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Legal Issues

Pressure to Review the Treatment of Afghan Detainees

  • The Canadian Armed Forces respects the rule of law and the dignity of all persons.
  • Canada handled, transferred, or released individuals detained by the Canadian Armed Forces in Afghanistan within our legal obligations.
  • The Canadian Armed Forces examined allegations regarding the treatment of Afghan detainees, and no charges have been laid in any case.
  • At this time, there is no information that warrants any further inquiry into Canada’s role in Afghanistan.
  • I am aware of the recent decision by the International Criminal Court to authorize an investigation.
  • While Canada was not specifically mentioned, we continue to take any allegations of misconduct seriously.

Key Facts

  • Multiple investigations and inquiries have examined this issue including:
    • A Board of Inquiry; and
    • A Public Interest Hearing and Public Interest Investigation by the Military Police Complaints Commission.
  • The Public Interest Investigation is currently ongoing, the Military Police Complaints Commission conducted additional witness interviews, submitted an Investigation Report to the Commission Panel, and provided additional documents and information.

Details

  • Throughout Canada’s military operations in Afghanistan, the Canadian Armed Forces handled, transferred, or released individuals in accordance with our legal obligations. Consistent with the rights and protections of the Third Geneva Convention, detainees were treated humanely at all times, and under all circumstances; even if transferred to the Afghan authorities. As such, the Canadian Armed Forces provided detainees with food, shelter, and medical attention. In addition, deploying members received pre-deployment training regarding the handling, treatment, and transfer of detainees. In addition, specific pre-deployment training for Canadian Armed Forces members involving the handling and transfer of detainees was provided.

Investigations Regarding Treatment of Detainees

  • Multiple investigations and inquiries and a civil court examined the allegations regarding the treatment of detainees during military operations in Afghanistan. These include:
    • 2007: Litigation in the Federal Court of Canada brought forward by Amnesty International and the British Columbia Civil Liberties Association;
    • 2008: A four-year Public Interest Hearing launched by the Military Police Complaints Commission;
    • 2010: A Board of Inquiry by the Vice Chief of the Defence Staff examining a June 2006 detainee incident;
    • 2011: An investigation conducted by the Canadian Forces National Investigation Service into the alleged misconduct by the military police; and
    • 2015: A Public Interest Investigation launched by the Military Police Complaints Commission. This investigation is still ongoing.
  • No charges have been laid nor has any civil liability or responsibility been attributed.

Request for an International Criminal Court Investigation

  • In November 2017, former NDP MP, Craig Scott, submitted a brief to the International Criminal Court arguing that successive federal governments abdicated their responsibility to investigate reports of torture in Afghanistan.
  • On 6 March 2020, the International Criminal Court authorized a formal investigation of alleged war crimes by US and Taliban forces in Afghanistan.

Version 1; 2020-03-09 – Source: QP note: Afghan detainees, JAG letter to MND

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Class Action Lawsuits

Jost Class Action (Reserve Force Pension Plan)

  • National Defence is working to standardize and improve the release process across the Canadian Armed Forces.
  • This will ensure that both Regular and Reserve Force releases are expedited and any issues or errors are addressed before a member releases.
  • As this is a current litigation case, I cannot speak to its specifics.

Frenette Proposed Class Action

  • This Government is committed to providing a work environment free from discrimination and bias, in which all employees are treated with respect and dignity.
  • We fully acknowledge the impact that racial harassment and discrimination has had on members of the Defence Team.
  • This is why we have entered into settlement negotiations to bring closure, healing, and acknowledgement to the victims and survivors of racially-based harassment and discrimination.
  • As negotiations are ongoing, however, I cannot speak to specifics details.
  • I can assure you that we take our obligation to ensure a safe work environment for all members of the Defence Team very seriously.

Key Facts

Jost Class Action

  • June 30, 2017: Former Reservist and Regular Force member files a class action lawsuit against the Attorney General of Canada alleging chronic, unreasonable delays in the payment of military pensions.
  • The Plaintiff is seeking $100 million in damages for breach of fiduciary duty, negligence, and breach of contract.
  • November 5, 2019: Federal Court certified the class action.
  • November 15, 2019: Department of Justice appealed the certification.

Frenette Proposed Class Action

  • December 14, 2016: three former Canadian Armed Forces members filed a class action lawsuit alleging that the Canadian Armed Forces failed to protect racial minorities and Aboriginal peoples from racism.
  • January 2019: The parties agreed to suspend the litigation process and are currently in settlement negotiations.

Details

Jost Class Action Lawsuit

  • The Plaintiff alleges that the Attorney General of Canada is responsible for chronic and excessive delays in the payment of pension entitlements to discharged members of the Canadian Armed Forces (CAF) and has not compensated discharged members for these delays. 
  • The class action is on behalf of all members of the CAF Reserve Force and Regular Force Pension Plans who were entitled, upon release, to Immediate Pension Entitlements from March 1, 2007 to present.
  • In July 2016, the administration of the CAF pension plans was separated from the CAF release process to allow faster processing of pension payments.
  • Under this new process, all pension documentation received from CAF members is reviewed separately and in advance of the release process to ensure payment is ready upon a CAF member’s release. 
  • In Strong, Secure, Engaged, the CAF committed to ensuring all benefits are in place before a member transitions to civilian life.
    • National Defence continues to improve the release process to ensure expedited claims and that any issues or errors are addressed before a member releases from the CAF.
  • There is currently no backlog of pension cases ready to be paid. [with CMP]

Frenette Proposed Class Action

  • The Plaintiffs allege that, while members of the CAF, they were subjected to racial discrimination and harassment based on race or Aboriginal status.
  • Parties are currently in negotiations.

Version 5; 2020-02-17 – Source: CoW, QP Notes on Heyder, Beattie, and Frenette; CoW note on Jost Class Action

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Paragraph 98(C) in the National Defence Act

  • The health and well-being of Canadian Armed Forces members is a top priority for this Government.
  • During its study of Bill C-77, this committee raised concerns regarding Paragraph 98(c) of the National Defence Act, which addresses self-harm in the Canadian Armed Forces.
  • In my letter to the Chair in November 2018, I invited this committee to undertake a study of the challenges on mental health and self-harm in the Canadian Armed Forces.
  • I remain of the view that the advice provided by this committee remains invaluable in helping National Defence create an inclusive and modernized approach to mental health care.
  • As always, we remain committed to ensuring that Canadian Armed Forces members are well supported and receive the care they deserve.

Key Facts

  • Since 2000, only two individuals have been charged with maiming or injuring themselves with the intent of rendering themselves unfit for service under paragraph 98(c) of the National Defence Act.
  • One person was found guilty and was sentenced to a $100 fine. The other charge was not proceeded with by the commanding officer.
  • Since 2000, no charges have been laid for an offence under paragraph 98(c) for having attempted to commit suicide.

Details

  • Paragraph 98(c) of the National Defence Act seeks to address cases where a person subject to the Code of Service Discipline would willfully injure him or herself, another Canadian Armed Forces (CAF) member, or a cooperating force, with the intent to render him or herself unfit for service.
  • Though rarely used, paragraph 98(c) remains an important tool for the military justice system.
  • While the Code of Service Discipline aims to promote operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency, and morale, concerns have been raised regarding paragraph 98(c) in the context of mental health and suicide.
    • During the 42nd and 43rd Parliaments, MP Randall Garrison (NDP) tabled a Private Members’ Bill to repeal paragraph 98(c) of the National Defence Act.
      • He also moved to amend Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, to repeal this same provision.
      • The chair ruled the proposed amendment as out of order.
    • Since 2000, no charges have been laid for an offence under paragraph 98(c) for having attempted to commit suicide.
  • In a fall 2018 letter, the Minister of National Defence invited the Standing Committee on National Defence to undertake a study on mental health and self-harm in the Canadian Armed Forces.

Version 5; 2020-02-24 – Source: QP Note on Self Harm

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Vice-Admiral Norman

  • The Government of Canada and Vice-Admiral Norman reached a settlement on June 26, 2019.
  • By mutual agreement, this settlement includes a commitment by both parties to keep the terms confidential.
  • We thank Vice-Admiral Norman for his 38 years of dedicated service, and wish him well in all of his future endeavours.

If pressed on legal fees:

  • Information relating to Vice-Admiral Norman’s legal fees cannot be disclosed due to privacy concerns.

Details

  • On January 16, 2017, the Chief of the Defence Staff relieved Vice-Admiral Mark Norman from the performance of military duties as Vice Chief of the Defence Staff of the CAF because he was under Royal Canadian Mounted Police investigation. The Royal Canadian Mounted Police alleged in court documents, made public, that Vice-Admiral Norman leaked cabinet secrets to a Davie Shipbuilding executive in Quebec, and advised him how to use the media to press the Government to approve a $667 million supply ship contract.
  • On March 9, 2018, the Royal Canadian Mounted Police charged Vice-Admiral Norman with one count of breach-of-trust by public officer.
  • On May 8, 2019, the Public Prosecution Service of Canada stayed the charge against Vice-Admiral Norman after it was determined that there was no longer a reasonable prospect of conviction.
  • On June 26, 2019, the Government of Canada and Vice-Admiral Norman released a joint statement announcing that both parties had reached a settlement. Following this announcement, Vice-Admiral Norman retired from the CAF.
  • On January 28, 2020, media reported that the Government incurred approximately $1.4 million in legal prosecuting costs.

Version 5; 2020-02-25 – Source: D Parl A Question Period note, “Vice-Admiral Norman”, 2019-12-06

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