact that we cannot be neglectful of our NATO commitments, which are solemn obligations that go back to the end of the Second World War. The types of missions we've been on are demonstrative of how demanding they are. I'm worried when we're hearing stories about giving away equipment that we used to clear swaths of land and roads in Afghanistan. That equipment saved lives, as did so many of the other investments that we made in equipment.
We're the largest country in the world when it comes to our coastline. We need to move ahead with those investments in our navy. We need to continue along the lines that we've been hearing about in terms linking up our special forces operations and submarines. That is another critical component that is also expensive but also necessary in parts of our country, especially the Arctic.
Those are the priorities. I don't want to overemphasize this point about NORAD, but without a plane that is interoperable with the Americans — and they're flying a variant of the F-35 now — we're stepping back. We're not back. We're stepping back when it comes to those critical commitments.
That's the priority in terms of our concentrated effort on our budget.
[Translation]
Senator Dagenais: Thank you. Do you have anything to add, Mr. Pratt?
[English]
Mr. Pratt: Briefly, the approach the government wants to take here in terms of some of the capabilities that were outlined in medical support, engineering support, logistical support, et cetera, are very important. They are areas where Canada has lots of expertise.
If you read the high-level panel's report on peace operations, they haven't ruled out the possibility, certainly, of UN peace operations working in tandem with coalitions of the willing, for lack of a better term, to deal with some of the harder-edged issues related to a peace operation in particular countries. Based on what we know about Canadian special forces capabilities, working with some of our allies, we could have a significant impact in that area.
I wrote a piece for The Globe and Mail a number of months back about the possibility of Canadian troops being more involved in the UN mission in Mali, for instance, and dealing with some of the terrorist groups in the region. We had Canadian casualties in a hotel in Bamako, I believe it was.
That's the sort of thing, working with allies — like the French, for instance — where we could be of significant support and make a difference in the security situation in that country.
Senator Day: Gentlemen, thank you very much for being here.
Mr. Pratt, first of all, is it realistic to think that we could achieve the type of military force that we would like to see within the structure of the United Nations as it now exists? Is it possible, in your view, to have a delegation of command and control that would allow the standing force that was never created but had been planned for years and years within the United Nations, when we look at the difficulties that General Dallaire had in Rwanda in receiving instructions?
You talked a lot about needing reform within the United Nations. Is it realistic that that would come about, because of the structure?
Mr. Pratt: The structure is certainly cumbersome. Among the soldiers and diplomats that I've spoken to, there is a high level of frustration, and has been for quite a few years, regarding how the UN operates. Having that said, I'm the eternal optimist when it comes to pushing reform that seems to me to make sense.
If you go back to the end of the 1990s, for instance, there was a lot of talk about SHIRBRIG, the Stand-By High Readiness Brigade for the United Nations. I continue to believe that that's an important capability that the UN needs.
The road to reform I don't think will be easy, but the way you buy credibility in that process is to make a contribution, and to make a very visible and tangible contribution, in terms of resources but also in terms of ideas. Canada, over the years, has not been short on ideas, but we have been short on resources. If we address that, then I think there is an opportunity to make a huge difference.
When people think about the UN, they think about peace operations, peacekeeping; and when they think about peacekeeping, they think about the UN. The UN's brand is peacekeeping, peace operations, and the brand has suffered in recent years because of some of the issues we have seen in terms of peacekeepers sexually abusing the populations that they are supposed to protect, those sorts of issues. That stuff has to be dealt with. It has to be dealt with in a very resolute way, by the Security Council and by the General Assembly, and I think Canada has an opportunity.
Frankly, from a foreign policy perspective, what the government has laid out could be one of the most important foreign policy initiatives of a generation, if it's done well and if it's funded and properly resourced, and if they provide the messages to the Canadian public that the Canadian public needs to hear about why this is important for international peace and security.
Mr. MacKay: Just to reinforce what David has said, I think the reputational damage of the United Nations peacekeeping efforts has in large part been attributed to lack of resources and training. This isn't to point at any one nation or any coalition of nations, but they have had some spectacular failures where I think public confidence has been eroded somewhat.
Canada can certainly make a difference there if we're willing to make the type of commitment and contributions to the training, but it continually comes back to resourcing. If we're going to put people into those very difficult missions, which have changed quite dramatically from earlier definitions of peacekeeping, the resources simply have to be there; the protective elements have to be there. We cannot put Canadian Forces into those missions without knowing that they are going to be afforded the maximum protection, and I would maintain strongly that they have to be in a leadership role.
Senator Day: You lead me into the question I had for you, Mr. MacKay, and that is in relation to other than the United Nations — NATO, NORAD and a coalition of the willing. They are the areas in which we have participated in the past. From the NORAD point of view, this committee is on record as saying that we believe Canada should be looking into missile defence; that was set aside at one time for whatever reason, but should be revisited. I just wanted to let you know that.
I won't get into the F-35 issue with you, but there are other aspects of that issue that we'll have to debate one of these days.
From the NATO point of view, we're working on the high readiness. It is a military alliance that is very involved in the Baltic right now but has demonstrated that it will go outside of theatre — Afghanistan, for example. That has been demonstrated. Should we not be putting our efforts into NATO to help work on interoperability, help make sure that our equipment acquisitions fit in with the role that we see we can play there?
Do you agree with me that the subject of peacekeeping could include deterrents? We always think of peacekeeping as coming after the fact; in peacemaking there are hostilities, and then keeping the peace afterwards. What about keeping the peace before? That's really what we're looking at in the Baltics now.
Mr. MacKay: It's aspirational. I'm a former prosecutor as well. I believe strongly in the notion of deterrence, and I think it does work in some instances.
To come back to your point about robust investments and commitments to NATO, beyond Article 5, as we saw, the first time NATO went out of area for operations was Afghanistan, and that element of interoperability was absolutely critical. The same, I would suggest, is true of NORAD, for North America. The equipment, training and our ability to project force into all areas of those organizations is very demanding and resource-intense, but we have to do it. I would suggest that these are issues we shouldn't necessarily be debating. We should be finding ways to move forward.
I'm glad to hear that this committee may spend time in the future looking at missile defence. This may be a bit controversial. I believe this is an issue whose time has come. It's not to suggest that we have to have nuclear weapons on Canadian soil. I suspect that you have been to NORAD headquarters. There will be decisions taken, with or without us, to shoot down a missile that's coming from, say, North Korea, or someone else who is not our friend, over the Canadian Arctic or Alaska, passing over Canadian soil. It will be taken down, and we had better be in the room when that decision is being taken.
Right now, we have this absolutely absurd scenario where Canadian officials get up and leave when these discussions are taking place because we don't have a mandate to be there. Having said earlier that we're the trusted partner that was there in the chair when 9/11 occurred, we have a blind spot when it comes to NORAD around the subject of missile defence. A mature Senate-led discussion among the Canadian public, I think, would be a huge service to the Canadian Forces but also to the defence of Canada and to our security. I'm really heartened to hear that you intend to go there.
Senator Day: Thank you.
The Chair: For the record, we did do a complete study on ballistic missile defence two and a half or three years ago. The Honourable David Pratt appeared, along with others. The basis for our decision for Canada is clearly laid out in that report.
That has not changed, as far as I could see in respect to the hearings that we had, the visit that we had to NORAD. From Canada's perspective, I think it's very important that Canada take the time to make that overture to the United States, especially when we have the relationship we are witnessing between Prime Minister Trudeau and President Obama. This is a window of opportunity, and it should at least be brought forward to see where it could go because we would all benefit from it.
Mr. Pratt: I couldn't agree more. Just briefly, Mr. Chairman, I wanted to indicate that my views that I expressed in 2014 haven't changed in that regard. I'm still a supporter of Canada's involvement in ballistic missile defence. I think the fact that so many of our allies, virtually all of the NATO allies, have signed on to ballistic missile defence is tremendously important. I was encouraged to see the mention of our relationship, and I think it was some brief allusion in the discussion paper that Minister Sajjan issued to ballistic missile defence, and I hope the government will move forward with it, because we have lost a lot of time over the last 10 years plus on this issue.
The Chair: If I could conclude that aspect of our discussion, this is a window of opportunity. I hope those in charge are listening to this committee hearing, because time is not our friend. We should be moving sooner than later, at least making the overture to see if there is a possibility, because we're all in this together with our American friends.
Senator Beyak: Thank you very much, Mr. Chair. Ministers, I had a prepared question, but you answered it fully in your presentation, so I'll go to the practical. As Senator Lang said, the number of people watching these committees across Canada always amazes me, on CPAC or on their computers, I think because national security is so vital to them.
How would you advise the new minister about finding the balance between peacekeeping and this proud warrior spirit we have always shown — first into World War II before the United States, the reverence that the people in Holland have for us. I believe in peacekeeping too, but I want to find that balance. So when all the consultations are done with Canadians across the country and the input has been received, what would you advise him as past ministers and with great expertise? Thank you.
Mr. Pratt: If the minister asked me for advice that way, international peace and security is absolutely vital to our well-being as a nation. We are a trading nation. We rely on open trading routes. We rely on partners whose own welfare and well-being may be affected by conflict. So we have a vested interest in that.
It is important for our new defence minister to ensure that he is working very closely with his colleagues to communicate those issues. If he has colleagues involved in particular portfolios that relate to domestic issues, whether it's Transport, the Environment or Treasury Board or Veterans Affairs or any of the other departments that deal largely with domestic issues, it's important for the minister to communicate the importance of those issues.
We didn't address this today, but understanding what I would describe as the spectrum of conflict is tremendously important as well because what the UN seems to be doing in terms of its approach is taking a more holistic view. I think Canada has had this view over a number of years, but we haven't really been able to execute on it, that in terms of dealing with the spectrum of conflict, it ranges from, for instance, conflict prevention, mediation, dealing with the hard security issues, right through to governance issues at the other end in terms of elections, the respect for human rights, et cetera. That's part of a package, and the minister has to work very closely with his fellow ministers, whether it's the Minister of Justice, the Minister of Foreign Affairs, et cetera, to realize the full potential of what it means to be the Minister of National Defence.
Mr. MacKay: Mr. Sajjan, I think, is uniquely positioned at this time in our history and within this government. I have enormous respect for him. I first met him in Afghanistan. He is a decorated soldier and police officer. He is the real deal, as they say. He has the opportunity now to really make a huge difference in this process, but in order to do so, he has to resist the temptation to be political. But if it has to go politically, he has to stand up at the cabinet table and make the case, as Mr. Pratt has just said, for some of these important decisions.
Canada's international reputation is predicated on our ability to contribute internationally. Two of my favourite Liberals I will quote: John Manley used to say we can't be at the top table and then walk away when the cheque comes; and a former member of this committee, Senator Dallaire said famously that Canada's soldiers are first and foremost specialists in combat. The current minister understands that well, having been there and done that.
So this is an opportunity for us to get it right, to make the proper investments in aircraft, in navy ships, to continue what I would suggest we started as far as those investments go, to continue and evolve in a way that will continue to place Canada at the top table, able to contribute, able to bring about a more peaceful and secure world; but that comes with a lot of heavy lifting, and we can't shirk that responsibility now, never, certainly not in the future. That's not in keeping with Canadian values.
We have always been a country that other countries have looked to for inspiration but also, as you mentioned, looked for, in the darkest hours, the type of inspiration and difficult, sometimes costly, interventions that come at great cost to young men and women's lives who are willing to make that absolutely incredible commitment of unlimited liability. When they walk out the door with their uniforms on, they are prepared to die for their country. We have got to make sure that we do everything we can to protect them.
The Chair: Before we conclude I have one other question here, and it has to go back to the actual area that we have been charged with studying, and that's the question of peacemaking, peacekeeping operations within the United Nations. You both have stated on the record that you feel that there are some areas of serious, significant problems within the United Nations and how they go about their day-to-day business. That's a concern that we have here from our committee, in that any recommendation we make, we want to make it very clear that we're not prepared to put the men and women of our Armed Forces in harm's way without the necessary tools.
Mr. Pratt, you referred to the coalition of the willing in one response. In respect to our involvement with the United Nations, would it not be wise before we make any commitments on the ground for the purposes of peace operations with the United Nations, that we, Canada, in conjunction with our friends, other countries that we know that are also involved, bring them together and say, "We will participate, but we want these reforms before we go''?
I find it very hard to say that we would send our forces over and expect and think that we will get reforms later on. Could you comment on that as perhaps a step that could be taken to force the issue so that they know there are resources but there will be rules of engagement and all those things will be spelled out before we become involved?
Mr. MacKay: I might very quickly answer that part of the problem is, of course, the Security Council itself and its membership not wanting to or agreeing to certain reforms or parameters placed around missions.
The second is just the malaise and the bureaucratic inertia that exist within the UN itself. It's endemic. I don't see that changing at Canada's request, unfortunately.
The Chair: That's why I'm saying to bring people together.
Mr. MacKay: It's certainly worth the effort, I would suppose, but it's a Herculean task to try to get the UN to change in the way it conducts itself, especially around these types of mission sets. So that's not to suggest disengagement. Continue to roll that rock up the hill, but in the meantime, the minister, the government, all the departments have to be cold-eyed realists about what Canada can and cannot do and put the emphasis where it's needed: build capacity for NATO and NORAD.
The Chair: Mr. Pratt, briefly because we have gone well over time.
Mr. Pratt: I continue to believe that Canada can play a role here. It has to pick and choose its missions very carefully, depending on the mandate and a lot of circumstances. Each individual situation that requires UN intervention has its own peculiarities, and we have to look at those very carefully.
Having said that, I think the way you push reform is you have to buy your credibility in terms of making a contribution and say, "Look, we're prepared to do this but'' — working with some of our allies. The French, Germans and Italians are all facing similar issues. They want to see the UN work, as do we. But unless you're prepared to ante up some resources and make a contribution, then I don't think anybody will pay attention to you. I think we need to do that. We basically need to change the tire while the car is running, and unless we're prepared to try and do that, then we're not going to make a difference.
The Chair: Thank you very much. I want to thank you both for the very interesting and educational hearing we've had today. You have brought a lot of experience to the table, and I think anybody who was listening to what you had to say would be very proud of what you two gentlemen have done on behalf of our country, experience of which you obviously volunteer to bring forward into hearings such as this. Thank you very much.
The Chair: Colleagues, the Standing Senate Committee on National Security and Defence will now continue its examination of Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures. Joining us in this panel is the Commissioner of the RCMP, Bob Paulson. Welcome.
Commissioner, over the past couple of weeks members of this committee have been interested in hearing from you directly about the proposed legislation and how it will impact the members of the RCMP. We are looking forward to hearing from you about the exclusions in the bill which are noted in sections 238.19 and 238.22, specifically such sections that refer to law enforcement techniques; transfers and appointments; appraisals; probation; discharges; conduct, including harassment; basic requirements; and uniform and equipment. We are looking forward to hearing from you about why you believe they are essential and why members should not be able to discuss these items as part of collective bargaining.
I understand you have an opening statement. Sir, please begin.
Bob Paulson, Commissioner, Royal Canadian Mounted Police: Senators, on behalf of the men and women employed by the RCMP, let me thank you for your work and extensive engagement on this piece of historic legislation
[Translation]
Mr. Chair, on behalf of the men and women who are members of the RCMP, I would like to thank for your work and for your strong commitment on this historic piece of legislation.
[English]
The government of Canada is proposing to fundamentally change the labour management framework of the RCMP. I've watched, read and have been briefed on the presentations that have come before you in support of your examination of this bill.
My objective in coming here today, apart from answering your questions, is to address the very simple question posed by the honourable chair in a media story from last Thursday, in which he quite reasonably asked to know the reasons for the exclusions. Indulge me with 10 minutes or so and I'll answer that.
The authority of the position of commissioner is derived from section 5 of the Royal Canadian Mounted Police Act. In this act of Parliament, you decided that there would be a commissioner who under the direction of the minister would have control and management of the force and all matters connected with the force.
In the labour world, this could be understood as management rights, and while these powers may sound extensive, the authority of the commissioner in this pre-Bill C-7 environment is checked and balanced by a number of things, including other statutorily established review and oversight bodies. There are a lot of them, but for the purpose of today, the most relevant are: serving at pleasure; ministerial direction; the courts; the RCMP External Review Committee; the Civilian Review and Complaints Commission; the Human Rights Commission; the Public Service Disclosure Protection Act; Employment and Social Development Canada and the Canada Labour Code; and the provincial Police Services Agreement.
As I say, there are many others.
The commissioner discharges this authority under oath and with a view to servicing three main interrelated constituencies that are at play in this profession: first, the public interest; second, the organizational interest of the RCMP; third, the employees' interest.
I believe that in order for our employees' interest to be served, they must have effective, competent and independent representation. RCMP employees do exceptional work on behalf of Canadians under difficult, often dangerous circumstances. On that, we can agree.
Certainly, the Supreme Court of Canada expressed that view in MPAO. They said, among other things, that there was a perfectly sound regime in place for labour management in the federal government, and unless the government produced amendments or an alternative law within a year, the PSLRA would be the law that would apply. Well, that year has come and gone, and that is now the law. I am not aware of any constitutional defects in the PSLRA.
Bill C-7 seeks to amend the PSLRA to accommodate the RCMP. The government has been preparing contingencies for a new labour relations framework since MPAO was first brought into the courts. We have provided advice to the government in the preparation of this law. There are some obvious immediate concerns that would attach to unionizing members of the RCMP, for example, the right to strike, that there be a pan-Canadian police-centric bargaining agent, and restricting labour affiliations of the certified bargaining agent.
We have therefore interested ourselves on the state of labour law and practice within the Canadian police universe. I already manage relationships quite successfully with the bargaining agents representing thousands of our public service employees.
These exclusions as we have come to refer to them are really the expression of what in labour law is known as management rights. One starts from the premise that they are absolute and then provides for things to be negotiated, arbitrated and grieved if necessary.
[Translation]
These exclusions, as we call them, actually reflect what is known in labour law as "management rights''. Under this principle, these rights are absolute. We then establish the aspects that are subject to negotiation, arbitration, and grievance, if applicable.
[English]
Here is the thing. These exclusions, enumerated as they are in Bill C-7, did not need to be listed in this fashion. That was our advice to list them. Why? Because we thought that in this very acrimonious season of an RCMP union drive, there would be criticism that we were trying to pull a fast one. But instead of being seen as a transparent, the list has drawn heat and light.
The PSLRA and, indeed, all enabling statutes in labour recognize that nothing in the labour act should interfere with other expressions of the will of Parliament present in other laws. Where there are other legislative provisions, those things are excluded. A good example here would be the Canada Labour Code — very powerful, prescriptive and binding in respect of its decisions — and the legislated need for a functional and active joint operational health and safety committee.
It is said that a guiding principle in labour is that matters of public policy, regulating in the public interest, ought to be decided by legislators in legislatures and not by arbitrators or bargaining agents.
But a line will always exist between the public interest and the employees' interest in labour law. That line will move around, depending on the profession and the nature of the work or service in question. It is natural, given the seemingly opposing interests at play, that there will always be an impasse here or there.
Collective agreements are the product of negotiated interests between the employer and employees. Every collective agreement in the policing field varies to some degree, but what all of them have in common is this grouping of management rights in the governing statute or in the agreement itself, put there in the public interest.
Some of the collective agreements you've seen feature aspirational statements and various mechanisms for employee engagement, consultation and participation in policy development. That has been my experience, and that is my expectation. The PSLRA calls for those. Bill C-7 provides for those. In fact, section 8 of the PSLRA requires special measures for harassment and whistle-blowers.
Indeed, well before MPAO, we had extensive joint SRR management committees on pay and benefits, use of force, equipment, conduct and discipline, et cetera. These committees were the source of important positive change for the force. That will continue, and frankly, it must.
I've watched your deliberations with interest around conduct and harassment in the RCMP. I'm sure you won't let me misstate your concerns, but they do seem to focus on the apprehension that there is no externality to handling harassment, and that in any case, the commissioner as the final arbiter cannot be relied upon to decide these cases.
That is not the case.
Parliament provided us with Bill C-42 almost two years ago. Here, you recognized the inextricable implication of conduct in harassment cases and provided for authority to create special lines of appeal to the External Review Committee in harassment-related misconduct.
What is more, the commissioner has the authority to turn the whole matter, including investigation and decision making, over to external entities, which I have done. Even if I was to alter the non-binding decision, I'm accountable to the courts for this decision making, which has also happened. The SRR participated fully in developing our advice to you on Bill C-42, just as the new bargaining agent would do on any future policy work. It is working, by the way, and it is accomplishing what you wanted it to do.
I'm afraid we are all allowing the cart to get ahead of the horse here. These other police forces have been at the labour business for quite some time, and their collective agreements reflect their own unique operating context. We have not yet begun. We haven't been to a bargaining table. We aren't sure which of the competing prospective bargaining agents, if any, will get the right to certify.
Whoever it is, though, will have to establish its own unique strategy for representing the employees' interest. Maybe it is negotiating a unique style of setting up the various consultative committees, like those that the Sûreté du Québec has. Maybe it's negotiating relocation processes rather than transfer authority.
I'm sure this will develop over time having regard for the unique operating context of the RCMP in that we police internationally, nationally, provincially, territorially, locally and in partially and very isolated posts. Our philosophy is one of community-based policing, whether it is in our international counterterrorism work or in our graffiti eradication strategy in a small rural town. Bill C-7 in its current form provides for that.
Canada is changing rapidly. We are a diverse, inclusive country with wide-ranging social experience for our citizens. Canada is also growing. The RCMP must adapt to reflect this reality if we are to deliver to Canadians a national police force that operates with the trust and confidence of its citizens. This requires timely and innovative approaches to recruiting, training, deployment, promotion, conduct and discipline.
All of these challenges require authority to act with alacrity and accountability, but deliberately, consultatively and collaboratively in the public interest.
The concern is that matters of significant public interest cannot wait the time it takes to resolve them through grievance arbitration, nor should they be subjected to a diffused or fragmented responsibility.
So that's why the exclusions.
I would refer you to the recent public deliberations around the City of Chicago's challenges in policing, the Police Accountability Task Force's recommendations for reform, restoring trust between the Chicago Police and the communities they serve in April 2016. Here the public interest did not overlay the employer-employee relationship in managing their police force. Effectively, the authority to deliver police services and accountability to the public was being fragmented and diffused through collective agreement rather than exercised through an evidence-based, accountable and collaborative framework.
You shouldn't just take my word for all of this. I believe the letter Minister Goodale and Minister Brison wrote you contained a very reasonable and prudent course of action.
[Translation]
Don't just take my word for it. I think the letter you received from Minister Goodale and Minister Brison presents a very reasonable proposal to allay your fears.
[English]
With respect, many of the people who have appeared before you have been aligned with an interest which is not the public's interest. You've had little in the way of independent, informed advice about the impact of this bill on the public interest, which after all is your goal. It certainly it is mine.
With that, honourable chair, I would be pleased to take your questions.
The Chair: Thank you, Mr. Commissioner. We're very pleased that you are here, and I want to assure you that everyone here at the committee is definitely here for the public interest. There is no question about that.
I would like to set the stage here, because I think you have addressed the main issue we do want to get clarification on, the issue of exclusions.
My question is perhaps could you go further in what your role was as the commissioner and your office's role in the drafting of this bill. Second, could you further explain to us your comment, "Here is the thing. These exclusions, enumerated as they are in Bill C-7, did not need to be listed in this fashion.'' Perhaps you could respond to that. Then we'll go to questions.
Mr. Paulson: Thank you, Mr. Chair.
The role of the RCMP, all along through the MPAO process, has been to provide advice to the government on issues specific to the RCMP inasmuch as it impacts on labour relations. In that regard, the folks that you heard from already were the principal offices of expertise in that area, the Professional Responsibility Officer and my Chief Human Resources Officer. Those two folks worked extensively with the Treasury Board Secretariat and Public Safety in producing their understanding of the most balanced approach in managing these issues.
I'm sorry, the second part of your question, chair?
The Chair: In your address, you said, "Here is the thing. These exclusions, enumerated as they are in Bill C-7, did not need to be listed in this fashion.''
Mr. Paulson: I guess I go on to explain it in my opening comments.
First of all, let me add this. In your opening comments, chair, you mention that members wanted to be heard on some of these matters. The idea that things are excluded in the statute the way they are doesn't foreclose members, or the bargaining agent for those members, to be heard on those things. So that's number one.
Number two is the way in which these exclusions derive is through the provision of other laws through the federal system. I think I used the example of the Canada Labour Code there, where there is a clear law around safety in the workplace and what to do about that.
There is nothing that could be included in this statute which would interfere with that law. In some respects, there are issues, in conduct and harassment, for example, already provided for in Bill C-42. The PSLRA has a clause in there that says nothing that already existed in other laws that can be affected by this law. But knowing the kind of environment that we're in right now, I thought it was important that we be upfront and frank about those things. Evidently, it has worked, because there is a dynamic discussion around the merits of those exclusions.
Perhaps another thing, Mr. Chair, is the fact that the exclusions are listed the way they are doesn't restrict the scope of them. I'll use, just off the top of my head, transfers, for example. I think we have made a case that the unique deployment, arrangement and operating context of the RCMP requires the management's ability to transfer people, and there is nothing stopping a bargaining agent from bringing in, at bargaining time, discussions around methods or payments or the ancillary systems that attach to the transfer. At the heart of the exclusion is the idea that the police force has to be deployed through central authority to address resourcing needs.
To answer specifically your question, it's this clause in the PSLRA and other statutes that enable police force bargaining that says this law will not interfere with other laws.
The Chair: If this section was excluded, do I take it that all other laws would apply, similar to any other collective agreement?
Mr. Paulson: I'm sorry?
The Chair: This clause that we're referring to with the exclusions.
Mr. Paulson: Yes, it would.
The Chair: We will start with Senator Carignan, who is the critic of the bill. I will then go to Senator Campbell, who is the sponsor of the bill, and then we'll proceed accordingly.
[Translation]
Senator Carignan: Mr. Commissioner, for greater clarity, you seem to be saying that the exclusions are used for information and transparency purposes, but that they are not really necessary.
Mr. Paulson: No, the exclusions are included, even though the section listing them by order is not there. That's what I said.
Senator Carignan: Because that section is in another act.
Mr. Paulson: It is in the act that we amended, the Public Service Labour Relations Act.
Senator Carignan: So, apart from the exclusions, not much will change.
Mr. Paulson: No.
Senator Carignan: Parts of other acts that could be subject to bargaining . . .
Mr. Paulson: I should no doubt have been clearer in my reply.
Senator Carignan: You were very clear.
Mr. Paulson: I wanted to say that if we remove the sections that list the exclusions by order, the other section that provides that if other acts are . . .
Senator Carignan: I understand perfectly. You are saying that the union could demand . . . Consider transfers for instance. Yet you do not want that to be part of the collective agreement.
Mr. Paulson: No. I will reply in English, it will be easier for me.
[English]
What I'm saying is that I can't be precise about how the bargaining agent might want to approach some of these issues. My point is simply that the exclusions go to key authorities, and they're not scoped out. So there may be elements of these exclusions that may find their way into the bargaining process in transfers, as I used the example for the chair.
At the heart of it is the protection of the ability to not have the essential authority to run a police force in the public interest interfered with through bargaining or arbitration.
[Translation]
Senator Carignan: Do you agree with me that this is typically addressed in bargaining? The employer tries to ensure that it has some discretion and that it can exercise its management rights. The union tries to ensure that the framework is fair for workers. So this process is usually part of bargaining, a give and take approach.
Mr. Paulson: Exactly.
Senator Carignan: Would you agree with me that, if you do not agree on a matter — because for example you think it violates the act —, you could submit it to an arbitrator to decide whether it violates the act or not, and what the scope of the collective agreement should be?
Mr. Paulson: In my opinion, if there are any issues of that kind, they should be decided by the courts.
[English]
At the heart of the exclusions are the authorities that the employer would want to protect. There may be alternative ways at negotiations that produce a collective agreement which entirely satisfies the employees' interest.
[Translation]
Senator Carignan: Exactly, that's why there is interest arbitration. The arbitrator has to determine the scope and content of the collective agreement.
[English]
Mr. Paulson: Again, in spirit of the framework that is the convention in labour, there are some things that need to be excluded from arbitration, not from the danger but from the diffusing or weakening of the intent of the exclusion in the first place.
[Translation]
Senator Carignan: What you want to keep within the employer's rights is what is typically subject to collective bargaining, what you will allow or give employees as rights.
Mr. Paulson: Or give money, or other ways. . .
Senator Carignan: So it is part of bargaining.
Mr. Paulson: That's right.
[English]
Senator Campbell: Thank you, commissioner, for coming. I have a lot of thank yous here. I really want to thank you for explaining this, because I now understand why the exemptions were put in there, and I believe you when you say that the reasoning was, in your opinion, to be more open, and I get that now.
So my question is this: If it was done for that purpose, could we take those exemptions out, take that section out and put in a section recognizing what's called management rights in most other negotiations, the fact that management has the right to create and implement policies with respect to the day-to-day management of the police service and that you have the right to manage and make decisions there? People may not agree with your decision, but there are processes to take care of that.
In fact, if this had come to us with just the management rights portion in there, as in other agreements, I don't think we'd be having this discussion right now.
If we just take that out and say, "Management has the right to manage as we see in other,'' would there be any harm in that? It would certainly make things a lot clearer, I think.
Mr. Paulson: I think, Mr. Chair, that I don't know. I know that the exclusions would be exclusions in any case because of the excluding paragraph that exists elsewhere in there. Right? I'm not a drafter of laws, but "maybe,'' I suppose, is the informed answer.
Senator Campbell: But you say that the exclusions, enumerated as they are in Bill C-7, did not need to be listed in this fashion. I'm assuming from that statement that if they did not need to be listed in this fashion, that you recognize you have management rights, that you have to run the force.
Mr. Paulson: Right.
Senator Campbell: And I understand you put them in there in the hope that it would make clarity in a situation where, you're right, we don't know who's going to represent them; there are at least two groups out there who say they're representing, and why cause the hassle.
My only question is this: If we took out the exclusions and put in management rights as we see in others, it would serve exactly the same purpose.
Mr. Paulson: Well, I think I'll maybe just go a little bit further and say it's less around us knowing or me knowing what management rights are. For me it was prospective bargaining agents knowing what we are doing here and so that we didn't get down to a certified bargaining agent showing up and looking at the statute and saying, "Hang on a second, nobody ever told us that.'' That is perhaps the lack of experience in the RCMP regime.
I don't know, senator, to be honest. I don't know if that would have any bearing. It would seem to be language. The operative clauses are the exclusionary clauses, and this clause seems to be a "for greater certainty'' clause, but it seems normal to me. It seems reasonable to me.
The Chair: Could I just ask, commissioner, what other section were you referring to when Senator Campbell first asked this question? You responded and you said that there was another section that could come to bear, just so we could get clarification.
Mr. Paulson: Just off the top of my head I want to say it's in 238. Maybe Senator Carignan —
Senator Carignan: No, that's okay. I'm talking about exclusion. Yes, it's section 238.
The Chair: Senator Campbell, did you want to follow up?
Senator Campbell: No, maybe on second round.
[Translation]
Senator Dagenais: Commissioner Paulson, no doubt you looked at the contracts of other police forces when the Supreme Court ruled that the RCMP should examine the issue of forming a union. I would expect that you looked into what was happening in other large police forces, such as in Toronto, the Ontario Provincial Police, or the Sûreté du Québec, in Montreal, to see how they function. The Sûreté du Québec, for example, has a joint committee with the employer, made up of union and employer representatives, and they are usually able to come to an agreement.
I sense some reluctance on your part, however, to be part of that kind of committee. With respect to the exclusions, I have heard today that some of them are not exclusions or could perhaps be exclusions. It seems a bit vague to me. I sense some reluctance on your part to sit down with the union representatives at some point. Issues such as training, equipment, transfers, ratings, and the harassment policy could be addressed at joint committees with the employer. Am I correct in saying that you have some misgivings about establishing that kind of union committee?
Mr. Paulson: Thank you for the question. Senator, I don't know where you got that idea because I have never been opposed to joint committees with the SRR.
[English]
As I said in my comments, we have had extensive joint committees. In fact, I can point to several key pieces of policy work that were done through collaborative joint efforts with the SRR. As you've described the Sûreté du Québec, I mean the PSLRA calls for those committees specifically on harassment and specifically on whistle-blowing.
My tour as commissioner has featured the transition from the SRR's very effective, I thought, but unconstitutional way of having employees engage in key policy development and decisions within the force. Now we're making a transition to a more formal, independent labour approach. I am absolutely not opposed, nor are any of my senior officers opposed, to collaborative approaches to policy development or solving problems on any of the dimensions that we've talked about at all.
[Translation]
Senator Dagenais: Let me be more specific, Commissioner. You are certainly aware that I was the president of the Association des policières et policiers provinciaux du Québec. I also served with the Canadian Police Association, which included members of the Association de la police montée du Québec and the Mounted Police Association of Ontario.
For over 40 years, these people have managed to form associations, to have a union. I must say that we sensed some hesitation on the employer's part with respect to these organizations, or at least reluctance to sit down with the representatives to form an association. At times, they even felt like they were being targeted with reprisals. That is why I sense some reluctance on your part with respect to the exclusions in Bill C-7. This is nothing new.
Mr. Paulson: No, I understand. Our approach was to make commitments with employees. At the same time, other employees chose to go outside the system and pursue the union route.
[English]
I have never punished people for going after the development of a union. All I point out, senator, is that we had a framework in place in the day, the SRR framework, where duly elected people represented the employees' interests, and those collaborative consultative committees existed, but yet there was a class of employees who weren't satisfied with that, felt it unconstitutional. Ultimately they were right, and so here we are, but that shouldn't diminish or contaminate the idea that I am very supportive of a collaborative consultative approach to developing policies with employees.
[Translation]
Senator Dagenais: The fact remains that these 30 or 40 years of reluctance on both sides led to a Supreme Court ruling. Perhaps the Supreme Court ruling could have been avoided if the parties had been able to agree. I will return to this in the second round.
[English]
Senator Jaffer: Thank you very much, commissioner, for being here. We very much appreciate your presence here, and I know every month you write a letter to the men and women that work with you, and I would ask, as vice-chair, that you convey to them our absolute gratitude for the great work they do to keep our country safe, our streets safe.
I first have a clarification question, Commissioner Paulson, and that is to do with Edward Aust's report. He was here in front of us last week and spoke about his 2012 report on labour relations, and I wanted to know why you decided to hire him. I understand, if I'm not mistaken, that there are 25 recommendations. What has happened to those recommendations? Were they shared with the House of Commons committee?
Mr. Paulson: First of all, I decided to hire Mr. Aust soon after I became commissioner and recognized that there was what I will describe as a toothless element to the RCMP Pay Council in the sense that it was just at about the time when a pay submission went in, and the Pay Council had worked extensively at preparing a significant and I thought fair pay submission. It went through the channels in government, as it does, and ultimately the Treasury Board Secretariat didn't agree with it, and so that was that and that was that.
So I met with Treasury Board in the day and sort of explored this weakness of the system. My understanding was we had members of the SRR, members of management and third parties running the Pay Council. They did a very empirical, evidence-based analysis of comparative police forces and made submissions on the basis of that evidence. It went forward and, boom, summarily, "No, you're not getting that.''
I wanted the Treasury Board, the secretariat particularly, to accept the recommendations of the Pay Council. I was struggling with that because ultimately, while we didn't get the Aust report to Parliament — it was never intended to go to Parliament — it did go to the Treasury Board Secretariat. Some of the recommendations were accepted and implemented; many were discarded. It was all founded on this now-unconstitutional framework of the SRRs, but that was the intent, to try and take the SRR to the next level without speaking — I guess I am speaking for the secretariat.
The position was: "We're not going to sit down with an unrepresented class of employees, so that's not going to happen,'' giving rise to a serious concern about the utility and the cost-effectiveness of the Pay Council. Ultimately, it has proved to be a very important piece of labour in the RCMP as we track other police forces and are able to compare directly both salary for salary and total compensation for total compensation. It has been a very helpful device. Mr. Aust's recommendations envisioned a world where we weren't in a Bill C-7 or post-MPAO.
[Translation]
Senator Dagenais: Mr. Commissioner, you are saying that this was a good approach to setting salaries. Last week, however, we learned that the RCMP ranked 52nd among police forces in Canada. Correct me if I am wrong, but if it is a good approach, perhaps we should reconsider it. I would like to hear your opinion on that.
[English]
Mr. Paulson: I don't think that's a good stat at all. As I pointed out to your honourable colleague, there are two ways in which compensation for members of the RCMP are measured. The Pay Council was instrumental in providing both streams. On the one hand you might say, yeah, fifty-second in the police universe, that's outrageous. This is a national police force. Frankly, I agree with you.
But on the total compensation, and factoring in all of the benefits and the pension benefits and the other benefits that RCMP members enjoy, the comparison is much higher. I think we're in fifth or sixth now. I'm guessing, so I shouldn't, but it's not as stark as that. That's why I wanted Aust to bring some rigour to this discussion. If you had somebody opposed to giving the RCMP a pay raise, they would say, "You're number three in the top five;'' or you want somebody who wants a pay raise, you would say, "You're fifty-second in the police universe.'' What are we talking? Is it apples? Is it oranges?
In fact the Pay Council did a tremendous job of producing a business case about a year and a half ago. You may have that in your documents. There was a very compelling argument about why we are on a downward trend, both in pay and in benefits. Unless there is a significant correction, it's going to continue, irrespective of how you measure it.
Senator Jaffer: Commissioner, I appreciate your comments, your presentation, and if I understood your presentation, the two words that sort of stick out for me are that you talked a lot about public interest, and you spoke about collaborative efforts. For me, public interest is for Canadians generally and collaborative would be for your members to build collaboration. It's tough in a paramilitary organization to talk about collaboration, but that's where the new world is going. If we're going to have people feel they are part of an organization, they have to feel they are part of it.
I could go through each one of those eight exemptions you have asked for, but the chair won't let me, so I will stick to one which is a serious concern to me. There are two parts to my question. First I'd like to know exactly what percentage of your force are women. Second, I have great difficulty that you have asked for an exemption on conduct, including harassment, because I believe that's a collaborative thing that your men and women should be able to have some collective bargaining rights on.
What concerns me is that I understand there are currently 500 unresolved complaints in the RCMP, from bum pinching to bullying e-mails, and 45 per cent of these complaints are from women. Why do you not want your members to have a say on this or be part of collective bargaining?
Mr. Paulson: There are a couple of things I want to take issue with. Mr. Harris is incorrect when he says 500 instances of bum pinching. Let's give you the stats in respect of harassment grievances.
Senator Jaffer: I don't want it to be left at bum pinching. There are very serious allegations as well.
Mr. Paulson: Nobody knows that better than I do, honourable senator. There are 70 legacy grievances pre-C-42 outstanding. Since we brought in C-42, we have had 114 new process complaints for a total of about 187. Now those 70 legacy grievances in harassment are where the grievance was screened out in the first instance, or where people were unsatisfied after the investigation and filed a grievance on that harassment process.
I think you have heard numbers that from November 28, 2014, to December 13, 2015, 152 harassment complaints were filed. When I'm talking about the total number, 62 of those remain active at different stages. You're not going to see me come before you and minimize the challenge we have in the RCMP around harassment. I try to put some precision around how that is understood.
While there is no satisfactory level of sexual harassments, the numbers of sexual harassments are low. The historical record of people who allege sexual misconduct and harassment is significant. We have, as you know, two outstanding class-action lawsuits. I agree with the premise of your question, generally. I would ask for precision on how that is understood.
In terms of wanting members to be involved with that, the solution is to have members, employees involved with the harassment problem. Again, because conduct and harassment are joined with C-42 and — again we'd be happy to explain — that process is bearing fruit. It doesn't sound like it's bearing fruit when you put the details of a particular harassment case on the table, but overall, systemically, it's achieving what it hoped to achieve.
Because it's an exclusion, it doesn't mean that members can't be heard. Even though it's an exclusion, and even though I say that even though we have listed them, and section 238 would exclude them, there is a specific section within the PSLRA which would remain in a C-7 amendment that requires over and above whatever I might or the bargaining agent might want to do for harassment, it requires a harassment joint approach, similar to whistle-blowing.
Senator Jaffer: I'll leave the whistle-blowing. I still don't get it. What is the public interest in excluding your members from collective bargaining? I'm not even talking sexual; I'm just talking harassment issues.
Mr. Paulson: There are a couple of answers. The first is that the conduct regime of a police force ought not to be left to arbitration and bargaining. That is the general view of the police world.
In some of cases you have had and that inform some of your views, you're getting what I refer to as "aspirational statements'' in a collective agreement. Those aren't bargaining harassment and conduct. It is like saying that the water is wet. We're all against harassment. I'm all against harassment, sexual harassment and misconduct.
In terms of the C-42 work, which I came before this committee to speak on, a very elaborate, sophisticated, fair-to- the-member process developed because that is universally a management right.
As I came before you and spoke of C-42, I said we need to push conduct down to the lowest level so that it will do two things. It will prevent huge misconduct, but it will engage supervisors and leaders in supervising and leading. That's working. That's why Assistant Commissioner McMillan came here and told you of a big spike in our conduct. That's as a result of breaking through a bunch of barriers and being able to have conduct meetings with employees and address the conduct very early.
The public interest is that the employer gets to retain authority with respect to the discipline, but collaborate on prevention. Collaborate and consult on engagement and all of the other aspects. It's not as stark as your question made it sound, honourable senator.
Senator Kenny: Welcome, Commissioner Paulson. Could we go back to the exclusion list on page 20 in the piece of legislation? Can you take us through the eight items listed there and indicate what harm would be done if that exclusion was removed?
Mr. Paulson: Senator, I don't know that it's a good exercise to go through the harm. I'm not saying harm. I'm saying ability to manage the police force in the public interest.
Senator Kenny: Well, if you're begging off, that's fine. The impression I think some members of the committee have is that if the union brought up those eight items, management's response would be, "I'm sorry, read C-7. They are excluded. We don't want to talk to you about it.''
Mr. Paulson: As I said earlier to the honourable chair's question, I think the scope of bargaining around some of these exclusions is not prescribed in these words. For example, the first one, law enforcement techniques. I wouldn't know where to start bargaining on law enforcement techniques.
Senator Kenny: Why don't you start on having two people in a car after 10 o'clock at night?
Mr. Paulson: Well, why don't we look at the various policing contexts and threat pictures and resources available by the contracting partners and the history of criminality after 10 o'clock at night? That's what I'm trying to illustrate by the operating context. I make no case that we're special. All of the contracts that have evolved with police forces have their way of addressing unique aspects to the relationship they are seeking to govern. I don't know how you would begin to do that, senator.
Senator Kenny: Well, I clearly don't know how you'd begin to do it either, commissioner, because I'm not in the business, but the question comes up. The example I gave of two in a car seemed to be in response to having backup available. You have a number of detachments that are pretty small and pretty remote, and backup must be a continual concern for both the people in the detachments and the people managing.
Mr. Paulson: Indeed, but what you would want to do, senator, if I could interrupt, is have an empirical, evidence- based means of laying out the threat for that community, laying out the historical record in terms of criminality or calls for a service, laying out the character of the community, laying out all of these dimensions. Because the premise of two to a car after 10 o'clock is kind of like it turns on what the big hand is pointing at and what the little hand is pointing at, as opposed to what is actually going on, and whether that is an efficient and effective use of resources to deliver public safety to the community that you're serving — hence my reference earlier to the diffusion and the sort of fragmenting of the ability to do that.
I say also that in those preparations, deliberations and examinations of the various factors that go into a resourcing methodology, say, which we have, and which we formally consulted extensively with the SRR on, there would be consultations and engagements with employees as we would develop our policing plan.
Senator Kenny: With respect, commissioner, that doesn't answer the question.
Mr. Paulson: I forget even what the question is, sir.
Senator Kenny: That happens often in this business. The original question was to tell me the harm with these things. You then raised the question of enforcement techniques. I took a wild guess and assumed that backup was something that was included in a technique, and evidently it is. The suggestion that there should be various studies and various things taken into account sounds perfectly reasonable to me. The question really comes down to this: Is the commissioner the only person who can have the last word on this, or should this be a discussion between the union and management about whether there should be better backup or more people in a car at a given time?
Mr. Paulson: Well, that's a new question.
Senator Kenny: No, that's the original question.
Mr. Paulson: Okay, but I think I have answered in a way that demonstrates that the bargaining agent or the representatives of the members would have input to that. One of the key stakeholders absent from your question is the community itself. A number of other relevant and important considerations have to go into that, and it can't be left to the bargaining table, I think is the point of the exclusion.
Senator Kenny: I understand the community is important. The community doesn't want to pay any more than it has to. If you have to staff up to do that, the community's contract will ultimately be altered. There are real issues with a whole lot of the contract policing if there are changes made along these lines. It doesn't mean they are not good ideas. It doesn't mean they can't be justified in some cases. The real issue is who gets to talk about this? It looks to me like you're saying to a union, "You can't talk about it.''
Mr. Paulson: No, that's not what I'm saying.
Senator Kenny: If it's listed here —
Mr. Paulson: It's not me doing the saying, by the way.
Senator Kenny: It's my turn to interrupt, commissioner.
Mr. Paulson: Sorry.
Senator Kenny: Really what I'm suggesting is that if you have it listed here, somebody on management side is going to say, "Sorry, fellas. Take a look here, page 20, section 238.19(c)(i). This is excluded from the conversation. Next question, please,'' and move on.
It would be quite different if there was something in here that said, "Oh, by the way, we expect unions to talk about this matter.'' It's not there. In effect, the opposite is there.
Mr. Paulson: But there is another part of the act which says that's where you talk about those things.
Senator Kenny: Help me. Where do I go —
Mr. Paulson: It's the management bargaining agent, which I do all the time with the other six or seven bargaining agents I deal with. I meet with them all the time and discuss any issue they want to have come forward. If the issue is two people in a car, then that's what we're going to talk about, that's what we're going to frame up, that's what we're going to examine in detail.
You're right; there may come a point where everybody says, "That's a very nice story, commissioner. We don't believe you. We think it's absolutely vital that we have two people in a car, despite all this evidence and despite all this stuff,'' and then you're at an impasse. These impasses are bound to happen in running a McDonald's or running a national police force. As long as you are collaborative, consultative and seeking to make decisions on the back of evidence, and inclusive, and being respectful to the people that are providing you the information, I think you have an effective police force to help keep Canada safe.
Senator Kenny: You haven't given me the clause and the piece of legislation that ensures that the union can talk about this.
Mr. Paulson: I'll get back to you, because it's in there. I don't know the number off by heart. It's the clause that calls for regular management and bargaining agent meetings, which have to happen.
The Chair: While we're on this subject, I want to ask this: You referred to other bargaining units that you meet with all the time. Do they have a whole list of exclusions like this?
Mr. Paulson: Yes. Well, they are not listed quite like that. They are arrived at in the same way that these would be arrived at.
The Chair: They are in legislation?
Mr. Paulson: Yes, that's right.
Senator White: Supplementary to Senator Kenny.
Thank you very much, commissioner, for being here. The concern I have is that you talk about what will take place, but in reality the legislation says it won't take place, that there won't be discussions about those areas, whether it's backup. It sounds like law enforcement techniques should be something that the membership shouldn't be engaged in really, other than performing those techniques. But in reality, we are talking about two-man patrols. We are talking about how many officers within a certain zone at a certain time.
Not always was I happy with the results of those negotiations, but I think it was important that it was actually taken from my hands and negotiated between the employer and the representative for the employee. Realistically, to be brutally honest here, the challenge I have with this is that you talk about what will happen; but I'm telling that you that, based on this legislation, it can't happen because it's excluded. Those negotiations will not take place between the bargaining agent and the commissioner, or the employer, more importantly, Treasury Board. Don't you agree that really it takes it out of our hands?
Mr. Paulson: No. The idea that the exclusions silence bargaining agents is not true.
Senator White: That's what it says: They are excluded from negotiations.
Mr. Paulson: Right. So a bargaining agent shows up. I'm not a labour expert, but I'm told, and I have seen, that bargaining agents will show up with, "Hey, I recognize that the two-man cars are excluded'' — I don't even know what we're talking about now because I didn't see two-man cars in the list of exclusions, but law enforcement techniques or resourcing methodology are excluded — "but we would like to talk about the lack of consultation or engagement on this very issue at the consultative committee because that darn stubborn commissioner will never sit down and talk about it.''
All of a sudden you'll get some of the things that you're seeing in the other agreements, where you'll have aspirational statements that say, "Okay. Look, it's not working, so go talk about the mechanisms for rewarding isolated posts'' or other ways into that discussion. The point is that ultimately you need to have the authority localized and protected because of the way in which police officers are deployed out across the land. With respect, senator, this is not the city of Ottawa, and you have an enormous range of operating contexts.
Senator White: I appreciate it's not the city of Ottawa, but some days it is Surrey and Burnaby, and some days it's Iqaluit and Inuvik. It's the reason it has to be negotiated, because it isn't one place. It requires — and not easily — 800 communities that the RCMP police today. It will require negotiations, I would argue, for every one of those.
Mr. Paulson: I think you're wrong.
Senator White: I know you think I'm wrong, and that's why you think you want these exclusions. But I have to say that if you have these exclusions in the legislation, I don't think the members will be taken care of. At the end of the day, they don't even have a mandate representing them in the SRR Program. Instead they have a self-appointed program.
The Chair: For the record, we've referred to the SRR Program repeatedly, and a listener out there might think we're talking about outer space. So people understand, SRR refers to the Staff Relations Representative Program of the RCMP, which has been discontinued. It was an elected body created by the rank and file of the RCMP to represent them as an association as opposed to a union, as long as everybody understands that.
Mr. Paulson: I would just add that I appreciate the emotion that attaches to some of the decisions on staffing levels and resourcing deployment, but the good senator finished with reference to the interim representative model that we put in place. I can't remember exactly what he said, but I'm not sure it was a fair characterization of what we have there.
I would say I'm happy to put some more meat on those bones. It was never intended to be a bargaining agent, and it doesn't intend to compete with the prospect of bargaining agents. We recognize, given the unconstitutional nature of the SRR Program and in the intervening period before we get to a certified bargaining agent, the interests of members need to be represented, and that's why selected members — some of them ex-SRRs — are engaged in representing the interests of the members in the meantime.
[Translation]
Senator Dagenais: I would like to go back to the issue of officers on patrol alone that Senator Kenny raised. You said that you sometimes look at the collective agreements of other police forces. I assume you are a member of the Canadian Association of Chiefs of Police and that you can talk to other chiefs of police. In the Sûreté du Québec, police officers are paired up from 7 pm to 8 am for safety reasons. There is however a committee for isolated areas, such as the North Shore and the Magdalen Islands, which has agreed with the employer that a police officer who is alone in his area can call for backup, so there is a police officer on paid stand-by, at home, to ensure that the officer can get help if there is an event, a domestic violence call, for instance.
We were actually referring to public safety. Imagine that a police officer is alone in an area and is not safe himself. How can the officer then protect members of the public? If you look at other collective agreements or talk to other chiefs of police, I imagine you are aware that this has been done. Why not then provide a similar measure for the RCMP?
[English]
Mr. Paulson: Certainly nothing I do or nothing the officers I have under my command do is intended to either, first, put officers at risk unnecessarily, or second, put communities at risk. But because of the variety of operating contexts, you're going to get into situations — and we have developed policies, again with SRRs, recognizing that we have very remote conditions, as do the Sûreté du Québec and the OPP — where sometimes backup is hard to get to. And you might not be deployed to the call, the nature of the call, which is difficult to understand in the first place; however, you might not go to a call if you don't have backup.
Those are the kinds of discussions and refinements to our practice that come out of these consultative efforts.
Senator Jaffer: Commissioner, you mentioned other legislation, other rights and other exceptions. We are trying very hard to get this done as fast as we can, so we would respectfully ask if you could send this to our clerk by the end of the day so that we can look at it, please.
Mr. Paulson: I don't understand, senator.
Senator Jaffer: You talked about exemptions in other legislation and other rights in answer to Senator Kenny's questions about other exemptions.
Mr. Paulson: Over the other unions?
Senator Jaffer: That's right.
Mr. Paulson: They derive from the same section of the PSLRA.
Senator Jaffer: May we have a look at that, please? Could you send them to us?
Mr. Paulson: I think we settled on 238.
Senator Jaffer: Yes. Thank you.
Senator White: I'm going to go back to the excluded items. As you said yourself, commissioner, management rights are inherent. In fact, I looked at a number of different agreements, and I remember looking at the ones in Ottawa where management rights at times would actually be referred to specifically in certain negotiated parts, an agreement that I wasn't party to, in fact.
The challenge we have is that this doesn't just exclude the members from discussing this with you; it actually excludes the representation from discussing it with the other employer, Treasury Board.
So even if I believed that you would take these seriously in every single case and you would form committees, at the end of the day, Treasury Board, who holds the purse strings, could say, "We're not going to have a discussion around law enforcement techniques, even if it means we need two-man patrols in Surrey after 11 p.m.'' or whatever it happens to be. I don't trust them, actually.
My perspective is that the membership should be allowed to negotiate each of these, first of all because I think it meets the decision of the Supreme Court of Canada around fulsome, fair negotiation, but more importantly, because I'm going through a list of police services that do this, and they're quoting some model. I didn't even know that the Ottawa Police Services Board — and we'll be asking someone about that soon — negotiates those on my behalf. I'm thankful for that, because I'm not sure I would have had the resources I needed as chief if it was left in my hands because I was limited financially.
My perspective is that I would be comfortable with a management rights clause in here because I do believe you need the ability to manage an organization in the day-to-day operations. In fact, in each collective agreement I looked at, I think I found that at least once. I think that is important. But I don't trust anyone enough to give them the exclusions because —
The Chair: Question, senator?
Senator White: My question is, don't you agree?
Mr. Paulson: First, you mentioned, senator, that the act or the amendments prevent bargaining agents from talking to me. It doesn't. It compels me to talk to them in this joint committee. I mentioned harassment and whistle-blowing in the general committees and the committees that we would constitute.
If you look at a recent national disaster in Canada like the wildfires in Alberta, we were able to very quickly and decisively move from a multi-jurisdictional sort of setting where we have provincial contracts in Newfoundland, Saskatchewan and British Columbia, and we're able to move those people to support the wildfires in Alberta. That was instrumental. You can't envision and foresee all of these kinds of things, except generally, and then rely on the management rights of the force to execute in the public interest.
Now, there were some points brought up and some of those aspects as to how we deployed people, which were illustrative of the receptiveness of the organization to the engagement and the people that we're moving. So I don't agree with you, senator, with respect.
Senator White: My second question, chair, is on the same issue.
The Chair: Can you be brief?
Senator White: Yes. Thank you, commissioner, for that. But let's actually go to the Mayerthorpe situation as a perfect example, where we have a system that represented the members and we had a management review of the situation. Today, 11 years later, we still haven't followed all the recommendations from that, and I know the membership tried to negotiate. That was without exclusions. It was about law enforcement and equipment.
So I guess I am concerned that we would exclude something that wasn't actually excluded; it was negotiated. I'm sure the SRRs brought it up regularly, and we still didn't end up getting there.
It's because they didn't have that power with Treasury Board. They didn't have the ability. We may not always be happy with them having the ability to negotiate those things; some days it might be expensive. That's life. This is an expensive job when we have people out there running toward danger and we're running away.
My perspective is that you as the leader of the organization should say, "I don't want these excluded because I want someone to put pressure on Treasury Board to do the right thing when sometimes I can't do that.''
Mr. Paulson: I don't know specifically what you're referring to in Mayerthorpe.
Senator White: The C8s, carbines.
Mr. Paulson: It wasn't until 2011 when the C8s or the carbines were encouraged by the ultimate review of Mayerthorpe. The better illustration is the hard body armour that was purchased almost immediately. Whether it made its way out into the whole force is a question. It wasn't a question of resources. It was a question of procurement. It was a question of getting the right equipment.
The carbine discussion extends now into Moncton, but there are a number of factors and considerations that have to be factored into the decisions about what kind of artillery the police will use, and whether or not that's best left to an arbitrator at bargaining table is a question. As long as decisions are being made on the back of evidence, on the back of the objective of the police, which is to keep Canadians safe, keep our members safe, then we have a system that can address those concerns.
Senator White: My concern is that actually there will be nobody making the decision and it won't be discussed because it's actually going to be excluded from discussion. No arbitrator will discuss it. In fact, it won't be negotiated. It won't show up on anybody's table because it is actually excluded from those discussions. That's my concern. How do we square that circle?
Mr. Paulson: It doesn't mean it doesn't get heard, senator. The issue of carbine deployments, the issue of equipment and the issue of bulletproof glass in police cars have come up; the issue of Kevlar helmets in Florida has come up, and now questions are being raised about whether we should have Kevlar helmets in every car. These are all important, complex decisions that have to be weighed against various factors, as I described earlier, which ultimately gets to a better place.
Senator Kenny: Commissioner, I was concerned about your answer relating to transfers. I think the committee as a whole is aware of the importance for you to be able to move people around in the event of some unusual event or an emergency. Would your concern for transfers be mitigated if transfers were taken out and some form of declaring an emergency would provide you with the authority to move anyone where they had to be moved to? That's an easy one, I think, for people to understand. If a fire is ruining a whole city, we need some people there to help out; or there's a shift that's come up because we have problems with terrorists and this is an urgent matter.
Mr. Paulson: I think at the heart of what I was explaining in my opening comments is that you need to protect that authority.
Senator Kenny: My point, sir, was you retain that authority upon announcing that it's an emergency or having the Minister of Public Safety say he or she agrees that is an emergency and so then move people wherever you feel like.
Mr. Paulson: What's so sinister about having someone in charge of something?
Senator Kenny: It depends on whether people feel there is likelihood of abuses.
Mr. Paulson: Exactly.
Senator Kenny: The presumption, I think, is that the force goes about it in a pretty humane way. They consult people about transfers; they take into account family concerns and issues like that. Having said that, from time to time, things might go wrong.
Mr. Paulson: Indeed, and the mechanisms and the processes and systems that we've developed to, first, allow people to raise the fact that something has gone wrong and, second, explore and understand whether something went wrong and if it did, how we fix it and how we redress it are all established and transparent and available for everyone to see.
I just don't get it, senator.
Senator Kenny: It's the difference between you saying that things are going to be fine and you'll take care of them and there being legislation in place that says, "Whether or not Mr. Paulson is there, no matter who is there, they are obliged to take care of it in a certain way.'' That's the difference.
Mr. Paulson: No. That legislation exists in manifold ways already.
Senator Kenny: We're hearing about other legislation. We're not seeing what's in here, and we're seeing here a piece of legislation that appears to take things away.
[Translation]
Senator Carignan: I have a number of follow-up questions, but I know we are short on time.
The Sûreté du Québec has the same kind of collective agreement and provides for transfers in emergencies. Remember the Oka crisis, when the town of Saint-Eustache was overrun with Sûreté du Québec officers; they had filled up nearly all the restaurants. I can tell you that we transferred people and that the collective agreement did not prevent us from responding to this emergency.
You said there are standards on various matters, for equipment, for instance. If there are standards, would you say they are fair and effective?
Mr. Paulson: Which standards?
Senator Carignan: Do you think the current standards are fair for RCMP officers?
Mr. Paulson: Yes, but our officers face different threats every week.
Senator Carignan: So you think these standards are fair for RCMP officers and for you.
Mr. Paulson: Yes.
Senator Carignan: Do you see a problem including them in the collective agreement?
Mr. Paulson: Yes.
Senator Carignan: Why?
[English]
Mr. Paulson: Again, it doesn't fall to a bargaining process to establish on evidence equipment requirements for the officer. Quite frankly, there's a whole other legislated regime to deal with those kinds of things. You can see now in discussions already about the carbine that there's quite an elaborate process going on there about charging the RCMP in respect of those things.
[Translation]
Senator Carignan: Okay, I see what you are saying. Suppose that I agree with you, that you will negotiate the collective agreement with the union and indicate that you want this excluded. Then you go to interest arbitration if you can't agree. Based on the arguments you make, the arbitrator can exclude them. Do you agree with me?
[English]
Mr. Paulson: I'm not in agreement with you to go and have those things exposed to the bargaining process and then the grievance and arbitration process. I don't think you end up in a good place given the wide variety of things that need to be bargained and negotiated.
[Translation]
Senator Carignan: You seem to be saying that you agree with the union about allowing collective bargaining, but when we get into the finer points, I see someone who is completely at odds with what he has just said.
Mr. Paulson: No, that's not true.
Senator Carignan: These are all subjects for collective bargaining. Moreover, you can turn to a legislator. So in interest arbitration, if the arbitrator decides that he does not accept your argument, you can always turn to the Minister of Public Safety to seek an amendment to the act. The legislator could then have a special bill passed.
You are fortunate because not everyone can do that. Don't you think the act makes sufficient provision for you to achieve your objective, which is to preserve or protect your management rights? In the event of an emergency, you can then turn to the legislator to have the act amended accordingly.
[English]
Mr. Paulson: No. As I said in my opening comments, it sounds as though when I'm arguing in support of these exclusions in the public interest that I'm excluding the idea that there's going to be any negotiation or bargaining at all. It seems to me that in terms of the scope of bargaining, one looks at the service or the profession that you are examining and you make a decision around what that scope ought to be.
Now, this is not for me, but I'm told that when the scope of bargaining is decreased for arguments like the ones that I've shared with you today, there are other elements of the collective agreement that might reflect that narrowing of scope. In other words, you may recognize, okay, we can't bargain transfers given that that is a unique challenge for the RCMP to staff internationally and nationally. We get it, but we want to get some more compensation for that, or we want to get something else for that.
Now, heaven forbid I be giving tips to people on how to go about negotiating, but I understand that that is how it works. It seems to me that Minister Goodale and Minister Brison recommended in that letter that you examine whether or not what I said today carries any water. If it doesn't, then it doesn't, but that is certainly how these things are dealt with.
You can't have a collective agreement that will expose every authority and every aspect of managing the force to arbitration.
And one other thing, senator: Why does that not apply to the military? Why do we not have a collective agreement for the military?
Senator Campbell: My first answer is it's because they're military and we aren't military.
Let me give a question. If a member by way of their union can't be involved in issues involving firepower or hard armour, who makes the decision? How tough is it, for instance, to put a carbine in every car? How tough is that? Is it money? Is that the problem? Is it that this isn't the weapon we should be using? If the members can't tell you, who is telling you, someone sitting behind a desk that doesn't get shot at, doesn't step out of a car and wonders what the hell is in the bush? Who makes that decision?
Mr. Paulson: How about examining, senator, what is the impact of having a carbine in every car, in every setting, in every circumstance? Are we taking —
Senator Campbell: I'll tell you the impact —
Mr. Paulson: Maybe I can finish, please.
The Chair: Senator Campbell, please.
Mr. Paulson: Should we be strapping carbines on when we go into domestics? Should we have carbines on when we do foot patrols?
I went and did an editorial board at the Vancouver Sun.
Senator Campbell: That's unfortunate.
Mr. Paulson: It was, very; and it wasn't about the carbine, but it was about, "Commissioner, we have some very serious concerns about the militarization of your police.'' And they compared that to some of the things that we're seeing in the United States. If these things, in a Darwinian fashion, just roll out, then you have no ability to manage and understand when, where and under what circumstances, how many and so on.
The Chair: Senator Campbell, be very brief.
Senator Campbell: I'll be brief. Your argument is ludicrous. There is no way that members are going to be climbing out of a car carrying a carbine — we're not militarizing. We're trying to keep people safe. If you need the carbine, it's in your car.
Senator Day: Commissioner, I am looking at the Public Service Labour Relations Act and, under Division 2, sections 6 and 7 are that the rights of Treasury Board are preserved and the rights of the employer are preserved. Those two sections, 6 and 7, as I understand it, are the primary basis upon which these exclusions to the bill that we're dealing with have been established. It keeps referring back to section 6 or 7 and the Financial Administration Act, which comes out of the Treasury Board.
I want to refer you to Division 3 and section 8, page 7. Division 3, consultation committees and co-development:
Each deputy head —
you would be the deputy head for the RCMP
— must, in consultation with the bargaining agents representing employees . . . establish a consultation committee consisting of representatives of the deputy head [of management] and the bargaining agents.
This is the section you were talking about?
Mr. Paulson: That's one of the sections.
Senator Day: One of the sections. This is the consultation committees you were talking about.
Mr. Paulson: Yes, that's right.
Senator Day: It goes on to add for the exchange of information, including harassment in the workplace, and whistle- blowing. I just wanted to help you there. We were saying please get that to us. It's here, and it's just in the next section. So there you have it.
Mr. Paulson: I agree.
Senator Day: What I would like to know is with respect to these eight exclusions from the collective agreement, how many of those are there and how many have been enunciated for financial reasons — you just can't afford to go ahead with the cost or the potential costs?
Mr. Paulson: None of them.
Senator Day: None?
Mr. Paulson: No.
Senator Day: So all of these are based on management's interpretation of the Public Service Labour Relations Act?
Mr. Paulson: And the management rights with — yes, that's right.
Senator Day: I read that under Division 2, the management rights of the employer are preserved.
Mr. Paulson: That's right.
Senator Day: That's management rights. We're told by representatives of the various police forces that have been here who have talked to us that the RCMP members would have preferred stand-alone and not to be treated like public servants.
Mr. Paulson: Right.
Senator Day: Not to be pushed into the Public Service Labour Relations Act and all the other labour relations of the public service, and then certain exclusions start building up to protect them. Why was it? Is it because of the court case that that approach was taken of putting the RCMP members into the public service labour relations scheme as opposed to having a stand-alone piece of legislation for them?
Mr. Paulson: Okay. I can answer that I think in the following fashion: First, I think we all recognize that the operating context of police, not just the RCMP but police in general, is distinct from the duties that would attach. However, there would be people in the public service, such as our colleagues at Corrections and CBSA, who would say, "Hang on a second. We do those things too.''
We did explore, and I say "we'' very loosely, I understand the government explored the idea of creating a distinct regime under the Royal Canadian Mounted Police Act, but that would require creating a new sort of labour relations board, a new certification scheme and all of the things that the PSLRA has. I think the proposal here in Bill C-7, which seeks to bring in police experienced arbitrators onto the board, and remember, we have a bit of division here in respect of Bill C-42 and how various things are grieved and resolved, which remain within the RCMP Act if Bill C-7 were to go forward, so whether there was any sort of sense in recreating all of these things that exist within the PSLRB.
Senator Day: Am I correct that if a separate scheme had been set up, these exclusions would not necessarily have to be here, that the decision to go by way of exclusions out of collective bargaining and put into a consultative committee approach is a result of fitting this into the Public Service Labour Relations Act?
Mr. Paulson: That's not my understanding, senator. My understanding is that even if it existed within the RCMP Act those exclusions from bargaining would still have been there.
The Chair: Colleagues, there are a couple of questions I'd like to get on the record. One is the question of the Mounted Police Members Legal Fund. Up to this year, I understand there have been automatic deductions from every member's pay packet in order to pay for the Mounted Police Members Legal Fund, and it has been discontinued through your office here in the last number of months.
Can you tell us why and what is going to happen to that fund?
Mr. Paulson: I'd be happy to. Maybe I can start my answer by saying if I can get undertakings by the counsel of record and the executive boards of all the prospective bargaining agents to say that no one would bring an unfair labour practice complaint against us for sustaining the legal fund, I'll throw the switch tomorrow. So I guess that's the best way of answering that.
The Chair: I'm sorry; I'm kind of like the viewers. I just didn't quite understand the answer.
I understand there was a legal fund. It was put in place for the members as a case of last resort. What's happened to it? Why did you do what you did? What is the problem with reinstituting it?
Mr. Paulson: The legal fund exists completely independently from the RCMP. There are RCMP officers, former officers and interested people that sit on the board of the RCMP legal fund, quite a noble and sensible approach to supporting officers in costly legal undertakings.
As we approached this situation, where we are seeking to provide a framework for certifying bargaining agents for the RCMP, there are various players involved. Some of the players, as it were, are instrumental in the board. Our sole function in the RCMP was to provide for payroll deductions for this fund.
However, the fund was used to, as I understand, give a loan to one of the prospective bargaining agents. Former key individuals who drove a particular line of pursuit in MBAO sit on the board of that fund, sit on the board of a prospective bargaining agent. There is maybe a bargaining agent that doesn't have access to the money at the legal fund. So the argument and the best legal advice I could get was, "Hey, you keep this up, you will get a complaint from those that don't have any access to overseeing or managing the legal fund, who are seeking to certify. They are going to say, 'That's not fair,' so don't do that.'' That argument seemed to carry some weight. If we could get the other competitive prospective bargaining agents to say, "Yes, absolutely, we will not bring a labour complaint to the board of an unfair labour practice,'' then we support you 100 per cent, and we'll turn it back on.
The Chair: How much money is in this fund?
Mr. Paulson: I don't know. Lots.
The Chair: Is it millions?
Mr. Paulson: Yes, I think so.
The Chair: So is it just sitting there in abeyance, and no one is doing anything with the funds?
Mr. Paulson: I don't know. We have no fiduciary oversight of that money whatsoever.
The Chair: Amazing.
I just have one other question before we go. I'm sure I'm like everybody around this table. I have never received so much correspondence on a single issue as I have on this particular issue here, directly affecting a group of individuals within society.
I just wanted to ask you this question, and it's come up a number of times from the rank and file within the RCMP. It's the question of a secret ballot and the question of exercising that secret ballot when the time comes. I just wondered: What's your position in respect to ensuring the secret ballot is going to be utilized for the purposes of certifying?
Mr. Paulson: I think that's how I understand the law exists now; right? There would be a card system for qualifying to seek a vote, and then it would be a secret ballot in a vote. That seems like a perfectly lawful exercise.
[Translation]
Senator Carignan: You told Senator White earlier that the RCMP is not the Ottawa police. Your annual report says, however, that three quarters of your personnel are specifically covered by a contract concluded with a province or municipality. You have at least 5,000 officers serving at the municipal level. So a good part of your operations are perfectly in keeping with the services provided by municipal police.
Mr. Paulson: Yes.
Senator Carignan: What is the essential difference between your police force — other than it provides services from coast to coat — and provincial forces that have to cover a large territory? What are the specific characteristics of the RCMP that would justify different treatment from that of the Ontario Provincial Police or the Sûreté du Québec? What is different or distinctive?
[English]
Mr. Paulson: You're right. In a single municipal context, it's the same as a police force. In fact, we partner with numerous municipal police forces to do things of joint interest. It's not so much the colour of the uniform; it's the scope the scale and the range of activities that we discharge, from, as I said in my opening comments, anti-graffiti campaigns to international counterterrorism. It's the scope, the scale and the wide variety. One of the things I have always said about the RCMP that makes it the jewel that it is, is the ability to do municipal, provincial, federal and international. It is the envy of a lot of countries who have multi-jurisdictional settings.
[Translation]
Senator Carignan: If you send an officer from St. John's to Yellowknife, or from Ottawa to Afghanistan, don't you think it would be reasonable to initiate negotiations on the transfer conditions?
Mr. Paulson: That's exactly what I have been saying from the outset. The discussions will pertain to transfer conditions and not to the decision to move the person. That's the difference. We will work closely and consult, as we have always done. The decision to transfer an officer, though, regardless of the location, is a management right.
[English]
Senator Beyak: Thank you very much for coming, Commissioner Paulson. My question was from the members. It was two-part, but you did answer it in your forthright presentation. It was around appraisals and probations. I hope they'll have a chance to go online and watch the committee hearings and hear your answers.
My second comment was on sexual harassment. I applaud what you're doing, and I hope you will discern between the alleged and the true sexual harassment. There are a few bad apples in every organization in Canada, whether it's the Senate, the police, the military and so forth, and they should not be allowed to besmirch the whole organization, so if you will keep the balance I would appreciate it.
Mr. Paulson: Thank you, senator. I will.
The Chair: I want to thank you very much for your attendance. I know it's been a long hour and a half for you. But I think it has been well worth it for all the members here. I want to say to the membership of the RCMP and the civilians that work for the RCMP that we're doing our due diligence in reviewing this bill to ensure that it does what we all wanted it to do, so thank you very much.
Welcome back to the Senate Standing Committee on National Security and Defence as we consider Bill C-7, an Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures.
Coming to us as a witness for the second time on this study, we have Mr. A. Edward Aust, labour lawyer and the author of the 2012 report entitled The Challenge and the Royal Canadian Mounted Police, Report of the Independent Inquiry into the Mandate, the Structure and the Operations of the Royal Canadian Mounted Police Pay Council.
Mr. Aust, members will have some follow-up questions to pose to you related to the legislation before us. We have 45 minutes for this panel.
Do you have an opening statement?
A. Edward Aust, Senior Strategic Advisor, Aust Legal and Former Senior Advisor to Executive Committee of RCMP, as an individual: Yes, sir, I do.
The Chair: Please proceed.
Mr. Aust: Honourable senators, I would ask your permission to preface my remarks and comments with a few preliminaries.
First of all, I think it is important to clarify how my presence came about when I appeared on June 6 before this committee. Two or three days before the committee hearing commenced, the Co-Chair of the National Police Federation, Mr. Brian Sauvé, called me, and he asked if I would replace a person who was no longer going to be able to be present.
Mr. Sauvé did not ask me to represent his views or the views of any association or any other organization; rather, he thought it was important for this committee to see some of the findings of my report that I did in 2012. He felt that it would add to your understanding of the present situation.
During my involvement with the RCMP, I held many hats. As a practising lawyer for 40 years, ending in April of this year — I am now an avocat à la retraite — I wrote the first and second report of how the RCMP Pay Council should be structured, organized and run in 1993 and in 1996. I was then a senior partner and member of the executive committee of the Montreal office of Stikeman Elliot.
Unfortunately, in my first report, I recommended the participation of the Treasury Board. They decided they were not willing to do so, so I rewrote the report in 1995, not including the participation of the Treasury Board.
The direct program participation in the Pay Council lasted for 25 years. While the Supreme Court of Canada decided that it was not freely chosen by the members of the RCMP and was unconstitutional, they did not render a decision on the efficacy, the role or success of the council for more than 20 years.
From 1998 to 2000, I was the Senior Advisor to the Commissioner of the RCMP, Philip Murray, and the Senior Executive Committee of the RCMP. I was a sworn civilian member.
Between 2000 and 2013, I was the author of the 2012 report on improvements to the Pay Council and an adjunct professor on leadership at the Canadian Police College. I was also a guest lecturer at the request of the Deputy Commissioner Human Resources of the RCMP.
I would respectfully suggest that from the time Bill C-7 was conceived through to the House of Commons parliamentary committee that studied it, it has not taken into account the crucial and vital interpretation of at least eight decisions of the Supreme Court of Canada
These decisions are of the utmost importance as they concern the Constitution of Canada, which includes the Charter, and specifically the meanings of section 2(d) and section 1 of the Charter. As well, they have not considered the decisions of Roncarelli v. Duplessis, nor have they taken into account what the Supreme Court said in R. v. Campbell, also known as Stinchcombe.
It is important for this committee, given the testimony that has been given to you, to take into account the following: The 2012 report and the mandate I was given included, at pages 18 and 19 of my report, the obligation to include the law as it would affect the RCMP. In other words, it was very specific that in that report I was to deal with the recent decisions of the Supreme Court which lay out the rights of RCMP members and their special status as public office-holders in addition to being subject to the orders of the RCMP. This distinction is fundamental, and I will deal with it in a few minutes.
I guess as policy-makers you would like to know that the previous policy-makers were aware of these conclusions that raise serious legal considerations with respect to the rights of the RCMP members. It's not because I feel that my legal opinions are sacrosanct or not capable of being criticized. You will see shortly that the issues raised in that report are fundamental to your understanding of the process that was followed from the conception of the idea of Bill C-7 to the meetings with ministers, to the meetings with the Justice Department lawyers, to the meetings of the parliamentary committee. I would suggest to you that if these decisions and the interpretation given by the Supreme Court of Canada had been considered, we would not be at this juncture today.
The first issue of fairness is you have heard today that the RCMP was actively involved and participated with Public Safety and Treasury Board in putting the contents and the exclusions into Bill C-7. The question arises implicitly: The individuals who represented the RCMP, when they spoke to the Justice lawyers, the members of the committee in the House of Commons, did they make them aware of the legal issues that my mandate obliged me to deal with in the report of 2012?
Why is this so important? This is important because the Supreme Court decided that the RCMP dominated the SRR Program because it didn't allow for the choice of what other association could represent the workers.
I will refer you now to the following facts. Had the parliamentary committee studying Bill C-7 been advised that the RCMP had been given jurisdiction over the working conditions listed in the RCMP Act? Had the RCMP shared the report that raised the legal issues, they might have concluded that there was a joint employer. They might have included the fact that Treasury Board is an employer — because it decides their salaries and compensations, minus a few aspects — and that the RCMP management decides other conditions of work by statute — by the RCMP Act — showing joint employers, unlike other organizations in the federal service who have the Treasury Board as the employer because they can negotiate all the conditions that apply to those individuals.
Supposing a second opinion was asked of what I concluded in my report and said "Well, we don't quite agree with the 2012 report, but there is a serious question as to whether or not the RCMP is factually an employer.'' Therefore, all of the exclusions that it's asking be removed from the legislation are things over which it has jurisdiction. Now, supposing hypothetically you got the opinion that yes, in fact, there were joint employers, this whole process would have been considered to be tainted because one of the employers was allowed to have more influence, more participation, more meetings with its lawyers, with everybody involved in the process, and ensured the things it was responsible for as an employer could be left out of the legislation.
Secondly, regarding the present situation in regard to Bill C-7, is it reasonable to deduct that the legislation is going to try to help improve the culture in all of the different situations in which the RCMP works? If that has to be one of the considerations for this legislation, I have to believe that that's the intent. We have leaders of the RCMP saying we can't change our culture quickly. I would suggest that part of changing your culture is to negotiate with people who have different views than you and have a right to be around the table.
The mandate of the report, as I mentioned, is important. The French copy I was handed today suddenly gave a translation of my report that dealt with the recommendations. What I think is more important than my recommendations is the discussion of all the cases of the Supreme Court that under the right of association of 2(d) guarantee the right to negotiate in good faith, to make representations to their employer. Who is the employer?
I'm going to refer you now to certain pages in the report. You will see, if you look at these pages, that the questions raised in this report and that the RCMP had knowledge of are very consequential, and they go to how this whole process may be tainted.
With respect to who is the employer — depending on your version of the report, there are certain versions where one page is earlier than the other, so I'm going to use the one that was given to the commissioner — see the report at page 27 and 38 and page 42 in the middle of the page. The importance is it deals with the potential reasons you could be in front of two employers, both of whom the employees would have their right to make representations to. Key to this is the obligation, according to the Supreme Court, to undertake those consultation negotiations in good faith.
I have given the clerk a French copy of a book that we recently published, and it deals at length with what the words "good faith'' mean. Senator Jaffer asked a very pertinent question: Why would you not want to negotiate these things within the restrictions and the limitations of the law? Why these exclusions? The answer is, if they are included in the law, it's very clear that the consultations with people would be framed by the obligation to undertake them in good faith. Those two words have a huge impact on how the information has to be considered, how it has to have been brought, how you can violate the obligation of good faith. That's why it's crucial that the decisions of the Supreme Court limiting what has to take place for their 2(d) rights to be respected is absolutely absent in my view in Bill C-7.
The Chair: Can you come to a conclusion so that we can ask some questions? Time is not our friend here.
Mr. Aust: I understand, Mr. Chair.
The Chair: Carry on, but just remember we want to ask questions.
Mr. Aust: With all due respect, chair, you're asking me, in a very short time, to deal with things missing in this long process.
The Chair: Please proceed.
Mr. Aust: I would invite every member to read, either in the French or the English copy, the booklet that deals with good faith. Anyone who doesn't understand what it means in law and what it will oblige the people who participate in negotiations to do will have a great deal of difficulty understanding what the Supreme Court said.
The next point — and this is perhaps the most important as regards the Constitution — I tried in the five minutes I was allowed the first time I was here to try and explain something that took 12 years to get to the Supreme Court. Finally, it decided that when a person has an office-holder set of duties, investigation, arrest, prosecution, the police officer is subject to his own conscience. The Supreme Court has said that is why police officers are not simply civil servants. They are a different breed, and they must be dealt with.
What's important about this is that this aspect of the public office-holder's duties is the result of years of litigation and two decisions of the Supreme Court. I would ask you to read the Ipperwash inquiry by Mr. Kent Roach, an authority on constitutional law and policing. You can read that in the report called The Overview: Four Models of Police-Government Relations, by Kent Roach.
The second decision is by the Supreme Court of Canada, and it's R. v. Campbell. I can't read to you all the pertinent paragraphs given that — I don't know if it's sergeant major — it's hard to deal with this in this amount of time. I'm going to read to you the last paragraph of the quotation.
The Chair: Colleagues, I want to forewarn everyone because of the time. I hate to do this, but there may not be time for questions, just so you know that. It depends on how long this goes on for, as long as you understand that.
Some Hon. Senators: That's fine.
The Chair: They're agreed. Carry on, then.
Mr. Aust: The decision of R. v. Campbell, paragraph 33, reads as follows:
While for certain purposes the Commissioner of the RCMP reports to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience.
In other words, when every constable does these three things, he can't do it because somebody told him to do it. He has to take away a freedom by arrest based on his own judgment. Those are not the duties of somebody in the military. These are judge-like powers. These are fundamental principles in a democratic society.
What is the conclusion? I would invite you to read the 2015 decision in Mounted Police Association of Ontario. This is what the Supreme Court wrote at paragraph 143:
The Attorney General of Canada says the objective of excluding RCMP members from the PSLRA and the objective of the RCMP Regulations is to maintain and enhance public confidence in the neutrality, stability and reliability of the RCMP by providing a police force that is independent and objective. We conclude that the need for an independent and objective police force constitutes a pressing and substantial objective under section 1 of the Charter.
So the Supreme Court not only rejected what the Attorney General was saying, namely that it shouldn't be covered by that legislation, but now they're saying it should be covered by that legislation. You can't skate on both sides. Either it should be or it shouldn't be.
I'm trying to skip through here at a terrible rate given the importance of this matter.
There are multiple dynamics going on in the RCMP, the least of which is the participation of women in the culture. Remember that this legislation is going to affect, hopefully improve, the culture, the role of women — and I'd invite you to read page 85 of the report — and how these women will improve the RCMP. The decision making for that will require an organization to adapt to 2016, not 1833. If we cannot find ways to change the culture so women want to work in the RCMP, we will be the ones who suffer.
Regarding the diversity in the RCMP higher echelons, within the last 12 months I believe up to four deputy commissioners were leaving. One is a woman who was a deputy commissioner respected by everyone and has had long service with the RCMP. She was head hunted but now is leaving. This culture cannot improve if we don't change the dynamics.
I would also ask you to read — and I'm going to go quickly here — the report on page 66, the quote by Professor Pfeffer on the report on management capacity —
The Chair: I'm sorry, but can you wrap up here so we can get in some questions here? It's not me, sir, but time constraints have been put on the committee. We would like to ask you some questions pertaining directly to some sections of the bill. Okay?
Mr. Aust: Okay.
Senator White: Thank you for being here Mr. Aust. I have a quick question, and I know you will come up with a quick response.
The point that I would argue is missed in Bill C-7 is that the Supreme Court of Canada stated there had to be good faith negotiations and good faith bargaining as a result of whatever the Government of Canada decided to do.
Can you tell me if you can see good faith bargaining coming as a result of this legislation?
Mr. Aust: My experience is on the pendulum of good faith and no good faith. I would not want to see the present parties, without a facilitator chairing negotiations — and it could be included in the law — attempt by themselves, as neither of them have had sufficient experience in negotiating, to try and deal with the multiple issues and the complexity of this situation.
You would have to change your framework in Bill C-7 to provide for other participants — and I dealt with that in my report — as to who those participants should be and who should have the power to invite them.
Senator White: But, Mr. Aust, even with the exclusions, would you not agree that good faith is thrown out the window anyway?
Mr. Aust: I would say the associations would have a serious right to contest this legislation based on the decision of the Supreme Court and that Parliament, the House of Commons and the Senate did not take into enough consideration the framework of the interpretation of the Supreme Court as to what section 2(d) means.
[Translation]
Senator Dagenais: Thank you for your presentation, Mr. Aust. That is the first time I have seen the French version of your report which we just received.
Mr. Aust: I'm sorry, but that is not the report. It is just the recommendations. The most important part of the report sets out all the decisions with respect to which I have raised problems with Bill C-7. I thought that part would have been sent to the House of Commons and to the committee did the study.
Senator Dagenais: I hope we get the report. Recommendation 2 says:
The Council should no longer make recommendations concerning the work conditions (salary, benefits and allowances) under the jurisdiction of the Treasury Board to the RCMP.
Recommendation 2 says that you no longer make recommendations to the RCMP. Is that correct?
Mr. Aust: No. Right now, the Pay Council makes recommendations only on matters relating to Treasury Board's areas of responsibility. Its role is limited. I recommended that the Pay Council should be able to make recommendations on all aspects of working conditions, in keeping with the decision in the BC Health Services case, which held that employees and their representatives have the right to make representations on all their objectives in the workplace. That's a huge range of subjects. That's why exclusions can be refused in bargaining. They have the right to refuse if the union wants to include them in the collective agreement, but they are still required to discuss them in good faith.
Senator Dagenais: Bill C-7 does not require that a secret vote be held for union accreditation. Given the almost military nature of the RCMP, don't you think it is unwise for police officers not to have such a provision, so as to avoid being singled out on the issue of allegiance? As Senator Carignan said, a secret vote is important, not only to protect police officers against union competition, but also to protect them from their employer, who could single them out and take reprisals. What do you think?
Mr. Aust: First of all, only a person with your experience could ask that question.
Very often, the union does not want to hold a secret vote, because it wants to be accredited based on the signed cards held by the accreditation panel. The problem is that in some cases this can work against the union, while in other cases it can work in its favour. The current conditions at the RCMP have to be examined. Perhaps a secret vote is needed.
Senator Dagenais: To protect the employer?
Mr. Aust: It would protect both parties, in a sense.
[English]
The Chair: Colleagues, I want to thank Mr. Aust.
Mr. Aust: I have given the clerk several documents; one of them is 30 pages on the issue of good faith. I would invite you to read it, and also a presentation that was done on the history of why it's important for police to have a different structure because of the statutory power under the Constitution.
The Chair: Thank you very much, Mr. Aust.
Joining us in our fourth panel today is Mr. Eli El-Chantiry, President of the Ontario Association of Police Services Boards and Chair of the Ottawa Police Services Board. He is also a city councillor in Ottawa. Congratulations.
Welcome to the committee.
Eli El-Chantiry, Councillor, City of Ottawa, Chair, Ottawa Police Services Board: Good afternoon. Thank you for the opportunity to speak to you today. My name is Eli El-Chantiry. I'm the Chair of the Ottawa Police Services Board, also the newly elected President of the Ontario Association of Police Services Boards.
Policing is at the forefront of what we focus our attention on, primarily from the point of view of governance. As well, we are focused on the relationship with our police services through the chief and the executive and the associations that represent the police employees in the province of Ontario.
So we have the OPA, the Police Association of Ontario, and also the senior officer within our own city in Ottawa.
The need for strong police governance is essential, from my point of view, for both accountability and a level of oversight. I believe every police agency in Canada should have an independent governance structure to ensure that communities and taxpayers understand that they have a representation in the police. As I always said to my board colleagues, we represent the community. We don't represent just the police. We want to provide the police service with what they need, but at the same time, we need to represent the community's needs. We need the right people to do this. They must have the tools and skills necessary to meet the challenges.
I have reviewed the legislation — obviously not much from Friday — and have considered some of the concerns that have been raised in the discussions of this committee. I appreciate there are challenges between police associations and those overseeing police services, as boards and as governments, but the importance of legislation like Bill C-7 is that there is a foundation for strong negotiations as a result of strong governance.
The Royal Canadian Mounted Police play a significant part in the development of Canada and remain a powerful part of our identity. On the whole, police officers are key to the safety and security of this nation. Unlike in most nations, they represent the public, ensure the rule of law and work for all of us. We hold in high esteem those men and women who take on the duty and role of a law enforcement officer.
It is key that when we work with those representing the police — in this case the members of the RCMP — that we have a fair system of representation as stated by the Supreme Court of Canada:
The government cannot enact laws or impose a labour relations process that substantially interferes with the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals. Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters. Similarly, a process of collective bargaining will not be meaningful if it denies employees the power to pursue their goals.
I see fairness as being essential to a fair and just negotiation. Not always do the police boards win in negotiations, but it is extremely important that the negotiations take place and that they be relevant.
I know we are pressed for time, so I will cut my presentation short.
I have been elected to city council since 1993. I have been on the Ottawa Police Services Board since then. I have been the Chair of the Ottawa Police Services Board for almost a decade now. I have been on the Canadian association of police services and the Ontario Association of Police Services Boards, and I was just recently elected as President of the Ontario Association of Police Services Boards.
I negotiated with our association in good faith. We don't always agree, but there is always a process in place if we don't agree.
I will leave it at this point because I know you're pressed for time, so we will go to your questions.
Senator White: Thank you for being here, councillor. My focus is on the bargaining piece and the importance of good faith.
We have a piece of legislation before us that has excluded a number of issues that are found in collective agreements, including the Ottawa police agreement, but as well right across Ontario and Canada, pieces of the negotiations, things like transfers, grievances and promotions, that are actually excluded from negotiations so that the membership will have no one representing their interests, even involved in the development of the process by which the organization can operate.
From your perspective, excluding those types of things from a collective agreement, even the ability to negotiate, do you see those as being detrimental to bargaining in good faith?
Mr. El-Chantiry: Thank you, Senator White. I don't have to remind you — you were chief — when we have folks unhappy with the process of promotion, a handful — maybe more — of officers didn't feel the process was fair to them, so they came to the board. I know that's within the jurisdiction of the chief. At the time I was chair, so I asked the chief. There were more than a handful, but a handful approached me to look into this process. Can we ask you to have a third-party review? Can we ask you to meet with these folks and deal with them?
My job is not to interfere with the chief operation but as an oversight party. The chief still works at the pleasure of the board. As a board, we are concerned when a handful of officers have concerns about a specific promotion, wherein they're not happy with the process or how it took place. Then the chief commits to the board, "I will deal with a third- party review, which will set the process, and we'll bring it back to you as a board to show you a process has been developed with a third party.'' I believe folks were happy with that. I'm not sure if that answers your question.
Senator White: Just to be clear, it was because you were able to negotiate with the association on those types of issues.
Mr. El-Chantiry: Absolutely. Yes.
Senator White: If they were excluded and only I could deal with them, then what would you do?
Mr. El-Chantiry: We can't do it if any party is excluded, whether the association or the chief. When you talk about good faith, good faith means if the association came up with a grievance for something and has the right to grieve, then our job is to work with you to settle those grievances. Actually, we do that on a daily basis, not just for a promotion.
In my humble opinion, I don't think you can have good governance in the absence of one of these parties, whether it's the association or the chief, for that matter, because we need that cooperation among them.
[Translation]
Senator Dagenais: Mr. El-Chantiry, you have experience with police services. A police service is a public service responsible for protecting the public and, to do so, it needs enough personnel to attend calls. I was surprised earlier, and I don't know if you were in the room, when Commissioner Paulson told us that if an officer working alone in an isolated area receives a call and does not feel safe in attending alone, he does not attend. I would like to hear your comments on that.
[English]
Mr. El-Chantiry: If I understood the question, senator, a member didn't feel safe to go on a call. Health and safety is important to all of us, so we have a policy in place that gives staff an opportunity to assess.
I represent a rural, very remote area, and when we have a domestic call, our staff will wait. The police officers will assess the situation and say, "I'm not answering it.'' A rural area is peaceful, but sometimes a lot of these people have high-powered rifles. As you may know, there are a lot of hunters. The officers will assess the situation and say, "No, we're going to wait for backup.'' Sometimes they have flexibility where after a certain time of night one person cannot attend a call, so they join together and two officers will ride to those calls.
We don't tell them what is safe for them; they have to tell us if they feel safe to attend a call. I don't think it would be fair for someone like me sitting at city hall to say, "You should have gone to this call at two o'clock in the morning and you would have been safe because so and so is a good person.'' I don't think I am on a level where I should be interfering with the operation.
[Translation]
Senator Dagenais: As you pointed out, police officers talk to each other and hear what is said in English and in French regarding a backup. To get a backup, there has to be enough personnel. If the RCMP does not have the personnel, as I understand from Commissioner Paulson's comments, the officer does not attend the call. The police force is responsible for having sufficient personnel. I know you are not speaking for Commissioner Paulson, but thank you very much.
[English]
Senator Campbell: Thank you very much for coming today. Like you, I was on the police board in Vancouver, and so my question to you is pretty simple. There are a number of exclusions in this bill, and the suggestion from the commissioner was that it ''need not be listed in this fashion.''
Is there anything like this within your purview that excludes these types of issues, like in Ottawa?
Mr. El-Chantiry: No, we don't, sir, without knowing all the exclusions you're talking about. I just saw some of them with the bill.
In one of the exchanges, I heard debate about the equipment and who should make a decision about the equipment. We'll go back to the previous chief, current senator, he proposed a BearCat vehicle. Was it the BearCat?
Senator White: Yes, it's a BearCat, an armoured vehicle.
Mr. El-Chantiry: It was outside the scope of the budget, so he doesn't have the delegated authority to spend that kind of money. He has to bring the full report to the board because it's over his capacity of $100,000. That's dealt with under equipment, so in the normal process, if it's something within the chief's budget it's discretionary. Because this is over and above his spending limit, he has to come to the board, and the board has to approve the purchase of the vehicle.
I heard some of the debate on C-7 about who should decide on equipment. There are some areas that the chief obviously knows more than us, as you know, you were a board member, on the operation side as to what equipment we need.
At the end of the day, something might have a public interest. With the taser in Ontario, the province allows police to have the taser, but then they told the boards to develop a policy on the taser, so we have to develop a policy. But then the chief cannot purchase any taser because the only source of that device was Taser company, so that means there is no RFP, request for proposal, so you're dealing with sole sourcing. In policing it's a concern when you want to spend $100,000 or $200,000 with no competition. I, as the chair of the board, and who I represent, the public and the taxpayers' purse, said to the chief then you have to bring a detailed report stating you have done your due diligence and we're not being gouged by one company versus another.
When it comes to equipment, if we are honest, I don't want to say we were always on the same page because a lot of times we were not on the same page. But if that was a clear direction, then there is no room for misunderstanding. So the chief will understand, if he needs those tasers this is the policy. Yes, you can pick and choose the equipment you need, but if you're going to go with single sources then you have to come to the board for approval.
I hope I explain properly.
Senator Kenny: Welcome councillor. It's really good to see you here. Just to continue Senator Campbell's question, when equipment was being purchased, did the union have a chance to comment on it?
Mr. El-Chantiry: I do not believe the union will comment to the board. The chief reaches out to the union member or the association member that's within his provision, but the board deals with the chief. The union doesn't come to present to us directly, "We want this and we don't want this.'' No.
Senator Kenny: I wasn't really referring to the armoured vehicle that the chief wanted to go to work in and come home with, but really, what I was asking was how members of the Ottawa Police Service would, if they didn't like a uniform, say they thought their jackets weren't comfortable in the wintertime. Was that something they could raise, and how would they deal with it? Did their contract allow them to bargain for a warmer jacket in the wintertime?
Mr. El-Chantiry: Yes, they do, sir. With the bargaining collective agreement, they do. So let's say if the police union wants their members to have the taser, perhaps, because now the province allows front-line officers to have a taser, so yes, they negotiate with the executive, with the chief and deputy representative of the chief; they work together, and obviously there is no point in bringing something the membership doesn't feel is the right equipment. Obviously, we take their comments in a very serious way because they represent the front line. So if the front line is telling us they need a certain type of jacket, well, who knows more than the front line to recommend those jackets? Now they come to the board for approval or to the chief to present it to us.
Senator Kenny: Right. So I take it you would think it was rather strange if there was a law passed that didn't allow regular constables to express their views at the bargaining table about uniforms?
Mr. El-Chantiry: I would have to say it will depend on those folks. They know best what they need. Our job is to provide them what they need because they are the ones who can tell us about that type of equipment. Senator, who knows more than the front line? For example, they told us not to buy the Dodge Ranger because they are not equivalent to another type of car. The management thought maybe we can get a saving if we buy that type of car. We tried it as a pilot project. They tried it. It doesn't fit the equipment properly. There was not enough room in the back seat. So obviously we give those cars to the OC Transpo security arm.
Sorry, I'm talking about my own experience in Ottawa. Maybe it's not so important to everybody, but that's my experience here.
The Chair: That's all we want to hear. This brings it down home.
Mr. El-Chantiry: Okay, thank you, Mr. Chair.
We find we should have listened to our members that changing the type of vehicle was not a wise choice. We should have listened. The front line knows best. Especially, senator, when it comes to health and safety.
I remember the debate came to us on carbine 7 versus 8. Then it doesn't matter anymore whether the chief agrees with it or not. Now we asked the tactical unit to make a presentation to us to explain to those civilian members like myself what the difference is between C-7 and C-8 and the benefit to the membership to have them in the vehicles. As you know, policing has changed and evolved quite a bit, and the best people, in my opinion, who will benefit from their experience is the front line.
If a front-line member comes to you and says, "Senator, I don't feel safe to go on a call alone to Fitzroy Harbour in West Carleton,'' I have to believe his assessment of the situation is accurate. Why? Because he is almost half an hour away from the nearest police presence, so why would you want him to take a chance on something he's telling you he doesn't feel safe doing?
I have to trust my people, my staff and my employees that they will give me the right assessment here. They're not doing it in a facetious way saying, "Oh well, we want more staff,'' because at the end of the day he has to wait until he gets the backup to support him.
Senator Kenny: All right. That was very helpful. Could you just to put on the record for us here tell us about the responsibilities of the police board? What are the areas that you consider part of your jurisdiction?
Then I'll have a brief question for you after that.
Mr. El-Chantiry: The police board in Ontario, Mr. Chair, which might change in other provinces, has three representatives from the city, which are elected officials. In the province of Ontario the mayor has an automatic seat on the police board. Some mayors choose to take it, some don't. Some take it and become the chair. Again, three are elected from city council, three are appointed by the province and one member is selected at large from the public. There are seven members if you're a police service and not a detachment or a small service. I believe any over 65 have to have a full board made up of seven.
Our mandate is basically to hire the chief, the two deputy chiefs and the director general, which is equivalent to a deputy chief. Our job is to develop with the chief a business plan to represent our community and our community needs. Also, our job is to provide our police with the budget, so the business plan, every three years, and working with the chief and his staff.
Also, we are the employer. The police board is the identity of the police, so if the Ottawa police are going to be sued, it's not the Ottawa Police Service that is sued. They sue the Ottawa Police Services Board; we are the identity. If the chief recommends at some point — and they still don't have the power to do that, unfortunately — to fire somebody, even firing someone on probation, it has to come to the police board. If you have a police officer under a year, we have the right to limit that employment contract. We will recommend it to the board, and the board ultimately will make that decision.
It is the same as appointing special constables. The chief recommends them, even the special constables at the universities and on transit. All the special constables within our capacity are recommended by the chief but are approved by the board. Ultimately, the board as the employer can make those decisions.
Senator Kenny: If I heard you correctly, you said every police service in Ontario, including the OPP, has a board.
Mr. El-Chantiry: Well, the OPP has a different set up, and I would love to explain that to you, because in the OPP we have section 10 and section 5.1. Pembroke is a good example. As a city, they have a contract with the OPP. The OPP provide the policing. They have a board. But the board does not negotiate a contract with the OPP. They negotiate the costing of policing and everything else, but when it comes to OPP salaries, it is negotiated by the province. The OPP have their own association, if I might say this.
Senator Kenny: In light of your experience, do you think that the RCMP would benefit from a board?
Mr. El-Chantiry: From what I said, as the Chair of the Ottawa Police Services Board and the president of the association of police boards of the province, I believe there would be a great deal of benefit, because, first, we are civilian, and second, at least in Ottawa, we don't collect any remuneration. We do it as part of being a councillor. So I do it just because I believe I represent the community. I don't just represent the interests of the police. I hold that balance sometimes. For example, police and fire have a habit across the country of hiring their nephews and their cousins, as you know. I don't have to tell you; just look in the phone book and you'll see who's who. So the police board comes in and says, "No. One of our policies is we need diversity on our police service. We need to engage more the gay and lesbian community, new Canadians, Aboriginals and so forth. We want you to hire what you see on the street, not what you see at the police station or in a mirror.'' That's where the board can play a role to represent the community and what the community needs. As you know, there is a habit within police and the Red Cross right across the province and the country, the blue line, the blue water. It is all good, sometimes. Brotherhood and sisterhood, it's all good. But you still need the governing body to be able to represent the community. What does the community want? I go to the police board and say: "Look, I have 100 emails, most of them about traffic in my community. So, chief, what are you going to do about the traffic?'' Now, I don't tell the chief what to do or how to do it, but I have to tell him traffic is a concern in my city. Guns and gangs is a concern in my city. Whatever concern we have, we are the civilian body where people trust you to represent them. That's what I believe is a huge benefit.
If you want to have a board, we need to have that power of oversight. My power is that if the chief doesn't comply with what I'm doing, well, I can fire that chief. That's my power. If I don't have that power, the chief can tell me, "Okay, say whatever you want.'' You don't have that. You're powerless. So I think with power comes responsibility, and that will make a better government on both sides, so the chief will know he has to work at the pleasure of the board, and the board will know we are working with the chief to provide him with the tools he needs to do a good job for our safety. I hope I explained it.
Senator Kenny: Thank you very much, councillor. Thank you, chair.
Senator Day: Thank you for being here and explaining your particular arrangement of how things are handled.
What we have to look at is legislation for the RCMP that's being fit into the public service relations legislation. So they have a little bit of a different scheme where they said certain things can go to collective bargaining and be in a collective agreement, but other items are excluded. Those items are things that are preserved specifically for management, either Treasury Board or the employer directly.
But then they create another means of communication between the certified body, the union and management, and that's called "consultation committees,'' where they discuss lots of different things. They must establish these, and one of the items that they talk about is harassment in the workplace. Are you familiar with that type of management structure, where it's not all collective bargaining but it's still the union and management talking about issues in a different manner than in the collective agreement?
Mr. El-Chantiry: We talk about harassment in the workplace, so we hear about it just like anybody else. Now, if the chief is dealing with the harassment and is doing something about it, it's fine. If something comes to the board, well, the board will ask the chief: "We heard there is harassment in the workplace. What are you doing about it?'' Or we can create a policy and say that you have to follow that policy, and the chief will have to deal with that policy.
Senator Day: Would you leave it to the chief to set up a consultation process with the union?
Mr. El-Chantiry: I have no problem if he wants to develop consultation with the union, but at the same time, we have to have a policy in place where we can measure. I want to make sure I have a policy in place, while the chief can just easily say to me, "Oh, yes, we had 10 complaints and we dealt with it.'' No. "Please tell me how you dealt with it, because we have a policy here, and we need to see if you met all those policy conditions.''
Senator, in my opinion, there is no fear of having oversight because sometimes even with the oversight, we hear something slipped through. So I always like to see that even if they are not happy with the board process itself, they have another level in Ontario you can go to. We have the Office of the Independent Police Review Director, OIPRD. He could review those complaints. We have the Ontario Civilian Police Commission, OCPC. So they have a place. Even if the board is not doing their due diligence, holding the chief accountable, the other bodies have the authority to call the chief in.
Senator Day: Do they look into items that are not in the collective agreement as well?
Mr. El-Chantiry: Yes.
Senator Day: Relationships?
Mr. El-Chantiry: Yes, they do, sir.
Senator Jaffer: Thank you very much for being here. You really helped us a lot. My problem is with management, and you explained that well. The thing I've been struggling with in preparing this last weekend is the issue of good faith, and you explained that.
We have heard that people are less interested in joining the RCMP, and you wanted to comment on that, but my concern is the good bargaining practice. If the men's hands are tied at their back with eight exemptions, and because you have for so many years worked on a police board, what is a good bargaining practice?
Mr. El-Chantiry: We have to have good faith. I'm not saying, senator, it's always going to work. Sometimes, as you know, you have an association or a union team different than another. But in our experience in Ottawa, we never have a problem with the senior officer association. We always negotiated. We have always done it in a good manner in a short time. Sometimes we reach an agreement with the union, sometimes we don't, but we have a binding arbitration process in this province. Before we go to arbitration, we sometimes go to conciliation, and the conciliation will meet with both of us, labour relations person, and tell us that you're asking too much, you're not asking enough, let's strike a balance here.
If you want me to talk about arbitration, we need a full meeting for that.
Senator Jaffer: I understand.
Mr. El-Chantiry: When police are not allowed to strike or take job action, you have to provide them with a way to express their concern on the collective agreement. If you and I disagree, we can go to the chairman. If we still don't agree, we have another body to go to. It's been working because 94 per cent of the collective bargaining in the province of Ontario is done between the board and the union. Only 6 per cent to 7 per cent goes to binding arbitration. You can see the trend. People can still work together and negotiate in good faith.
Senator Jaffer: Do you consider that public interest?
Mr. El-Chantiry: Yes, I do, absolutely.
The Chair: I want to thank our witness for appearing, especially on such short notice. This is an important piece of legislation we are dealing with, and we appreciate your expertise. You have brought home to us how it works right on the street, so to speak, on the front line.
(The committee continued in camera.)